The ACORN Way: Change the Law After You Break It

Heather S. Heidelbaugh
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Posted: Sep 11, 2009 12:01 PM
The ACORN Way: Change the Law After You Break It

On July 22, 2009, the Association of Community Organizations for Reform Now (ACORN) filed a lawsuit in Federal Court in Pittsburgh against the Attorney General of Pennsylvania, Tom Corbett (R), and the District Attorney for Allegheny County, Stephen A. Zappala, Jr. (D) to enjoin these officials from applying a law that makes it a crime for an organization or individual to “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.” ACORN argues that the law and its enforcement precludes ACORN “from hiring and paying employees to advance the organization’s goal of registering eligible voters, thereby imposing a severe burden on ACORN’s First and Fourteenth Amendment Rights.”

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ACORN has been accused nationally of paying its employees based on the number of voter registrations each employee turns in at the end of the day. If the daily ‘quota’ is not reached, the employee eventually is fired. The Attorney General of Nevada found this practice to be in violation of that state’s anti-quota law and is currently prosecuting ACORN the organization as well as its employees. In Pittsburgh, the District Attorney, Stephen Zappala was investigating whether to charge ACORN, the organization with a violation of the same type of anti-quota law when ACORN filed this lawsuit in federal court.

First, let’s dispense with a couple of technicalities in order to reach the real issue. ACORN asserts that these voter registration drives are non-partisan, but it is clear that ACORN’s registration drives occur in battleground states and target congressional races that are in play. These voter registration drives are driven by partisan politics.

Second, ACORN was able to convince the ACLU to bring this action on their behalf, on what is likely a pro bono basis. I’m sure it’s a coincidence that ACORN and the ACLU sought to declare this statute, on the books for seven years, unconstitutional just at the same time when District Attorney Zappala was investigating ACORN for violation of the statute along with several ACORN employees.

Sweeping those minor technicalities aside, the State Election code statute at issue that makes it a crime to “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” is clearly constitutional. First, the United States Constitution, under Article I, Section 4, delegates to the States the authority to conduct and regulate elections. The United States Supreme Court in Smiley v. Holm, 285 U.S. 355, 366 (1932) held that the ‘comprehensive words’ of Article I, Section 4 of the Constitution ‘embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, [and] duties of inspectors and canvassers.” Second, the statue has a rational basis to prohibit the exact situation that has occurred with ACORN’s voter registration drives all over the country.

ACORN receives approximately $17.00 per registration card it obtains from its funders. As a whistleblower testified, ACORN wanted 1.5 million registrations in 2008 because of the money it would receive from its funders. Therefore, ACORN didn’t particularly care about the huge number of fraudulent and/or duplicate registrations it turned in. ACORN principally was concerned with the total number of registrations received. The push for a huge number of registrations, without regard to their validity, led ACORN to establish quotas for registrations obtained per day. If the employee did not obtain those numbers, they were fired. The fear of being fired led these employees to create fraudulent and/or duplicate registrations. The fraudulent/duplicative registrations flooded County Election Divisions across Pennsylvania in the last weeks of the registration period causing a multitude of problems.

While ACORN and its ACLU lawyers may profess that their voter registration drives are only attempting to register those who by lack of knowledge or inadvertence failed to register, the reality is that their voter registration drive is a big money maker that causes chaos for election divisions. This is exactly the harm the statute was intending to prevent.

You can best believe that ACORN and the ACLU will use this case as a test case all over the country to stike anti-quota statutes if they are successful in this case declaring the anti-quota statute unconstitutional. Hopefully, the statute will be upheld as constitutional. Then, District Attorney Zappala, in addition to investigating ACORN for violation of the Solicitation of Registration statute, can also investigate ACORN’s funders who also violate the statute by paying per registration card.