MANNS v. WALKOWIAK
United States Court of Appeals, Third Circuit
September 25, 2017
The Manns argue that coaches were not adequately trained on concussion recognition and protection, and had they been, Sheldon may not have suffered his severe injury. Specifically, they argue that the school’s generic handbook for dealing with injured student-athletes failed to provide a protocol for dealing specifically with concussions. They submit national news articles from 2011 that reported on the risk of concussions in football as well as manuals from neighboring school districts that had implemented concussion policies as of November 2011. They also rely on Thomas v. Cumberland County, 749 F.3d 217, 219 (3d Cir. 2014), in which we assessed the significance of an expert’s report establishing the need for training corrections officers to address and avoid inmate-on-inmate violence. We held that because the evidence showed that the municipality failed to train its employees to handle recurring acts of violence, the District Court should not have precluded the factual issues from going to a jury. Id. at 225-26. Unlike Thomas, the Manns cite no evidence that would suggest deliberate indifference to a pattern of recurring injuries. See Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (“Failure to ... train municipal employees can ordinarily be considered deliberate indifference only where the failure has caused a pattern of violations”). “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Connick, 563 U.S. at 62, 131 S.Ct. 1350.
In this case there is no evidence of a pattern of recurring head injuries in the Palmerton Area football program. Nor is there evidence that Walkowiak or any other member of the coaching staff deliberately exposed injured players to the continuing risk of harm that playing football poses. In the context of the Monell claim, it is also significant that the Pennsylvania General Assembly did not pass legislation that mandated training for coaches to prevent concussions until November 9, 2011, and the legislation did not even go into effect until July of 2012. See
V.
For the foregoing reasons we will affirm the District Court’s order, entered June 2, 2016, granting summary judgment in favor of Walkowiak and Palmerton Area.
AMERICAN CIVIL RIGHTS UNION, in Its individual and corporate capacities, Appellant v. PHILADELPHIA CITY COMMISSIONERS
No. 16-3811
United States Court of Appeals, Third Circuit.
Argued April 27, 2017 (Opinion Filed: September 25, 2017)
872 F.3d 175
Before: McKEE, VANASKIE, and RENDELL, Circuit Judges
Kelly S. Diffily [ARGUED], Sozi Pedro Tulante, City of Philadelphia, Law Department, 17th Floor, 1515 Arch Street, One Parkway, Philadelphia, PA 19102, Benjamin H. Field, City of Philadelphia, Law Department, 1515 Arch Street, One Parkway, Philadelphia, PA 19102, Attorneys for Defendants-Appellees
Ira M. Feinberg, Daryl L. Kleiman, Hogan Lovells US, 875 Third Avenue, New York, NY 10022, Sarah C. Marberg, Hogan Lovells, 555 Thirteenth Street, N.W., Columbia Square, Washington, DC 20004, Attorneys for Amicus Appellees Project Vote and Demos
OPINION OF THE COURT
McKEE, Circuit Judge.
The American Civil Rights Union (“ACRU”) challenges the Philadelphia City Commissioners’ failure to purge the city’s voter rolls of registered voters who are currently incarcerated due to a felony conviction. Because state law prohibits felons from voting while they are in prison, the ACRU argues that the National Voter Registration Act requires the Commissioners to remove them from the voter rolls. For the reasons that follow, we will affirm the District Court’s dismissal of this suit.
I. Background
A. Factual and Procedural Background
The ACRU is a nonprofit organization that states that it “litigates to enforce clean voter registration rolls” and “promotes election integrity.”1 In January of 2016, the ACRU sent a letter to the Philadelphia City Commissioners, which is responsible for overseeing elections in Philadelphia.2 The letter stated, in part, that “your county is failing to comply with Section 8 of the National Voter Registration Act (NVRA)” by not making “a reasonable effort to maintain voter registration lists free of dead voters, ineligible voters and voters who have moved away.”3 The letter also asked the Commissioners to provide, inter alia, documentation of their efforts to maintain accurate voter lists and “the number of ineligible voters removed for criminal conviction.”4 The letter stated that its purpose was to serve as notice that the Commissioners could be sued under the NVRA.
