PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-3811

_____________

AMERICAN CIVIL RIGHTS UNION,

in its individual and corporate capacities,

 Appellant

v.

PHILADELPHIA CITY COMMISSIONERS

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-16-cv-01507)

District Judge: The Honorable C. Darnell Jones, II

______________

Argued April 27, 2017

______________

(Opinion Filed: September 25, 2017)

Before: McKEE, VANASKIE, and RENDELL, Circuit 

Judges

John C. Eastman [ARGUED]

Center for Constitutional Jurisprudence

One University Drive

Orange, CA 92866

Linda A. Kerns

1420 Locust Street 

Suite 200

Philadelphia, PA 19102
2

Joseph A. Vanderhulst, Esq.

Public Interest Legal Foundation

32 East Washington Street

Suite 1675

Indianapolis, IN 46204

Attorneys for Plaintiff-Appellant

Kelly S. Diffily [ARGUED]

Sozi Pedro Tulante

City of Philadelphia

Law Department

17th Floor

1515 Arch Street

One Parkway

Philadelphia, PA 19102

Benjamin H. Field

City of Philadelphia

Law Department

1515 Arch Street

One Parkway

Philadelphia, PA 19102

Attorneys for Defendants–Appellees

Ira M. Feinberg

Daryl L. Kleiman

Hogan Lovells US

875 Third Avenue

New York, NY 10022

Sarah C. Marberg

Hogan Lovells

555 Thirteenth Street, N.W.

Columbia Square

Washington, DC 20004

Attorneys for Amicus Appellees Project Vote and Demos
3

___________

OPINION OF THE COURT

____________

McKEE, Circuit Judge.

The American Civil Rights Union (“ACRU”) 

challenges the Philadelphia City Commissioners’ failure to 

purge the city’s voter rolls of registered voters who are 

currently incarcerated due to a felony conviction. Because 

state law prohibits felons from voting while they are in 

prison, the ACRU argues that the National Voter Registration 

Act requires the Commissioners to remove them from the 

voter rolls. For the reasons that follow, we will affirm the 

District Court’s dismissal of this suit. 

I. Background

A. Factual and Procedural Background

The ACRU is a nonprofit organization that states that 

it “litigates to enforce clean voter registration rolls” and 

“promotes election integrity.”1 In January of 2016, the ACRU

sent a letter to the Philadelphia City Commissioners, which is

responsible for overseeing elections in Philadelphia.2 The 

letter stated, in part, that “your county is failing to comply 

with Section 8 of the National Voter Registration Act 

(NVRA)” by not making “a reasonable effort to maintain 

voter registration lists free of dead voters, ineligible voters 

and voters who have moved away.”3 The letter also asked the

Commissioners to provide, inter alia, documentation of their

efforts to maintain accurate voter lists and “the number of 

 1 American Civil Rights Union, Mission Statement, 

http://www.theacru.org/mission-statement/ (last visited Aug.

21, 2017).

2 United States v. Shoup, 608 F.2d 950, 954 (3d Cir. 1979). 3 App. 36.
4

ineligible voters removed for criminal conviction.”4 The letter 

stated that its purpose was to serve as notice that the 

Commissioners could be sued under the NVRA.

The following April, the ACRU did sue the City 

Commissioners for injunctive relief pursuant to the NVRA. 

The suit alleged that the Commissioners failed to provide list 

maintenance documentation as required by 52 U.S.C. § 

20507(i) and asked to inspect the Commissioners’ records.5

The Commissioners moved to dismiss. In June, the 

Commissioners met with the President of the ACRU and

explained that they do not remove persons incarcerated due to 

felony conviction from the rolls or otherwise make note of 

registrants that are currently incarcerated due to felony 

conviction. They also told the ACRU that the City did not 

attempt to coordinate any efforts with law enforcement to 

identify such registrants. 

Thereafter, the ACRU moved for a preliminary 

injunction and leave to amend its complaint. In its motion, the 

ACRU claimed “[t]he NVRA requires [the City 

Commissioners] to make a ‘reasonable effort to remove the 

names of ineligible registrants from the official lists of 

eligible voters,’ including voters ineligible by virtue of felony 

conviction.”6 The District Court concluded that the ACRU 

had “grossly misrepresented the plain language of the 

statute.”7 Instead of granting the requested relief, the Court 

sua sponte issued a Rule to Show Cause as to why the motion 

should not be stricken and why the Court should not issue 

sanctions.8 The ACRU responded that though its 

characterization of the NVRA was incomplete, the NVRA 

must be read together with the requirements of the Help 

America Vote Act (“HAVA”), and that when taken together, 

the ACRU’s position was consistent with the statutory 

 4 App. 28.

5 Am. Civil Rights Union v. Phila. City Comm’rs, No. CV 16-

1507, 2016 WL 4721118, at *1 (E.D. Pa. Sept. 9, 2016). 6 Pl’s Mot. Prelim. Inj., ECF No. 14, at 6 (quoting 52 U.S.C. 

