Ortiz v. City of Philadelphia, 91-6681.

• Decision Date: 28 May 1993
• Docket Number: No. 91-6681.,91-6681.
• Citation: 824 F. Supp. 514
• Parties: Angel ORTIZ, et al., Plaintiffs, v. CITY OF PHILADELPHIA OFFICE OF the CITY COMMISSIONERS VOTER REGISTRATION DIVISION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

824 F. Supp. 514

Angel ORTIZ, et al., Plaintiffs,
v.
CITY OF PHILADELPHIA OFFICE OF the CITY COMMISSIONERS VOTER REGISTRATION DIVISION, et al., Defendants.

No. 91-6681.

United States District Court, E.D. Pennsylvania.

May 28, 1993.

824 F. Supp. 515

COPYRIGHT MATERIAL OMITTED

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Gullermo L. Bosch, Laureda & Bosch, Philadelphia, PA, Deborah H. Karpatkin, Arthur A. Baer, Puerto Rican Legal Defense & Educ. Fund, Inc., New York City, Eric B. Schnurer, Philadelphia, PA, for plaintiffs

Thomas J. Wamser, Michael F. Eichert, Deputy City Sols., Philadelphia, PA, for defendants.

MEMORANDUM

BUCKWALTER, District Judge.

This action is presently before the Court following a nonjury trial which was held in November, 1992. After hearing the evidence, the parties submitted post trial briefs outlining the relevant factual and legal issues to be considered by the Court. The issues are now ripe for review. In ruling upon the issues presented by the parties, the Court relies upon the evidence presented at trial and the parties' post trial memoranda.

The plaintiffs in this action include City of Philadelphia Councilman Angel Ortiz, who has served on the Philadelphia City Council since 1988; Project VOTE, a national, nonpartisan, nonprofit organization, founded in 1981 to increase voter participation through voter registration drives; and Service Employees International Union (SEIU) Local 36, which represents janitorial employees in the City of Philadelphia, approximately sixty percent of whom are African-American or minority. The defendant is the City of Philadelphia Office of City Commissioners, Voter Registration Division, the city agency responsible for implementing the city's election procedures.

Plaintiffs challenge the validity of the Pennsylvania voter purge law, 25 P.S. § 623-40, pursuant to § 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq., and the First and Fourteenth Amendments of the United States Constitution. Plaintiffs allege that implementation of the voting purge law has had a discriminatory impact upon African-American and Latino voters in Philadelphia in contravention of the Voting Rights Act. To support this contention, plaintiffs introduced statistical evidence indicating that African-American and Latino voters are purged from the voter registration rolls at significantly higher rates than white voters. Plaintiffs augment this statistical evidence by asserting that minorities in Philadelphia have experienced historical voting related discrimination that has been characterized by overt and subtle racial appeals in electoral campaigns, difficulty in electing minorities to office, racially polarized voting, and a discriminatory candidate slating process.

Additionally, plaintiffs assert that the defendant's failure to use a less discriminatory alternative to maintain accurate voter registration rolls violates the First and Fourteenth Amendments of the Constitution. Plaintiffs, however, recognize that this issue has been previously decided by the Court in its Memorandum and Order dated October 29, 1991, in which I denied plaintiffs' request for a preliminary injunction based upon arguments that the purge law violated the First Amendment. For the purposes of this memorandum, my analysis will focus principally upon plaintiffs' allegations that the purge law violates § 2 of the Voting Rights Act, and incorporates this Court's prior Memorandum and Order addressing the First Amendment issue as if set forth fully herein. See Appendix A.

Plaintiffs presently seek a permanent injunction to preclude the City of Philadelphia from purging voters for failure to vote. Conversely, defendant moves for judgment as a matter of law, asserting that the plaintiffs have failed to establish that there has been an abridgement or denial of the right to vote in contravention of the Voting Rights Act or the First and Fourteenth Amendments.

