NORA BARRY FISCHER, District Judge.
This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Federal Rule of Civil Procedure 56. Docket Nos. 70 & 74. For the reasons that follow, the motion for summary judgment filed by the Defendant (Docket No. 70) will be granted, and the motion for summary judgment filed by the Plaintiffs (Docket No. 74) will be denied.
At all times relevant to this case, the Association of Community Organizations for Reform Now ("ACORN") was a national organization dedicated to promoting social and economic justice for individuals and families with low and moderate incomes. Docket Nos. 75 & 81 at ¶ 5. Project Vote is a nonpartisan, nonprofit organization seeking to increase the levels of electoral participation among individuals living in low-income, moderate-income and minority communities. Id. at ¶ 10. Project Vote has been developing voter-registration and "Get-Out-The-Vote" programs since 1994. Id. at ¶ 12. Throughout the past seventeen years, Project Vote has collected more than 5.6 million voter-registration applications from citizens living in Pennsylvania's low-income and minority communities. Id. Some of Project Vote's electoral activities were conducted in partnership with ACORN. Id. at ¶ 13. Maryellen Deckard ("Deckard") is a Pennsylvania resident who once served as the head organizer for ACORN's Pittsburgh office. Id. at ¶ 15. In that capacity, she directed ACORN's local voter-registration drive in 2008. Id. at ¶ 16. Deckard intends to participate in future voter-registration drives in Pennsylvania. Id. at ¶ 17. At the present time, Project Vote is developing plans to conduct voter-registration drives during the 2012 election season. Id. at ¶ 14.
Prior to the 2008 general election, there were thousands of eligible individuals residing in Allegheny County, Pennsylvania, who had not registered to vote. Id. at ¶ 28. Both ACORN and Project Vote attempted to alleviate this problem by expanding their voter-registration activities in Allegheny County. Id. Project Vote
ACORN implemented Project Vote's voter-registration model by hiring paid canvassers. Id. at ¶ 32. Deckard served as one of ACORN's supervisors. Id. at ¶¶ 33, 38, 41. During the 2008 election season, ACORN hired more than 300 canvassers in Allegheny County. Id. at ¶ 35. The canvassers typically worked six-hour shifts and were paid at the rate of $8.00 per hour. Id. at ¶ 33. Each employee was paid on an hourly basis regardless of the number of voter-registration applications secured during the course of his or her shift. Id. at ¶ 34. No commission payments or financial incentives were awarded based on the number of applications procured by individual canvassers. Id. at ¶ 32. ACORN merely set an "aspirational" goal of twenty applications per shift for each employee. Id. at ¶ 37. The average canvasser collected slightly more than thirteen applications per shift. Id. at ¶ 40. Roughly 81% of the canvassers failed to satisfy ACORN's production-based expectations. Id. at ¶ 39. No employee was terminated for failing to meet his or her performance goal on a single occasion. Id. at ¶ 41. Instead, canvassers who failed to perform up to ACORN's expectations were afforded opportunities to improve their techniques for engaging potential voters. Id. at ¶ 42. ACORN submitted approximately 40,000 new voter-registration applications to the Allegheny County Elections Division ("Elections Division") during the first ten months of 2008. Id. at ¶ 38.
On May 7, 2009, Allegheny County District Attorney Stephen Zappalla ("District Attorney") filed criminal charges against seven individuals, alleging that they had committed criminal offenses related to the submission of fraudulent voter-registration applications. Id. at ¶ 43. Five of the seven individuals charged with crimes were former ACORN canvassers. Id. All seven individuals were charged, inter alia, with violations of 25 PA. CONS.STAT. § 1713, which provides:
25 PA. CONS.STAT. § 1713. The District Attorney pursued the charges under § 1713 based on language contained in the related affidavits of probable cause suggesting that the charged individuals had been hired by ACORN in June 2008 and terminated three weeks later for failing to satisfy a daily registration "quota." Docket Nos. 75 & 81 at ¶ 46.
ACORN commenced this official-capacity action against the District Attorney and Attorney General Tom Corbett ("Corbett") on July 22, 2009, alleging that § 1713, both on its face and "as applied" by the District Attorney, was violative of the First and Fourteenth Amendments to the United States Constitution. Docket No. 1. On October 27, 2009, the Court approved a consent agreement that had been executed by ACORN and the District Attorney.
ACORN announced on March 23, 2010, that its offices in Pittsburgh would be closing on or before April 1, 2010. Docket No. 31 at ¶ 8. On April 15, 2010, ACORN sought leave to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(2).
Shortly after a telephone conference conducted with the parties on May 28, 2010, the Court granted ACORN's motion for leave to amend pursuant to Federal Rule of Civil Procedure 21. Docket No. 37. Rule 21 provides:
FED. R. CIV. P. 21. The Court permitted ACORN to add Project Vote and Deckard as plaintiffs because the United States Supreme Court and the United States Court of Appeals for the Third Circuit had previously recognized that Rule 21 could be used as a mechanism for curing perceived jurisdictional defects. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832-837, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989); Mullaney v. Anderson, 342 U.S. 415, 416-417, 72 S.Ct. 428, 96 L.Ed. 458 (1952); Balgowan v. New Jersey, 115 F.3d 214, 216-218 (3d Cir.1997).
ACORN filed its amended complaint on June 7, 2010, adding Project Vote and Deckard as plaintiffs.
ACORN subsequently filed for bankruptcy and ceased all of its operations. The parties stipulated to ACORN's dismissal from this case on November 4, 2010. Docket Nos. 64 & 65. On January 18, 2011, Corbett was inaugurated as Pennsylvania's new Governor. Governor Tom Corbett, http://www.governor.state. pa.us/portal/server.pt/community/ governor_corbett/19926 (as visited on June 14, 2011). William H. Ryan, Jr. ("Ryan"), who served as Pennsylvania's Acting Attorney General after Corbett's inauguration, became the new official-capacity Defendant in this action pursuant to Federal Rule of Civil Procedure 25(d).
Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED. R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir.2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir.2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party's burden of proof. Celotex
In this action for injunctive and declaratory relief, the Plaintiffs challenge the constitutional validity of § 1713. Their claims are cognizable under 42 U.S.C. § 1983, which provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...." 42 U.S.C. § 1983. This statutory provision "does not create substantive rights," but instead "provides a remedy for the violation of rights conferred by the Constitution or other statutes." Maher v. Gagne, 448 U.S. 122, 129, n. 11, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). A plaintiff cannot prevail in an action brought under § 1983 without establishing an underlying violation of a federal constitutional or statutory right. Collins v. City of Harker Heights, 503 U.S. 115, 119, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (remarking that § 1983 "does not provide a remedy for abuses that do not violate federal law"). "Section 1983 `itself contains no state-of-mind requirement independent of that necessary to state a violation' of the underlying federal right." Board of County Commissioners v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), quoting Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
The first step in the Court's analysis is to "identify the exact contours of the underlying right said to have been violated." County of Sacramento v. Lewis, 523 U.S. 833, 841, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The First Amendment provides:
U.S. CONST., AMEND. I. The Due Process Clause of the Fourteenth Amendment prohibits a State from "depriv[ing] any person of life, liberty, or property, without due process of law ...." U.S. CONST., AMEND. XIV, § 1. The "freedom of speech," which is "secured by the First Amendment against abridgment by the United States," is "among the fundamental personal rights and liberties which are secured to all persons by the Fourteenth Amendment against abridgment by a State." Thornhill v. Alabama, 310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).
The First Amendment, which is applicable to the States by virtue of the Fourteenth Amendment's Due Process Clause, prohibits Pennsylvania from enacting a law which abridges the "freedom of speech." U.S. CONST., AMEND. I. Nothing in the text of § 1713 purports to restrain or limit speech. 25 PA. CONS.STAT. § 1713(a).
The Plaintiffs' challenge to § 1713 is rooted in Meyer v. Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). Meyer involved a constitutional challenge to a Colorado criminal statute prohibiting the payment or receipt of money in exchange for a canvasser's act of circulating a petition to place an initiative on the ballot. Meyer, 486 U.S. at 415-416, 108 S.Ct. 1886. Under Colorado law, proponents of an initiative were able to have it placed on the ballot for a popular vote if they could secure, within a period of six months, a number of signatures equal to 5% of the total number of individuals who had voted for a candidate for the office of Secretary of State during the preceding general election. Id. at 416, 108 S.Ct. 1886. The initiative process was available to those who wished to enact a new law or amend the Colorado Constitution. Id. at 415-416, 108 S.Ct. 1886. The challenged statute purported to prohibit the proponents of an initiative from paying canvassers to circulate petitions. Id. Although the statutory provision did not specifically limit or restrain "speech," the Supreme Court determined that it was sufficiently burdensome to potential speakers to warrant a heightened degree of judicial scrutiny. Id. at 425, 108 S.Ct. 1886. Speaking through Justice Stevens, a unanimous Supreme Court explained:
Id. at 421-422, 108 S.Ct. 1886 (footnote omitted). Having explained why the challenged statute raised constitutional concerns, the Supreme Court went on to observe:
Id. at 422-423, 108 S.Ct. 1886. It was noted that the prohibition had the practical effect of restricting access to "direct one-on-one communication," which was described as "the most effective, fundamental, and perhaps economical avenue of political discourse." Id. at 424, 108 S.Ct. 1886.
Because the statute challenged in Meyer impinged upon First Amendment freedoms in an area in which constitutional protection was "at its zenith," the Supreme Court described the burden placed upon Colorado to justify its criminal law as "well-nigh insurmountable." Id. at 425, 108 S.Ct. 1886. The State argued that the law was needed to secure its interest in making sure that an initiative had sufficient grass-roots support to be placed on the ballot, but the Supreme Court determined that the minimum-signature requirement was itself sufficient to address that concern. Id. at 425-426, 108 S.Ct. 1886. In response to Colorado's contention that compensation might provide a professional circulator with a temptation to disregard a distinct statutory provision requiring him or her to verify the authenticity of all signatures collected on a petition, the Supreme Court expressed an unwillingness to assume that such a circulator, whose ability to obtain future assignments was dependent upon "a reputation for competence and integrity," was more likely "to accept false signatures" than a volunteer who was motivated solely by a desire to have an initiative placed on the ballot for popular consideration. Id. at 426, 108 S.Ct. 1886. Separate statutory provisions prohibiting forgeries and false statements in connection with the initiative process were found to be "adequate to the task of minimizing the risk of improper conduct" relating to the circulation of initiative petitions. Id. at 427, 108 S.Ct. 1886. Consequently, the statutory provision prohibiting the payment of petition circulators was found to be in violation of the First and Fourteenth Amendments. Id. at 428, 108 S.Ct. 1886.
More than a decade after deciding Meyer, the Supreme Court again considered the constitutionality of statutes purporting to regulate Colorado's initiative process. In Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 186-187, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), the Supreme Court invalidated three separate statutory provisions. The provisions at issue limited the pool of petition circulators to registered Colorado voters, required paid
Relying on the First Amendment, the Plaintiffs purport to challenge § 1713 both on its face and "as applied" by the District Attorney. Docket No. 38 at ¶¶ 73-78. They further allege that the District Attorney's broad reading of § 1713 constituted such "an unreasonable, unforeseeable expansion" of the statutory language that any convictions thereunder for the conduct described in the affidavits of probable cause would have been constitutionally infirm under the Due Process Clause.
Alexis M. Givner ("Givner") was one of the seven individuals charged with a violation of § 1713. The affidavit of probable cause filed in support of the charge alleged that, on October 23, 2008, Givner had told a detective that she had been hired as a canvasser by ACORN in June 2008 and fired three weeks later for failing to reach her "assigned quota" of twenty-two voter-registration applications per day. Docket No. 77-1 at 28. The affidavit did not specifically allege that Givner had given, solicited or accepted a "payment" or "financial incentive" that was "based upon the number of registrations or applications obtained." 25 PA. CONS.STAT. § 1713(a). The statements contained in the probable-cause affidavits relating to the remaining six defendants were not materially different from those contained in the probable-cause affidavit relating to Givner. Docket No. 75 at ¶ 46, n. 2. According to the Plaintiffs, the statements found in these seven probable-cause affidavits demonstrate that the District Attorney construed § 1713 broadly enough to prohibit ACORN and similarly-situated entities from discharging canvassers who were not obtaining a satisfactory amount of voter-registration applications. Docket No. 76 at 3-4. Their as-applied challenge to § 1713 is based on the premise that Pennsylvania cannot constitutionally prohibit entities such as ACORN and Project Vote from employing paid canvassers and holding them to production-based expectations. Id. at 14-18. Their facial challenge to the statute is grounded in the idea that Pennsylvania cannot constitutionally prohibit them from doing what the plain language of § 1713 proscribes. Id. at 21-23.
