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Ortiz v. City of Philadelphia Office of City Com'rs Voter Registration Div.

filed: June 15, 1994.

ANGEL ORTIZ, A MEMBER OF THE PHILADELPHIA CITY COUNCIL, IN HIS INDIVIDUAL CAPACITY; PROJECT VOTE!; SERVICE EMPLOYEES INTERNATIONAL UNION
v.
CITY OF PHILADELPHIA OFFICE OF THE CITY COMMISSIONERS VOTER REGISTRATION DIVISION; MARTHA JOHNSON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE VOTER REGISTRATION DIVISION OF THE CITY OF PHILADELPHIA ANGEL ORTIZ, PROJECT VOTE! AND SERVICE EMPLOYEES INTERNATIONAL UNION, APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 91-06681).

Before: Scirica, Lewis and Garth, Circuit Judges.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge :

Plaintiffs Angel Ortiz, Project Vote!, and Service Employees International Union (collectively "Ortiz") brought suit in the U.S. District Court for the Eastern District of Pennsylvania seeking to enjoin the City of Philadelphia ("City") from implementing Pennsylvania's non-voting purge law as violative of the Voting Rights Act of 1965. The district court denied Ortiz's request for a permanent injunction and Ortiz appealed. We have jurisdiction over Ortiz's appeal pursuant to 28 U.S.C. § 1291. Finding no merit to Ortiz's legal arguments, we will affirm.

I

Pennsylvania law provides that registered voters who fail to vote for two years shall be purged from the registration rolls after being provided notice of the same. 25 Pa. Cons. Stat. § 623-40.*fn1 In the summer of 1991, approximately 21 percent of Philadelphia's registered voters (193,000 voters) were slated to be purged from Philadelphia's registration rolls for failing to vote.

On October 25, 1991, Ortiz filed an action alleging that the non-voting purge act had a disparate impact on minority voters and, thus, violates Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, the First and Fourteenth Amendments of the United States Constitution, and the Pennsylvania Election Law, 25 Pa. Cons. Stat. 623-40. Ortiz sought a judicial declaration that the purge violated the aforementioned provisions, as well as an injunction directing the City to restore all purged voters to the City's voter registration rolls, and enjoining the City from any further purging of non-voting, registered voters.

On October 29, 1991, the district court denied Ortiz's motion for a preliminary injunction. No appeal was taken. One month prior to the November 1992 elections, Ortiz again sought a temporary restraining order or preliminary injunction and an immediate hearing on the merits. This request was denied by order of the district court on October 6, 1992. Ortiz filed a petition for writ of mandamus (92-1821) and notices of appeal (92-1822 and 92-1839) from the district court's order, as well as a motion for injunction pending appeal, a motion for expedited appeal, and a motion for permanent injunction. We denied Ortiz's motions and petition for writ of mandamus on October 8 and 14, 1992. Ortiz's appeals were dismissed for failure to prosecute.

On November 10, 1992, a four-day trial was held to determine whether a permanent injunction should issue. On June 1, 1993, the district court granted judgment in favor of the City, denying Ortiz's requested relief. Ortiz v. City of Philadelphia, 824 F. Supp. 514 (E.D. Pa. 1993). After making extensive findings of fact, and recognizing that African-American and Latino voters are purged at disproportionately higher rates than their white counterparts, id. at 526-31,*fn2 the district court held that the purge law did not deprive minority voters of equal access to the political process in violation of Section 2. Id. at 539.

Ortiz appeals the denial of his Section 2 claim.*fn3

II

Ortiz argues that the district court failed to apply the correct standard in concluding that he had failed to demonstrate that the purge statute violated Section 2 of the Voting Rights Act. In particular, Ortiz asserts that the district court erred in finding that he had failed to prove that the purge statute caused minority voters to be removed from the voter-registration rolls at disparate rates.

A.

