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ORTIZ v. CITY OF PHILADELPHIA OFFICE OF THE CITY C

May 28, 1993

ANGEL ORTIZ, et al., Plaintiffs
v.
CITY OF PHILADELPHIA OFFICE of THE CITY COMMISSIONERS VOTER REGISTRATION DIVISION, et al., Defendants



The opinion of the court was delivered by: BY THE COURT; RONALD L. BUCKWALTER

 BUCKWALTER, J. May 28, 1993

 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 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, 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. *fn1" 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 whether the statute violates § 2 of the Voting Rights Act. *fn2"

 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 30 days; see 25 P.S. § 623-40.

 Procedurally, each year in January, the voter registration division conducts a computer search to identify registered voters who have failed to vote in a primary or general election within the previous two years. Voters who are identified by this computer search are "flagged for purging," i.e., the computer inserts an "F-code" in the computer file of each person identified. An "intent to purge" list is then created based upon all "F-coded" files.

 Voters appearing on the intent to purge list are mailed an "intent to purge notice," which provides as follows:

 NOTICE OF FAILURE TO VOTE WITHIN TWO YEARS:

 To The Person Whose Name Appears on The Face of This Card:

 
Our Records indicate you have failed to vote for the last two years. As required by law, we will cancel your Registration, unless you vote in the next Primary or Election or File with this Commission a written request for Reinstatement (10) days prior to the next Primary or Election, signed by you, giving your present residence. This is the only notice you will receive
 
. . .

 Defendant's Ex. No. 3 (emphasis added).

 Once the voter receives an intent to purge notice, the voter has two options to avoid being purged: vote in the next election, or request reinstatement in writing. Voters who fail to exercise either option are purged from the voter rolls: the voter's computer file will be deleted and the voter's affidavit will be removed from the ward binders. Once purged, voters must re-register to vote, but they do not face any additional impediments to re-registration as a result of being purged. Over the past several years, approximately eighty-nine percent of the voters removed from the voter registration rolls have been purged pursuant to the voter purge law, as reflected by Table One. TABLE ONE ANNUAL STATISTICS OF THE NUMBER OF VOTERS PURGED v. RESIDENCY CANVASS YEAR: RESIDENCY PURGED FOR TOTAL: CANVASS: FAILURE TO VOTE 1985 14,532 49,526 64,058 1986 14,120 134,325 148,445 1987 13,432 172,738 186,170 1988 8,857 37,785 46,642 1989 13,472 56,415 69,887 1990 22,288 126,592 148,880 1991 5,387 194,346 199,733 TOTAL: 92,088 771,727 863,815

 SOURCE: ANNUAL REPORTS OF THE CITY COMMISSIONERS TO THE PEOPLE OF PHILADELPHIA: YEARS, 1985 - 1991

 Plaintiffs contend that African-Americans and Latinos represent a significant percentage of the voters purged based upon the operation of the purge statute. As a result of the disproportionate impact on minority voters, plaintiffs contend that the voter purge law violates the Voting Rights Act. In addition to statistical evidence of disproportionate impact on minority voters, plaintiffs also contend that the statute violates § 2 based upon several other factors. First, plaintiffs assert that voting related discrimination is endemic to the political process in Philadelphia. Plaintiffs contend that minorities are subject to numerous forms of voting related discrimination that has been characterized by, inter alia, racial appeals in political campaigns and racially polarized voting. Second, plaintiffs contend that minorities in Philadelphia face significant forms of discrimination in areas such as housing and employment. Finally, plaintiffs contend that city officials have generally demonstrated a lack of responsiveness to the concerns of minority constituents.

 Defendant acknowledges that minority voters are purged at higher rates than white voters, but contends that this statistical disparity is insufficient to constitute a § 2 violation because plaintiffs have failed to establish that, based upon the totality of the circumstances, minority voters are denied equal opportunity to participate in the political process and elect their preferred candidates. In addition, defendant argues that plaintiffs have likewise failed to establish that the operation of the purge statute caused minority voters unequal access to the political process and to elect their preferred candidates. These arguments will be considered in light of the applicable legal standard to evaluate a § 2 challenge.

 III. APPLICABLE LAW

 A. Section 2 of the Voting Rights Act

 
No voting qualification or prerequisite to voting, or standard, or practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

 79 Stat. 437.

 Since Congress enacted the Voting Rights Act in 1965, the statute has been amended in several respects that are directly implicated in this litigation. In 1975, Congress amended § 2 to specifically include within the scope of the statute language and other ethnic minorities in addition to African-Americans. The statute is now also applicable to American Indians, Asian Americans, Alaskan Natives, and people of Spanish heritage. 42 U.S.C. § 1973(b)(f)(2).

 The next amendment of interest relates to the standard of proof required in voting rights cases. Until 1980, plaintiffs were allowed to establish a § 2 violation by demonstrating, based upon the totality of the circumstances, that the challenged electoral procedure had the result of denying a minority group equal opportunity to participate in the political process and to elect their preferred candidates. Whitcomb v. Chavis, 403 U.S. 124, 29 L. Ed. 2d 363, 91 S. Ct. 1858 (1971); White v. Regester, 412 U.S. 755, 37 L. Ed. 2d 314, 93 S. Ct. 2332 (1973).

