Lorenzo L. MIXON, Nathaniel Brown, Dolores Figueroa, Joseph Hill, Jeffrie S. McKinzie, William P. Alston and Maureen Williams, Petitioners, v. COMMONWEALTH of Pennsylvania and Kim Hanna Pizzingrilli, Secretary of the Commonwealth, Respondents.
Commonwealth Court of Pennsylvania.
Argued March 8, 2000. Decided Sept. 18, 2000.
759 A.2d 442
BEFORE: DOYLE, President Judge, COLINS, Judge, McGINLEY, Judge, SMITH, Judge, PELLEGRINI, Judge, FLAHERTY, Judge, LEADBETTER, Judge. DOYLE, President Judge.
While the presumption so established is not here conclusive because the Legislature has not in fact enacted a new statute on the subject matter, its failure to overturn the Superior Court rule when it had the subject in hand seems further cause for us to adhere to the established interpretation.
Id. at 531.
In my estimation, by overruling J.H. and changing a heretofore settled principle of law, the Majority obfuscates a standard absolutely critical to our public authorities when dealing with the cases, causes, and incidents of child abuse. The new standard concludes that an accidental act is an unintentional one; that intent is not necessary for child abuse, since negligent conduct is sufficient; but “that foreseeability is a necessary but not sufficient element for determining that one has negligently engaged in ‘serious physical...injury which is not explained by the available medical history as being accidental....‘” I am not certain what this new standard means, in an area where certainty is a most desirable need.
- (1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
- (2) That the General Assembly intends the entire statute to be effective and certain.
- (3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.
- (4) That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.
- (5) That the General Assembly intends to favor the public interest as against any private interest.
(Emphasis added.)
Accordingly, for all the above reasons, I would affirm the order of the Department of Public Welfare.
Judge McGINLEY joins.
Samuel C. Stretton, West Chester, for petitioners.
Francis R. Filipi, Harrisburg, for respondents.
DOYLE, President Judge.
Before the Court en banc are the preliminary objections of Respondents, the Commonwealth of Pennsylvania and Kim
The Convicted Petitioners consist of two incarcerated felons (Messrs. Mixon and McKinzie, collectively “Registered Felons“) who are registered voters, but who are not “qualified absentee electors” under the Pennsylvania Election Code (Election Code);2 two incarcerated felons (Messrs. Hill and Alston, collectively “Non-registered Felons“) who may neither register nor obtain an absentee ballot under the Election Code and the
On June 21, 1996, one year prior to becoming eligible for parole, Petitioner Mixon was transferred by the DOC from confinement at the State Correctional Institution at Huntington (SCIH) to confinement at the DOC Community Correction Center at Third and Arch Streets in Philadelphia, to serve the remaining year of his minimum term. While on a temporary authorized absence from confinement, Petitioner Mixon voted at his Delaware
[T]he words “qualified absentee elector” shall in nowise be construed to include persons confined in a penal institution....
[T]he words “qualified absentee elector” shall in nowise be construed to include persons confined in a penal institution....
Petitioner McKinzie is currently confined at SCIH and is a registered elector in Allegheny County. Prior to the November 1998 general election, he submitted a written application for an absentee ballot to the Allegheny County Election Division. His application was denied pursuant to
Petitioners filed a complaint in equity on July 8, 1999, seeking declaratory relief challenging the sections of the Election Code that exclude felons confined in a penal institution from the definition of “qualified absentee electors,” and the provisions of the
§ 961.501. Qualifications to register
Eligibility.—A qualified elector who will be at least 18 years of age on the day of the next election, who has been a citizen of the United States for at least one month prior to the next election and who has resided in this Commonwealth and the election district where the qualified elector offers to vote for at least 30 days prior to the next ensuing election and has not been confined in a penal institution for a conviction of a felony within the last five years shall be entitled to be registered as provided in this chapter.
Petitioners also seek a permanent injunction barring enforcement of the above statutory provisions. Respondents have filed with this Court preliminary objections, challenging Petitioners’ ability to maintain this action asserting: (1) that the petition for review fails to state a claim for which relief may be granted; and (2) that Petitioner Williams lacks standing to assert any claim in the petition for review because she is not a convicted felon.
The basic theories underlying these claims are that
tend that
The Convicted Petitioners also argue that when
The Convicted Petitioners further maintain that
Respondents argue that Martin v. Haggerty, 120 Pa.Cmwlth. 134, 548 A.2d 371 (1988), controls the outcome of the issues before us. Respondents also assert that “qualified absentee elector” is defined under the Election Code in relevant part: “Provided, however, That the 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,”
Finally, Petitioner Williams asserts that language contained in Bergdoll v. Kane, 557 Pa. 72, 731 A.2d 1261 (1999), supports her argument that she has standing to proceed in this matter based on vote dilution and her desire to protect the fundamental right to vote.
