IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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1 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN), Plaintiff NO (JUDGE FISCHER) v. TOM CORBETT, Attorney General, Commonwealth of Pennsylvania, and STEPHEN A. ZAPALLA, JR., District Attorney for Allegheny County, Pennsylvania, Defendants ELECTRONICALLY FILED DEFENDANT THOMAS W. CORBETT S ANSWER TO THE COMPLAINT Defendant Thomas W. Corbett, Attorney General of the Commonwealth of Pennsylvania, by his attorneys, hereby answers the complaint as follows: FIRST DEFENSE Introduction - This unnumbered paragraph consists of a general overview of the legal claims set forth in the complaint. As such, the allegations are CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. To the extent that these allegations are deemed factual, Answering Defendant lacks sufficient information or knowledge to either affirm or deny said allegations. Therefore, they are By way of further answer, district attorneys are

2 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 2 of 27 independently elected at the county level and have primary responsibility for prosecuting violations of Pennsylvania s election statutes within their jurisdictions. Although the Office of Attorney General cooperates with both local and federal criminal law enforcement efforts, it would not normally be consulted regarding decisions to bring criminal charges by a district attorney and except in rare cases would not have the authority to interfere with or otherwise override such decisions. The Office of Attorney General was not involved in the criminal investigation nor the decision to file criminal charges in Allegheny County which are the basis of the allegations in the complaint. 1. This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. However, Answering Defendant does not dispute that this Court has jurisdiction over the claims presented. 2. This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. However, Answering Defendant does not dispute that venue properly lies in the Western District of Pennsylvania. 3. Answering Defendant lacks sufficient information or knowledge to 2

3 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 3 of Answering Defendant lacks sufficient information or knowledge to 5. Answering Defendant lacks sufficient information or knowledge to 6. It is ADMITTED that Thomas W. Corbett is the Attorney General for the Commonwealth of Pennsylvania and has held that office since January of The remaining allegations in this paragraph of the complaint are CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. Therefore, the remaining allegations are 7. It is ADMITTED that Stephen A. Zappala, Jr. is the District Attorney for the County of Allegheny. The remaining allegations in this paragraph of the complaint are CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. Therefore, the remaining allegations are 8. Answering Defendant lacks sufficient information or knowledge to 3

4 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 4 of Answering Defendant lacks sufficient information or knowledge to 10. Answering Defendant lacks sufficient information or knowledge to 11. Answering Defendant lacks sufficient information or knowledge to 12. Answering Defendant lacks sufficient information or knowledge to 13. Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania does not lie with the Office of Attorney General, but has been delegated by the 4

5 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 5 of 27 Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 14. Answering Defendant lacks sufficient information or knowledge to 15. Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania does not lie with the Office of Attorney General, but has been delegated by the Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 16. Answering Defendant lacks sufficient information or knowledge to 17. Answering Defendant lacks sufficient information or knowledge to 5

6 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 6 of Answering Defendant lacks sufficient information or knowledge to 19. Answering Defendant lacks sufficient information or knowledge to 20. Answering Defendant lacks sufficient information or knowledge to 21. Answering Defendant lacks sufficient information or knowledge to 22. Answering Defendant lacks sufficient information or knowledge to 23. Answering Defendant lacks sufficient information or knowledge to 6

7 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 7 of It is ADMITTED that there have been numerous reports over the past few years of problems with the submission of duplicate voter registration forms, fictitious names on voter registration forms, and registration forms which were invalid for other reasons. While some of these reports involve ACORN, the scope of the problem is larger than one single organization and poses a substantial burden on the ability of states like Pennsylvania to smoothly and efficiently manage the electoral process. 25. Answering Defendant lacks sufficient information or knowledge concerning all of the charges which have been made against ACORN in order to affirm or deny the allegations in this paragraph of the complaint as stated. It is ADMITTED that some of the charges or allegations made against ACORN involved registration applications which were duplicates for people who had already registered, filled out on behalf of non-existent people, or were invalid for other reasons. 26. Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania 7