The following April, the ACRU did sue the City Commissioners for injunctive relief pursuant to the NVRA. The suit alleged that the Commissioners failed to provide list maintenance documentation as required by
Thereafter, the ACRU moved for a preliminary injunction and leave to amend its complaint. In its motion, the ACRU claimed “[t]he NVRA requires [the City Commissioners] to make a ‘reasonable effort to remove the names of ineligible registrants from the official lists of eligible voters,’ including voters ineligible by virtue of felony conviction.”6 The District Court concluded that the ACRU had “grossly misrepresented the plain language of the statute.”7 Instead of granting the requested relief, the Court sua sponte issued a Rule to Show Cause as to why the motion should not be stricken and why the Court should not issue sanctions.8 The ACRU responded that though its characterization of the NVRA was incomplete, the NVRA must be read together with the requirements of the Help America Vote Act (“HAVA”), and that when taken together, the ACRU’s position was consistent with the statutory scheme.9 Although the Court did not sanction the ACRU for misrepresenting the NVRA, it did deny the motion for a preliminary injunction.
After additional motions were filed, the District Court granted the Commissioners’ motion to dismiss the Amended Complaint. In a very detailed and thorough analysis, the Court held that neither the NVRA nor HAVA requires the Commissioners to remove felons from the voter rolls while they are incarcerated.10 This timely appeal followed.
B. Statutory Background
i. National Voter Registration Act
The National Voter Registration Act has four main goals: (1) increasing the number of registered voters, (2) increasing participation in federal elections, (3) maintaining current and accurate voter rolls, and (4) ensuring the integrity of the voting process.11 These goals can sometimes be in tension with one another: On the one hand, maintaining clean voter rolls may help ensure election integrity, but on the other hand, purging voters from the rolls requires voters to re-register and hinders participation in elections. However, it is clear from the legislative history that Congress was wary of the devastating impact purging efforts previously had on the electorate. Congress noted that not only are purging efforts often “highly inefficient and costly” to the state by requiring reprocessing of registrations but also that “there is a long history of such cleaning mechanisms [being] used to violate the basic rights of citizens.”12 The drafters attempted to balance these concerns with the need for clean voter rolls: “An impor-
Accordingly, the NVRA both protects registered voters from improper removal from the rolls and places limited requirements on states to remove ineligible voters from the rolls. The section that squarely addresses these requirements, Section 8, is the crux of this dispute.14 That section provides as follows:
In the administration of voter registration for elections for Federal office, each State shall ...
(3) provide that the name of a registrant may not be removed from the official list of eligible voters except—
(A) at the request of the registrant;
(B) as provided by State law, by reason of criminal conviction or mental incapacity; or
(C) as provided under paragraph (4);
(4) conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of—
(A) the death of the registrant; or
(B) a change in the residence of the registrant, in accordance with subsections (b), (c), and (d) [notice provisions set forth in Section 8]....15
In short, once a person is properly registered to vote, a state is only permitted to remove him or her from the voting list for narrowly specified reasons. Specifically, Congress allows removal if: the person dies, changes residence, asks to be taken off the list, or becomes ineligible under state law because of criminal conviction or mental incapacity. The NVRA also provides a private right of action so that private parties “aggrieved by a violation of this chapter” may sue to enforce the statute.16
ii. Pennsylvania’s Restriction of the Franchise
The extent to which convicted felons are denied the right to vote varies greatly from state to state, depending on the law of a given state. In states like Maine and Vermont, for example, individuals convicted of crimes retain the right to vote at all times.17 Individuals convicted of felonies may even register and vote from prison.18 At the other end of the spectrum, states like Florida and Kentucky deprive individuals convicted of felonies of the right to vote for the rest of their lives with few exceptions.19
[T]he words ‘qualified absentee elector’ shall in nowise be construed to include persons confined in a penal institution or a mental institution nor shall it in anywise be construed to include a person not otherwise qualified as a qualified elector in accordance with the definition set forth in section 102(t) of this act.20
Nevertheless, individuals registered to vote before being incarcerated are permitted to vote immediately upon release.21 And those not previously registered to vote may register in prison if they will be released by the date of the election.22 Thus, Pennsylvania law “do[es] not completely disenfranchise the convicted felon, as is the case in fourteen of [its] sister states; it merely suspends the franchise for a defined period.”23
Even though Pennsylvania suspends the franchise during the period of incarceration, it does not require the removal of registrants from voter rolls due to incarceration for a felony conviction. Rather, Section 1909(a) of the Pennsylvania Voter Registration Act, like the NVRA, directs that “[a]n elector’s registration shall not be canceled except” if the voter dies, changes residence, asks to be taken off the list, or removal is necessary to comply with the NVRA.24 As noted above, the NVRA refers only to state law, death, change in residence, or request of the registrant.
