Cross-posted at Project Vote’s Voting Matters Blog
This week Project Vote and the ACLU of Pennsylvania filed a lawsuit, on behalf of ACORN, against Pennsylvania Attorney General Tom Corbett and Allegheny County District Attorney Stephen Zappala, Jr. The purpose of the suit is to keep the district attorney from filing a frivolous complaint alleging that ACORN’s method of retaining – not paying – canvassers was a violation of state law.
There have been a lot of fireworks surrounding Project Vote and ACORN’s highly successful voter registration efforts that helped enfranchise hundreds of thousands of voters in 2008. First were the criminal complaints filed against ACORN and two workers in Nevada, and now the impending threats to prosecute ACORN in Pennsylvania raise more hysteria. However, one look beyond the media cries reveals that these cases have nothing to do with so called “voter registration fraud.” These cases are based not on charges of submitting fraudulent registrations, but rather on the bogus charge that ACORN violated statutes forbidding compensation to canvassers based on the number of applications they collected.
According to the Pennsylvania statute in question, “a person may not give, solicit or accept payment or financial incentive to obtain a voter registration if the payment or incentive is based upon the number of registrations or applications obtained.” The Nevada case involves a similar statute. As investigations against ACORN found no direct violations of existing law, officials in these states have attempted to overreach by narrowly interpreting state statutes to charge that ACORN violated the law for implementing performance standards to determine whether to retain an employee. In reality, ACORN does not, and did not, pay its canvassers based on the number of applications they collected, but does expect individuals it hires to actually collect voter registration applications. By Pennsylvania and Nevada’s interpretation of their statutes, however, setting any performance standards–no matter how flexible or reasonable–is a violation of the law, an interpretation that would make it nearly impossible for anyone to conduct a paid voter registration drive in these states.
For such a tortuous stretching of the common sense meaning of a statute, one might look back to tactics last employed in South Carolina in the 1950’s to prosecute black demonstrators at lunch counter sit-ins. South Carolina’s trespassing statute criminalized “entry” upon any establishment after notice from an owner or tenant prohibiting such entry. This law was used to prosecute two African-American men who had taken seats in a restaurant booth without having received any notice that they were not permitted to do so; after they sat down, employees put up a “No Trespassing” sign and asked the two men to leave. The two men were arrested and convicted by the state, which stretched the word “entry” to include “already sitting in a booth.” The convictions were upheld by the state Supreme Court.
In 1964 the case, Bouie v. City of Columbia, reached the U.S. Supreme Court, which found that, not only was the conflation of “trespass” with “entry” legally faulty, but South Carolina had never asserted this argument before. Therefore, the Supreme Court found “the crime for which these petitioners stand convicted was `not enumerated in the statute’ at the time of their conduct. It follows that they have been deprived of liberty and property without due process of law in contravention of the Fourteenth Amendment.”
Similar retroactive law-bending tactics are being seen today in Pennsylvania and Nevada. State officials are stretching the statute that prohibits paying canvassers per card (a practice neither ACORN nor Project Vote employs) to claim it applies to any performance standards. In other words, requiring an employee to collect even one voter registration application in order to keep receiving a regular paycheck would be, in the states’ view, a violation of state law. Not only does this definition–which has never before been applied in this way–stretch common sense, it would effectively put an end to paid voter registration drives, which appears to be the underlying goals of these tactics.
With five ex-canvassers having already been charged with accepting money under the policy, ACORN–represented by the ACLU and Project Vote–has filed a complaint against the district attorney to enjoin him from criminally charging ACORN for its employee retention policy. They argue that retroactively stretching the statute in the manner proposed by Pennsylvania violates ACORN’s right to know that its actions violate the law, and also violate ACORN’s free speech rights.
Paid voter registration drives are the most effective way to help give underrepresented communities a voice. Officials who succeeded in applying such twisted interpretations of state laws would make it impossible to run a paid registration campaign, to the disservice of the democratic process and of the communities they serve.