8 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 8 of 27 does not lie with the Office of Attorney General, but has been delegated by the Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 27. Answering Defendant lacks sufficient information or knowledge to 28. Answering Defendant lacks sufficient information or knowledge to 29. Answering Defendant lacks sufficient information or knowledge to 30. Answering Defendant lacks sufficient information or knowledge to 31. Answering Defendant lacks sufficient information or knowledge to 8

9 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 9 of Answering Defendant lacks sufficient information or knowledge to 33. Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania does not lie with the Office of Attorney General, but has been delegated by the Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 34. Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania does not lie with the Office of Attorney General, but has been delegated by the Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 9

10 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 10 of Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania does not lie with the Office of Attorney General, but has been delegated by the Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 36. Answering Defendant lacks sufficient information or knowledge to 37. Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania does not lie with the Office of Attorney General, but has been delegated by the Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 10

11 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 11 of Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania does not lie with the Office of Attorney General, but has been delegated by the Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 9. Answering Defendant lacks sufficient information or knowledge to By way of further answer, district attorneys are independently elected at the county level and have primary responsibility for prosecuting violations of Pennsylvania s election statutes within their jurisdictions. Although the Office of Attorney General cooperates with both local and federal criminal law enforcement efforts, it would not normally be consulted regarding decisions to bring criminal charges by a district attorney and except in rare cases would not have the authority to interfere with or otherwise override such decisions. The Office of Attorney General was not involved in the criminal investigation nor the decision to 11

12 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 12 of 27 file criminal charges in Allegheny County which are the basis of the allegations in the complaint. 40. Answering Defendant lacks sufficient information or knowledge to By way of further answer, district attorneys are independently elected at the county level and have primary responsibility for prosecuting violations of Pennsylvania s election statutes within their jurisdictions. Although the Office of Attorney General cooperates with both local and federal criminal law enforcement efforts, it would not normally be consulted regarding decisions to bring criminal charges by a district attorney and except in rare cases would not have the authority to interfere with or otherwise override such decisions. The Office of Attorney General was not involved in the criminal investigation nor the decision to file criminal charges in Allegheny County which are the basis of the allegations in the complaint. 41. Answering Defendant lacks sufficient information or knowledge to By way of further answer, the Office of Attorney General is not involved in managing or overseeing voter registration in Pennsylvania. The duty to oversee voter registration and other matters relating to elections in Pennsylvania 12

13 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 13 of 27 does not lie with the Office of Attorney General, but has been delegated by the Legislature to the Pennsylvania Department of State and the local boards of elections for each county. 42. ADMITTED in part; DENIED in part. It is ADMITTED that on May 7, 2009, the Allegheny County District Attorney filed criminal charges against seven individuals for various criminal offenses relating to voter registration fraud. Answering Defendant lacks sufficient information or knowledge regarding the employee relationship of these individuals to ACORN to affirm the remaining allegations in this paragraph of the complaint; therefore, these remaining allegations are 43. Answering Defendant lacks sufficient information or knowledge to 44. Answering Defendant lacks sufficient information or knowledge to 45. ADMITTED in part; DENIED in part. It is ADMITTED that on May 7, 2009, at least five individuals were criminally charged by the Allegheny County District Attorney for violating 25 Pa. C.S (Solicitation of 13

14 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 14 of 27 Registration). Answering Defendant lacks sufficient information or knowledge regarding the employee relationship of these individuals to ACORN to affirm that these individuals were former employees of ACORN. Accordingly, the allegation that these individuals were former employees of ACORN is specifically By way of further answer, district attorneys are independently elected at the county level and have primary responsibility for prosecuting violations of Pennsylvania s election statutes within their jurisdictions. Although the Office of Attorney General cooperates with both local and federal criminal law enforcement efforts, it would not normally be consulted regarding decisions to bring criminal charges by a district attorney and except in rare cases would not have the authority to interfere with or otherwise override such decisions. The Office of Attorney General was not involved in the criminal investigation nor the decision to file criminal charges in Allegheny County which are the basis of the allegations in the complaint. 46. ADMITTED. 47. This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. 48. ADMITTED in part; DENIED in part. The affidavits of probable cause referred to in this paragraph are legal documents which speak for 14

