This week, voting rights groups Demos and Project Vote urged a federal appeals court to uphold a decision dismissing an attempt by the so-called “American Civil Rights Union” (ACRU) to force the City of Philadelphia to conduct an unnecessary purge of its voter rolls. In an amicus curiae brief prepared by the law firm Hogan Lovells, filed in the Third Circuit Court of Appeals, the groups argue that ACRU’s attempt to turn the National Voter Registration Act (NVRA) on its head, to force a voter purge targeting people with felony convictions, is legally untenable and will result in countless eligible Philadelphia voters being disenfranchised.
The ACRU has asserted that the NVRA and the Help America Vote Act of 2002 (HAVA) require Philadelphia City Commissioners to strike voters incarcerated for a felony from the voter rolls. In the brief, the voting rights groups strongly refute this assertion, as Pennsylvania state law does not strip these individuals of their right to stay registered. Pennsylvania law, in fact, permits individuals convicted of a felony to vote immediately upon release from incarceration, without having to re-register, and indeed permits them to register from prison if they are going to be released before the next election. The NVRA and HAVA explicitly defer to state law on the question of the effect of criminal conviction on voter registration and eligibility, and do not require the Commissioners to disregard clearly established state law, Hogan Lovells argues in the brief.
In addition to being legally dubious, ACRU’s requested purge is bad policy, and inconsistent with congressional intent in adopting the NVRA and HAVA. The brief cites multiple studies demonstrating that efforts to purge individuals with felony convictions from the voting rolls have resulted in the disenfranchisement of large numbers of eligible voters. Voters have been wrongfully purged—often without notice—just because their names happened to be similar to those of convicted felons. Election officials have frequently relied on false or inaccurate records, or haphazardly removed people with criminal convictions without checking to see whether their right to vote had been restored in accordance with state law.
“The bedrock principle of our democracy is the freedom to vote,” said Scott Novakowski, counsel at Demos. “The American Civil Rights Union’s baseless lawsuit, directed at a city in which a majority of the residents are people of color, is nothing more than an attempt to strip voters of this most basic civil right. Rather than adding barriers to vote, we should be removing them to ensure the diverse voices of America are heard loud and clear. Pennsylvania has decided that individuals with felony convictions are nevertheless entitled to have a voice in their government. Under the NVRA, that decision must be respected.”
“The ACRU’s case is trying to turn the NVRA—a law meant to protect eligible voters—on its head, in order to unlawfully take the right to vote away from eligible Americans who have paid their debt to society,” said Michelle Kanter Cohen, election counsel with Project Vote. “Studies and experience show that voter purges targeting individuals with felony convictions disenfranchise eligible voters, and disproportionately rob communities of color of their voice.”
“In their lawsuit, the American Civil Rights Union misconstrues the governing federal laws in an effort to make it more difficult for people to vote, especially people of color,” said Ira Feinberg, a partner at Hogan Lovells. “The NVRA was intended to put the brakes on state voter purges to ensure that eligible voters were not erroneously removed from the rolls, but the ACRU is seeking to push the accelerator to the floor. That is not what federal law requires or permits.”
The case, American Civil Rights Union v. Philadelphia City Commissioners, No. 16-3811, is currently pending in the Third Circuit Court of Appeals based in Philadelphia. The case was filed in April 2016 and subsequently dismissed in September 2016 by Judge C. Darnell Jones, II, of the Federal District Court for the Eastern District of Pennsylvania.