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

Decision Date12 July 1994
Docket NumberNo. 93-1634,93-1634
PartiesAngel 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.
CourtU.S. Court of Appeals — Third Circuit

Kenneth Kimerling, Arthur A. Baer (argued), Puerto Rican Legal Defense Fund and Education Fund, Inc., New York City, for appellants.

Judith E. Harris, City Solicitor, Michael F. Eichert, Deputy City Solicitor (argued), Office of City Solicitor, Philadelphia, PA, for appellees.

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. Sec. 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.Stat. Sec. 623-40. 1 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. Sec. 1973, the First and 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.

Fourteenth Amendments of the United States Constitution, and the Pennsylvania Election Law, 25 Pa.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 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, 2 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. 3

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, 106 S.Ct. 2752, 2781, 92 L.Ed.2d 25 (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, 501 U.S. 380, 383-84, 111 S.Ct. 2354, 2358, 115 L.Ed.2d 348 (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 Sec. 2 could be established by proof of discriminatory results alone." Id. at 404, 111 S.Ct. 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) 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, 106 S.Ct. 2752, 92 L.Ed.2d 25 (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 Sec. 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, 106 S.Ct. at 2763.

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 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, 106 S.Ct. at 2763, 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. 1982 U.S.C.C.A.N. p. 207. 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.

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...

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