iii. Help America Vote Act
The HAVA was enacted in 2002 to help improve the equipment used to cast votes, the way registration lists are maintained, and how polling operations are conducted.25 Most relevant here, the HAVA builds on the NVRA by requiring that each state maintains a computerized database for vot-
Unlike the NVRA, however, the HAVA does not include a private right of action that allows aggrieved parties to sue nonconforming states. Subchapter IV of the HAVA includes only two mechanisms for enforcement: (1) a civil action brought by the Attorney General,30 and (2) administrative complaint.31
II. Discussion32
As we noted at the outset, we must determine whether the NVRA requires the Philadelphia City Commissioners to purge the voter rolls of individuals who are currently incarcerated for a felony conviction. The ACRU argues that it does, relying on Section 8(a)(3) and 8(a)(4) of the NVRA as read together with the HAVA. Because Pennsylvania does not permit individuals to vote while incarcerated for a felony, the ACRU argues, the Commissioners are required to remove them from the rolls. We disagree.
Like the District Court, we need look no further than the text of Section 8 itself to resolve this dispute. “When [a] statute’s language is plain, the sole function of the courts—at least where the disposition required by the test is not absurd—is to enforce it according to its terms.”33 Here, the unambiguous text of Section 8 reveals that while states are required to make reasonable efforts to remove registrants for certain reasons, states are merely permitted—not required—to provide for removal of regis-
Congress’s only reference to criminal conviction in the statute is contained in Section 8(a)(3). Section 8(a)(3) states that “each State shall ... provide that the name of a registrant may not be removed from the official list of eligible voters except” among other reasons, “as provided by State law, by reason of criminal conviction.”34 The statute thus places an obligation on the States to ensure that registrants are not removed improperly. Thus, Congress limited the authority of states to encumber voter participation by permitting states to only remove registrants for the exceptions specified. As set forth above, under Section 8, states can remove a voter: if the voter asks to be taken off the list, dies, changes residence, or becomes ineligible under state law because of criminal conviction or mental incapacity.35
This reading is consistent with the NVRA’s central purpose of “ensur[ing] that, once registered, voters could not be removed from the registration rolls” for improper purposes.36 Thus, given the importance of the right to vote,37 we emphasize that Section 8(a)(3) is designed to protect voters from improper removal and only provides very limited circumstances in which states may remove them. Therefore, contrary to the ACRU’s assertions, the text of Section 8(a)(3) places no affir-
mative obligations on states (or voting commissions) to remove voters from the rolls. As its text makes clear, NVRA was intended as a shield to protect the right to vote, not as a sword to pierce it.