15 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 15 of 27 themselves. To the extent that the plaintiff has accurately restated the averments contained in these affidavits, the allegations in this paragraph of the complaint are ADMITTED. Answering Defendant lacks sufficient information or knowledge to affirm the allegations regarding newspaper reports in this paragraph of the complaint; therefore, the allegations regarding newspaper reports in the second sentence of this paragraph are 49. The allegation regarding whether 25 Pa. C.S includes the term quota is a CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. Answering Defendant lacks sufficient information or knowledge to affirm the remaining allegations in this paragraph of the complaint; therefore, they are By way of further answer, district attorneys are independently elected at the county level and have primary responsibility for prosecuting violations of Pennsylvania s election statutes within their jurisdictions. Although the Office of Attorney General cooperates with both local and federal criminal law enforcement efforts, it would not normally be consulted regarding decisions to bring criminal charges by a district attorney and except in rare cases would not have the authority to interfere with or otherwise override such decisions. The Office of Attorney General was not involved in the criminal investigation nor the 15

16 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 16 of 27 decision to file criminal charges in Allegheny County which are the basis of the allegations in the complaint. 50. Answering Defendant lacks sufficient information or knowledge to 51. Answering Defendant lacks sufficient information or knowledge to 52. Answering Defendant lacks sufficient information or knowledge to 53. Answering Defendant lacks sufficient information or knowledge to 54. Answering Defendant lacks sufficient information or knowledge to 16

17 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 17 of Answering Defendant lacks sufficient information or knowledge to 56. Answering Defendant lacks sufficient information or knowledge to 57. Answering Defendant lacks sufficient information or knowledge to 58. Answering Defendant lacks sufficient information or knowledge to 59. Answering Defendant lacks sufficient information or knowledge to By way of further answer, 25 Pa. C.S does not prohibit the use of paid canvassers by ACORN or other organizations to obtain new voter registration applications. It only prohibits paying individuals based directly on the number of signatures obtained. Furthermore, the statute does not prohibit ACORN or other employers from terminating the employment of individuals hired to obtain 17

18 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 18 of 27 new voter registration applications because their performance was unsatisfactory or otherwise did not meet expectations. Such employees are considered at-will employees under Pennsylvania law who generally can be terminated for any reason by their employers. As paid hourly employees, these workers would be entitled to be paid for time worked (regardless of whether they had met any performance goals or quotas) until they were in fact terminated as provided by applicable state and federal law. 60. Answering Defendant lacks sufficient information or knowledge to By way of further answer, 25 Pa. C.S does not prohibit the use of paid canvassers by ACORN or other organizations to obtain new voter registration applications. It only prohibits paying individuals based directly on the number of signatures obtained. Furthermore, the statute does not prohibit ACORN or other employers from terminating the employment of individuals hired to obtain new voter registration applications because their performance was unsatisfactory or otherwise did not meet expectations. Such employees are considered at-will employees under Pennsylvania law who generally can be terminated for any reason by their employers. As paid hourly employees, these workers would be entitled to be paid for time worked (regardless of whether they had met any performance 18

19 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 19 of 27 goals or quotas) until they were in fact terminated as provided by applicable state and federal law. 61. Answering Defendant lacks sufficient information or knowledge to 62. Answering Defendant lacks sufficient information or knowledge to 63. Answering Defendant lacks sufficient information or knowledge to 64. This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. To the extent that these allegations are deemed factual, they are By way of further answer, 25 Pa. C.S does not substantially burden the First Amendment rights of organizations like ACORN who wish to conduct voter registration drives. While it restricts the payment for each registration obtained, it does not prohibit the use of paid canvassers to obtain new voter registration applications. Also, although it furthers the important government 19