This matter comes before the Court in a rather unusual posture. In light of the consent agreement executed by ACORN and the District Attorney, the District Attorney is no longer a defendant in this action. Docket No. 19 at ¶ 5. Moreover,
In a declaration dated April 10, 2011, Michael Slater ("Slater"), Project Vote's Executive Director, stated that Project Vote is actively developing plans to conduct voter-registration drives in Pennsylvania during the 2012 election season. Docket No. 77-1 at 6, ¶ 9. He declared that, at a minimum, Project Vote will pay canvassers on an hourly basis and establish productivity goals for motivational purposes. Id. at 8, ¶ 23. Slater further asserted that if paying canvassers based on the number of voter-registration applications procured were deemed to be "the most effective way to stimulate canvassers to collect valid applications from eligible applicants," Project Vote would want to adopt that payment system. Id. at 8, ¶ 24 (emphasis omitted).
The existence of a "case" or "controversy" sufficient to satisfy the jurisdictional requirements of Article III "is a prerequisite to all federal actions," including those in which the relief sought is prospective in nature. Presbytery of New Jersey of the Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir.1994). In order to establish the existence of a live "case" or "controversy," a plaintiff must demonstrate that: (1) he or she has suffered, or is about to suffer, an "injury in fact" (i.e., an invasion of a legally protected interest that is both (a) concrete and particularized and (b) actual or imminent, and not merely conjectural or hypothetical); (2) there is a causal relationship between his or her injury and the alleged conduct of the defendant; and (3) it is likely that the injury would be redressed by a judgment rendered in his or her favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In a case involving a pre-enforcement facial challenge to a statute alleged to be in violation of the First Amendment, "even the remotest threat of prosecution, such as the absence of a promise not to prosecute," can satisfy the injury-in-fact requirement. Peachlum v. City of York, 333 F.3d 429, 435 (3d Cir. 2003). Where a statutory prohibition implicates First Amendment rights, there is a danger that the statute's "very existence" will cause individuals to refrain from engaging in constitutionally-protected activities rather than run the risk of being prosecuted. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The Supreme Court has described this danger of "self-censorship" as
As noted earlier, the Attorney General argues that this Court cannot provide the Plaintiffs with an "advisory opinion" concerning the constitutionality of § 1713 "as applied" by the District Attorney. Docket No. 80 at 14. The Attorney General is correct in her belief that federal courts do not have jurisdiction to render "advisory opinions." Michigan v. Long, 463 U.S. 1032, 1041-1042, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Under the precise circumstances of this case, however, constitutional considerations must be factored into the question of how § 1713 should be construed. Indeed, the Attorney General concedes that the statute would be unconstitutional if it were to be interpreted broadly enough to prohibit the termination of unproductive hourly employees. Docket No. 86 at 47, 85. Under the Supreme Court's "overbreadth" doctrine, "a statute is facially invalid if it prohibits a substantial amount of protected speech." United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). "The first step in overbreadth analysis is to construe the challenged statute," since "it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." Id. at 293. Because the Court must ascertain the reach of § 1713 in order to determine whether it is substantially overbroad, the Plaintiffs' facial challenge cannot be adjudicated without reference to the competing interpretations of the statutory language posited by the parties in this case.
The Court must "construe the challenged statute" before determining whether it "reaches too far" to withstand constitutional scrutiny. Williams, 553 U.S. at 293, 128 S.Ct. 1830. The language at issue is contained in § 1713(a), which provides that "[a] person may not give, solicit or accept payment or financial incentive to obtain a voter registration if the payment or financial incentive is based upon the number of registrations or applications obtained."
The Supreme Court regularly applies the canon of "constitutional avoidance" when ambiguous federal statutes raise grave constitutional concerns. United States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (remarking that it is incumbent upon a court to read a federal statute to eliminate "serious constitutional doubts" whenever "such a reading is not plainly contrary to the intent of Congress"). This canon is a rule of statutory construction counseling that "ambiguous statutory language" be construed in conformity with constitutional requirements. Federal Communications Commission v. Fox Television Stations, Inc., 556 U.S. 502, ___, 129 S.Ct. 1800, 1811, 173 L.Ed.2d 738 (2009). "It is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable assumption that Congress did not intend the alternative which raises serious constitutional doubts." Clark v. Martinez, 543 U.S. 371, 381, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). "The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction." Id. at 385, 125 S.Ct. 716. It "has no application" in the absence of ambiguous statutory language. United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 494, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001). A federal court has no authority to rewrite an unambiguous statutory provision in order to sustain its validity or avoid a difficult constitutional question. Reno v. ACLU, 521 U.S. 844, 884-885, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).
Federal courts lack the "competence to rule definitively on the meaning of state legislation." Arizonans for Official English v. Arizona, 520 U.S. 43, 48, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). When a challenge is brought against a state statute that has been authoritatively construed by the relevant State's highest court, a federal court is bound by that construction in determining whether the statute violates the Constitution. New York v. Ferber, 458 U.S. 747, 769, n. 24, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). This Court is aware of no decision by a Pennsylvania court delineating the scope of § 1713(a).
The Pennsylvania General Assembly has specifically enacted a rule of statutory construction declaring that it "does not intend to violate the Constitution of the United States." 1 PA. CONS. STAT. § 1922(3). The Pennsylvania courts apply the canon of constitutional avoidance when the validity of an ambiguous Pennsylvania statute is drawn into question. Maryland Casualty Co. v. Odyssey Contracting Corp., 894 A.2d 750, 757 (Pa.Super.Ct.2006). In addition, the General Assembly has expressly directed that all "[p]enal provisions" be "strictly construed." 1 PA. CONS. STAT. § 1928(b)(1). This statutory direction is rooted in the "rule of lenity," which is based on the understanding that ambiguous language defining a criminal offense should not be construed broadly. Commonwealth v. Graham, 9 A.3d 196, 202, n. 13 (Pa.2010). In this vein, the Pennsylvania Supreme Court has explained that "where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt." Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846 (2001). The meaning and scope of § 1713(a) must be ascertained in light of these legal principles.
