Article VII, Section 1 of the Pennsylvania Constitution sets forth the qualifications for electors and must be read in pari materia with Article I, Section 5. Under this provision, every citizen who meets the age and residency requirements is entitled to vote in all elections, subject, however, to "such laws requiring and regulating the registration of electors as the General Assembly may enact." The authority of the legislature to promulgate laws regulating elections was settled long ago in Patterson v. Barlow, 60 Pa. 54 (1869). A group of property owners and residents of this Commonwealth brought suit to have the legislatively enacted Registry Law, requiring the registration of voters, declared unconstitutional under the "free and equal" clause of the Pennsylvania Constitution. Justice Agnew delivered the opinion of the Court and stated:
It is admitted that the Constitution cannot execute itself, and that the power to regulate elections is a legislative one, which has always been exercised by the General Assembly since the foundation of the government. The Constitution appoints the time of the general election, prescribes the qualifications of voters, and enjoins the ballot; and for all the rest the law must provide.... This undoubted legislative power is left by the Constitution to a discretion unfettered by rule or proviso, save the single injunction "that elections shall be free and equal." But to whom are the elections free? They are free only to the qualified electors of the Commonwealth.... There must be a means of distinguishing the qualified from the unqualified ... and therefore the legislature must establish ... the means of ascertaining who are and who are not the qualified electors....
Id. at 75. The General Assembly has done this, and despite the Registered Felons' arguments to the contrary, we see no constitutional infirmity here. Under the laws enacted within this Commonwealth, we again hold, as we did in Martin v. Haggerty and our State Supreme Court did in Ray v. Commonwealth, that incarcerated felons are not qualified absentee electors.

The Registered Felons next argue that the language of Section 5102 of the Voter Registration Act, 25 P.S. § 961.5102(a), contains no exemption for confined felons, [FN13] and in fact supersedes the challenged portions of the Election Code. We point out that they ignore the remaining language of Section 5102(a) which clearly states that those permitted to make application for an absentee ballot must be a qualified elector. 25 P.S. § 961.5102(a)(1) and (2). Because we have determined that incarcerated felons are not qualified electors in Pennsylvania, there is no relief for the Registered Felons here. Therefore, the Court holds that no violation of constitutional rights occurs in the disenfranchisement of incarcerated felons, and this preliminary objection of Respondents is sustained on the basis of failure *451 to state a claim upon which relief can be granted.

FN13. The Convicted Petitioners assert that the initial language of the statute, "Notwithstanding the provision of this Act or the Act of June 3, 1937 known as the Pennsylvania Election Code, the following persons may make application for absentee ballot by sending a letter or other signed document to the County Board of Elections in the county in which the person's voting address is located ...," overrides the specified sections that have the confined felon disqualification, and that these statutes are superseded. 25 P.S. § 961.5102(a) (emphasis added).

II. Non-Registered Felons
The Non-Registered Felons, who are incarcerated but not registered, assert that they should be permitted to register and vote during their period of incarceration. In support of their claim, they advance the same arguments as those of the Registered Felons refuted above, namely that the General Assembly impermissibly enacted legislation affecting the qualifications of absentee electors and that the Pennsylvania Constitution does not bar incarcerated felons from voting. Because the substantive arguments underlying these assertions do not provide a basis for relief, as observed above, their claims must also fail.

III. Released Felons
The Released Felons, who had not been registered prior to their incarceration and who have served at least their minimum sentences, contend that the Voter Registration Act impermissibly repealed sections of the Election Code by adding an additional qualified elector registration requirement that the registrant not have "been confined in a penal institution for a conviction of a felony within the last five years." 25 P.S. § 961.501(a). The Released Felons argue that Respondents "cannot claim a compelling state interest of sufficient magnitude to arbitrarily deny the fundamental right of suffrage guaranteed by Article I, § § 1, 5, 25 and 26 of the Constitution of Pennsylvania." (Petition for Review, p. 22.)