I. The Registered Felons
The starting point of our analysis is the presumption of constitutionality that all legislative enactments enjoy under both the rules of statutory construction and the decisions of our courts. See
We remark initially that the Registered Felons’ position cannot prevail under the rule of stare decisis. As documented by Respondents, our State Supreme Court has specifically held in Ray v. Commonwealth that the definition of “qualified absentee elector” excludes persons confined in penal institutions. In Ray, the appellant was confined in a penal institution for an armed robbery conviction. He sought to secure an absentee ballot to facilitate voting and contended that, the absentee ballot statute was unconstitutional because it prohibited him from voting as an absen-
Although every citizen has a general right to vote, states have broad powers to determine the conditions under which the right of suffrage may be exercised, and an individual‘s criminality is a factor which a state may take into consideration in determining the qualifications of voters. Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959). Most ancient, medieval, and early modern societies conceived of disenfranchisement as a form of punishment. In Rome, an offender could be deprived of the right to vote if, as part of his censure, the label “infamia,” the high- est degree of dishonor, was cast upon him. United States v. Cox, 342 F.2d 167 (5th Cir.1965), cert. denied sub nom, Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). During the middle ages, extreme punishments included deprivation of all civil rights and excommunication from the community. Later, England‘s attainder system maintained the loss of civil rights as a penalty, along with forfeiture of property and “corruption of blood.” McCafferty v. Guyer, 59 Pa. 109 (1868). Modern thought perceives disenfranchisement of convicted felons, not as punishment, but rather as a “nonpenal exercise of the power to regulate the franchise.” Trop v. Dulles, 356 U.S. 86, 97, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). As of November 1993, all but four12 states deprive incarcerated offenders of the right to vote; thirty-five states disenfranchise non-incarcerated offenders, including those on probation and parole; and fourteen states disenfranchise ex-offenders for life. Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale L.J. 537 (1993).
In Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890), the U.S. Supreme Court upheld the authority of the Idaho legislature to proscribe voter qualifications. Mr. Justice Field, writing for the
In Pennsylvania,
The power to regulate elections is legislative, and has always been exercised by the lawmaking branch of the government. Errors of judgment in the execution of the legislative power, or mistaken views as to the policy of the law, or the wisdom of the regulations, do not furnish grounds for declaring an election law invalid unless there is a plain violation of some constitutional requirement.... Legislation may be enacted which regulates the exercise of the elective franchise, and does not amount to a denial of the franchise itself.
Winston v. Moore, 244 Pa. at 454-55, 91 A. at 520. In addition, Justice Elkin concluded that the Act of July 24, 1913, P.L. 1001, known as the Nonpartisan Ballot Law, was constitutionally sound and indicated: “Judged by these tests, the act of 1913 cannot be attacked successfully on the ground that it offends against the ‘free and equal’ clause of the bill of rights. It denies no qualified elector the right to vote....” Id. at 457, 91 A. at 523 (emphasis added).
Of more recent vintage, former Chief Justice Nix addressed the meaning of the “free and equal” clause when he wrote:
It is admitted that the Constitution cannot execute itself, and that the power to regulate elections is a legislative one, which has always been exercised by the General Assembly since the foundation of the government. The Constitution appoints the time of the general election, prescribes the qualifications of voters, and enjoins the ballot; and for all the rest the law must provide.... This undoubted legislative power is left by the Constitution to a discretion unfettered by rule or proviso, save the single injunction “that elections shall be free and equal.” But to whom are the elections free? They are free only to the qualified electors of the Commonwealth.... There must be a means of distinguishing the qualified from the unqualified ... and therefore the legislature must establish ... the means of ascertaining who are and who are not the qualified electors....
Id. at 75. The General Assembly has done this, and despite the Registered Felons’ arguments to the contrary, we see no constitutional infirmity here. Under the laws enacted within this Commonwealth, we again hold, as we did in Martin v. Haggerty and our State Supreme Court did in Ray v. Commonwealth, that incarcerated felons are not qualified absentee electors.
The Registered Felons next argue that the language of Section 5102 of the Voter Registration Act,
II. Non-Registered Felons
The Non-Registered Felons, who are incarcerated but not registered, assert that they should be permitted to register and vote during their period of incarceration. In support of their claim, they advance the same arguments as those of the Registered Felons refuted above, namely that the General Assembly impermissibly enacted legislation affecting the qualifications of absentee electors and that the Pennsylvania Constitution does not bar incarcerated felons from voting. Because the substantive arguments underlying these assertions do not provide a basis for relief, as observed above, their claims must also fail.
