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); PROJECT VOTE; and MARYELLEN HAYDEN, Plaintiffs NO. 09-0951 (JUDGE FISCHER) v. TOM CORBETT, Attorney General, Commonwealth of Pennsylvania, Defendant ELECTRONICALLY FILED DEFENDANT S RESPONSE TO PLAINTIFFS CONCISE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Defendant William H. Ryan, Acting Attorney General of Pennsylvania, through his counsel, hereby submits its response to Plaintiffs Concise Statement of Undisputed Facts in Support of Motion for Summary Judgment: 1. ADMITTED. 1 1 For purposes of responding to Plaintiffs Statement of Material Facts, the Office of Attorney General is not disputing and will accept as true some facts which are ultimately best known by the Allegheny County District Attorney s Office, ACORN, Project Vote, the individuals criminally charged under 25 Pa. C.S. 1713 by D.A. Zappala, and other third parties. While the stated goals of increasing voter registration in Pennsylvania are shared by the Commonwealth, the fact that the Defendant has admitted certain statements made by plaintiffs regarding their
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 2 of 16 2. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. By way of further answer, Defendant Ryan disputes that there is an actual case or controversy in regard to Plaintiffs as applied challenge against Defendant Ryan. See Defendant s Brief in Support of Motion for Summary Judgment at 13-15 (Doc. No. 71) and Defendant Corbett s Brief in Support of Motion for Judgment on the Pleadings (Doc. No. 50). 3. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. Nonetheless, it is ADMITTED that the Office of Attorney General has offices in the Western District of Pennsylvania and that a substantial part of the events alleged in the amended complaint occurred in Allegheny County. 4. ADMITTED. 5. It is ADMITTED that ACORN was a large national non-profit organization which had as its self-proclaimed mission the furthering of social and economic justice issues on behalf of low and moderate income families. 6. ADMITTED. beliefs and practices does not constitute an endorsement of the actual practices and procedures of ACORN or Project Vote by the Office of Attorney General. In addition, for the reasons explained in his brief, Defendant Ryan does not believe that any of the facts (as opposed to legal conclusions and inferences) cited by plaintiffs renders the statute unconstitutional. 2
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 3 of 16 7. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. 8. It is ADMITTED that Project Vote is a national non-profit organization which has as its self-proclaimed mission helping to register to vote, educate, and encourage voting by low-income, minority, youth and other marginalized and under-represented voters. 9. DENIED as stated. It is ADMITTED that U.S. Census Bureau data shows that the number of individuals who live in low-income and minority communities who are registered to vote is statistically lower than the overall voter registration rate for the total population of Pennsylvania. However, the cause of this lower voter participation rate is not demonstrated by this data. 10. It is ADMITTED that part of Project Vote s self-proclaimed mission is to increase levels of voter participation in historically under-represented lowand moderate-income and minority communities. 11. ADMITTED. 12. ADMITTED. 13. ADMITTED. 14. ADMITTED. 15. ADMITTED. 3
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 4 of 16 16. ADMITTED. 17. ADMITTED. 18. ADMITTED. 19. ADMITTED. 20. ADMITTED. 21. ADMITTED. 22. ADMITTED. 23. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. 24. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. 25. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. 26. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. 27. ADMITTED. 28. ADMITTED. 29. ADMITTED. 30. ADMITTED. 4
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 5 of 16 31. ADMITTED. 32. ADMITTED. 33. ADMITTED. 34. ADMITTED. 35. ADMITTED. 36. ADMITTED. 37. ADMITTED. 38. ADMITTED. 39. ADMITTED. 40. ADMITTED. 41. ADMITTED. 42. ADMITTED. 43. ADMITTED. 44. ADMITTED. 45. ADMITTED. 2 2 The Office of Attorney General has no information regarding the facts underlying the criminal charges brought against the voter registration canvassers by the Allegheny County District Attorney s Office beyond what is contained in the affidavits of probable cause and is publicly available. Although Defendant Ryan must therefore accept as true for purposes of this litigation the plaintiffs assertion that ACORN did not pay its workers on a commission basis, it is the 5
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 6 of 16 46. ADMITTED. 47. DENIED. It is impossible to determine how District Attorney Zappala would define quota from the information provided. The information taken from newspaper articles is hearsay. If plaintiffs had not voluntarily dismissed District Attorney Zappala as a defendant, his statements may have qualified as an admission which could have been used against him and which would have fallen within an exception to the hearsay rules. However, they are not admissible against Defendant Ryan or the Office of Attorney General who have at no time taken the position that setting goals or quotas for the collection of voter registration applications where workers are not paid on a commission basis violates 25 Pa. C.S. 1713. The newspaper article also contains conclusions of law regarding the meaning of 25 Pa. C.S. 1713 which do not require a response. 48. DENIED. Even accepting the hearsay statements contained in the preceding paragraph as true, it is impossible to determine that District Attorney Zappala defines quota as meaning the same thing as productivity goals. 49. ADMITTED. 50. ADMITTED. 51. ADMITTED. Allegheny County District Attorney s Office which would be best situated to defend its actions. 6