20 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 20 of 27 interest of preventing voter fraud, its primary purpose is to prevent the clogging of the voter registration rolls with invalid or duplicate applications. The current provision codified at 25 Pa. C.S was first enacted in 1995 as part of Pennsylvania s Voter Registration Act, 25 P.S (commonly referred to as the Motor Voter Law ). While the Voter Registration Act has substantially increased the number of registered voters, it makes it more difficult to purge old or invalid registrations from the voting rolls. Pennsylvania election officials must use valuable government resources to process voter registration applications. Removing invalid registrations is difficult and timeconsuming since the Commonwealth has a duty to insure that it does not accidently deny a validly registered individual the right to vote. The burden on government is not significantly lessened when ACORN and other organizations submit tagged applications which they admit are probably invalid. Additional government resources must also be expended in preparing voting lists for each precinct. Although theoretically any mistakes or invalid applications would be caught before Election Day, the existence of duplicate registrations, invalid registrations, or other inaccuracies in voter registration materials can cause confusion and delay at the polls. 20

21 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 21 of 27 Pennsylvania s General Assembly has reasonably determined that the payment of a fee for each voter registration application creates an economic incentive for canvassers to submit duplicate, inaccurate or invalid voter registration applications. In many cases, this may be the result of carelessness (and not intentional criminal conduct) as workers attempt to maximize their income. However, even if such conduct does not always constitute fraud, it clogs the voter registration rolls, results in a greater administrative burden for election officials, and interferes with the smooth and efficient operation of elections. 65. This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. To the extent that these allegations are deemed factual, they are By way of further answer, there is nothing in the language of 25 Pa. C.S which would suggest that having productivity standards would be prohibited under Pennsylvania law. Answering Defendant notes that ACORN has not been charged with having violated 25 Pa. C.S Also, although the Office of Attorney General was not involved in the criminal investigation nor the decision to file criminal charges in Allegheny County which are the basis of the allegations in the complaint, the individuals who have been charged face numerous counts of voter registration fraud. Answering Defendant is unaware of any individual (or organization) being charged with violating 25 Pa. 21

22 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 22 of 27 C.S solely because productivity or performance standards were used by the employer since the section was enacted in This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. To the extent that these allegations are deemed factual, they are The allegations in these paragraphs contain CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. To the extent that these allegations are deemed factual, they are By way of further answer, 25 Pa. C.S does not substantially burden the First Amendment rights of organizations like ACORN who wish to conduct voter registration drives. While it restricts the payment for each registration obtained, it does not prohibit the use of paid canvassers to obtain new voter registration applications. Also, although it furthers the important government interest of preventing voter fraud, its primary purpose is to prevent the clogging of the voter registration rolls with invalid or duplicate applications. The current provision codified at 25 Pa. C.S was first enacted in 1995 as part of Pennsylvania s Voter Registration Act, 25 P.S (commonly referred to as the Motor Voter Law ). While the Voter Registration Act has substantially increased the number of registered voters, it makes it more 22

23 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 23 of 27 difficult to purge old or invalid registrations from the voting rolls. Pennsylvania election officials must use valuable government resources to process voter registration applications. Removing invalid registrations is difficult and timeconsuming since the Commonwealth has a duty to insure that it does not accidently deny a validly registered individual the right to vote. The burden on government is not significantly lessened when ACORN and other organizations submit tagged applications which they admit are probably invalid. Additional government resources must also be expended in preparing voting lists for each precinct. Although theoretically any mistakes or invalid applications would be caught before Election Day, the existence of duplicate registrations, invalid registrations, or other inaccuracies in voter registration materials can cause confusion and delay at the polls. Pennsylvania s General Assembly has reasonably determined that the payment of a fee for each voter registration application creates an economic incentive for canvassers to submit duplicate, inaccurate or invalid voter registration applications. In many cases, this may be the result of carelessness (and not intentional criminal conduct) as workers attempt to maximize their income. However, even if such conduct does not always constitute fraud, it clogs the voter 23