In his declaration, Slater stated that Project Vote's canvassers typically discuss "issues of importance to low-income and minority communities" and "the importance of voting" while trying to convince unregistered individuals to complete voter-registration applications. Docket No. 77-1 at 7, ¶ 13. The Attorney General does not dispute Slater's statement. Docket Nos. 75 & 81 at ¶ 31. Therefore, the Court's analysis proceeds on the assumption that Project Vote's canvassing activities typically involve "the type of interactive communication concerning political change that is appropriately described as `core political speech.'" Meyer, 486 U.S. at 421-422, 108 S.Ct. 1886. Although § 1713(a) does not specifically prohibit political speech, it is subject to judicial scrutiny under the First Amendment to the extent that it burdens the expressive activities engaged in by the Plaintiffs. Id. at 424, 108 S.Ct. 1886. Since § 1713(a) implicates important constitutional rights, the Court must consider whether the challenged statutory language is "fairly susceptible" to a narrowing construction. Brown, 586 F.3d at 274.
The Plaintiffs contend that the "plain language" and "enforcement history" of § 1713(a) confirm that it prohibits "productivity goals" as well as "commission payments." Docket No. 76 at 10-13. They go on to argue that the statutory prohibition, when construed in this manner, makes it infeasible for entities such as ACORN and Project Vote to conduct paid voter-registration drives. Id. at 14-18. In support of their position, the Plaintiffs rely on last year's Supreme Court decision in United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). In Stevens, the Supreme Court explained that a federal court entertaining a constitutional challenge to a law cannot rewrite unambiguous statutory provisions in order to preserve them. Stevens, 130 S.Ct. at 1588-1592.
The argument advanced by the Plaintiffs is unpersuasive, and the reliance that they
The Attorney General contends that the "plain language" of § 1713(a)'s statutory prohibition extends only to "piece-rate" and commission payments. Docket No. 80 at 13. She asserts that it does not prohibit "productivity goals" of the kind utilized by Project Vote. Id. Under the Attorney General's proposed construction of § 1713(a), it would not be unlawful for an employing entity to terminate a canvasser for failing to secure a specific number of voter-registration applications during the course of a single shift, provided that the canvasser is properly paid his or her hourly wage for completing that shift. Docket No. 86 at 66-67. To put it more concretely, the Attorney General does not believe that § 1713(a) prohibited ACORN from discharging Givner for failing to reach her "assigned quota." Docket No. 77-1 at 28.
The language of § 1713(a) prohibits only the giving, solicitation or acceptance of a "payment or financial incentive to obtain a voter registration if the payment or incentive is based upon the number of registrations or applications obtained." 25 PA. CONS.STAT. § 1713(a) (emphasis added). It says nothing about the circumstances in which an employer may discharge an employee. Statutes governing the employer/employee relationship ordinarily refer to one's rate of compensation as a term, condition or privilege "of employment." 29 U.S.C. § 623(a)(1); 42 U.S.C. §§ 2000e-2(a)(1), 12112(a); 43 PA. STAT. § 955(a). They do not equate an employee's "compensation" with the very existence of the employment relationship. Id.
A typical employment relationship consists of a contractual engagement involving the provision of services in exchange for "payment." The relationship is dependent upon both sides of this bargained-for exchange. Shupp v. Unemployment Compensation Board of Review, 18 A.3d 462, 465 (Pa.Commw.Ct.2011) (observing that an employer's "failure to make timely payment for services rendered creates a real and substantial pressure upon an employee to terminate employment"). Under Pennsylvania law, an employee who is separated from employment is still entitled to be paid for any services rendered prior to the separation. 43 PA. STAT. § 260.5(a); Sullivan v. Chartwell Investment Partners, LP, 873 A.2d 710, 716 (Pa.Super.Ct.2005). Pennsylvania's Wage Payment and Collection
This same line of reasoning applies to the term "financial incentive." The "incentive" referenced in § 1713(a) triggers a corresponding action on the part of a canvasser (i.e., the procurement of a "voter registration"). 25 PA. CONS.STAT. § 1713(a). It does not account for the entire engagement. Pegram v. Herdrich, 530 U.S. 211, 218, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000) ("In a fee-for-service system, a physician's financial incentive is to provide more care, not less, so long as payment is forthcoming.") (emphasis added). An employee's incentive to perform certain tasks within the context of an employment relationship cannot be equated with the continued existence of the relationship itself. Indeed, a "financial incentive" can sometimes be used to facilitate the termination of an employment relationship. Lockheed Corp. v. Spink, 517 U.S. 882, 885, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996); Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095, 1118 (Pa. Commw.Ct.2005).
Section 1713(a) is not like the Ohio statute at issue in Citizens for Tax Reform v. Deters, 518 F.3d 375, 377 (6th Cir.2008), which provided that "[n]o person shall pay any other person for collecting signatures on election-related petitions or for registering voters except on the basis of time worked." In Deters, the United States Court of Appeals for the Sixth Circuit intimated that the statute could be interpreted to prohibit the termination of an unproductive employee. Deters, 518 F.3d at 386 ("Arguably, CTR could not terminate a circulator who consistently did not collect enough signatures because, again, to earn a wage (and keep the job) the circulator would, among other things, have to collect a minimum number of signatures."). The Ohio statute, however, defined the relevant criminal offense by reference to what was permitted rather than by reference to what was prohibited. Id. at 385-387. It obviously proscribed an unspecified and indefinite range of conduct. Id. Section 1713(a) describes the conduct that is prohibited, and the General Assembly has directed that it be "strictly construed." 1 PA. CONS.STAT. § 1928(b)(1).
There is no basis in law, reason or common sense to construe § 1713(a) to prohibit an entity from discharging a canvasser for failing to secure a minimum number of voter-registration applications during the course of a particular shift (or over the course of several shifts). The broad construction of § 1713(a) posited by the Plaintiffs runs counter to the canon of constitutional avoidance, the rule of lenity, the law's ordinary treatment of the employment relationship, and the plain meaning of the statutory text.
