                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-8-2001

Welker v. Clarke
Precedential or Non-Precedential:

Docket 00-1161




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Welker v. Clarke" (2001). 2001 Decisions. Paper 23.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/23


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed February 8, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1161

JULIE WELKER; WELKER `99;
EVA K. COHEN; SYLVESTER GRIFFIN;
ALAN BURGESS

v.

DARRELL L. CLARKE; JOHN DOES; JANE DOES, 1-20;
PHILADELPHIA COUNTY BOARD OF ELECTIONS;
JOHN ROES; JANE ROES, 1 - 20

Julie Welker; Welker `99,

       Appellants

*Amended per Clerk's Order filed 9/5/00

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 99-cv-03552)
District Judge: Hon. Ronald L. Buckwalter

Argued December 5, 2000

BEFORE: BARRY, COWEN and WOOD,**
Circuit Judges

(Filed: February 8, 2001)



_________________________________________________________________
** Honorable Harlington Wood, Jr., United States Circuit Judge, U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
Bruce S. Marks, Esq. (Argued)
Egorov, Puginsky, Afanasiev &
 Marks
1835 Market Street, 28th Floor
Philadelphia, PA 19103

 Counsel for Appellants

Nelson A. Diaz, Esq.
Blank, Rome, Comisky & McCauley
One Logan Square
Philadelphia, PA 19103

 Counsel for Appellee
Philadelphia Housing Authority

Gregory M. Harvey, Esq. (Argued)
Montgomery, McCracken, Walker &
 Rhoads
123 South Broad Street
Philadelphia, PA 19109

 Counsel for Appellee
Darrell L. Clarke

John S. Summers, Esq.
John P. Lavelle, Jr., Esq. (Ar gued)
Hangley, Aronchick, Segal & Pudlin
One Logan Square, 27th Floor
Philadelphia, PA 19103

Howard Lebofsky, Esq.
City of Philadelphia Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102

 Counsel for Appellee
Philadelphia County Board of
Elections

                          2
OPINION OF THE COURT

COWEN, Circuit Judge.

I.

On May 18, 1999, appellant Julie Welker ran against
appellee Darrell Clarke in the Democratic primary for the
Fifth Council District seat on the Philadelphia City Council.
According to the official election results, Welker received
140 fewer votes than Clarke. Immediately following the
election, Welker began an investigation of the area where
Clarke had received the majority of his votes. 1 Welker
maintains this investigation revealed a patter n of fraud and
illegality, including votes cast by persons who did not meet
Pennsylvania's residency requirements. More specifically,
Welker alleged that, contrary to state law, officials of the
County Board of Elections permitted persons who had
moved to vote in the election districts wher e they had
formerly resided. During discovery W elker produced lists of
approximately 300 persons who cast votes, but whose listed
addresses were for abandoned homes and empty lots.2 She
_________________________________________________________________

1. Welker and several supporters initiallyfiled an election contest in the
Court of Common Pleas for Philadelphia County claiming that numerous
signatures in the poll books (indicating who had voted) were forged. The
state court provided an accelerated schedule of discovery and Welker
eventually identified over one thousand supposedly suspect signatures.
On the date both sides were to provide the reports of their handwriting
experts Welker moved to withdraw her petition without prejudice, a
motion that was subsequently granted. In this federal action Welker has
not pointed to a single allegedly forged signature.
2. The Board of Elections presented evidence to the District Court that at
least 54 of the challenged voters did, in fact, r eside in their voting
districts. For example, some of the voters' addr esses were misprinted in
the registration records and others had resided at their registered
addresses at the time of the primary, but had since moved. The Board
also presented evidence that three of the challenged voters had not voted
in the election. There were no findings of fact made by the District Court
regarding these competing claims and we ar e thus unable to determine
how many votes might have been cast by voters who did not then live in
the voting districts in which they were r egistered.