III. Released Felons
The Released Felons, who had not been registered prior to their incarceration and who have served at least their minimum sentences, contend that the Voter Registration Act impermissibly repealed sections of the Election Code by adding an additional qualified elector registration requirement that the registrant not have “been confined in a penal institution for a conviction of a felony within the last five years.”
However, while the right of felons to vote is not a fundamental right, and therefore, the Commonwealth is not required to show a “compelling state interest” to justify excluding felons from the franchise, Owens v. Barnes, 711 F.2d 25 (3d Cir.1983), cert. denied, 464 U.S. 963, 104 S.Ct. 400, 78 L.Ed.2d 341 (1983), we nevertheless conclude that there is no rational basis to preclude the registration of those who have been incarcerated within the last five years and who had not been registered previously, when those who were legally registered prior to incarceration may vote upon their release. Although a state may not only disenfranchise all convicted felons it may also distinguish among them, but the distinction must be such that it is rationally related to a legitimate state interest. Owens. The United States Supreme Court has indicated that while minors, felons and other classes of citizens may be excluded from voting, once the body of voters is determined, and their qualifications specified, there is “no constitutional way by which equality of voting power may be evaded.” Gray v. Sanders, 372 U.S. 368, 380-81, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963).
The Third Circuit Court of Appeals in Owens, found relevant the Commonwealth‘s concession that it “could not disenfranchise similarly situated blue-eyed felons but not brown-eyed felons.” Owens, 711 F.2d at 27. The Released Felons allege that this is the existing scenario in Pennsylvania today. We agree, and restricting registration under
III. Petitioner Williams
Respondents have challenged Petitioner Williams’ standing to maintain her claim contending that Williams is not a convicted felon and has not alleged that she is someone who will be unable to register and vote. Williams relies on Bergdoll v. Kane to support her position. In Bergdoll, the Pennsylvania Bar Association (PBA) and individual petitioners commenced a quo warranto action against the Secretary of the Commonwealth, challenging the placement of a proposed constitutional amendment on the ballot that would have amended the confrontation clause of
By defining the interest that appellees seek to protect as a criminal defendants’ interest in the confrontation of a witness at trial, Secretary Kane minimizes what is truly at stake in this action. The interest sought to be protected is the fundamental right to vote.
Bergdoll v. Kane, 731 A.2d at 1268. Williams asserts that the Court found standing based on this passage and the fact that “some of the appellants were not criminal defendants.” (Petitioners’ Brief, p. 31.) Nothing could be farther from the truth, and this passage offers Williams no assistance.
The voting issue in Bergdoll revolved around whether the single proposed amendment to the Pennsylvania Constitution actually comprised two amendments—one to the confrontation clause and one to the constitutional provision relating to ju- dicial administration—but did not permit the electorate to vote separately upon each of the amendments. The challenge to the amendment was brought by individual petitioners and the Secretary opposed PBA‘s standing on the ground that the association did not have a “substantial, direct and immediate interest in the outcome of the litigation because they were not criminal defendants whose right to confront witnesses would be limited by a change in the law.” The Bergdoll court determined that PBA had standing as “attorneys, taxpayers, and electors in the Commonwealth.” Bergdoll, 731 A.2d at 1268. More important, the Secretary challenged the standing of the individual petitioners on the same ground, that is, that they did not have a “substantial, direct and immediate interest in the outcome of the litigation because they were not criminal defendants whose right to confront witnesses would be limited by a change in the law.” Id. The court concluded that the Secretary had waived the issue of standing by failing to raise the issue in her pleadings, although the court went on to determine that the individual petitioners had standing as individual electors. We remind Williams that standing, in Pennsylvania, is a waivable issue. Erie Indemnity Company v. Coal Operators Casualty Company, 441 Pa. 261, 272 A.2d 465 (1971).
It has been long settled that an interest to be justiciable must be more than a general interest and must be direct, substantial and present, as contrasted with remote or speculative. Smith v. McCarthy, 56 Pa. 359 (1867). Moreover, it is hornbook law that a person whose interest is common to that of the public generally, in contradistinction to an interest that is peculiar to herself, lacks standing to attack the validity of a legislative enactment. See, Department of Commerce v. United States House of Representatives, 525 U.S. 316, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999); Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952); Ex parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937); Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917).
