narrative form the Court's findings of fact, the Court now turns to a discussion of the issues to be resolved in reaching its decision.
Defendants have raised a variety of defenses which, if sustained, would obviate the need for a ruling on the merits of plaintiffs' claims.
With one exception, however, the Court will not decide the issues presented by the assertion of those defenses. While many of these defenses might ordinarily and logically be decided first, the weakness of plaintiffs' case on the merits makes resolution of the often difficult issues presented by the defenses both wasteful and unwise.
One defense does merit resolution. On February 19, 1982, defendants Glancey, O'Donnell and City Committee filed a motion to dismiss them as defendants.
The argument made in support of this motion, simply stated, is that defendants Glancey, O'Donnell and City Committee do not play any part in Pennsylvania's reapportionment and election process, and thus have no power to provide plaintiffs with any relief. Since analysis of the relief requested demonstrates the validity of this argument, the motion will be granted.
In their original complaint, plaintiffs sought three principal items of relief: 1) a declaratory judgment that the reapportionment plan adopted for the Pennsylvania State Legislature violates federal constitutional and statutory law in diluting the voting strength of Hispanics in Philadelphia; 2) preliminary and permanent injunctions against all steps taken under the plan that would permit the selection and election of candidates; and 3) an order directing the adoption of a reapportionment plan free of the alleged constitutional and statutory defects. Plaintiffs sought no monetary damages. In the amended complaint, filed after it became apparent that the defense now at issue would be raised, plaintiffs added a request for an order "(e)njoining preliminarily and permanently (defendants Glancey, O'Donnell and City Committee) from having special status in the process established ... for the creation of a constitutionally permissible plan." Amended Complaint, Prayer for Relief P 4b.
None of the items of relief requested makes the joinder of defendants Glancey, O'Donnell and City Committee either necessary or proper. The declaratory relief sought, of course, requires no action on any defendant's part. An injunction affecting the process leading to Pennsylvania's primary elections could not conceivably run against these three defendants simply because they have no official duties or functions under the Pennsylvania Election Code, Pa.Stat.Ann. tit. 25 § 2600 et seq., and thus could not do anything to affect the manner or timing of that process. Similarly, defendants Glancey, O'Donnell and City Committee do not occupy any position empowered by Pennsylvania law to control in any way the development of a final reapportionment plan for the state legislature. Finally, even if it had been shown that these three defendants did informally possess some "special status" that allowed them de facto to exert control over the development of the final plan-and such a showing was not made here-joinder would still be unnecessary: if the Court were to find it necessary to order the state to develop a new reapportionment plan free of constitutional and statutory defects, Pennsylvania would have to produce a plan meeting those criteria; if the plan thereafter submitted met those criteria, it would be of no moment that any of the three defendants participated in its creation. Under such circumstances, where certain defendants are clearly without authority or power to effect any of the relief sought by the plaintiffs, a motion to drop those defendants may properly be granted. Committee for Public Education & Religious Liberty v. Rockefeller, 322 F. Supp. 678, 685-686 (S.D.N.Y.1971); Rakes v. Coleman, 318 F. Supp. 181, 192-193 (E.D.Va.1970); 7 C. Wright & A. Miller, Federal Practice and Procedure § 1683, at 322-323 (1972). The Court will so order.
We turn now to the merits of plaintiffs' claims considered in light of the remaining defendants' motion for involuntary dismissal under Fed.R.Civ.P. 41(b).
Under rule 41(b), any of a plaintiff's claims may be dismissed at the close of plaintiff's case if "upon the facts and the law the plaintiff has shown no right to relief." In deciding whether the facts set forth above entitle the plaintiffs before us to the relief they seek, we must first briefly review the applicable law.
Courts, in reviewing reapportionment plans, first focused on inequities caused by states' failures to adjust boundaries of voting districts to accommodate shifts in the distribution of the states' respective populations. See, e.g., Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969); Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535 (1969); Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). It is now well established, however, that a reapportionment plan describing districts of substantially equal population may still be invalid if "conceived or operated as purposeful devices to further racial or economic discrimination." Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S. Ct. 1858, 1872, 29 L. Ed. 2d 363 (1971). In Gaffney v. Cummings, 412 U.S. 735, 93 S. Ct. 2321, 37 L. Ed. 2d 298 (1973), the Supreme Court stated this principle in the following terms:
State legislative districts may be equal or substantially equal in population and still be vulnerable under the Fourteenth Amendment. A districting statute otherwise acceptable, may be invalid because it fences out a racial group so as to deprive them of their pre-existing municipal vote. Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960). A districting plan may create multimember districts perfectly acceptable under equal population standards, but invidiously discriminatory because they are employed "to minimize or cancel out the voting strength of racial or political elements of the voting population." Fortson v. Dorsey, 379 U.S. 433, 439, 85 S. Ct. 498, 501, 13 L. Ed. 2d 401 (1965).