                               3
also identified persons who voted, but who had moved from
the residence listed in the voter registration rolls many
years prior. In two instances, those persons no longer
resided in the city or county in which they voted. She
argues that the intentional or reckless failure of the County
Board and Division officials to comply with state residency
requirements destroyed the integrity of the voter
registration rolls and amounted to stuffing the ballot box in
violation of the Civil Rights Act, 42 U.S.C. S 1983, the
Voting Rights Act, 42 U.S.C. S 1971, and the Fourteenth
Amendment. The validity of these causes of action is based
on the specific allegation in Welker's complaint that election
officials conspired with the Clark campaign to violate
election laws in order to dilute the votes of W elker's
supporters. In the absence of such an allegation, it is not
clear that claims made by Welker would support
intervention by a federal court in this election. 3
_________________________________________________________________

3. This was a purely municipal election, with no federal candidates on
the ballot. There are no contentions that election officials treated the
supporters of the two candidates differ ently. Further, Welker has not
argued that the supposed violations of the election laws could not have
been remedied in a state court action. If W elker's claims were only that
officials negligently maladministered the election by not properly
enforcing the Pennsylvania residency r equirements as interpreted by
Welker, we would hesitate to intervene. Under similar circumstances,
other circuits have determined that such disputes do not state a
constitutional violation and therefore do not rise to the level
appropriate
to support federal court interference in a local election. See Gold v.
Feinberg, 101 F.3d 796, 800 (2d Cir. 1996) (refusing to interfere in a
state election where one-third of voting machines arrived late, some
ballots were defective, and an ineligible candidate was on the ballot);
Curry v. Baker, 802 F.2d 1302, 1314-15 (11th Cir. 1986) (Court found no
equal protection violation in the absence of evidence that
maladministration of local election was the r esult of an intent to
discriminate against voters or to subvert their right to choose their
representative); Hennings v. Grafton , 523 F.2d 861, 864 (7th Cir. 1975)
(finding no constitutional violation where irregularities were caused by
mechanical or human error and were not due to invidious or fraudulent
intent); Pettengill v. Putnam County R-1 School District, 472 F.2d 121,
122 (8th Cir. 1973) (no constitutional basis for intervening in a local
election absent aggravating factors such as evidence of race
discrimination, fraudulent interference with election results, or other
unlawful conduct interfering with an individual's right to vote).

                               4
During the course of the proceedings in the court below,
Welker moved for a preliminary injunction and declaratory
judgment that voters could not vote in state and municipal
elections if they were registered as residing at addresses
from which they had moved pursuant to 25 P .S.
S 961.901(B)(2). The district court denied these motions
concluding that Pennsylvania law did not preclude such
persons from voting. As a result of this ruling Welker
concluded that she could not meet her burden of showing
sufficient illegal votes to overturn the election. Therefore,
she moved for an adverse order dismissing the case in
order to appeal this determinative ruling. Appellees, Clarke
and the Philadelphia County Board of Elections, cross-
moved for summary judgment. The district court granted
the motion for summary judgment and Welker now appeals
that order. Because we agree with the district court that
Pennsylvania law does not preclude persons who are
registered at addresses from which they have moved from
voting, we will affirm the district court's grant of summary
judgment in favor of the appellees.

II.

Welker's underlying claim alleges that the failure of
election officials to enforce Pennsylvania's voter eligibility
requirements amounted to ballot-stuffing and voter dilution
in violation of the Civil Rights Act, 42 U.S.C.S 1983, the
Voting Rights Act, 42 U.S.C. S 1971, and the Fourteenth
Amendment. We exercise subject matter jurisdiction
pursuant to 28 U.S.C. S 1331 and 28 U.S.C.S 1343.

Welker's attempt to prove that illegal votes were cast in
the May 18, 1999, Philadelphia City Council election turns
on the interpretation of S 901(B)(2) andS 501(A) of the
Pennsylvania Voter Registration Act (PVRA). Section
901(B)(2) provides:

       An elector who removes residence fr om one place to
       another within the same county and who has not yet
       filed a removal notice with the commission shall be
       permitted to vote at the election next following removal
       if, at the time of signing [the] voters certificate, the
       elector files with the judge of elections a signed removal
       notice properly filled out.

                                5
Section 501(A) provides in relevant part,"[i]f an individual
is qualified to vote in an election district prior to removal of
residence, the individual may, if a resident of this
Commonwealth, vote in the election district fr om which
residence was removed within the 30 days preceding the
election." Welker urges that the pr oper construction of
these two sections of the PVRA is that, if a person has
moved more than 30 days prior to a state or municipal
election, that person may not legally vote in the election
district where s/he formerly resided unless (a) the new
residence is in the same county; (b) the election in which
the voter seeks to vote is the first election since the move;
and (c) the voter files a "removal notice" with the judge of
election upon showing up to vote. The purported rationale
of this provision is to serve the compelling state interest of
preventing fraud and dilution of the votes of persons
actually residing in the election district. Under this
interpretation, each of the 300 voters identified by Welker
were ineligible to vote.