"A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster, 502 U.S. at 115, 112 S.Ct. 501. The Supreme Court's precedents "apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). "The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints," but also to restrictions on the public discussion of entire topics. Consolidated Edison Co. of New York v. Public Service Commission, 447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). In determining whether a particular regulation is content-based or content-neutral, a court "must look to the purpose behind the regulation." Bartnicki v. Vopper, 532 U.S. 514, 526, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001). Where the purpose of a law is to restrict or burden speech because of the speaker's message, that purpose will alone suffice to render the law content-based. United States v. Marcavage, 609 F.3d 264, 279 (3d Cir.2010). Even if the primary purpose of a law is unrelated to the speaker's message, the law can still be content-based if it facially discriminates against a disfavored subject or viewpoint. R.A.V. v. City of St. Paul, 505 U.S. 377, 395-396, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). "As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based." Turner Broadcasting System, 512 U.S. at 643, 114 S.Ct. 2445. "By contrast, laws that confer benefits or impose burdens on speech
In Maryland v. Brookins, 380 Md. 345, 844 A.2d 1162, 1169-1181 (2004), the Maryland Court of Appeals relied on Meyer to invalidate a Maryland statute prohibiting political candidates and campaigns from paying individuals to engage in certain campaign-related activities on the day of an election. The Court of Appeals found the statute to be content-based because it proscribed the provision of payment for election-day speech precisely because the speech was related to a political campaign. Brookins, 844 A.2d at 1176. Since the law was content-based, the applicable standard of review was strict scrutiny. Id. at 1168-1177.
Unlike the Maryland statute invalidated in Brookins, § 1713(a) does not prohibit payment based on the content of an individual's speech. Instead, it prohibits the giving, solicitation or acceptance of a "payment or financial incentive" based on a particular result (i.e., the procurement of a voter-registration application). 25 PA. CONS.STAT. § 1713(a). The application of the statutory provision is not dependent upon the content of a canvasser's speech. There is no indication that § 1713(a) was enacted for the purpose of suppressing a particular message or harming a specific class of speakers. The Attorney General contends that § 1713(a) was enacted in order to curb the submission of deficient voter-registration applications, eliminate an avenue for potential fraud, and bolster the integrity of the electoral process. Docket No. 71 at 13. Although the Plaintiffs assert that those interests can be adequately protected without § 1713(a), they do not appear to argue that the statutory prohibition was enacted for some other purpose. Docket No. 76 at 18-23. Under these circumstances, § 1713(a) must be regarded as a content-neutral regulation. Marcavage, 609 F.3d at 279.
As the Supreme Court explained in Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), a court presented with a constitutional challenge to an election-related state statute must "consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate," identify "the precise interests put forward by the State as justifications for the burden imposed by its rule," evaluate "the legitimacy and strength of each of those interests," and determine "the extent to which those interests make it necessary [for the State] to burden the plaintiff's rights." Regulations imposing "severe burdens" on the exercise of First Amendment rights "must be narrowly tailored to advance a compelling state interest." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). "Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." Id. (internal quotation marks omitted). The application of strict scrutiny to every conceivable voting regulation "would tie the hands of States seeking to ensure that elections are operated equitably and efficiently." Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).
In Meyer, the Supreme Court characterized Colorado's statute barring the use of paid circulators as "a limitation on political expression subject to exacting scrutiny." Meyer, 486 U.S. at 420, 108 S.Ct. 1886. Given this level of scrutiny, the burden placed upon Colorado to justify the challenged statute was "well-nigh insurmountable." Id. at 425, 108 S.Ct. 1886. The
Some federal courts have assumed that, under Meyer, any statute purporting to restrict the manner in which canvassers or petition circulators can be paid must be subjected to strict scrutiny. Idaho Coalition United for Bears v. Cenarrusa, 234 F.Supp.2d 1159, 1165 (D.Idaho 2001); Term Limits Leadership Council, Inc. v. Clark, 984 F.Supp. 470, 473 (S.D.Miss. 1997); LIMIT v. Maleng, 874 F.Supp. 1138, 1140 (W.D.Wash.1994). Other federal courts have determined that the level of scrutiny applicable to a regulation prohibiting the payment of canvassers or petition circulators on a per-signature basis depends upon the degree of the burden imposed on expressive activities entitled to First Amendment protection. Deters, 518 F.3d at 379-387; Person v. New York State Board of Elections, 467 F.3d 141, 143 (2d Cir.2006);
The reasoning employed by the Supreme Court in Buckley suggests that the level of scrutiny applicable in a case such as this depends on the extent to which the relevant statutory provision burdens the expressive activities of the parties challenging its validity. Buckley, 525 U.S. at 192, 119 S.Ct. 636 (applying strict scrutiny because the challenged statutory provisions "significantly inhibit[ed] communication with voters about proposed political change") (emphasis added); Prete, 438 F.3d at 962-963 (reading Buckley to account not only for the existence of a "decrease in the pool of available circulators" in determining the severity of the burden on expressive activities resulting from a statutory provision, but also for "the degree of the decrease") (emphasis in original). The Plaintiffs have presented no evidence suggesting that § 1713(a), when construed to prohibit only "piece-rate" or commission payments, imposes a "severe"
"A court considering a challenge to a state election law must weigh `the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against `the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration `the extent to which those interests make it necessary to burden the plaintiff's rights.'" Burdick, 504 U.S. at 434, 112 S.Ct. 2059, quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564. This "weighing process" is sufficiently flexible to account for both the interest of the State in regulating the electoral process and the First Amendment rights of individuals who seek to influence that process in a lawful manner. Rogers v. Corbett, 468 F.3d 188, 194 (3d Cir.2006). The Court must weigh all of these factors in order to determine whether § 1713(a) is facially constitutional. Anderson, 460 U.S. at 789, 103 S.Ct. 1564.
An initiative process like the one at issue in Meyer derives its source entirely from state law. Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1212 (10th Cir.2002). A State's authority to regulate an initiative process of its own creation, or to regulate elections held to select its own government officials, is among the powers "reserved" to it under the Tenth Amendment. U.S. CONST., AMEND. X; Oregon v. Mitchell, 400 U.S. 112, 124-126, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (opinion of Black, J.). Where federal elections are involved, however, a State's regulatory authority springs directly from the United States Constitution. Cook v. Gralike, 531 U.S. 510, 522-523, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). The Elections Clause of the Constitution provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," subject to the power of Congress to "make or alter such Regulations." U.S. CONST., ART. I, § 4. Article I, § 2, and the Seventeenth Amendment provide for the popular election of United States Representatives and Senators. U.S. CONST., ART. I, § 2; AMEND. XVII. These constitutional provisions further provide that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
Article II, § 1, of the United States Constitution provides each State with the power to "appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." U.S. CONST., ART. I, § 2. The electors appointed by the States pursuant to this authority are charged with the duty of electing the President and Vice-President of the United States in accordance with the procedures established by the Twelfth Amendment.