The following subsection, 8(a)(4), similarly does not require states to purge voters convicted of felonies from the rolls. It does, however, place an affirmative obligation on states to make “reasonable efforts” to remove registrants in certain specific circumstances in order to ensure the accuracy of the voter lists. This limited authority is consistent with the NVRA’s purpose to “ensure that accurate and current voter registration rolls are maintained.”38 Here again, Congress was careful to very narrowly limit the circumstances that would justify removing voters in the interest of ensuring the accuracy of voting lists. Section 8(a)(4) mandates that “each State shall ... make[ ] a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of—(A) the death of the registrant; or (B) a change in the residence of the registrant.”39 By its terms, the mandatory language in Section 8(a)(4) only applies to registrants who have died or moved away.40 Removal due to criminal conviction is not included on this list of mandatory purging, and we will not amend the statute by reading that requirement into its text when Congress ob-
Our conclusion is further bolstered by the NVRA’s legislative history. The Senate Report explains “States are permitted to remove the names of eligible voters from the rolls at the request of the voter or as provided by State law by reason of mental incapacity or criminal conviction.”42 The Report continues: “[i]n addition, States are required to conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists by reason of death or a change in residence.”43 This obvious distinction between the permissive language in (a)(3) and the mandatory language in (a)(4) demonstrates that the statute and the legislative history are in agreement: States and election officials are permitted—but not required—to remove individuals ineligible to vote under state law due to criminal conviction.
The ACRU makes several arguments in an attempt to rewrite the statute to support its desired outcome. First, the ACRU cites a case decided by the District Court for the Western District of Missouri to assert that Section 8(a)(4)’s affirmative obligation that states “make[ ] reasonable effort[s] to remove the names of ineligible voters” in fact “appl[ies] to the other subsections of Section 20507,” including subsection 8(a)(3).44 On this basis, the ACRU asserts that the “NVRA itself contains a requirement that election officials make a reasonable effort to remove registrants who are ineligible by operation of state law as a result of criminal conviction.”45
This argument not only mangles the statute beyond recognition, it also misrepresents the non-precedential case it relies on. There is simply no support for the proposition that the mandatory list-maintenance provision in subsection 8(a)(4) applies to subsection 8(a)(3). Further, the district court case the ACRU cites for this proposition—United States v. Missouri—held no such thing. Rather, the court considered only the text of Section 8(a)(4) itself—it did not discuss or mention subsection 8(a)(3) at all—and held that subsection (a)(4)—s “reasonable effort” requirement applied to the subsections incorporated by reference within Section 8(a)(4) itself.46 The statute serves as its own illustration:
In the administration of voter registration for elections for Federal office, each State shall ...
(4) conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of—
(A) the death of the registrant; or
(B) a change in the residence of the registrant, in accordance with subsections (b), (c), and (d)....47
Notably, unlike the subsections Missouri discussed (italicized above), subsection 8(a)(3) is not incorporated by reference in (a)(4). Thus, even if the analysis of a district court in Missouri were persuasive, that court’s analysis would still be irrelevant to our inquiry here.
In its Reply Brief, the ACRU doubles down on this argument and asserts that because (a)(4) references subsection 8(c) and because subsection 8(c)(2)(B) in turn references subsection (a)(3), the mandatory language of (a)(4) therefore applies to (a)(3) via 8(c).48 This is exactly the kind of statutory contortion that led the District Court to respond to the ACRU’s arguments by threatening to impose sanctions for blatant misrepresentation of the statute. Nothing in this game of statutory Twister plausibly suggests that the plainly mandatory language in (a)(4) should be substituted for the plainly permissive language of (a)(3).49
The ACRU then turns to another federal statute for support. It argues that the NVRA is “enhanced by the parallel obligations found in the Help America Vote Act.”50 The ACRU argues that when read together, “list maintenance regarding ineligible felons is mandatory in states such as Pennsylvania that have determined that incarceration for a felony is disqualifying.”51 The ACRU points to two provisions of HAVA that purportedly “broaden[ ]” or “augment” the NVRA: (1) Section 21083(a)(4)(A), which requires election officials to make “a reasonable effort to remove registrants who are ineligible from the official list of ineligible voters,”52 and (2) Section (a)(2)(A)(ii) which directs that a “State shall coordinate the computerized list with State agency records on felony status” “[f]or the purposes of removing names of ineligible voters [under the NVRA Section 8(a)(3)].”53
However, even if that interpretation is correct, the ACRU would still be out of court. Unlike the NVRA, the HAVA does not include a private right of enforcement. By its text, the HAVA only allows
Even assuming the ACRU could ground a right to sue in the HAVA, the statute would still not support the ACRU’s claims. The unambiguous text of the HAVA simply does not require election officials to purge voter rolls of incarcerated felons.