At first glance this interpretation has some appeal.
However, a closer inspection reveals that Welker's urged
construction conflicts with other, contr olling provisions of
the PVRA and runs contrary to the Pennsylvania
legislature's intent to create a single, unified electorate for
both state and federal elections. Pennsylvania adopted the
PVRA in 1995, in response to the passage of the National
Voter Registration Act (NVRA) in 1993. One of the NVRA's
central purposes was to dramatically expand opportunities
for voter registration and to ensure that, once registered,
voters could not be removed from the r egistration rolls by
a failure to vote or because they had changed addresses. 42
U.S.C.A. S 1973gg(b). To achieve this purpose, the NVRA
strictly limited removal of voters based on change of
address and instead required that, for federal elections,
states maintain accurate registration r olls by using reliable
information from government agencies such as the Postal
Service's change of address records. 42 U.S.C.A. S 1973gg-
6(b)(1). The NVRA went even further by also r equiring the
implementation of "fail-safe" voting pr ocedures to ensure
voters would not be removed from r egistration rolls due to
clerical errors or the voter's own failur e to re-register at a
new address. 42 U.S.C.A. S 1973gg-6(b)(1); See also H.R.

                               6
Rep. No. 103-9, at 18 (1993), reprinted in 1993
U.S.C.C.A.N. 105. Of course, these procedur es were
mandated only with respect to federal elections. 42 U.S.C.A.
S 1973gg(b). States remained free to maintain a different
voter registration system for state and local elections, even
though doing so would create two differ ent electorates.

Because it quickly became apparent that maintaining two
sets of registration rolls would impose massive
administrative and economic burdens, most states elected
to adopt the NVRA registration procedur es for their state
and local elections as well as federal elections, thereby
producing a single, unified registration system and
electorate. Pennsylvania is no exception. In early 1995,
Pennsylvania was sued in federal court for its failure to
comply with the NVRA. See Association of Community
Organizations for Reform Now (ACORN) v. Ridge, et al., Civ.
A. No. 95-382 (E.D. Pa.). The court entered an Order
holding that several aspects of Pennsylvania election law
conflicted with and were therefor e pre-empted by the NVRA
with respect to federal elections. ACORN v. Ridge, 1995 WL
136913 (E.D. Pa. Mar. 30, 1995). The ACORN court
specifically referenced the parts of Pennsylvania law that
required the filing of removal notices for continued
eligibility to vote as contravening the fail-safe pr ovisions of
the NVRA. ACORN v. Ridge, Order (E.D. Pa. May 4, 1995).

In response to the enactment of the NVRA and the
ACORN decision, Pennsylvania enacted significant changes
to its voting laws. When enacting the new election law, the
PVRA, the legislature had two goals in mind - to adopt a
single, unified registration system, fully compliant with the
NVRA for both federal and local elections, while also
maintaining as much of Pennsylvania's pre-NVRA
registration system as possible. The pr ovisions upon which
Welker relies are provisions that were carried over from
Pennsylvania's pre-NVRA registration system. 25 P.S.
SS 961.501, 961.901. Compare 25 P.S. SS 623-21 (repealed),
623-28 (repealed), 951-19 (repealed), 951-26 (repealed).
Recognizing that many of the carry-over provisions were
potentially inconsistent with the NVRA, the legislature also
adopted a parallel set of procedures intended to comply the
NVRA. Those procedures, set out in Chapter 19 of the

                               7
PVRA, were adopted to permit Chapter 19 to supersede the
carry-over provisions if the Secretary of the Commonwealth
determined that the carry-over provisions were inconsistent
with the mandates of the NVRA. 25 P.S. S 961.5103. Within
weeks of the passage of the PVRA, the Secretary suspended
SS 906-912 in deference to Chapter 19. Pennsylvania
Bulletin Vol. 25, No. 28 (July 15, 1995).

Chapter 19 of the PVRA establishes procedur es virtually
identical to those of the NVRA for the removal of voters
from Pennsylvania registration rolls for state and local
elections. Section 1901 strictly limits the manner and
circumstances under which a voter's registration may be
canceled. 25 P.S. S 961.1901. Section 1901(a) provides:

       An elector's registration shall not be canceled except as
       follows:

       (1) At the request of the elector.

       (2) Upon the death of the elector under section 905.

       (3) Upon confirmation that the elector has moved to a
       residence outside the county.

       (4) Under a voter removal program as pr ovided for
       under subsection (b).