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 7 of 16 52. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. 53. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. As Defendant Ryan does not believe this is a reasonable interpretation of the statute, to the extent the statements in this paragraph are deemed factual, they are DENIED. 54. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. However, Defendant Ryan would note that the United States Supreme Court s decision in Meyer v. Grant, 486 U.S. 414 (1988) (holding that a complete prohibition on paying petition circulators violated the First Amendment) would seem to limit and be inconsistent with the broad reading of 25 Pa. C.S. 1713 suggested by plaintiffs. 55. The allegations set forth in this paragraph are Conclusions of Law to which No Response is Required. 56. ADMITTED. 57. ADMITTED. 58. To the extent Project Vote has as a goal obtaining the greatest number of valid signatures, it is ADMITTED that determining the best ways to manage canvassers so as to maximize productivity without sacrificing quality would be 7
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 8 of 16 important. However, this stated goal of maximizing signatures is diminished by Project Vote s other stated goals of having canvassers talk with the citizen about the importance of voting, explain the registration process and help the individual complete the form, discuss issues of importance to low-income and minority community, and try to answer questions the registrant may have. (Plaintiffs Ex. 2, Declaration of Executive Director Michael Slater, at 13) In addition, the use of a piece rate system may diminish the validity rate of voter registration applications which are submitted. See Defendant s SMF 54-59. Accordingly, to the extent that plaintiffs are attempting to suggest that it is necessary for them to have the option of paying their workers under a commission system, this is specifically DENIED. 59. ADMITTED. 60. ADMITTED. 61. It is ADMITTED that registration drives using paid canvassers are more productive than those staffed entirely by volunteers. The Plaintiffs have not produced evidence which demonstrates that the difference in productivity between paid and unpaid canvassers is exponential. Accordingly, to the extent Plaintiffs are asserting that volunteer voter registration drives are exponentially less productive than ones using paid workers, this assertion is DENIED. 8
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 9 of 16 62. ADMITTED. 63. ADMITTED. 64. ADMITTED. 65. ADMITTED. 66. ADMITTED. 67. ADMITTED. 68. The number of volunteers needed to collect 40,000 registrations would depend on a variety of factors including the number of hours each volunteer was willing to work and the average number of registrations each volunteer would be able to obtain. While Ms. Deckard s experience in 2007 (see Pls SMF 64-65) would suggest that each volunteer would obtain only 2.5 registrations, there is no evidence to show that volunteer voter registration drives would always be this unsuccessful. Nonetheless, Defendant Ryan admits that paid voter registration drives are generally more productive and able to obtain more voter registration applications than those drives using only volunteers. 69. ADMITTED. 70. Plaintiffs have previously stated that they have no intention of paying canvassers on a commission basis. See Defendant s SMF at 6. Notwithstanding the contradiction between their previous allegations and this statement, it is 9
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 10 of 16 ADMITTED that in some circumstances paying workers on a commission basis may be more efficient in terms of collecting valid voter registration applications. However, it is DENIED that this is always true. See SMF 54-59. In fact, commissions or piece rates can result in shoddy work, cheating in order to increase the production rate, and generally lower quality because a greater number of mistakes may occur under such a system. Id. 71. ADMITTED. 72. ADMITTED. 73. ADMITTED. 74. ADMITTED. 75. ADMITTED. 76. ADMITTED. 77. The allegations set forth in this paragraph are based on Conclusions of Law to which No Response is Required. To the extent that these allegations are deemed factual, it is DENIED that 25 Pa. C.S. 1713 bans productivity goals. 78. The allegations set forth in this paragraph are based on Conclusions of Law to which No Response is Required. To the extent that these allegations are deemed factual, it is DENIED that 25 Pa. C.S. 1713 prohibits the termination of 10
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 11 of 16 employees who do not meet the productivity goals or productivity expectations of their employers. 79. The allegations set forth in this paragraph are based on Conclusions of Law to which No Response is Required. To the extent that these allegations are deemed factual, it is DENIED that 25 Pa. C.S. 1713 prevents plaintiffs from paying canvassers to conduct voter-registration drives or that it imposes a severe burden on Project Vote or other group s ability to exercise their rights under the First Amendment. 80. ADMITTED. 81. ADMITTED. 82. The allegations in this paragraph constitute Conclusions of Law to which No Response is Required. To the extent that these allegations are deemed factual, it is ADMITTED that two of the primary purposes of 25 Pa. C.S. 1713 is to prevent fraud and to diminish the administrative burden created by larger numbers of invalid voter registration applications. See Defendant s SMF 17-23. The law also serves the important state interest of maintaining the integrity of the electoral system and preserving the confidence of the public in that system. Def s SMF at 23. It is also ADMITTED that the Legislature reasonably determined that allowing commissions or piece rates would create an economic incentive for fraud 11
