ACORN Loses Suit Over|Pay for Its Canvassers

     PITTSBURGH (CN) – A federal judge refused to enjoin state officials from enforcing a Pennsylvania statute that Project Vote and ACORN said unconstitutionally restricts the way they pay their canvassers.
     ACORN sued the Allegheny County District Attorney and then-Attorney General Tom Corbett in July 2009, claiming the state wrongfully criminalized its compensation model for canvassers working on a campaign to increase voter registration.
     Allegheny County District Attorney Stephen Zappalla Jr. had brought criminal charges against seven individuals – five of them former ACORN workers – in May 2009 under a state statute outlawing piece-rate compensation for canvassers – that is, compensation based on the number of voter registrations a canvasser obtains.
     Those charges, some of which involved allegations that canvassers forged voter-registration forms in an effort to meet their quotas of new registrants, were apparently dropped in exchange for guilty pleas to other charges.
     Under an October 2009 Consent Agreement, the district attorney was dismissed from the case, with the understanding that he wouldn’t prosecute ACORN while the controversy played out in court.
     ACORN, facing bankruptcy and set to close its Pittsburgh operations, amended its complaint to add Project Vote and an ACORN supervisor as plaintiffs, and ACORN was dismissed from the case in November 2010.
     Attorney General Linda Kelly replaced Corbett as the official-capacity defendant after Corbett became governor of Pennsylvania.
     The plaintiffs lodged an as-applied challenge to the statute, arguing that prosecutors were misconstruing the statute, applying it in an overbroad manner to prohibit groups like ACORN or Project Vote from not only paying piece-rate compensation to canvassers, but also from firing the canvassers if they failed to meet daily quotas for new voter registrations.
     The plaintiffs said the statute was unconstitutionally preventing it and similarly-situated groups from holding their canvassers to production-based performance standards.
     They also lodged a facial challenge to the statute, demanding that they be allowed to pay piece-rate compensation to workers if they found such a model to be the best way to stimulate canvassers in their goal of signing citizens up to vote.
     In a June hearing, a Deputy Attorney General essentially agreed with the plaintiffs’ as-applied challenge, conceding that the statute “would be unconstitutional if it were to be construed broadly enough to prohibit Project Vote (or a similarly-situated organization) from paying canvassers on an hourly basis and terminating them for failing to secure an acceptable number of voter-registration applications,” Judge Nora Fischer noted in a 54-page opinion.
     The deputy “also stated on the record that this position was consistent with the views of the Attorney General,” Fischer wrote.
     With the as-applied challenge all but settled, the central disagreement became whether or note the state could prohibit piece-rate compensation for canvassers.
     While “the Attorney General rejects the idea that…[the statute] prohibits Project Vote and similarly-situated entities from holding hourly canvassers to production-based expectations, she does not suggest that individuals who actually give, solicit or accept payments or financial incentives ‘based upon the number of registrations or applications obtained’ will not be prosecuted,” Fischer wrote.
     The state government said the statute was designed to curb incomplete voter-registration applications, cut-down on fraud, and to generally support the integrity of the electoral process.
     In 1988, the Supreme Court in Meyer v. Grant struck down as unconstitutional a Colorado criminal statute prohibiting piece-rate payment to canvassers based on the number of signatures they obtained in their effort to place an initiative on the ballot.
     In Meyer, the court said the statute restricted the ability of an initiative’s proponents to have their proposal placed on the ballot and have their cause become the subject of statewide discussion.
     In this case, however, the plaintiffs “are not trying to obtain enough signatures to trigger a referendum or place a candidate’s name on the ballot. Instead, they are trying to convince potential voters to make themselves eligible to vote for or against candidates who are already the subject of statewide (or nationwide) attention,” Fischer wrote.
     In Meyer, the high court was also concerned that banning piece-rate compensation would deter individuals from becoming canvassers, effectively reducing the number of canvassers available for supporters of a cause to pursue political change.
     But, Fischer noted, Project Vote failed to present evidence proving that Pennsylvania’s ban on piece-rate compensation for canvassers is actually reducing its pool of applicants for canvassing positions.
     Indeed, a Carnegie Mellon professor who submitted an expert report for Project Vote acknowledged that piece-rate compensation might actually deter, not encourage, individuals from becoming and remaining canvassers by, for example, making those who are delivering a low number of new registrations “feel undercompensated,” Fischer noted in her opinion, released Wednesday.
     That report “contains no information suggesting that Project Vote would be able to recruit more canvassers if it could pay them on a ‘piece-rate’ or commission basis,” Fischer found.
     “During the 2008 election season, ACORN employed 1,225 canvassers in Pennsylvania, 439 of whom were working in Allegheny County. Nothing in the record suggests that ACORN would have been able to employ more canvassers if it had been able to pay them based on the number of voter-registration applications procured.
“That reality, combined with the statute’s de minimis impact on Project Vote’s expressive activities, warrants a dismissal of the group’s case, Fischer found.

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