§ 20507(a)(4)).

7 Am. Civil Rights Union, 2016 WL 4721118, at *3. 8 Id. 
5

scheme.

9 Although the Court did not sanction the ACRU for 

misrepresenting the NVRA, it did deny the motion for a 

preliminary injunction. 

After additional motions were filed, the District Court 

granted the Commissioners’ motion to dismiss the Amended 

Complaint. In a very detailed and thorough analysis, the 

Court held that neither the NVRA nor HAVA requires the 

Commissioners to remove felons from the voter rolls while

they are incarcerated.

10 This timely appeal followed.

B. Statutory Background

i. National Voter Registration Act

The National Voter Registration Act has four main 

goals: (1) increasing the number of registered voters, (2) 

increasing participation in federal elections, (3) maintaining

current and accurate voter rolls, and (4) ensuring the integrity 

of the voting process.11 These goals can sometimes be in 

tension with one another: On the one hand, maintaining clean 

voter rolls may help ensure election integrity, but on the other 

hand, purging voters from the rolls requires voters to reregister and hinders participation in elections. However, it is 

clear from the legislative history that Congress was wary of 

the devastating impact purging efforts previously had on the 

electorate. Congress noted that not only are purging efforts 

often “highly inefficient and costly” to the state by requiring 

reprocessing of registrations but also that “there is a long 

history of such cleaning mechanisms [being] used to violate 

the basic rights of citizens.”12 The drafters attempted to 

balance these concerns with the need for clean voter rolls: 

“An important goal of this bill, to open the registration 

process, must be balanced with the need to maintain the 

 9 Pl’s Resp. Order Show Cause, ECF No. 19.

10 Am. Civil Rights Union, 2016 WL 4721118, at *9.

11 52 U.S.C. § 20501.

12 S. Rep. No. 103-6, at 18 (1993). See also H.R. Rep. No. 

103-9, at 2 (1993) (noting that “[r]estrictive registration laws 

and administrative procedures” such as “selective purges . . . 

discourage participation.”)
6

integrity of the election process by updating the voting rolls 

on a continual basis.”13

Accordingly, the NVRA both protects registered voters 

from improper removal from the rolls and places limited 

requirements on states to remove ineligible voters from the 

rolls. The section that squarely addresses these requirements, 

Section 8, is the crux of this dispute.

14 That section provides 

as follows:

In the administration of voter registration for 

elections for Federal office, each State shall . . . 

(3) provide that the name of a registrant may 

not be removed from the official list of eligible 

voters except—

(A) at the request of the registrant;

(B) as provided by State law, by reason 

of criminal conviction or mental incapacity; 

or

(C) as provided under paragraph (4);

(4) conduct a general program that makes a 

reasonable effort to remove the names of 

ineligible voters from the official lists of 

eligible voters by reason of—

(A) the death of the registrant; or

(B) a change in the residence of the 

registrant, in accordance with subsections 

(b), (c), and (d) [notice provisions set forth in 

Section 8] . . . .15

In short, once a person is properly registered to vote, a 

state is only permitted to remove him or her from the voting 

list for narrowly specified reasons. Specifically, Congress 

 13 S. Rep. No. 103-6, at 18 (1993).

14 In the context of the NVRA, references to “Section 8

violations” refer to violations of 52 U.S.C. § 20507. This 

terminology is derived from the section of the public law 

originally enacting the statute, Pub. L. No. 103-31, § 8, May 

20, 1993, 107 Stat. 77 (1993). 

15 52 U.S.C. §§ 20507(a)(3), (a)(4).
7

allows removal if: the person dies, changes residence, asks to 

be taken off the list, or becomes ineligible under state law 

because of criminal conviction or mental incapacity. The 

NVRA also provides a private right of action so that private 

parties “aggrieved by a violation of this chapter” may sue to 

enforce the statute.

16

ii. Pennsylvania’s Restriction of the Franchise

The extent to which convicted felons are denied the 

right to vote varies greatly from state to state, depending on 

the law of a given state. In states like Maine and Vermont, for 

example, individuals convicted of crimes retain the right to 

vote at all times.

17 Individuals convicted of felonies may even 

register and vote from prison.

18 At the other end of the 

spectrum, states like Florida and Kentucky deprive 

individuals convicted of felonies of the right to vote for the 

rest of their lives with few exceptions.

