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A federal judge has abstained from deciding whether the Pennsylvania Voter Registration Act’s bar against voting by ex-felons is unconstitutional, finding that the Pennsylvania courts should have the first crack at construing the law. In his 21-page opinion in NAACP v. Ridge, Senior U.S. District Judge Louis C. Bechtle agreed with an argument made by the Pennsylvania Attorney General’s Office that an erroneous decision by the federal courts could damage the integrity of the electoral process. “Any decision by this court would of necessity affect a sensitive area of state law. Additionally, no central registry exists and registries are maintained by each of the 67 counties of the Commonwealth. Thus, an erroneous construction of state law by the federal court could eventually necessitate a massive effort within all 67 counties to remove ineligible voters from the rolls,” Bechtle wrote. The plaintiffs in the suit — the Philadelphia branch of the National Association for the Advancement of Colored People; Ex-Offenders Inc. Against Drugs, Guns and Violence; the Pennsylvania Prison Society; Community Assistance for Prisoners; ex-felon Malik Aziz; Alex Moody Sr.; and Pennsylvania state Rep. James Roebuck — argued that the law violates the Equal Protection Clause of the 14th Amendment. Their lawyers — Angus R. Love, Gillian Metzger, and Nancy Northup — argued that, without a rational basis, the law prohibits some ex-felons from voting during the five-year period following their release from prison, while permitting other ex-felons to vote during the same period. The violation stems, they said, from a provision in the PVRA that bars all felons from “registering to vote” for five years following their release from prison. As a result, they said, ex-felons who were registered to vote before their incarceration may vote following their release from prison, while ex-felons who were not registered before their incarceration may not. And an ex-felon who has to re-register because of a change of address following release from prison would also be prohibited from registering and could not vote, they said, while an ex-felon who did not move to a new election district would not have to re-register and could vote. The law, they said, therefore irrationally distinguishes between groups of ex-felons. But Deputy Attorney General Francis Filipi argued that the PVRA does not unconstitutionally distinguish between groups of ex-felons because no ex-felons are entitled to be registered — or to vote at all — during the five-year period following their release from prison. Filipi said he acknowledged that the PVRA “may not be a model of clarity,” but argued that if Bechtle found the statute ambiguous, he should abstain from passing on its constitutionality under Railroad Commission of Texas v. Pullman Co. The Pennsylvania courts have not yet construed the law, Filipi said, but when they do, their ruling could eliminate the federal constitutional concerns. The plaintiffs’ lawyers argued that abstention is inappropriate because the language of the statute is clear and because of the impact that delay might have on the litigants, who seek to vote in the November 2000 general election. Bechtle found that abstention is an “extraordinary and narrow exception to the duty of a [federal] District Court to adjudicate a controversy properly before it.” The Pullman abstention, he said, applies “in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.” Abstention under Pullman is appropriate, Bechtle said, “where an unconstrued state statute is susceptible of a construction by the state judiciary which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.” The purpose of abstaining “is twofold,” Bechtle said, “to avoid a premature constitutional adjudication which could ultimately be displaced by a state court adjudication of state law; and to avoid needless friction with state policies.” Because a federal court is “unable to set forth a definitive construction of a state statute,” Bechtle said, the federal court’s construction is “only tentative, at best a forecast, subject to override by the courts of the state.” That concern “has special significance in this case,” Bechtle said, “where the federal constitutional question might be eliminated by securing a Pennsylvania court’s determination of an unresolved question of its local law.” The Pullman doctrine, Bechtle said, requires the presence of three special circumstances: uncertain issues of state law underlying the federal constitutional claim; State law issues subject to state court interpretation that could obviate the need to adjudicate or substantially narrow the scope of the federal constitutional claim; and the possibility that an erroneous construction of state law by the federal court would disrupt important state policies. Bechtle found all three were present. While the state insisted that the law’s use of the phrase “entitled to be registered” refers to a status and not an act, the plaintiffs disagreed and said the law treats different groups of ex-felons differently. Bechtle found that “both plaintiffs’ and defendants’ interpretations constitute plausible constructions of the statute. Thus, the language of the PVRA is ambiguous.” And since the PVRA has never been interpreted by the Pennsylvania courts, he said, it “presents an unsettled issue of state law.” A challenge to the PVRA is currently pending before the Commonwealth Court in Mixon v. Pennsylvania, Bechtle said, which challenges the same provisions of the PVRA but on different theories. In Mixon, the plaintiffs contend that the PVRA unfairly disadvantages minorities and that the General Assembly exceeded its authority under Pennsylvania’s Constitution by restricting felons from voting upon their release from prison. The second factor was also met, Bechtle said, because “a state court may conclude that the PVRA precludes all ex-felons from voting during the five-year period following their incarceration.” And the third circumstance was met because “an erroneous construction of state law by the federal court would disrupt important state policies.” Having found that all that all three of the special circumstances were present, Bechtle said his final task was to make a “discretionary determination” as to whether abstention is appropriate, by weighing “equitable considerations,” such as the availability of an adequate state remedy, the length of time the litigation has been pending, and the impact of delay on the litigants. The plaintiffs argue that because of the imminency of the November 2000 election, this court should not abstain. But Bechtle said “although the PVRA has been in effect for more than five years, litigation in this case has been pending for only two months.” The plaintiffs insisted that Bechtle’s abstention would make it “highly unlikely” that their constitutional challenge would be resolved before the November 2000 general election. Bechtle disagreed, saying “several avenues exist by which plaintiffs may pursue a determination by the state courts,” including an action for declaratory judgment, a petition for extraordinary relief or mandamus. “There is ample time before the November 2000 election, and there is no reason to presume that a prompt resolution of the issue cannot be obtained from the state courts,” Bechtle wrote. But Bechtle said that while he was abstaining, he would also retain jurisdiction so that the case can be reopened, if necessary, after the state courts rule. “The Pullman doctrine does not lead to outright dismissal of a case; rather, the federal court stays its hand until the state courts have conclusively decided all relevant state law issues. … When that has happened, the federal court, armed with the state courts’ interpretation, resumes the task of adjudicating the federal issues in the case,” Bechtle wrote. The plaintiffs, he said, “have the right to return to the federal court should a federal constitutional issue remain after resolution of the state-law issue.”

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