According to the Attorney General, the Constitution does not require Pennsylvania to permit entities such as ACORN and Project Vote to participate in the voter-registration process. Docket No. 71 at 16, n. 8. The Attorney General argues that
A decision by a State to require every prospective voter to register in the presence of a state official would indirectly eliminate "the incidental political speech" that occurs in connection with voter-registration drives of the kind utilized by entities such as ACORN and Project Vote. American Association of People With Disabilities v. Herrera, 580 F.Supp.2d 1195, 1214 (D.N.M.2008). It does not follow, however, that the greater power to dispense with privately-run voter-registration drives altogether (if such a power exists) includes the lesser power to impose financial disincentives on the expressive activities engaged in by those who participate in the voter-registration drives permitted under existing law. In Meyer, the Supreme Court invalidated Colorado's ban on the use of paid circulators even though it was undisputed that Colorado had the constitutional authority to eliminate the initiative process entirely. Meyer, 486 U.S. at 424-425, 108 S.Ct. 1886. The holding in Meyer was consistent with the understanding that "[i]f the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process... the First Amendment rights that attach to their roles." Republican Party of Minnesota v. White, 536 U.S. 765, 788, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), quoting Renne v. Geary, 501 U.S. 312, 349, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (Marshall, J., dissenting). While this legal principle may not apply to the state-controlled electoral process in precisely the same way that it applies to the citizen-led initiative process, it retains its essential character even in areas in which broad state authority exists. League of Women Voters v. Cobb, 447 F.Supp.2d 1314, 1334-1339 (S.D.Fla.2006) (relying on Meyer to invalidate a Florida statute imposing burdens on third parties participating in the voter-registration process without imposing similar burdens on political parties participating in the same process). Pennsylvania's extensive authority to regulate the voter-registration process does not remove the Plaintiffs' canvassing activities from the ambit of First Amendment protection. Project Vote v. Blackwell, 455 F.Supp.2d 694, 700 (N.D.Ohio 2006) (recognizing that the First Amendment protects the expressive activities associated with the voter-registration process). The regulatory authority of Pennsylvania "is not absolute." Washington State Grange v. Washington State Republican
Although the distinction between the initiative process and the voter-registration process does not deprive the Plaintiffs' canvassing activities of constitutional protection, it does affect the "character and magnitude" of the burden that § 1713(a) places on those activities. Timmons, 520 U.S. at 358, 117 S.Ct. 1364. In Meyer, the Supreme Court explained that the Colorado statute prohibiting the use of paid petition circulators restricted political expression in two ways. Meyer, 486 U.S. at 422-423, 108 S.Ct. 1886. According to the Supreme Court, the prohibition implicated the First Amendment not only because it decreased the number of circulators available to advocate the proposed political change, but also because it decreased the likelihood that the initiative proponents would secure enough signatures to place their proposal on the ballot, thereby "limiting their ability to make the matter the focus of statewide discussion." Id. The Attorney General correctly points out that the voter-registration process does not involve the second type of burden recognized in Meyer. Docket No. 80 at 8. The Plaintiffs (and similarly-situated actors) are not trying to obtain enough signatures to trigger a referendum or place a candidate's name on the ballot. Instead, they are trying to convince potential voters to make themselves eligible to vote for or against candidates who are already the subject of statewide (or nationwide) attention. Since individuals participating in a voter-registration drive do not have to procure a specific number of applications to facilitate a broader discussion, § 1713(a) has no impact on the second First Amendment interest identified in Meyer.
Since § 1713(a) eliminates "one method of payment" that would otherwise be available to canvassers, it implicates the first constitutional interest discussed in Meyer. Deters, 518 F.3d at 384 (referring to evidence suggesting that "most professional coordinators and circulators [were] not interested in working under a per-time-only system"); Prete, 438 F.3d at 967 (observing that, "from an economic perspective, eliminating one method of payment ... for petition circulators could result in some barriers to entry in the signature procurement market"); Independence Institute, 718 F.Supp.2d at 1273 (evaluating "uncontroverted" evidence indicating that "very few professional signature gatherers" were willing to "work in Colorado on an hourly basis"). To the extent that some canvassers would be willing to work for compensation provided on a "piece-rate" or commission basis but not for compensation provided on an hourly basis,
In support of their position, the Plaintiffs have presented an expert report prepared by Dr. Denise M. Rousseau, who is a Professor of Organizational Behavior and Public Policy at Carnegie Mellon University. Docket No. 77-5 at 5-7. In her report, Dr. Rousseau opined that "piece-rate" compensation systems were "appropriate" for motivating voter-registration
Dr. Rousseau's expert report contains no information suggesting that Project Vote would be able to recruit more canvassers if it could pay them on a "piece-rate" or commission basis. Her report speaks only to the issue of productivity, which comes into play only after a canvasser has already been recruited and hired.
There is language in Meyer suggesting that the First Amendment protects the right of individuals "to select what they believe to be the most effective means" to convey their message. Meyer, 486 U.S. at 424, 108 S.Ct. 1886. This language, however, must be read in context. The Colorado statute prohibiting the use of paid petition circulators had the "inevitable effect" of restricting "direct one-on-one communication," which the Supreme Court characterized as "the most effective, fundamental, and perhaps economical avenue of political discourse." Id. at 423-424, 108 S.Ct. 1886. The reasoning employed in Meyer does not support the idea that Project Vote has an unqualified First Amendment right to choose the compensation system that it believes to be "the most effective way" to motivate its canvassers. Docket No. 77-1 at 8, ¶ 24. The problem with the Colorado statute challenged in Meyer was that it completely foreclosed an
The records developed in some of the cases relied upon by the Plaintiffs indicate that entities employing professional petition circulators are reluctant to support petition drives in States where per-signature payments are prohibited. Deters, 518 F.3d at 383-385; Independence Institute, 718 F.Supp.2d at 1273-1274. As noted earlier, however, the voter-registration context is materially different from the initiative context.
The Attorney General maintains that § 1713(a) furthers Pennsylvania's interests in conducting an orderly and efficient electoral process, deterring the submission of fraudulent voter-registration applications, and eliminating an avenue of potential fraud at the time of balloting. Docket No. 71 at 13. She contends that § 1713(a) eliminates an economic incentive for canvassers to submit fraudulent voter-registration applications. Id. at 13-17. The "legitimacy and strength" of these interests can only be understood in relation to the overall context of Pennsylvania's voter-registration process. Anderson, 460 U.S. at 789, 103 S.Ct. 1564.