19 

In Pennsylvania, individuals convicted of felonies are 

only barred from voting during the period that they are 

incarcerated. Pennsylvania law specifically excludes anyone 

who is incarcerated from the definition of “qualified absentee 

 16 Id. § 20510. Before filing, the aggrieved person must 

“provide written notice of the violation to the chief election 

official of the State involved.” “If the violation is not 

corrected within 90 days after receipt of notice” or “within 20 

days after the receipt of the notice if the violation occurred 

within 120 days before the date of an election for Federal 

office, the aggrieved person may bring a civil action in an 

appropriate district court.” Id. 

17 Me. Rev. Stat. tit. 21-A, § 112 14; Vt. Stat. Ann. tit. 17 § 

2121.

18 Elections Division, Me. Dep’t of State, Maine Voting 

Residence Fact Sheet, 2 (2012),

http://www.maine.gov/sos/cec/elec/voterinfo/residencyfacts0812.doc; Vt. Sec’y of State, Voter 

Registration Frequently Asked Questions, Elections (Dec. 22, 

2013) https://www.sec.state.vt.us/elections/frequently-askedquestions/voter-registration.aspx. 19 Fla. Const. art. VI, § 4(a); Ky. Const. § 145(1).
8

electors”:

[T]he words ‘qualified absentee elector’ shall in 

nowise be construed to include persons 

confined in a penal institution or a mental 

institution nor shall it in anywise be construed 

to include a person not otherwise qualified as a 

qualified elector in accordance with the 

definition set forth in section 102(t) of this act.20

Nevertheless, individuals registered to vote before being 

incarcerated are permitted to vote immediately upon release.21

And those not previously registered to vote may register in 

prison if they will be released by the date of the election.

22 

Thus, Pennsylvania law “do[es] not completely 

disenfranchise the convicted felon, as is the case in fourteen 

of [its] sister states; it merely suspends the franchise for a 

defined period.”23

 20 25 Pa. Stat. Ann. § 2602(w) (emphasis added). The 

statute’s reference to “persons confined to a penal institution” 

has been interpreted by the Pennsylvania Attorney General to 

be limited to individuals convicted of felonies. Voting by 

Untried Prisoners and Misdemeanants, 67 Pa. D. & C.2d 

449, 453 (1974). 21 Mixon v. Commonwealth, 759 A.2d 442, 451 (Pa. Commw. 

Ct. 2000), aff’d, 783 A.2d 763 (Pa. 2001). Indeed, as was the 

case for one of the plaintiffs in Mixon, incarcerated felons that 

are furloughed during an election may also vote if previously 

registered. Id. at 444–45. 

22 See id. at 421 (striking down law requiring previouslyincarcerated felons to wait five years after their conviction to 

register to vote). See also Pa. Dep’t of State, Voting Rights of 

Convicted Felons, Convicted Misdemeanants and Pretrial 

Detainees, 2 (2017) [Hereinafter Voting Rights], 

http://www.votespa.com/enus/Documents/Convicted_felon_brochure.pdf (identifying

“who can register and vote” as including “[i]ndividuals who 

have been released (or will be released by the date of the next 

election) from a correctional facility”). 23 Mixon, 759 A.2d at 448 n.11. See also Owens v. Barnes, 

711 F.2d 25, 26 (3d Cir. 1983) (“[W]hile Pennsylvania could 

choose to disenfranchise all convicted felons, it has not done 

so; unincarcerated convicted felons, such as those who have 
9

Even though Pennsylvania suspends the franchise 

during the period of incarceration, it does not require the

removal of registrants from voter rolls due to incarceration for 

a felony conviction. Rather, Section 1909(a) of the 

Pennsylvania Voter Registration Act, like the NVRA, directs 

that “[a]n elector’s registration shall not be canceled except” 

if the voter dies, changes residence, asks to be taken off the 

list, or removal is necessary to comply with the NVRA.24 As 

noted above, the NVRA refers only to state law, death, 

change in residence, or request of the registrant.

iii. Help America Vote Act

The HAVA was enacted in 2002 to help improve the 

equipment used to cast votes, the way registration lists are 

maintained, and how polling operations are conducted.

25

Most relevant here, the HAVA builds on the NVRA by 

requiring that each state maintains a computerized database 

for voter registrations.26 Similar to the NVRA, the HAVA 

requires states to “perform list maintenance” of the 

computerized voting rolls.27 It also attempts to increase voter 

participation by limiting the manner in which states may

remove voters from the voting rolls. The HAVA provides that

states may not remove individuals from the voter rolls unless 

they do so “in accordance with the provisions of the National 

Voter Registration Act.”28 In addition, should a state seek to 

remove a registered voter from the list due to death or 

criminal conviction, states must “coordinate the computerized 

 

been sentenced to probation or released on parole, may 

vote.”).