However, while the right of felons to vote is not a fundamental right, and therefore, the Commonwealth is not required to show a "compelling state interest" to justify excluding felons from the franchise, Owens v. Barnes, 711 F.2d 25 (3d Cir.1983), cert. denied, 464 U.S. 963, 104 S.Ct. 400, 78 L.Ed.2d 341 (1983), we nevertheless conclude that there is no rational basis to preclude the registration of those who have been incarcerated within the last five years and who had not been registered previously, when those who were legally registered prior to incarceration may vote upon their release. Although a state may not only disenfranchise all convicted felons it may also distinguish among them, but the distinction must be such that it is rationally related to a legitimate state interest. Owens. The United States Supreme Court has indicated that while minors, felons and other classes of citizens may be excluded from voting, once the body of voters is determined, and their qualifications specified, there is "no constitutional way by which equality of voting power may be evaded." Gray v. Sanders, 372 U.S. 368, 380-81, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963).

The Third Circuit Court of Appeals in Owens, found relevant the Commonwealth's concession that it "could not disenfranchise similarly situated blue-eyed felons but not brown-eyed felons." Owens, 711 F.2d at 27. The Released Felons allege that this is the existing scenario in Pennsylvania today. We agree, and restricting registration under 25 P.S. § 961.501 as it presently exists, does not present a rational relationship to a legitimate state interest. We can conceive of no rationale for permitting those who were registered previous to incarceration to vote on their release, while those who were not previously registered, cannot. Such a statute has the appearance of penalizing ex-incarcerated felons for their status. Moreover, implicit in a presumption that an unregistered individual who commits a crime, and is punished therefor, remains civilly corrupt for five years following release, is the unwarranted assumption that there was no possibility of rehabilitation during that period of incarceration and for five years thereafter. There is nothing of which we are aware to support this logic and underpin the implication that, after five years have elapsed following a convicted felon's release from confinement, that individual has magically acquired the *452 wherewithal to be a responsible, qualified elector. We therefore conclude that the prohibition against registration for five years after release from confinement is constitutionally infirm, and overrule this preliminary objection.

III. Petitioner Williams
Respondents have challenged Petitioner Williams' standing to maintain her claim contending that Williams is not a convicted felon and has not alleged that she is someone who will be unable to register and vote. Williams relies on Bergdoll v. Kane to support her position. In Bergdoll, the Pennsylvania Bar Association (PBA) and individual petitioners commenced a quo warranto action against the Secretary of the Commonwealth, challenging the placement of a proposed constitutional amendment on the ballot that would have amended the confrontation clause of Article I, Section 9 of the Pennsylvania Constitution and would have permitted the General Assembly to enact legislation regarding the manner in which children would testify in criminal proceedings. Williams cites a passage from that case in which Justice Saylor wrote:
By defining the interest that appellees seek to protect as a criminal defendants' interest in the confrontation of a witness at trial, Secretary Kane minimizes what is truly at stake in this action. The interest sought to be protected is the fundamental right to vote.
Bergdoll v. Kane, 731 A.2d at 1268. Williams asserts that the Court found standing based on this passage and the fact that "some of the appellants were not criminal defendants." (Petitioners' Brief, p. 31.) Nothing could be farther from the truth, and this passage offers Williams no assistance.

The voting issue in Bergdoll revolved around whether the single proposed amendment to the Pennsylvania Constitution actually comprised two amendments--one to the confrontation clause and one to the constitutional provision relating to judicial administration--but did not permit the electorate to vote separately upon each of the amendments. The challenge to the amendment was brought by individual petitioners and the Secretary opposed PBA's standing on the ground that the association did not have a "substantial, direct and immediate interest in the outcome of the litigation because they were not criminal defendants whose right to confront witnesses would be limited by a change in the law." The Bergdoll court determined that PBA had standing as "attorneys, taxpayers, and electors in the Commonwealth." Bergdoll, 731 A.2d at 1268. More important, the Secretary challenged the standing of the individual petitioners on the same ground, that is, that they did not have a "substantial, direct and immediate interest in the outcome of the litigation because they were not criminal defendants whose right to confront witnesses would be limited by a change in the law." Id. The court concluded that the Secretary had waived the issue of standing by failing to raise the issue in her pleadings, although the court went on to determine that the individual petitioners had standing as individual electors. We remind Williams that standing, in Pennsylvania, is a waivable issue. Erie Indemnity Company v. Coal Operators Casualty Company, 441 Pa. 261, 272 A.2d 465 (1971).