A district court's Conclusion that a challenged electoral practice has a discriminatory effect is a question of fact subject to review for clear error, Thornburg v. Gingles, 478 U.S. 30, 79, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986) (recognizing that determination of whether or not political process is equally open to minority voters "is peculiarly dependent upon the facts of each case and requires an 'intensely local appraisal of the design and impact' of the contested electoral mechanisms"). The question of which standard (i.e., which individual factors) a district court should apply in determining whether, under the totality of the circumstances, a challenged electoral practice has a discriminatory effect, however, presents a question of law subject to plenary review. Id. Accord Jenkins v. Red Clay Consolidated School District Board of Education, 4 F.3d 1103, 116-17 (3d Cir. 1993).

B.

The Voting Rights Act of 1965 was enacted to enforce the Fifteenth Amendment of the United States Constitution, which provides: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

In 1982, Congress amended Section 2 of the Voting Rights Act "to make clear that certain practices and procedures that result in the denial or abridgement of the right to vote are forbidden even though the absence of proof of discriminatory intent protects them from constitutional challenge." Chisom v. Roemer, ___ U.S. ___, 111 S. Ct. 2354, 2358 (1991) (holding that state judicial elections are included within the scope of Section 2 of the Voting Rights Act). That is, "Congress made clear that a violation of § 2 could be established by proof of discriminatory results alone." Id. at 2368.

As amended, Section 2 of the Voting Rights Act provided as follows:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

(Emphasis added).

In Thornburg v. Gingles, 478 U.S. 30, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986), a case which did not involve a purge act, black citizens of North Carolina brought suit challenging that state's legislative redistricting plan on the grounds that the plan impaired black citizens' ability to elect representatives of their choice in violation of Section 2 of the Voting Rights Act. The district court, applying the "totality of the circumstances" test set forth in § 2(b) of the Voting Rights Act, held that the redistricting plan violated the Act because it resulted in the dilution of black citizens' votes in all of the disputed election districts.

The Supreme Court affirmed the decision of the district court with respect to all of the disputed districts except one. In so ruling, the Court held that to determine "whether 'as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice,'" a court must "assess the impact of the contested structure or practice on minority electoral opportunities 'on the basis of objective factors.'" Thornburg, 478 U.S. at 44.

The Senate Judiciary Committee Report that accompanied the bill amending Section 2 enumerated a non-exclusive list of factors relevant to a Section 2 claim: the history of official voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used electoral practices that tend to enhance the opportunity for discrimination; whether minorities have been excluded from any candidate slating process; the extent to which minority groups bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; the extent to which political campaigns have been characterized by overt or subtle racial appeals; the extent to which minority members have been elected to public office; whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of minority groups; whether the policy underlying the use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. S. Rep. No. 97-417, 97th Cong., 2d Sess. 28-30, reprinted in 1982 U.S.C.C.A.N. 177 ("S. Rep.").

Although in Thornburg v. Gingles the Supreme Court proceeded to weigh these factors, the Court also recognized that the Senate Judiciary Committee list was, in fact, "neither comprehensive nor exclusive," 478 U.S. at 45 (1986), and that "there is no requirement that any particular number of factors be proved, or that a majority of them point one way or another." Id., quoting S. Rep. at 29. That is, both the Court and the Committee recognized that other factors might be relevant to the determination of whether, under the totality of the circumstances, a given electoral procedure was discriminatory.

On this much, the parties agree. Ortiz argues, despite the allegations in his complaint, that the district court completely negated the totality of the circumstances test set out by Section 2 in holding that if the purge statute was not "the dispositive force depriving minorities of equal access to the political process" then, under the "totality of the circumstances," there was no violation of the Voting Rights Act.*fn4

The City argues that the district court did not err in requiring Ortiz to show that the purge statute caused minority voters to have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

C.

The primary legal issue before us, then, is whether the district court erred by factoring into its "totality of the circumstances" analysis the question of whether or not the purge statute caused minorities to be deprived of equal access to the political system.

1.