24 25 Pa. Cons. Stat. § 1901(a).

25 Daniel P. Tokaji, Early Returns on Election Reform: 

Discretion, Disenfranchisement, and the Help America Vote 

Act, 73 Geo. Wash. L. Rev. 1206, 1207 (2005). 26 52 U.S.C. § 21083(a)(1)(A).

27 Id. § (a)(2)(A).

28 Id. § (a)(2)(A)(i). As we noted earlier, the Congressional 

goals in enacting the NVRA include: increasing the number 

of registered voters and increasing participation in federal 

elections. 52 U.S.C. § 20501.
10

list with State agency records.”29 This is the only reference in

the HAVA to removal of voters from the rolls due to criminal 

conviction. 

Unlike the NVRA, however, the HAVA does not 

include a private right of action that allows aggrieved parties

to sue nonconforming states. Subchapter IV of the HAVA

includes only two mechanisms for enforcement: (1) a civil 

action brought by the Attorney General,30 and (2) 

administrative complaint.31

II. Discussion32

As we noted at the outset, we must determine whether 

the NVRA requires the Philadelphia City Commissioners to 

purge the voter rolls of individuals who are currently 

incarcerated for a felony conviction. The ACRU argues that it 

does, relying on Section 8(a)(3) and 8(a)(4) of the NVRA as 

read together with the HAVA. Because Pennsylvania does not 

permit individuals to vote while incarcerated for a felony, the 

ACRU argues, the Commissioners are required to remove 

them from the rolls. We disagree.

 29 Id. § (a)(2)(A)(ii)(1). 30 Id. § 21111.

31 Id. § 21112.

32 The District Court had jurisdiction pursuant to 28 U.S.C. § 

1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. 

When reviewing an order granting a motion to dismiss under 

Federal Rule of Civil Procedure 12(b)(6), our review of the 

district court is plenary. See Allen ex rel. Martin v. LaSalle 

Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011). The Rules of 

Civil Procedure demand that a plaintiff present “only ‘a short 

and plain statement of the claim showing that the pleader is 

entitled to relief,’ in order to ‘give the defendant fair notice of 

what the . . . claim is and the grounds upon which it rests.’”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “To 

survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (internal quotation marks omitted). 
11

Like the District Court, we need look no further than 

the text of Section 8 itself to resolve this dispute. “When [a]

statute’s language is plain, the sole function of the courts—at 

least where the disposition required by the test is not 

absurd—is to enforce it according to its terms.”33 Here, the 

unambiguous text of Section 8 reveals that while states are 

required to make reasonable efforts to remove registrants for 

certain reasons, states are merely permitted—not required—

to provide for removal of registrants from the official list 

based on criminal conviction. 

Congress’s only reference to criminal conviction in the 

statute is contained in Section 8(a)(3). Section 8(a)(3) states 

that “each State shall . . . provide that the name of a registrant 

may not be removed from the official list of eligible voters 

except” among other reasons, “as provided by State law, by 

reason of criminal conviction.”34 The statute thus places an 

obligation on the States to ensure that registrants are not 

removed improperly. Thus, Congress limited the authority of 

states to encumber voter participation by permitting states to 

only remove registrants for the exceptions specified. As set 

forth above, under Section 8, states can remove a voter: if the 

voter asks to be taken off the list, dies, changes residence, or 

becomes ineligible under state law because of criminal 

conviction or mental incapacity.35

This reading is consistent with the NVRA’s central 

purpose of “ensur[ing] that, once registered, voters could not 

be removed from the registration rolls” for improper 

purposes.36 Thus, given the importance of the right to vote,37

 33 United States v. Moreno, 727 F.3d 255, 259 (3d Cir. 2013)

(quoting Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)

(alteration omitted). 34 52 U.S.C. § 20507(a)(3) (emphasis added). 35 Id. 

36 Welker v. Clarke, 239 F.3d 596, 598–99 (3d Cir. 2001).

37 See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667 

(1966) (“[T]he right to exercise the franchise in a free and 

unimpaired manner is preservative of other basic civil and 

political rights . . . .” (quoting Reynolds v. Sims, 377 U.S. 533, 

561–62 (1964)). 
12

we emphasize that Section 8(a)(3) is designed to protect 

voters from improper removal and only provides very limited 

circumstances in which states may remove them. Therefore, 

contrary to the ACRU’s assertions, the text of Section 8(a)(3) 

places no affirmative obligations on states (or voting 

commissions) to remove voters from the rolls. As its text 

makes clear, NVRA was intended as a shield to protect the 

right to vote, not as a sword to pierce it. 