Pennsylvania maintains a Statewide Uniform Registry of Electors ("SURE") listing the names of all registered voters and their respective "election districts" of residence.
The Help America Vote Act of 2002 ("HAVA") [42 U.S.C. § 15301 et seq.] requires
Under Pennsylvania law, an individual "who appears to vote in [an] election district for the first time and who desires to vote" must present a form of "photo identification" that complies with the applicable statutory requirements before completing his or her ballot. 25 PA. STAT. § 3050(a). Where such a "photo identification" is unavailable, a first-time voter can satisfy the statutory requirements by providing an alternative form of identification. 25 PA. STAT. § 3050(a.1). An individual who is unable to produce a form of identification conforming to the statutory mandate can complete only a provisional ballot, the votes on which will be counted only if it is later determined that he or she was properly registered to vote on the date of the election. 25 PA. STAT. § 3050(a.2), (a.4). These statutory requirements are consistent with the federal mandates established by the HAVA. 42 U.S.C. §§ 15482(a), 15483(b)(1)-(3).
Diane Boscia ("Boscia") has served as Allegheny County's Manager of Voter Registration since 2007. Docket No. 73-5 at 14. During the course of a deposition conducted on September 29, 2010, Boscia testified that the statutory identification requirements applicable to first-time voters would most likely prevent voter-registration fraud from having a direct impact on the results of an election. Id. at 45-47. Jonathan Marks ("Marks"), the Chief of the Department's SURE Division, declared on April 1, 2011, that the identification requirements made it "highly unlikely that an individual could register and be allowed to vote in two different precincts, or under a false or assumed name." Docket No. 73-4 at 55, ¶ 14. The unlikelihood of voter fraud does not completely eliminate Pennsylvania's interest in ensuring legitimate electoral outcomes, since there is always a chance that an election official will neglect to enforce the applicable statutory requirements and unknowingly permit a fraudulent vote to be cast. Nevertheless, the availability of these safeguards to protect the integrity of Pennsylvania's electoral system clearly factors into the constitutional analysis in this case. Buckley, 525 U.S. at 205, 119 S.Ct. 636 (explaining that the "arsenal of safeguards" retained by Colorado to protect the integrity
The legitimacy of electoral results, however, is not the only regulatory interest at stake. Doe v. Reed, ___ U.S. ___, ___, 130 S.Ct. 2811, 2819, 177 L.Ed.2d 493 (2010) (recognizing that fraud can have a negative "systemic effect" extending beyond the production of "fraudulent outcomes"). The Attorney General argues that county election officials must devote a considerable amount of time and resources to maintain an orderly voter-registration process when inaccurate, deficient or fraudulent applications are submitted. Docket No. 71 at 13. She contends that § 1713(a) facilitates the orderly administration of the voter-registration process by eliminating financial incentives for canvassers to submit fraudulent applications. Id.
Between December 1, 2007, and December 31, 2009, election officials throughout Pennsylvania received 1,347,174 new voter-registration applications. Docket Nos. 72 & 82 at ¶ 11. During that same period of time, 3,272,500 previously-registered voters submitted application forms in order to change information related to their registration status. Id. Approximately 883,000 individuals are presently registered to vote in Allegheny County. Id. at ¶ 25. According to Mark Wolosik ("Wolosik"), who serves as the Manager of the Elections Division, approximately $800,000.00 of the Elections Division's annual $5.1 million budget is allocated to voter-registration activities.
When questioned about voter-registration policies in Allegheny County, Boscia explained that canvassers are required to submit all applications that they obtain to the Elections Division, even if they believe some of the applications to be fraudulent. Id. at 53. This policy is designed to ensure that each individual who legitimately attempts to register is afforded the opportunity to do so. Id. A canvasser working in Allegheny County has the option of refusing to accept an application that he or she believes to be fraudulent, but the Elections Division's policy requires canvassers to submit all applications accepted from prospective voters, irrespective of whether they are thought to be valid. Id. at 54. Boscia testified that it was the job of Elections Division personnel to determine the validity of all voter-registration applications accepted by canvassers. Id. In his declaration, Marks stated that fraudulent voter-registration applications create additional work for county election officials. Docket No. 73-4 at ¶ 13. According to Marks, such applications often require county election officials to make telephone calls and send letters inquiring about information relevant to the voter-registration process. Id.
The Plaintiffs do not appear to dispute that fraudulent voter-registration applications place a significant burden on county election officials. Instead, they argue that
The problem with the Plaintiffs' argument is that it ignores the distinction between "adjudicative facts" and "legislative facts." Federal Rule of Evidence 201, which controls the circumstances in which a federal court can take judicial notice of facts extrinsic to the record, "governs only judicial notice of adjudicative facts." FED.R.EVID. 201(a) (emphasis added). Unlike adjudicative facts, which concern the particular parties before the Court, legislative facts relate to the content of the law itself. O'Hanlon v. Hartford Accident & Indemnity Co., 457 F.Supp. 961, 962 (D.Del.1978). The Court is free to look beyond the record in order to determine whether § 1713(a) facially "abridg[es] the freedom of speech" within the meaning of the First Amendment. Washington v. Balzer, 91 Wn.App. 44, 954 P.2d 931, 938 (1998) (citing Rule 201(a) for the proposition that "courts have unrestricted ability to employ judicially noticed `legislative facts' in formulating legal principles"). A facial challenge, by its very nature, implicates the constitutional rights of "[s]ociety as a whole" rather than simply the rights of the particular parties before the Court. Secretary of State v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). "[T]he justification for a statute" is typically proven by reference to "material set forth in the briefs filed by the parties" rather than by reference to the evidentiary record developed in a particular case. Daggett v. Commission of Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir.1999). While case-specific evidence may often be used to buttress a State's assertion that its law is genuinely necessary to secure a particular interest, a valid legislative enactment is not rendered facially invalid because a State fails to make such an evidentiary showing. Nixon, 528 U.S. at 391, 120 S.Ct. 897 ("The state statute is not void, however, for want of evidence.") (emphasis added).