The Supreme Court wrote in Thornburg v. Gingles that "the essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives." 478 U.S. at 47 (1986) (emphasis added). That is, the Supreme Court recognized that there must be some causal connection between the challenged electoral practice and the alleged discrimination that results in a denial or abridgement of the right to vote.

Three Courts of Appeal have required Section 2 plaintiffs to demonstrate a causal connection between asserted indicia of discrimination and the challenged electoral procedure at issue. In Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986), the plaintiffs argued that a Tennessee law which disenfranchised convicted felons had a disproportionate impact on blacks because a significantly higher number of black Tennesseeans are convicted of felonies than whites. The Court of Appeals rejected this argument, despite the district court's findings that there existed in Tennessee "a history of racial discrimination, the effects of which continue to the present day." Id. at 1261. The court held that, under the totality of the circumstances, the presence of some of the factors enumerated in the legislative history of Section 2 was outweighed by other factors such as the state's legitimate and compelling rationale for enacting the statute at issue. The court concluded that "the disproportionate impact suffered by black Tennesseeans does not 'result' from the state's qualification of the right to vote on account of race or color and thus the Tennessee Act does not violate the Voting Rights Act." Id. at 1262.

In Irby v. Virginia State Board of Elections, 889 F.2d 1352, 1358-59 (4th Cir. 1989), the Fourth Circuit upheld a district court's finding that Virginia's appointive system for selection of school board members did not violate Section 2 of the Voting Rights Act. That is, the Court of Appeals agreed with the district court's Conclusion that, despite the existence of a "significant disparity" between the percentage of blacks in the population and the percentage of blacks on the school board, "the evidence cast considerable doubt on the existence of a causal link between the appointive system and black underrepresentation in Buckingham and Halifax counties." Id. at 1359. Rather, the disparity arose from the fact that "although blacks comprise a large portion of the population, they are not seeking school board seats in numbers consistent with their percentage of the population." Id. at 1358, quoting, 693 F. Supp. 424, 434 (E.D. Va. 1988).

Finally, in Salas v. Southwest Texas Junior College District, 964 F.2d 1542 (5th Cir. 1992), Hispanic voters challenged the use of an at-large system, as opposed to single member districts. The Fifth Circuit held that "the district court's ultimate finding that the cause of Hispanic voters' lack of electoral success is failure to take advantage of political opportunity, rather than a violation of § 2," was not clearly erroneous. Id. at 1556.*fn5 Noting that evidence introduced at trial showed that Hispanic voter turnout was roughly seven percentage points below that of Anglo-Saxon whites, the Court of Appeals agreed that "obviously, a protected class is not entitled to § 2 relief merely because it turns out in a lower percentage than whites to vote." Id.*fn6

2.

We agree that Section 2 plaintiffs must show a causal connection between the challenged voting practice and the prohibited discriminatory result. Ortiz's argument to the contrary is without legal foundation, devoid of endorsement in existing caselaw and the legislative history of Section 2 of the Voting Rights Act, and is not supported by evidence. In the present case, the district court properly considered whether or not Pennsylvania's non-voting purge statute*fn7 caused the discrimination of which Ortiz complained.

III

A.

Ortiz argues that the district court erred in holding that, under the totality of the circumstances, Ortiz had "failed to demonstrate that the purge law interacts with social and historical conditions to deny minority voters equal access to the political process and to elect their preferred representatives." Ortiz, 824 F. Supp. at 539 (E.D. Pa. 1993).*fn8 As previously observed, the ultimate question of whether a challenged electoral procedure has a discriminatory effect is a question of fact which we review for clear error. See, supra, Section II(A).

The district court made extensive findings with respect to the aforementioned objective factors delineated in the Senate Judiciary Committee Report. The district court found that there was racially polarized voting in Philadelphia, Ortiz, 824 F. Supp. at 532-33, and a "general pattern" of racial appeals in some Philadelphia political campaigns. Id. at 536-37. The court found that there were "substantial socioeconomic disparities among African-American, Latino and white residents of the City of Philadelphia, which affect the ability of these minority groups to participate in the political process and to elect their candidates of choice." Id. at 535.*fn9 In addition, the court found that the needs of minority citizens have not always been adequately addressed by city officials, and that this factor, as well as the impact of various socioeconomic factors, could influence minority participation in the political process. Id. at 538.