The following subsection, 8(a)(4), similarly does not 

require states to purge voters convicted of felonies from the 

rolls. It does, however, place an affirmative obligation on 

states to make “reasonable efforts” to remove registrants in 

certain specific circumstances in order to ensure the accuracy 

of the voter lists. This limited authority is consistent with the 

NVRA’s purpose to “ensure that accurate and current voter 

registration rolls are maintained.” 38 Here again, Congress 

was careful to very narrowly limit the circumstances that 

would justify removing voters in the interest of ensuring the 

accuracy of voting lists. Section 8(a)(4) mandates that “each 

State shall . . . make[] a reasonable effort to remove the 

names of ineligible voters from the official lists of eligible 

voters by reason of— (A) the death of the registrant; or (B) a 

change in the residence of the registrant.”39 By its terms, the 

mandatory language in Section 8(a)(4) only applies to 

registrants who have died or moved away.40 Removal due to 

criminal conviction is not included on this list of mandatory 

purging, and we will not amend the statute by reading that 

requirement into its text when Congress obviously chose not 

to do so.

41

 38 52 U.S.C. § 20501(b).

39 Id. § 20507(a)(4).

40 See Orozco-Velasquez v. Att’y Gen., 817 F.3d 78, 83 (3d 

Cir. 2016) (“The word ‘shall’ is ordinarily the language of 

command.” (quoting Alabama v. Bozeman, 533 U.S. 146, 153 

(2001)). 41 See United States v. McQuilkin, 78 F.3d 105, 108 (3d Cir. 

1996) (“It is a canon of statutory construction that the 

inclusion of certain provisions implies the exclusion of others. 

The doctrine of inclusio unius est exclusio alterius ‘informs a 

court to exclude from operation those items not included in a 
13

Our conclusion is further bolstered by the NVRA’s 

legislative history. The Senate Report explains “States are

permitted to remove the names of eligible voters from the 

rolls at the request of the voter or as provided by State law by 

reason of mental incapacity or criminal conviction.”42 The 

Report continues: “[i]n addition, States are required to 

conduct a general program that makes a reasonable effort to 

remove the names of ineligible voters from the official lists 

by reason of death or a change in residence.”43 This obvious 

distinction between the permissive language in (a)(3) and the 

mandatory language in (a)(4) demonstrates that the statute 

and the legislative history are in agreement: States and 

election officials are permitted—but not required—to remove 

individuals ineligible to vote under state law due to criminal 

conviction.

The ACRU makes several arguments in an attempt to 

rewrite the statute to support its desired outcome. First, the 

ACRU cites a case decided by the District Court for the 

Western District of Missouri to assert that Section 8(a)(4)’s 

affirmative obligation that states “make[] reasonable effort[s] 

to remove the names of ineligible voters” in fact “appl[ies] to 

the other subsections of Section 20507,” including subsection 

8(a)(3).44 On this basis, the ACRU asserts that the “NVRA 

itself contains a requirement that election officials make a 

reasonable effort to remove registrants who are ineligible by 

operation of state law as a result of criminal conviction.”45

 

list of elements that are given effect expressly by the statutory 

language.’” (quoting In re TMI, 67 F.3d 1119, 1123 (3d Cir.

1995)).

42 S. Rep. No. 103-6, at 18 (1993) (emphasis added).

43 Id. (emphasis added). See also H.R. Rep. No. 103-9, at 15 

(1993) (“Recognizing the essential need to maintain the 

integrity of the voter registration lists, the bill requires that 

States conduct a general program that makes a reasonable 

effort to remove the names of ineligible voters from the 

official lists of eligible voters by reason of death or by a 

change of residence.”) (emphasis added). 

44 Appellant’s Br. 14.

45 Appellant’s Br. 14.
14

This argument not only mangles the statute beyond 

recognition, it also misrepresents the non-precedential case it 

relies on. There is simply no support for the proposition that

the mandatory list-maintenance provision in subsection

8(a)(4) applies to subsection 8(a)(3). Further, the district court

case the ACRU cites for this proposition—United States v. 

Missouri—held no such thing. Rather, the court considered 

only the text of Section 8(a)(4) itself—it did not discuss or 

mention subsection 8(a)(3) at all—and held that subsection

(a)(4)’s “reasonable effort” requirement applied to the 

subsections incorporated by reference within Section 8(a)(4) 

itself.46 The statute serves as its own illustration:

In the administration of voter registration for 

elections for Federal office, each State shall . . . 