It has been long settled that an interest to be justiciable must be more than a general interest and must be direct, substantial and present, as contrasted with remote or speculative. Smith v. McCarthy, 56 Pa. 359 (1867). Moreover, it is hornbook law that a person whose interest is common to that of the public generally, in contradistinction to an interest that is peculiar to herself, lacks standing to attack the validity of a legislative enactment. See, Department of Commerce v. United States House of Representatives, 525 U.S. 316, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999); Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952); Ex parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937); Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917).

*453 We have examined with great care Petitioner Williams' claim to standing and to a justiciable interest to maintain this action. Petitioner Williams' claims that the challenged statutes result in the dilution of her vote in a district that is primarily black and Hispanic. Vote dilution claims are conceptually distinct from vote denial claims because dilution claims focus on the overall harm done to a minority group's voting strength. We find that most vote dilution claims have been brought within the realm of redistricting, that is, changing political boundaries to affect minority voting power. Within that context, vote dilution takes place where qualified electors are shifted within those boundaries so that the qualified electors are grouped differently than before, or with an eye to obtaining a particular outcome. The result is to neutralize the vote of one qualified elector with the votes of other qualified electors. Such is not the case here.

The linchpin of Petitioner Williams' standing claim is that she votes in a district in which the majority of electors are black and/or Hispanic, contending that her neighbors in that district vote as a block. However, the concept of diminished voting strength recognized as actionable under federal jurisprudence as "vote dilution," is defined as "a regime that denies to minority voters the same opportunity to participate in the political process and to elect representatives of their choice that majority voters enjoy." Reno v. Bossier Parish School Board, 528 U.S. 320, ----, 120 S.Ct. 866, 887, 145 L.Ed.2d 845 (2000). Petitioner Williams has not demonstrated, nor do we believe she can, that she does not have an equal opportunity to participate in the political process in her district. Moreover, Petitioner Williams is essentially asserting that her vote is diluted by the absence of unqualified electors. We find no merit in this argument whatsoever.

Finally, Petitioner Williams contends that she desires to protect the fundamental right to vote. This interest is not peculiar to her, is not direct, and is too remote and too speculative to afford her a standing to attack the statutory provisions she challenges.

Based on the foregoing, we sustain Respondents' preliminary objection as to the Registered Felons' and Non-Registered Felons' claim that incarcerated felons are unconstitutionally deprived of "qualified absentee elector" status; we overrule Respondents' preliminary objection as to the Released Felons' claim that Section 501 impermissibly deprives those ex-felons who had not previously registered and who have been incarcerated within the past five years, of the right to register to vote; and we sustain Respondents' preliminary objection as to the standing of Petitioner Williams, and she is dismissed from the case.

O R D E R
NOW, September 18, 2000, we SUSTAIN Respondents' preliminary objection as to Petitioners' claim that incarcerated felons are unconstitutionally deprived of "qualified absentee elector" status; we OVERRULE Respondents' preliminary objection as to Petitioners' claim that Section 501 impermissibly deprives those ex-felons who have been incarcerated within the past five years of the right to register to vote; and we SUSTAIN Respondents' preliminary objection as to the standing of Petitioner Williams, and she is dismissed from the case.

Respondents shall file an answer to the remaining count of the petition for review within thirty days of the entry of this order.

McGINLEY, Judge, concurring and dissenting.

I concur in part to the majority's conclusion: that "incarcerated felons are not *454 qualified absentee electors"; that non-registered felons are not permitted to register to vote while incarcerated; and that Petitioner Williams does not have standing "to attack the statutory provisions that she challenges." However, I respectfully dissent in part to the majority's conclusion that "the prohibition against registration [of ex-incarcerated felons] for five years after release from confinement is constitutionally infirm...." [FN1]

FN1. Section 501 of the Pennsylvania Voter Registration Act (Voter Registration Act), Act of June 30, 1995, 25 P.S. § 961.501 provides:
(a) Eligibility.--A qualified elector who will be at least 18 years of age on the day of the next election, who has been a citizen of the United States, who has been a citizen of the United States for at least one month prior to the next election and who has resided in this Commonwealth and the election district where the qualified elector offers to vote at least 30 days prior to the next ensuing election and has not been confined in a penal institution for a conviction of a felony within the last five years shall be entitled to be registered as provided in this chapter. (emphasis added).

In Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974) the United States Supreme Court rejected an equal protection challenge to a California statute which denied the right to vote to convicted felons who completed their sentences and paroles as unconstitutional. Also, In Martin v. Haggerty, 120 Pa.Cmwlth. 134, 548 A.2d 371, 374 (1988) this Court observed that "the Court in Owens [v. Barnes, 711 F.2d 25 (3 rd Cir.1983), cert. denied, 464 U.S. 963, 104 S.Ct. 400, 78 L.Ed.2d 341 (1983) ], noted that a state does not violate the Fourteenth Amendment if it chooses to disenfranchise all convicted felons."

I believe the five-year prohibition contained in Section 501 of the Voter Registration Act does not unconstitutionally penalize a released felon based upon his unregistered status. Placing a five-year prohibition presents a rational relationship to a legitimate state interest. This legislative prohibition requires the felon to adhere to the rules of society for five years before he or she can register to vote. Because our federal and state courts have previously determined that the legislature has the statutory authority to totally deny a convicted felon the free exercise of the right to suffrage, Section 501 of the Voter Registration Act does not violate Article VII, Section 1 of the Pennsylvania Constitution and as such is constitutionally sound. Accordingly, I would sustain Respondent's preliminary objections.

Judge FLAHERTY joins in this concurring and dissenting opinion.

LEADBETTER, Judge, concurring and dissenting.

I join the opinion of the majority in section IV (standing of petitioner Williams). As to sections I and II regarding absentee ballots, I concur in the result. As to section III (five-year registration ban for released prisoners), I must respectfully dissent.

Article VII, Section 14 of the Pennsylvania Constitution specifically deals with absentee voting. It provides, inter alia:
(a) The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.
*455 Since incarcerated persons do not fall within the categories of those guaranteed the right to vote by absentee ballot, it must follow that the legislature is under no constitutional obligation to allow them to do so. Because the constitution itself specifically deals with the absentee ballot issue, I would not address the more general (and more difficult) [FN1] question whether the General Assembly may restrict the definition of "qualified elector" beyond the terms set forth in Article VII, Section 1.

FN1. The majority opinion correctly cites controlling authority from the Pennsylvania Supreme Court for the proposition that the legislature may do so. I believe petitioners make a credible argument for the reconsideration of this holding, but that is not our prerogative.

With respect to the five-year registration ban, I cannot join the majority in holding that the law unfairly discriminates between registered and unregistered ex-felons, not because I find the analysis to be lacking in merit, but because the issue was not raised by petitioners. Instead, petitioners claim that the registration ban causes them to be disenfranchised in violation of Article VII, Section 1 and deprives them of a fundamental right. As to these arguments, I agree with Judge McGinley's dissent that binding precedent requires us to sustain the preliminary objections. (Indeed, the majority relies upon the same authorities in sustaining the preliminary objections as to the absentee ballot question.) Petitioners further argue that the five-year ban violates the anti-discrimination provisions of Article I, Section 26 because it has a disparate impact on black voters. However, as the Supreme Court has noted:
Presented with a neutral state law that produces disproportionate effects along racial lines [the following approach should be applied] to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment:
"[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact, ... Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause."
Hunter v. Underwood, 471 U.S. 222, 227, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). [FN2] In this case petitioners have not alleged any racially discriminatory intent or purpose on the part of the General Assembly, nor have they averred any facts which are in any way suggestive of such an intent. Accordingly, I agree with Judge McGinley that all preliminary objections should be sustained.

FN2. The equal protection provisions of Article I, Section 26 are analyzed under the same standards as those arising under the fourteenth amendment to the United States Constitution. Love v. Borough of Stroudsburg, 528 Pa. 320, 325, 597 A.2d 1137, 1139 (1991).

759 A.2d 442

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