Subsection (b) specifies the required and permissible voter
removal programs, which requir e the updating of
registration records based on either information supplied
by the Postal Service or obtained by a commission through
countywide confirmation mailings and per mitting the use of
district-wide canvasses and confirmation notices mailed to
voters who have not voted within five years. 25 P .S.
S 961.1901(b). Further, S 1901(d) narrowly restricts the
ability of a commission to cancel the registration of a voter
if there is any possibility the voter has changed residence.
Under the terms of Chapter 19, none of the 300 voters
challenged by Welker voted illegally.

There is a clear conflict between appellants'
interpretation of SS 961.501 and 961.901 and Chapter 19.
The Pennsylvania legislature and the Secr etary of the
Commonwealth have made it exceedingly clear that when
such conflicts arise, the provisions of Chapter 19 must

                               8
control. To hold otherwise would be to cr eate a system
whereby some voters are eligible to vote only in state and
local elections, but other voters are eligible to vote in all
elections. This is exactly the kind of dual r egistration
system the Pennsylvania legislature sought to avoid by
enacting the PVRA.

Appellants argue that such an interpretation is contrary
to established rules of statutory construction that hold that
"when construing a statute, it is the function of the court
to give effect to all of its provisions." In re Canvassing of
Certain Voting Machines, 475 A.2d at 1325, 1327 (1984).
This argument ignores the clear dir ection of the
Pennsylvania Supreme Court that:

       The language of a statute must be read in a sense
       which harmonizes with the subject matter and its
       general purpose and object. The general design and
       purpose of the law is to be kept in view and the statute
       given a fair and reasonable construction with a view to
       effecting its purpose and object, even if it be necessary,
       in doing so, to restrict somewhat the for ce of
       subsidiary provisions that otherwise would conflict
       with the paramount intent.

Swartley v. Harris, 40 A.2d 409, 411 (Pa. 1944). The
overriding purpose of the Legislature in enacting the PVRA
was to comply with the NVRA in such a way as to cr eate a
single unified system of voter registration in the state. If
S 901(B)(2) were interpreted in the manner proposed by
Welker, that paramount intent would clearly be defeated.
Thus, the District Court properly deter mined that Welker's
interpretation of the statute could not be given effect. In
affirming the District Court, we are not holding that
S 901(B)(2) is completely null and void. Rather, we are
merely holding that this provision cannot have the meaning
urged by Welker. We will leave it to the state courts of
Pennsylvania, deciding future election contr oversies, to
determine what, if any, permissible meaning might be given
to S 901(B)(2).4
_________________________________________________________________

4. For example, in the present case the District Court noted that
S 901(B)(2) can be interpreted as simply outlining one of several ways to

                               9
Finally, appellants argue that there is no conflict because
they are not suggesting that the contested voters should be
removed from the registration r olls. Instead, they argue
these voters are simply ineligible to vote. W e decline to
adopt this semantic distinction. If voters ar e declared
"ineligible" even though they are r egistered to vote, the
effect is the same -- they are excluded from voting in state
and local elections, while remaining "eligible" to vote in
federal elections thereby contravening the expr ess purpose
of the PVRA to create a unified electorate. If state election
officials were required to implement S 901(B)(2) in the
manner suggested by Welker, it would be necessary for the
voter registration lists to indicate whether voters were
eligible to vote in all elections or only in federal elections.
This would impose the precise burden that the
Pennsylvania Legislature sought to avoid when it enacted
the PVRA.

Appellants' interpretation of SS 501(A) and 901(B)(2)
creates a direct conflict with Chapter 19 of the PVRA. The
legislature was clear that when carry-over pr ovisions like
901(B)(2) and 501(A) conflict with Chapter 19, Chapter 19
is controlling. In light of our construction of the statute,
Welker herself acknowledges that she cannot meet the
burden of proving the existence of "illegal" votes, a
necessary element of her federal claims.

III.

For the foregoing reason, the District Court's judgment of
January 31, 2000 will be affirmed.
_________________________________________________________________

register to vote, thus completely avoiding a conflict between it and
Chapter 19. Welker v. Clarke, Memorandum (E.D. Pa. Oct. 26, 1999).
There may be other possible interpretations that could be applied
consistent with the overall purpose of the PVRA. The meaning of
S 901(B)(2) is not relevant to the dispute before us, however, and it is
not
our intent to fix that meaning in this opinion.

                               10
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               11