(4) conduct a general program that makes a 

reasonable effort to remove the names of 

ineligible voters from the official lists of 

eligible voters by reason of—

(A) the death of the registrant; or

(B) a change in the residence of the 

registrant, in accordance with subsections 

(b), (c), and (d) . . . 47

Notably, unlike the subsections Missouri discussed (italicized 

above), subsection 8(a)(3) is not incorporated by reference in 

(a)(4). Thus, even if the analysis of a district court in Missouri

were persuasive, that court’s analysis would still be irrelevant 

to our inquiry here. 

 46 United States v. Missouri, No. 05-4391-CV-C-NKL (NKL), 

2006 WL 1446356, at *8 (W.D. Mo. May 23, 2006), rev’d, 

535 F.3d 844 (8th Cir. 2008) (“While the NVRA is 

ambiguous, both its text and common sense suggests that 

Congress intended the ‘reasonable effort’ standard of § 

1973gg-6(a)(4) to apply to subsections (b), (c) and (d). 

Subsection (a)(4), which contains the reasonable effort 

standard, is a general, introductory provision and incorporates 

by reference subsections (b), (c) and (d).”).

47 52 U.S.C. § 20507(a)(4).
15

In its Reply Brief, the ACRU doubles down on this 

argument and asserts that because (a)(4) references subsection 

8(c) and because subsection 8(c)(2)(B) in turn references 

subsection (a)(3), the mandatory language of (a)(4) therefore 

applies to (a)(3) via 8(c).

48 This is exactly the kind of 

statutory contortion that led the District Court to respond to 

the ACRU’s arguments by threatening to impose sanctions 

for blatant misrepresentation of the statute. Nothing in this 

game of statutory Twister plausibly suggests that the plainly 

mandatory language in (a)(4) should be substituted for the 

plainly permissive language of (a)(3).49

The ACRU then turns to another federal statute for 

support. It argues that the NVRA is “enhanced by the parallel 

obligations found in the Help America Vote Act.”50 The 

ACRU argues that when read together, “list maintenance 

regarding ineligible felons is mandatory in states such as 

Pennsylvania that have determined that incarceration for a 

felony is disqualifying.”51 The ACRU points to two 

provisions of HAVA that purportedly “broaden[]” or 

 48 Reply Br. 10–11.

49 Indeed, subsection (c)(2)(B)’s reference to (a)(3) 

specifically states that the removal of names should be 

conducted “on a basis described in paragraph (3)(A) . . . of 

subsection (a).” 52 U.S.C. § 20507(c)(2)(B) (emphasis 

added). As noted, Section 8(a)(3) is permissive, not 

mandatory, and nothing in subsection (c)(2)(B) changes that.

At oral argument, the ACRU relied even more heavily on 

Section 8(c)(2)(A), arguing that it mandates states to remove 

“ineligible voters” within 90 days of the election and 

therefore, incarcerated felons must be removed. E.g. Oral 

Arg. at 1:01:37, 1:02:46. See also 52 U.S.C. § 20507(c)(2)(A) 

(“A State shall complete, not later than 90 days prior to the 

date of a primary or general election for Federal office, any 

program the purpose of which is to systematically remove the 

names of ineligible voters from the official lists of eligible 

voters.”). For the reasons already discussed above and for the 

reasons outlined by the District Court, we do not find this 

argument persuasive. See Am. Civil Rights Union, 2016 WL 

4721118, at *6.

50 Appellant’s Br. 3.

51 Appellant’s Br. 8–9.
16

“augment” the NVRA: (1) Section 21083(a)(4)(A), which 

requires election officials to make “a reasonable effort to 

remove registrants who are ineligible from the official list of 

ineligible voters,”52 and (2) Section (a)(2)(A)(ii) which 

directs that a “State shall coordinate the computerized list 

with State agency records on felony status” “[f]or the 

purposes of removing names of ineligible voters [under the 

NVRA Section 8(a)(3)].”53

However, even if that interpretation is correct, the 

ACRU would still be out of court. Unlike the NVRA, the 

HAVA does not include a private right of enforcement. By its 

text, the HAVA only allows enforcement via attorney general 

suits or administrative complaint.54 Not surprisingly, the 

ACRU cites nothing to support its assumption that it may 

graft the NVRA’s private right of action onto a wholly 

separate statutory scheme simply because the second statute

refers to the first. To the contrary, the fact that the NVRA 

provides for a private right of action while the HAVA does 

not clearly indicates Congress’s intent to limit HAVA’s 

enforcement mechanism to preclude a private suit.

55

“Obviously, then, when Congress wished to provide a private 

damages remedy, it knew how to do so and did so 

expressly.”56 Furthermore, as the District Court noted, circuit 

courts do not even agree about whether plaintiffs may bring a 

Section 1983 action to enforce the HAVA.