We have examined with great care Petitioner Williams’ claim to standing and to a justiciable interest to maintain this action. Petitioner Williams’ claims that the challenged statutes result in the dilution of her vote in a district that is primarily black and Hispanic. Vote dilution claims are conceptually distinct from vote denial claims because dilution claims focus on the overall harm done to a minority group‘s voting strength. We find that most vote dilution claims have been brought within the realm of redistricting, that is, changing political boundaries to affect minority voting power. Within that context, vote dilution takes place where qualified electors are shifted within those boundaries so that the qualified electors are grouped differently than before, or with an eye to obtaining a particular outcome. The result is to neutralize the vote of one qualified elector with the votes of other qualified electors. Such is not the case here.
The linchpin of Petitioner Williams’ standing claim is that she votes in a district in which the majority of electors are black and/or Hispanic, contending that her neighbors in that district vote as a block. However, the concept of diminished voting strength recognized as actionable under federal jurisprudence as “vote dilution,” is defined as “a regime that denies to minority voters the same opportunity to participate in the political process and to elect representatives of their choice that majority voters enjoy.” Reno v. Bossier Parish School Board, 528 U.S. 320, 120 S.Ct. 866, 887, 145 L.Ed.2d 845 (2000). Petitioner Williams has not demonstrated, nor do we believe she can, that she does not have an equal opportunity to participate in the political process in her district. Moreover, Petitioner Williams is essentially asserting that her vote is diluted by the absence of unqualified electors. We find no merit in this argument whatsoever.
Finally, Petitioner Williams contends that she desires to protect the fundamental right to vote. This interest is not peculiar to her, is not direct, and is too remote and too speculative to afford her a standing to attack the statutory provisions she challenges.
Based on the foregoing, we sustain Respondents’ preliminary objection as to the Registered Felons’ and Non-Registered Felons’ claim that incarcerated felons are unconstitutionally deprived of “qualified absentee elector” status; we overrule Respondents’ preliminary objection as to the Released Felons’ claim that Section 501 impermissibly deprives those ex-felons who had not previously registered and who have been incarcerated within the past five years, of the right to register to vote; and we sustain Respondents’ preliminary objection as to the standing of Petitioner Williams, and she is dismissed from the case.
ORDER
NOW, September 18, 2000, we SUSTAIN Respondents’ preliminary objection as to Petitioners’ claim that incarcerated felons are unconstitutionally deprived of “qualified absentee elector” status; we OVERRULE Respondents’ preliminary objection as to Petitioners’ claim that Section 501 impermissibly deprives those ex-felons who have been incarcerated within the past five years of the right to register to vote; and we SUSTAIN Respondents’ preliminary objection as to the standing of Petitioner Williams, and she is dismissed from the case.
Respondents shall file an answer to the remaining count of the petition for review within thirty days of the entry of this order.
McGINLEY, Judge, concurring and dissenting.
I concur in part to the majority‘s conclusion: that “incarcerated felons are not
In Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) the United States Supreme Court rejected an equal protection challenge to a California statute which denied the right to vote to convicted felons who completed their sentences and paroles as unconstitutional. Also, In Martin v. Haggerty, 120 Pa.Cmwlth. 134, 548 A.2d 371, 374 (1988) this Court observed that “the Court in Owens [v. Barnes, 711 F.2d 25 (3rd Cir.1983), cert. denied, 464 U.S. 963, 104 S.Ct. 400, 78 L.Ed.2d 341 (1983)], noted that a state does not violate the Fourteenth Amendment if it chooses to disenfranchise all convicted felons.”
I believe the five-year prohibition contained in
Judge FLAHERTY joins in this concurring and dissenting opinion.
LEADBETTER, Judge, concurring and dissenting.
I join the opinion of the majority in section IV (standing of petitioner Williams). As to sections I and II regarding absentee ballots, I concur in the result. As to section III (five-year registration ban for released prisoners), I must respectfully dissent.
(a) The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.
With respect to the five-year registration ban, I cannot join the majority in holding that the law unfairly discriminates between registered and unregistered ex-felons, not because I find the analysis to be lacking in merit, but because the issue was not raised by petitioners. Instead, petitioners claim that the registration ban causes them to be disenfranchised in violation of
Presented with a neutral state law that produces disproportionate effects along racial lines [the following approach should be applied] to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment: “[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact, ... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”
Hunter v. Underwood, 471 U.S. 222, 227, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). In this case petitioners have not alleged any racially discriminatory intent or purpose on the part of the General Assembly, nor have they averred any facts which are in any way suggestive of such an intent. Accordingly, I agree with Judge McGinley that all preliminary objections should be sustained.
1. The majority opinion correctly cites controlling authority from the Pennsylvania Supreme Court for the proposition that the legislature may do so. I believe petitioners make a credible argument for the reconsideration of this holding, but that is not our prerogative.
2. The equal protection provisions of