Gaffney v. Cummings, supra, at 751, 93 S. Ct. at 2330. To succeed on a claim based on the principle that a reapportionment plan is invalid despite the substantial equality of population among the districts, it is not enough to show merely that the effect of the reapportionment plan is to fence out, dilute or diffuse the vote of a racial or ethnic group. On the contrary, in City of Mobile v. Bolden, 446 U.S. 55, 100 S. Ct. 1490, 64 L. Ed. 2d 47 (1980), it was clearly the position of at least five of the justices of the Supreme Court that to prevail under either § 2 of the Voting Rights Act or the Equal Protection Clause of the Fourteenth Amendment, plaintiffs must demonstrate that the reapportionment plan was designed purposefully to minimize or cancel out the voting potential of racial or ethnic minorities. City of Mobile v. Bolden, supra, at 60-62, 66-67, 100 S. Ct. at 1499-1500 (plurality opinion of Stewart, J.); id. at 94-95, 100 S. Ct. at 1514-1515 (White, J., dissenting). See also Whitcomb v. Chavis, supra, at 149, 91 S. Ct. at 1872.
In the case before us, the only evidence of conduct remotely suggesting intentional discrimination against Hispanic voters is the series of statements made by defendant Glancey in the television interview. There he stated that he had made suggestions for incorporation in the preliminary plan that would have resulted in districts which diffused the Hispanic vote. See Exhibit P4 at 19-21. Defendant Glancey, however, had no power to control the design of either the preliminary or final reapportionment plan, for under Pennsylvania law, that power resides exclusively with the Legislative Reapportionment Commission. Thus, to prevail on the merits, plaintiffs do not make out their case by simply stating that Glancey held the views that the plaintiffs complain of, or that he communicated them to persons who communicated them to the Commission, or that he personally spoke of them to a Commission staff member or a member of the Commission itself. Rather, plaintiffs must point to some evidence that the intent of Glancey was shared or adopted by the Commission, not only in the development of the preliminary plan but in the development of the final plan as well. The record is barren of any such evidence.
Plaintiffs urge the Court to bridge the gap in the evidence of intent by drawing an inference from the circumstances shown. First, plaintiffs point out that defendant Glancey did offer suggestions to the Commission with the purpose of having produced a preliminary plan that fractured the Hispanic vote. Plaintiffs further note that the preliminary plan filed did break up the Hispanic vote so that no district had a population that was more than 15% Hispanic. Plaintiffs then argue that since the Commission thereafter was shown that a district with a 56% Hispanic population could be created, but nevertheless filed a final plan wherein no district contained more than a 40% Hispanic population, the Commission must have intentionally discriminated against Hispanics in response to Glancey's preferences.
Plaintiffs' argument cannot survive even the most cursory examination. Whatever the Commission's reasons for drawing a preliminary plan, without a district of more than 15% Hispanic population, there remains the unalterable truth that the Commission revised that plan to provide for a district with a significantly greater proportion of Hispanic voters equal to 40% of the district's population. It is more reasonable to infer from such a marked upward adjustment that the Commission considered the views of Hispanics and did what it could to accommodate them, than it is to infer that the Commission embraced the views of defendant Glancey. That the Commission failed to provide for a district containing the maximum possible concentration of Hispanic voters does not weaken the inference that the Commission acted properly. Reapportionment brings into play a variety of competing considerations-ethnic, racial, political, economic and otherwise. Compromise is of the essence of the process. Plaintiffs here have not shown that such competing considerations did not exist and cause the Commission to create a district with less than the maximum possible Hispanic population. In the absence of such a showing, the Court cannot conclude that the Commission's failure to create a 56% Hispanic district resulted from purposeful discrimination rather than from necessary accommodation. Accordingly, the motions of defendant Commission and defendant William R. Davis for involuntary dismissal must be granted.
One more point, however, needs to be addressed. Plaintiffs have frequently denounced the conduct of defendants Glancey and the City Committee in channelling suggestions to the Commission that would intentionally minimize Hispanic voting strength in the preliminary reapportionment plan. It is not the business of the Courts to judge either the wisdom, the fairness, or the effectiveness of the political strategy adopted by defendants Glancey and the City Committee. Under our system, the only question properly before the Court in a reapportionment case such as this is whether or not the reapportionment plan adopted is valid under the law in the face of the particular challenge made, as it is in this case. Nevertheless, it must be said that organizations like the City Committee and individuals like defendant Glancey hold the same right held by plaintiffs to communicate their views on reapportionment. Moreover, an individual or organization does not lose its freedom to submit its suggestions just because the suggestions were motivated by considerations which, if shared or adopted by the state, would result in an invalid reapportionment plan. It is the state, or its designated agency, that must guard against the adoption of an unconstitutional plan, and how the state treats suggestions made does not affect a person's right to make them.
Plaintiffs have endeavored with understandable zeal to obtain a representative in their state's legislature. Defendant Commission heard their position and apparently tried to accommodate those concerns. The plaintiffs' failure to get all they sought is hardly unusual where reapportionment is concerned. As in the ordinary settlement of litigation, the usual mark of success in reapportionment is that no interested group is completely happy with the result.
Plaintiffs' case fails on two grounds. First, plaintiffs have joined three defendants-defendants Glancey, O'Donnell and the City Committee-who are legally incapable of providing any appropriate relief. Moreover, as to the other defendants, plaintiffs have utterly failed to provide the barest trace of evidence to support their claim that defendant Commission designed the legislative districts in Pennsylvania with the intent to discriminate against Hispanic voters. For both reasons, plaintiffs' claims must be dismissed.