57 Thus, insofar as 

 52 Appellant’s Br. 11–12 (quoting 52 U.S.C. § 21083(a)(4)). 53 Appellant’s Br. 15 (quoting 52 U.S.C. § 

21083(a)(2)(A)(ii)). 54 52 U.S.C. §§ 21111, 21112.

55 See In re Federal-Mogul Glob. Inc., 684 F.3d 355, 373 (3d 

Cir. 2012) (“[W]here the legislature has inserted a provision 

in only one of two statutes that deal with closely related 

subject matter, it is reasonable to infer that the failure to 

include that provision in the other statute was deliberate 

rather than inadvertent.”).

56 Touche Ross & Co. v. Redington, 442 U.S. 560, 571 

(1979). 57 Am. Civil Rights Union, 2016 WL 4721118, at *5 

(comparing Colon-Marrero v. Velez, 813 F.3d 1, 13 (1st Cir. 

2016) (recognizing there is no private right of action under
17

the HAVA places a burden on state election officials above 

and beyond the NVRA, the ACRU is unable to enforce such 

requirements in this suit. 

Even assuming the ACRU could ground a right to sue 

in the HAVA, the statute would still not support the ACRU’s 

claims. The unambiguous text of the HAVA simply does not 

require election officials to purge voter rolls of incarcerated 

felons.

The first section of the HAVA relied on by the ACRU, 

Section 21083(a)(4)(A), states that “[t]he State election 

system shall include provisions to ensure . . . [a] system of 

file maintenance that makes a reasonable effort to remove 

registrants who are ineligible to vote from the official list of 

eligible voters.”58 The ACRU argues that this section requires 

states to remove all registrants who are unable to cast a ballot 

under state law. However, the HAVA also states that “such 

system” should be “consistent with the National Voter 

Registration Act of 1993.”59 Moreover, even if that directive 

was not clear, Section (2)(A)(i) states that “[i]f an individual 

is to be removed from the computerized list, such individual 

shall be removed in accordance with the provisions of the 

National Voter Registration Act of 1993.”60 We have already 

explained that the NVRA does not require election officials to 

purge registrants from the rolls who are not permitted to vote 

due to felony conviction. And by its text, the HAVA requires 

no more.

61

 

the HAVA, but permitting a Section 1983 suit); Sandusky 

Cty. Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th 

Cir. 2004) (same); with Crowley v. Nevada ex rel. Nevada 

Sec’y of State, 678 F.3d 730, 735 (9th Cir. 2012) (recognizing 

there is no private right of action under the HAVA, and 

foreclosing a Section 1983 suit)). 58 52 U.S.C. § 21083(a)(4)(A). 59 Id. 

60 Id. § 21083(2)(A)(i).

61 In its opinion, the District Court went a step further and 

concluded that individuals incarcerated due to criminal 

conviction are not “ineligible voters” under the HAVA 

because “Pennsylvania law ‘merely suspends the franchise for 
18

The ACRU also argues that the District Court’s 

interpretation is inconsistent with provisions of the HAVA 

and the NVRA that set forth reporting and informationsharing requirements designed to assist states in removing

registrants convicted of felonies. Specifically, the ACRU 

points to: (1) 52 U.S.C. § 20507(g)(1), which requires U.S. 

attorneys to send written notice of felony convictions for list 

maintenance purposes; (2) 52 U.S.C. § 20507(g)(5), which 

requires state election officials to give this information to 

local voter registration officials; and (3) 52 U.S.C. §

21083(a)(2)(A)(ii), which requires states to coordinate with 

law enforcement agencies regarding felony status. The ACRU 

argues that “the only plausible reason for requiring this 

information to be sent to local election officials is so that they 

can make note of the registrants who are ineligible by reason 

of criminal status,”62 and therefore, the Commissioners are 

required to purge or make note of those individuals.63

As the District Court so aptly reasoned, a requirement 

that information be shared does not impose a duty on election 

officials to subsequently act on that information by purging 

those individuals from the voter rolls in disregard of the law 

 

a defined period.’” Am. Civil Rights Union, 2016 WL 

4721118 at *9 (quoting Mixon, 759 A.2d at 448 n.11). We 

agree. Moreover, under the definition of “qualified absentee 

voter,” ineligibility depends upon “confinement,” and, under 

state law, individuals convicted of felonies are permitted to 

vote if they are on furlough from prison or are serving a 

period of home confinement. Oral Arg. at 1:22; Voting Rights 

at 2. Thus, they remain eligible to vote but are not provided 

access to the ballot while incarcerated. 62 Appellant’s Br. 16. 

63 The ACRU argues that if the NVRA does not require the 

Commissioners to purge voters that are incarcerated for a 

felony conviction, it must at the very least require that those 

voters be “flagged” or “notated” to indicate that they are not 

currently able to vote. Appellant’s Br. 18–19. The ACRU 

cites no authority for the proposition and we can find none. 