For the following reasons, plaintiffs' request for a permanent injunction to preclude the city from purging voters for failure to

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vote is denied, and defendant's motion for judgment as a matter of law is granted

I. PROCEDURAL HISTORY

Plaintiffs began challenging the validity of the voter purge law in October, 1991. Plaintiffs, along with additional plaintiffs in a companion case, Tucker v. City of Philadelphia, No. 91-6123, 1991 WL 225005, initially moved for a preliminary injunction, arguing that the purge statute violated the First and Fourteenth Amendments of the Constitution and the Voting Rights Act. After a hearing on this issue, this Court denied plaintiffs' request for injunctive relief, concluding that the statute did not violate the First and Fourteenth Amendments, and further, that plaintiffs failed to produce evidence sufficient to establish that the statute violated the Voting Rights Act.

Although the Tucker plaintiffs have not pursued any additional legal remedies since the Court declined to issue a preliminary injunction, the Ortiz plaintiffs continued to pursue legal recourse. Approximately one month prior to the November, 1992 elections, plaintiffs moved for a temporary restraining order, or in the alternative, for a preliminary injunction and immediate hearing on the merits of their motion. This Court's order, dated October 6, 1992, denied plaintiffs' request for a temporary restraining order and preliminary injunction, based upon the reasoning of this Court's prior Memorandum and Order of October, 1991. A trial was originally scheduled prior to the November election, but continued at the request of plaintiffs. It was then rescheduled for November 10, 1992, after the election. In the interim, plaintiffs appealed to the Third Circuit Court of Appeals. The Third Circuit denied plaintiffs' request for injunctive relief based upon the plaintiffs' failure to timely prosecute. Ortiz v. City of Philadelphia, No. 92-1822, (3d Cir., Dec. 17, 1992). The trial was held for four days beginning on November 10, 1992 and concluding on November 13, 1992.

II. PRELIMINARY FACTS

The city of Philadelphia's voter registration information is maintained by the Office of City Commissioners, Voter Registration Division. Philadelphia residents who are interested in registering to vote have the option of registering in person or registering by mail. In addition, numerous non-profit, political, and civic organizations sponsor voter registration drives which serve as an additional alternative for city residents to register to vote.¹ Voter registration forms are generally provided in English only, but the voter registration division will provide bilingual forms to organizations or individuals who register bilingual populations.

In an effort to maintain accurate voter registration information, the Pennsylvania legislature has enacted legislation designed to improve the registration process and reduce the likelihood of fraudulent registrations. One of the more controversial procedures used by Pennsylvania to maintain accurate voter registration rolls is the voter purge law, 25 P.S. § 623-40. Pursuant to this provision, electoral authorities throughout the state are authorized to remove registered voters from the voter registration rolls for failure to vote within two years. Once removed, voters must re-register in order to exercise their right to vote in an upcoming election.

Plaintiffs challenge the validity of the Pennsylvania voter purge statute, alleging that the operation of the statute denies African-American and Latino voters in the City of Philadelphia equal opportunity to participate in the political process and to elect representatives of their choice in contravention of the Voting Rights Act. Although this statute has been effective for approximately forty years, plaintiffs' action represents the first occasion for this Court to consider

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whether the statute violates § 2 of the Voting Rights Act.²

Section 623-40 provides that:

during each year, the commission shall cause all of the district registers to be examined, and in the case of each registered elector who is not recorded as having voted at any election or primary during the two calendar years immediately preceding, the commission shall send to such elector by mail, at his address appearing upon his registration affidavit, a notice, setting forth that the records of the commission indicate that he has not voted during the two immediately preceding calendar years, and that his registration will be canceled if he does not vote in the next primary or election or unless he shall, within ten days of the next primary or election, file with the commission, a written request for reinstatement of his registration, signed by him, setting forth his place of residence. A list of the persons to whom such notices have been mailed shall be sent promptly to the city chairman of the political party of which the electors were registered as members. At the expiration of the time specified in the notice, the commission shall cause the registration of such elector to be canceled unless he has filed with the commission a signed request for reinstatement of his registration as above provided. The official registration application card of an elector who has registered may qualify as a reinstatement of his registration or a removal notice. The cancellation of the registration of any such elector for failure to vote during the two immediately preceding calendar years shall not affect the right of any such elector to subsequently register in the manner provided by this act. Whenever the registration of an elector has been canceled through error, such elector may petition the commission for the reinstatement of his registration not later than the tenth day preceding any primary or election, and after a hearing on said application, if error on the part of the commission is proved, the commission shall reinstate the registration of such elector.

As amended 1976, July 1, P.L. 476, No. 122, § 22 effective in...