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 12 of 16 and/or the submission of invalid applications. Although there is no evidence of the large scale use of piece rates in collecting voter registration applications, the Legislature is entitled to rely on basic economic theory in passing legislation. Moreover, the Plaintiff s expert supports the fact that using piece rates may result in lower quality results when compared with paying an hourly wage. See Def s SMF at 53-59. 83. ADMITTED. 84. To the extent plaintiffs are alleging that the Commonwealth must provide evidence of actual election fraud before enacting a statute to prevent voter registration fraud, this constitutes a Conclusion of Law to which No Response is Required. To the extent that plaintiffs are alleging that there is no evidence (or insufficient evidence) justifying the need for 25 Pa. C.S. 1713, these allegations are DENIED. Defendant Ryan refers the Court to Def s SMF at 15-35 & 54-59. 85. ADMITTED. By way of further answer, plaintiffs have not produced or pointed to any studies which would show that using commissions does not (or may not under inadequate supervision) result in increased incidence of duplicate, inaccurate or invalid voter registration applications. In fact, Plaintiffs expert (Denise Rousseau) stated in her expert report that piece rates, if used without 12
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 13 of 16 appropriate supports, can result in lower quality even as unit productivity goes up. Def s SMF at 54-59. 86. It is ADMITTED that Defendant did not find any studies specifically addressing the question of the effect of the use of piece rates on the collection of voter registration applications in Pennsylvania. Since this activity is illegal under the statute, it is not surprising that such data is unavailable. Nonetheless, the Legislature reasonably determined that allowing commissions or piece rates would create an economic incentive for fraud and/or the submission of invalid applications. Although there is no evidence regarding the large scale use of piece rates in collecting voter registration applications, the Legislature is entitled to rely on basic economic theory in passing legislation. Moreover, the Plaintiff s expert supports the fact that using piece rates may result in lower quality results when compared with paying an hourly wage. See Def s SMF at 53-59. 87. DENIED. Although Mr. Marks did testify as indicated, he was referring to the burden on the Pennsylvania Department of State. As his declaration; the declaration of Mark Wolosik, Manager of the Allegheny County Elections Division; and the deposition testimony of Diane Boscia, Manager of the Voter Registration Section for Allegheny County, demonstrate, it is the local 13
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 14 of 16 county boards of election which must conduct the burdensome task of actually processing voter registration forms. Def s SMF at 12, 17, 19, 21-22 & 27-30. 88. ADMITTED. 89. DENIED. The Commonwealth has an interest in obtaining large numbers of valid voter registrations and increasing the number of active voters participating in the electoral process. However, where there are large numbers of voter registration applications, but a significant amount of these are problematic, there is an administrative burden. It costs time and money at the county level to process these applications. Also, as the number of applications increases, it becomes more difficult to weed out the invalid applications while making sure those who are eligible to vote get placed on the voting rolls in time for the next election. SMF at 15, 17, 20-22, 26 & 29. 90. a. ADMITTED. b. ADMITTED. By way of further answer, however, 25 Pa. C.S. 1713 does not prohibit paid voter registration drives. Rather, it prohibits the use of commissions or paying using a piece rate system. c. ADMITTED. By way of further answer, Defendant Ryan refers the Court to its response to paragraphs 85-86 above. 14
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 15 of 16 91. ADMITTED. By way of further answer, there is significant evidence that duplicate voter registration forms and other problems with voter registration applications create a burden for voter registration officials. While there are checks placed in the system to make sure all applications are processed, all eligible voters are permitted to vote, and no ineligible voters are allowed to vote, the Commonwealth has a right to be proactive and does not have to wait for a catastrophe on election day before implementing preventive measures into the Election Code. See Def s SMF at 8-12; 17-19 & 22-23. Respectfully submitted, WILLIAM H. RYAN, JR. Acting 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 17120 Direct: 717-783-1478 Fax: 717-772-4526 SUSAN J. FORNEY Chief Deputy Attorney General Chief, Civil Litigation Section Date: May 13, 2011 15
Case 2:09-cv-00951-NBF Document 81 Filed 05/13/11 Page 16 of 16 CERTIFICATE OF SERVICE I, Howard G. Hopkirk, Senior Deputy Attorney General, hereby certify that on May 13, 2011, I caused to be served the foregoing DEFENDANT S RESPONSE TO PLAINTIFFS CONCISE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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@choiceonemail.com (Counsel for Plaintiff) By: s/howard G. Hopkirk HOWARD G. HOPKIRK Senior Deputy Attorney General