24 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 24 of 27 registration rolls, results in a greater administrative burden for election officials, and interferes with the smooth and efficient operation of elections. 72. This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. To the extent that these allegations are deemed factual, they are 73. This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. To the extent that these allegations are deemed factual, they are By way of further answer, there is nothing in the language of 25 Pa. C.S which would suggest that having productivity standards would be prohibited under Pennsylvania law. Answering Defendant notes that ACORN has not been charged with having violated 25 Pa. C.S Also, although the Office of Attorney General was not involved in the criminal investigation nor the decision to file criminal charges in Allegheny County which are the basis of the allegations in the complaint, the individuals who have been charged face numerous counts of voter registration fraud. Answering Defendant is unaware of any individual (or organization) being charged with violating 25 Pa. C.S solely because productivity or performance standards were used by the employer since the section was enacted in

25 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 25 of This paragraph contains CONCLUSIONS OF LAW to which NO RESPONSE IS REQUIRED. To the extent that these allegations are deemed factual, they are By way of further answer, there is nothing in the language of 25 Pa. C.S which would suggest that having productivity standards would be prohibited under Pennsylvania law. Answering Defendant notes that ACORN has not been charged with having violated 25 Pa. C.S Also, although the Office of Attorney General was not involved in the criminal investigation nor the decision to file criminal charges in Allegheny County which are the basis of the allegations in the complaint, the individuals who have been charged face numerous counts of voter registration fraud. Answering Defendant is unaware of any individual (or organization) being charged with violating 25 Pa. C.S solely because productivity or performance standards were used by the employer since the section was enacted in Prayer for Relief - The remainder of the Complaint is a request for relief to which NO RESPONSE IS REQUIRED. SECOND DEFENSE Plaintiff fails to state a claim upon which relief can be granted. 25

26 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 26 of 27 THIRD DEFENSE 25 Pa. C.S is constitutional on its face and is a reasonable exercise of the Pennsylvania General Assembly s powers to regulate elections. FOURTH DEFENSE Plaintiff s as applied challenge to 25 Pa. C.S should be dismissed as to Answering Defendant Thomas W. Corbett because the Office of Attorney General was not involved in the criminal investigation nor the decision to file criminal charges in Allegheny County which are the basis of the allegations in the complaint. Respectfully submitted, THOMAS W. CORBETT, JR. Attorney General By: s/howard G. Hopkirk HOWARD G. HOPKIRK Senior Deputy Attorney General Attorney I.D. #74264 Office of Attorney General Litigation Section 15 th Floor, Strawberry Square Harrisburg, PA Direct: Fax: SUSAN J. FORNEY Chief Deputy Attorney General Chief, Civil Litigation Section Date: September 22,

27 Case 2:09-cv NBF Document 12 Filed 09/22/09 Page 27 of 27 CERTIFICATE OF SERVICE I, Howard G. Hopkirk, Senior Deputy Attorney General, hereby certify that on September 22, 2009, I caused to be served the foregoing DEFENDANT THOMAS W. CORBETT S ANSWER TO THE COMPLAINT by electronic filing to the following: Witold J. Walczak, Esquire vwalczak@aclupgh.org Sara J. Rose, Esquire srose@aclupgh.org Brian Mellor, Esquire bmellor@projectvote.org Teresa James, Esquire tjames@projectvote.org Arthur Z. Schwartz, Esquire General.counsel@acornmail.net Claudia Davidson, Esquire cdavidson@choiceon .com (Counsel for Plaintiff) Stephen A. Zappala, Jr., District Attorney Allegheny County District Attorney s Office ALLEGHENY COUNTY COURTHOUSE 436 Grant Street, Suite 303 Pittsburgh, PA (VIA FIRST-CLASS MAIL) By: s/howard G. Hopkirk HOWARD G. HOPKIRK Senior Deputy Attorney General

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW (ACORN);