Nevertheless, the district court found that there was no evidence of historical voting-related discrimination infringing upon the rights of Latinos or African-Americans to vote. Id. at 531-32. There was no evidence of discrimination in the candidate slating process that denied minority candidates equal access to the political process. Id. at 533. Nor was there evidence that minorities experience difficulty in electing representatives of their choice. Id. at 537-38.*fn10

Finally, the district court found that the policy reasons underlying the City's implementation of the voter purge were substantial and were based upon a valid state interest of ensuring that elections in Philadelphia are not plagued with fraud. Id. at 538-39.

Ultimately, the district court concluded that Ortiz had failed to establish a per se violation of Section 2:

Plaintiffs have failed to demonstrate that the purge law interacts with social and historical conditions to deny minority voters equal access to the political process and to elect their preferred representatives, particularly since it is undisputed that the purge procedure is administered fairly and that there is ample opportunity for purged voters to re-register to vote. Although it is clear that the operation of the purge law removes African-American and Latino voters from the voter registration rolls at higher rates than white voters, this disproportionate impact does not rise to the level of a per se violation of § 2, even when considered in light of the court's findings of the existence of racially polarized voting, socioeconomic disparities in education, employment and health, racial appeals in some elections, and the failure of the City in some instances to address the needs of minority citizens. While it is clear that these factors may contribute to decreased minority political participation rates, plaintiffs' evidence simply does not justify the Conclusion that the purge law is the dispositive force in depriving minority voters of equal access to the political process in violation of § 2.

Ortiz, 824 F. Supp. at 539.*fn11

B.

We hold that the district court did not err in concluding that Ortiz had failed to show that Philadelphia's minority population has had less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, as a result of Pennsylvania's purge statute.

The Supreme Court has stated categorically that the right to vote is of the very essence of democratic society. Shaw v. Reno, ___ U.S. ___, 113 S. Ct. 2816, 2822 (1993), quoting Reynolds v. Sims, 377 U.S. 533, 555, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). Although we are mindful of the fact that it was not until relatively late in our nation's history that this right was extended to every American citizen, without regard to race, we note that the Fifteenth Amendment, the Voting Rights Act, and numerous judicial decisions all have sought to raze any enduring historical bastions of state-administered voter discrimination.

Here, however, it is not the State which prevents citizens from exercising their right to vote, from participating in the political process, and from electing representatives of their own choosing. We are not confronted with an electoral device -- such as "race-neutral" literacy tests, grandfather clauses, good-character provisos, racial gerrymandering, and vote dilution -- which discriminates against minorities, which has no rational basis, and which is beyond the control of minority voters. Rather, we are faced with the fact that, for a variety of historical reasons, minority citizens have turned out to vote at a statistically lower rate than white voters.*fn12

As we read Ortiz's complaint, the entire document is drawn to allege that Pennsylvania's purge statute "caused" the disparate purge rates between Philadelphia's white and minority communities. Yet, there is nothing before us, not even one iota of evidence introduced at trial or present in the record, which would establish that fact, despite the claims made by the Dissent.

On the contrary, it is well established that purge statutes are a legitimate means by which the State can attempt to prevent voter fraud.*fn13 More importantly, registered voters are purged -- without regard to race, color, creed, gender, sexual orientation, political belief, or socioeconomic status -- because they do not vote, and do not take the opportunity of voting in the next election or requesting reinstatement.*fn14

It is true that in certain years minority voters have turned out in proportionately lower numbers than have non-minority voters. But the purge statute did not cause the statistical disparities which form the basis of Ortiz's complaint. We agree with the Fifth Circuit that "a protected class is not entitled to ยง 2 relief merely because it turns out in a lower percentage than ...


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