In various First Amendment contexts, the Supreme Court has recognized that one State can look to the experiences of other States in determining what measures are necessary to protect its interests. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001); Florida Bar v. Went For It, Inc., 515 U.S. 618, 628, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In some instances, it is sufficient for a State to rely on a judicial opinion describing the evidentiary justification for
The fact that per-signature payments create incentives for petition circulators to commit fraud has been recognized by three Courts of Appeals in decisions sustaining state statutes prohibiting the use of "piece-rate" and commission-based compensation systems in the initiative and candidate-nomination contexts. Person, 467 F.3d at 143; Prete, 438 F.3d at 969-971; Initiative & Referendum Institute, 241 F.3d at 617-618. The Commission on Federal Election Reform ("Commission"), which was co-chaired by former President James E. Carter and former Secretary of State James A. Baker, III, issued a report in September 2005 making specific reference to instances of voter-registration fraud perpetrated "by individuals who were paid by the piece to register voters." Docket No. 73-7 at 55. The Supreme Court has cited the Commission's report for the proposition that each State "has a valid interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient." Crawford v. Marion County Election Board, 553 U.S. 181, 191, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (emphasis added). The nationwide reach of the Commission's report highlights the fact that the experiences of other jurisdictions are relevant to the constitutional analysis in this case.
The Plaintiffs' own expert, Dr. Rousseau, acknowledged that when "piece-rate" and commission-based compensation systems are "used without appropriate supports, quality can decline as unit productivity goes up." Docket No. 77-5 at 7. She stated that, in the voter-registration context, "piece-rate" and commission-based compensation systems can increase "both productivity and quality when used in conjunction with supportive management and organizational practices." Id. (emphasis added). As Marks pointed out in his declaration, the Department cannot be expected to monitor groups participating in voter-registration drives in order to ensure that they take the steps necessary to prevent individual canvassers from engaging in fraudulent activity. Docket No. 73-4 at ¶¶ 7-8. Dr. Rousseau's expert report, when viewed in relation to the statements contained in the Commission's report and the three Courts of Appeals decisions sustaining statutes prohibiting per-signature payments, confirms that the anti-fraud interests relied upon by Pennsylvania "are real" and "not merely conjectural." Turner Broadcasting System, 512 U.S. at 664, 114 S.Ct. 2445.
When the operation of a State's law "severely" burdens expressive activities
In this case, the Plaintiffs concede that § 1713(a) (as construed by the Court) does not impose a "severe" burden on their canvassing activities, and that it should not be subjected to strict scrutiny. Docket No. 86 at 28-29. Under these circumstances, the interests asserted by Pennsylvania in defense of § 1713(a) need only be "sufficiently weighty to justify the limitation" imposed on canvassing activities. Norman v. Reed, 502 U.S. 279, 288-289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992). Because § 1713(a) imposes only a minimal burden on the Plaintiffs' expressive activities, Pennsylvania's interest in preventing voter-registration fraud is sufficient to defeat the Plaintiffs' facial challenge.
Munro, 479 U.S. at 195-196, 107 S.Ct. 533. Although the voter-registration context differs somewhat from the ballot-access context, the overriding principle recognized in Munro is squarely applicable to this case. Given that § 1713(a) does not "significantly impinge" on the Plaintiffs' First Amendment rights, the Court has no basis for requiring Pennsylvania to come forward with jurisdiction-specific evidence to justify its law.
Under § 1713(a), the Plaintiffs remain free to conduct paid voter-registration drives, to hold hourly employees to production-based expectations, and to terminate canvassers who fail to meet those expectations. They are also free to award bonuses based on factors such as reliability and longevity. Prete, 438 F.3d at 952, n. 1. Furthermore, the Plaintiffs can pay a canvasser based on the number of contacts that he or she has with prospective voters without tying his or her level of compensation to the number of voter-registration applications resulting from those contacts. Docket No. 86 at 68. In this respect, § 1713(a) does not prohibit the Plaintiffs from tying the rate of a canvasser's pay to the "overall quantum" of his or her speech. Campbell, 203 F.3d at 745. At the hearing, the Deputy Attorney General posited that § 1713(a) would not prevent an entity such as Project Vote from prospectively increasing the rate of a canvasser's pay based on the number of applications procured during the course of a prior shift. Docket No. 86 at 46, 67. It is not clear whether such a prospective pay adjustment would run afoul of § 1713(a). The Court need not resolve that question, since the Plaintiffs' facial challenge could not succeed even if it is assumed that § 1713(a) prohibits the provision of production-based bonuses, and that the statutory prohibition could not be constitutionally applied in that context. "[W]here conduct and not merely speech is involved," a party mounting a facial challenge to a statute must demonstrate that the overbreadth of the statute is not only real, "but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. Although some of § 1713(a)'s applications may be unconstitutional, the degree of overbreadth is not "substantial" enough to justify an order prohibiting Pennsylvania "from enforcing the statute against conduct that is admittedly within its power to proscribe." Id.
In light of the fact that § 1713(a) (as construed by the Court) places only "modest burdens" on the Plaintiffs' canvassing activities, the Plaintiffs' facial challenge to the statutory prohibition cannot succeed. Doe, 130 S.Ct. at 2821. The parties should keep in mind, however, that this decision "upholding the law against a broad-based challenge does not foreclose a litigant's success in a narrower one." Id. At this time, it suffices to say that § 1713(a) is not unconstitutional on its face. Washington
"[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions." United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947). Under the precise circumstances of this case, however, the Court had "to construe the challenged statute" in order to determine whether it was facially constitutional. Williams, 553 U.S. at 293, 128 S.Ct. 1830. By construing § 1713(a) narrowly enough to preserve its facial constitutionality, the Court effectively determined that the statutory prohibition does not proscribe conduct of the kind described in the affidavit of probable cause relating to Givner.
In order to obtain injunctive relief against the Attorney General based on the District Attorney's reading of § 1713(a), the Plaintiffs must demonstrate that the Attorney General is likely to apply the statutory prohibition in the same manner as the District Attorney. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 622-623, 94 S.Ct. 1323, 39 L.Ed.2d 630 (1974); Spomer v. Littleton, 414 U.S. 514, 520-523, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974); Sarteschi v. Burlein, 508 F.2d 110, 114 (3d Cir.1975); Lewis v.
Declaratory relief
The facial invalidation of a statutory provision constitutes "strong medicine" that should be "employed by the Court sparingly and only as a last resort." Broadrick, 413 U.S. at 613, 93 S.Ct. 2908. When properly construed, § 1713(a) does not significantly burden the canvassing activities engaged in by the Plaintiffs and similarly-situated parties. Pennsylvania's regulatory interests, when viewed in relation to the minimal burdens placed on expressive activities by § 1713(a), are "sufficiently weighty to justify" the challenged