 Then, in 1980, the Supreme Court ruled that a § 2 violation could not be established absent proof that officials enacted or maintained an electoral procedure with an intent to discriminate against minorities. Mobile v. Bolden, 446 U.S. 55, 64 L. Ed. 2d 47, 100 S. Ct. 1490 (1980). The plurality opinion of the Court, written by Justice Stewart, effectively held that plaintiffs seeking to vindicate rights pursuant to the Fourteenth and Fifteenth Amendments, as well as the Voting Rights Act, were now required to demonstrate that the procedure was enacted with the discriminatory intent to deny minorities equal access to the political process.

 In response to the Supreme Court's decision in Mobile v. Bolden, Congress amended § 2 to eliminate the intent standard and restore the results standard of proof that prevailed prior to Bolden. *fn3" Section 2 as amended provides that:

 
(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 abridgment 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 1973(b)(f)(2), 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.

 42 U.S.C. § 1973 (emphasis added).

 Based upon the language of the statute, it is clear that the central inquiry to evaluate whether an electoral practice or procedure violates § 2 is whether, based upon the totality of the circumstances, "the political processes . . . are not equally open to participation by members of a class of citizens . . . 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." Id. The 1982 amendments do not preclude plaintiffs from introducing evidence of discriminatory intent, but now afford plaintiffs the option of demonstrating that the challenged electoral procedure has the effect of denying a protected class equal access to the political process and electing representatives of their choice. S. Rep. No. 417, p. 206.

 In addition to the results standard set forth on the face of the statute, the legislative history accompanying the 1982 amendments enumerates several factors that may be pertinent to evaluate allegations that an electoral procedure violates § 2, including:

 
1. the extent of any history of official discrimination in the state or political subdivision that touched the right of members of the minority group to register, vote, or otherwise participate in the democratic process;
 
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
 
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
 
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
 
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
 
6. whether political campaigns have been characterized by overt or subtle racial appeals; and,
 
7. the extent to which members of the minority group have been elected to public office in the jurisdiction. *fn4"

 S. Rep. No. 417, p. 206-07.

 Additional factors that courts may consider include "whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group" and "whether the policy underlying the state or political subdivision's use of such voting qualifications, prerequisite to voting, standard, practice or procedure is tenuous." Id. at 207.

 B. Application of Section 2 to the Voter Purge Law

 Although there have been relatively few cases challenging episodic practices such as voter purge laws pursuant to § 2, the legislative history accompanying the 1982 amendment of the Voting Rights Act clearly illustrates that Congress intended § 2 to be the major statutory prohibition against all types of voting related discrimination. *fn5" S. Rep. No. 417, p. 207. The scope of the statute therefore includes all electoral practices that deny minority voters equal opportunity to participate in any phase of the political process and to elect candidates of their choice, even if the challenged practice is episodic rather than involving a permanent structural barrier infringing upon the right to vote. Id.

 Purging voters for failure to vote is an episodic practice that could plausibly produce a discriminatory result in violation of the § 2. Id. at 208. For example, purging voters could produce a discriminatory result if fair procedures were not followed, if the need for a purge were not shown, or if opportunities for re-registration were unduly limited. Id. at 208 n.119; see also, Toney v. White, 488 F.2d 310 (5th Cir. 1973) (affirmed district court's holding to set aside a primary election where registrar purged black voters but not white voters). Although this list provides several examples of how purging voters could violate § 2, it is reasonable to assume that it is not exhaustive and that it does not establish any prerequisites that plaintiffs alleging violations of § 2 must establish in order to state a cognizable claim pursuant to the Act.

 C. Standard of Proof for a Section 2 Violation involving an Episodic Electoral Practice

 "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 candidates." Thornburg v. Gingles, 478 U.S. 30, 47, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986). Ultimately, plaintiffs alleging that a challenged electoral procedure violates § 2 must establish that based upon the totality of the circumstances, the electoral procedure denies minority voters equal opportunity to participate in the political process and to elect their representatives of choice. 42 U.S.C. § 1973. To make this determination, courts must assess the impact of the challenged electoral practice based upon certain objective factors outlined in the legislative history accompanying the 1982 amendment of § 2. However, which factors are most relevant for plaintiffs to successfully prove that a challenged electoral procedure violates § 2 will depend upon the nature of the electoral procedure at issue and the specific facts of the case. S. Rep. No. 417, p. 206.

 Defendant urges the Court to adopt the view that Thornburg v. Gingles should govern the Court's evaluation of whether the voter purge law violates § 2 of the Voting Rights Act. In accordance with the Supreme Court's analysis in Thornburg, defendant further urges that plaintiffs are required to demonstrate that the challenged electoral procedure caused unequal access to the ...


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