Amicus Brief in American Civil Rights Union V. Philadelphia City Commissioners

Amicus Brief in American Civil Rights Union V. Philadelphia City Commissioners

February 13, 2017


Amicus curiae Project Vote Inc. is a national non-partisan, non-profit 501(c)(3) organization based in Washington, D.C., whose mission is to ensure that the American electorate accurately represents the diversity of America’s citizenry. Through its research, advocacy, technical assistance and direct legal services, Project Vote works to ensure that every eligible citizen is able to register, to vote, and to cast a ballot that counts. In recent years, Project Vote has focused principally on issues relating to voter registration, and has developed significant expertise on these issues. Among Project Vote’s core objectives is to ensure that voter list maintenance procedures do not wrongfully remove eligible voters. Project Vote has a substantial interest in this case because of the significant adverse impact that Appellant’s requested relief would have on eligible Pennsylvania voters.

Amicus curiae Demos is a public policy organization working for an America where we all have an equal say in our democracy and an equal chance in our economy. Demos was founded in 2000, and has offices in New York, Boston and Washington, D.C.1 The goals of removing barriers to political participation and ensuring full representation of America’s diverse citizenry are central to Demos’ mission. Demos therefore engages in litigation, research, and advocacy campaigns to support electoral reforms that protect the integrity of government and ensure that the voices of all citizens can be heard. Demos has a substantial interest in this case because it believes that voting rights protections remain indispensable to the goal of full and equal access for all citizens to political participation.2


The effort of the American Civil Rights Union (“ACRU”) to force the City of Philadelphia to strike people incarcerated for a felony from its voter-registration rolls is utterly without merit. Neither the National Voter Registration Act (“NVRA”) nor the Help America Vote Act (“HAVA”) require the Philadelphia City Commissioners (the “Commissioners”) to remove individuals incarcerated for a felony or to conduct list maintenance procedures directed toward removing them from the voter rolls. In arguing that federal law requires the Commissioners to do these things, the ACRU misconstrues the provisions of the NVRA and HAVA, and distorts these statutes beyond recognition. These statutes do not require any list maintenance procedures with respect to criminal convictions; they require list maintenance, subject to strict safeguards, only with respect to voters who have died or moved. Rather than require procedures with respect to voters convicted of a felony, the statutes explicitly defer to state law on this issue. And, contrary to the ACRU’s claims, Pennsylvania law does not require that individuals convicted of a felony be removed from the voter rolls. Rather, Pennsylvania law provides that people with felony convictions who were registered before their conviction are temporarily disabled from voting during their term of incarceration – but are immediately eligible to vote as soon as they are released from incarceration, without the need to re-register.

The ACRU’s arguments are inconsistent with the letter and purposes of the federal laws. The NVRA was enacted to increase voter registration and to slow down the removal of registered voters from the rolls, to ensure that eligible voters are not erroneously removed. To that end, the NVRA imposes strict limits on the reasons for which states may remove voters from the rolls, and strict safeguards on the procedures that states may use to do so. And the NVRA explicitly defers to state law on the crucial question of how the states should address the impact of criminal convictions on voting eligibility and registration status, which vary widely from one state to the next. The ACRU would turn the statute on its head by requiring the Commissioners to invoke procedures that the NVRA explicitly makes discretionary, and by twisting the statute’s limits on voter registration removal procedures into mandates that would force the Commissioners to remove individuals who are properly registered under state law. Whereas the NVRA puts the brakes on registrant removal and roll maintenance procedures, the ACRU would have this Court push the accelerator to the floor. That is not what the law requires or permits.

Nothing in the Help America Vote Act changed the NVRA’s basic ground rules. On the contrary, HAVA explicitly defers to the NVRA’s requirements on the crucial issues relating to the permissible grounds for removing registrants and the procedures for maintaining voter rolls. Though the ACRU repeatedly claims that HAVA expanded the NVRA’s requirements, this is not true. As HAVA’s language and legislative history show, nothing in HAVA changed the limits imposed by the NVRA on who can be removed from the rolls or the procedures that states can use.

The ACRU pretends that it is seeking a modest and easily accomplished adjustment in the Commissioners’ maintenance of the Philadelphia voting rolls, but the consequences of its claims are far broader, and there are powerful policy reasons why they should be rejected. Multiple studies have shown that procedures to purge individuals with felony convictions from the voting rolls have been wildly inaccurate and resulted in the disenfranchisement of large numbers of eligible voters, including a disproportionate number of people of color. In past efforts, countless eligible voters were removed, often without notice, because their names were similar to those of individuals with felony convictions, because election officials relied on inaccurate records, or because election officials blindly removed people with criminal convictions even though their civil rights had been restored. This is precisely the sort of injustice that the NVRA seeks to avoid; indeed, it requires states to ensure that eligible registrants are not removed from the voter rolls.