The first section of the HAVA relied on by the ACRU, Section 21083(a)(4)(A), states that “[t]he State election system shall include provisions to ensure ... [a] system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters.”58 The ACRU argues that this section requires states to remove all registrants who are unable to cast a ballot under state law. However, the HAVA also states that “such system” should be “consistent with the National Voter Registration Act of 1993.”59 Moreover, even if that directive was not clear, Section (2)(A)(i) states that “[i]f an individual is to be removed from the computerized list, such individual shall be removed in accordance with the provisions of the National Voter Registration Act of 1993.”60 We have already explained that the NVRA does not require election officials to purge registrants from the rolls who are not permitted to vote due to felony conviction. And by its text, the HAVA requires no more.61
As the District Court so aptly reasoned, a requirement that information be shared does not impose a duty on election officials to subsequently act on that information by purging those individuals from the voter rolls in disregard of the law of their state.64 In addition, contrary to the
uals convicted of felonies are permitted to vote if they are on furlough from prison or are serving a period of home confinement. Oral Arg. at 1:22; Voting Rights at 2. Thus, they remain eligible to vote but are not provided access to the ballot while incarcerated.
ACRU’s assertions, we do not think the District Court’s reading makes these provisions superfluous or redundant. The information-sharing provisions are no doubt very helpful in states such as Florida and Kentucky where individuals convicted of felonies are permanently deprived of the right to vote. By contrast, the information would have no utility in Maine and Vermont where citizens may vote regardless of criminal status. Congress simply required the sharing of certain information so that states would have the information necessary to maintain voter lists pursuant to state law. As the District Court observed, “[i]nformation sharing in itself is important, and ensures that all states will have the information necessary regarding federal convictions, whether that information is acted upon or not.”65 These information-sharing provisions certainly do not dictate that Maine or Vermont must act to remove felons from the voter rolls contrary to state law, and they do not so dictate here.
Finally, the ACRU argues that the District Court was wrong to “look at particular subsections [of the statutes] one by one rather than as a whole” to reach its conclusion.66 Certainly context matters, and a statute must be considered as a whole.67
requirement into the statute where Congress has not written it.
Moreover, requiring the Commissioners to purge the rolls of incarcerated felons would contravene one of the main goals the NVRA itself. Congress has declared that the statute is designed to “enhance[ ] the participation of eligible citizens as voters in elections for Federal office.”68 In Pennsylvania, individuals convicted of a felony are citizens who can vote the moment they are released from prison, regardless of probation or parole status.69 If an individual is purged from the rolls while incarcerated, he or she will be required to re-register after release. Voter registrations take time to process, and the state further imposes a 30-day cutoff before an election, after which new registrants are ineligible to vote in an upcoming election.70 However, under Pennsylvania law, a previously-registered individual released the morning of November 8, 2016 would be eligible to vote in the election that day. The ACRU’s position would preclude that eligible voter from casting a vote, a result that would clearly contravene Congress’s announced intention of protect-
ing access to the polls and increasing voter turnout.71
Accordingly, we hold that the very thorough and thoughtful opinion of the District Court is clearly correct and entirely in keeping with the “whole law” and the “object and policy” of the NVRA.72 It is the ACRU’s interpretation of the NVRA, not the Commissioners’, that most threatens the goals of the statute and the integrity of the vote.
III. Conclusion
In summary, because the ACRU is unable to present a plausible claim that the NVRA requires the Commissioners to purge Philadelphia’s voter rolls of individuals incarcerated due to felony conviction, we affirm the District Court’s dismissal of the ACRU’s suit.