We thus decline to read a notation requirement into the statute 

where Congress has not written it. 
19

of their state.

64 In addition, contrary to the ACRU’s 

assertions, we do not think the District Court’s reading makes

these provisions superfluous or redundant. The informationsharing provisions are no doubt very helpful in states such as 

Florida and Kentucky where individuals convicted of felonies 

are permanently deprived of the right to vote. By contrast, the 

information would have no utility in Maine and Vermont 

where citizens may vote regardless of criminal status. 

Congress simply required the sharing of certain information 

so that states would have the information necessary to 

maintain voter lists pursuant to state law. As the District 

Court observed, “[i]nformation sharing in itself is important, 

and ensures that all states will have the information necessary 

regarding federal convictions, whether that information is 

acted upon or not.”65 These information-sharing provisions 

certainly do not dictate that Maine or Vermont must act to 

remove felons from the voter rolls contrary to state law, and 

they do not so dictate here. 

Finally, the ACRU argues that the District Court was 

wrong to “look at particular subsections [of the statutes] one 

by one rather than as a whole” to reach its conclusion.66

Certainly context matters, and a statute must be considered as 

a whole.67 Yet here, neither statute says what the ACRU 

claims—neither the NVRA nor the HAVA come close to 

requiring the Commissioners to purge the voter rolls of 

individuals incarcerated due to felony conviction. 

Moreover, requiring the Commissioners to purge the 

rolls of incarcerated felons would contravene one of the main 

goals the NVRA itself. Congress has declared that the statute 

is designed to “enhance[] the participation of eligible citizens 

 64 Am. Civil Rights Union, 2016 WL 4721118, at *8.

65 Id. 

66 Appellant’s Br. 10. 

67 King v. Burwell, 135 S. Ct. 2480, 2492 (2015) (“[W]e must 

do our best, bearing in mind the fundamental canon of 

statutory construction that the words of a statute must be read 

in their context and with a view to their place in the overall 

statutory scheme.”) (internal quotation marks omitted).
20

as voters in elections for Federal office.”68 In Pennsylvania, 

individuals convicted of a felony are citizens who can vote

the moment they are released from prison, regardless of 

probation or parole status.69 If an individual is purged from 

the rolls while incarcerated, he or she will be required to reregister after release. Voter registrations take time to process, 

and the state further imposes a 30-day cutoff before an 

election, after which new registrants are ineligible to vote in 

an upcoming election.70 However, under Pennsylvania law, a 

previously-registered individual released the morning of 

November 8, 2016 would be eligible to vote in the election 

that day. The ACRU’s position would preclude that eligible 

voter from casting a vote, a result that would clearly 

contravene Congress’s announced intention of protecting 

access to the polls and increasing voter turnout.

71

Accordingly, we hold that the very thorough and 

thoughtful opinion of the District Court is clearly correct and 

entirely in keeping with the “whole law” and the “object and 

policy” of the NVRA.72 It is the ACRU’s interpretation of the 

 68 52 U.S.C. § 20501(b)(2). 69 See Mixon, 759 A.2d at 451; Owens, 711 F.2d at 26.

70 25 Pa. Stat. and Cons. Stat. Ann. § 1326.

71 We also note that during purging efforts, election officials 

often inadvertently remove voters not convicted of felonies 

which even more dramatically disenfranchises eligible voters. 

As Amici Curiae Project Vote and Demos outline in their 

brief, officials that have undertaken purges in the past have 

removed hundreds—if not thousands—of registrants who 

have not been convicted of felonies due to improper matching 

procedures. Amici Curiae Br. 17–23 (citing Myrna Pérez, 

Brennan Center for Justice, Voter Purges (2008), 

http://www.brennancenter.org/sites/default/files/legacy/public

ations/Voter.Purges.f.pdf). As a result, registrants such as 

those with similar names as convicted felons or registrants 

only convicted of misdemeanors are improperly purged from 

the rolls, and most do not find out until they are denied a 

ballot on Election Day. See Pérez, supra at 2–3.

72 See Appellant’s Br. 11 (quoting Prestol Espinal v. Att’y 

Gen., 653 F.3d 213, 217 (3d Cir. 2011)).
21

NVRA, not the Commissioners’, that most threatens the goals 

of the statute and the integrity of the vote. 

III. Conclusion

In summary, because the ACRU is unable to present a 

plausible claim that the NVRA requires the Commissioners to 

purge Philadelphia’s voter rolls of individuals incarcerated 

due to felony conviction, we affirm the District Court’s

dismissal of the ACRU’s suit.