Thornburg is the first Supreme Court case to interpret the 1982 amendments to the Voting Rights Act. In Thornburg, the Supreme Court addressed a challenge that a multi-member district scheme unlawfully diluted the voting strength of African-American constituents in North Carolina. The district court held that the use of a multi-member district impermissibly diluted the voting strength of African-American voters in violation of § 2. The state appealed this judgment to the Supreme Court.
After a thorough review of the legislative history of the 1982 amendments, the Supreme Court stated that plaintiffs alleging a vote dilution claim involving the use of multi-member districts must satisfy a tri-partite threshold test requiring the minority group to demonstrate three essential elements. First, the minority group must demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single member district. Thornburg, 478 U.S. at 50. The Court stated that "unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by the structure or practice." Id. at 50 n.17. Second, the minority group must establish that it is politically cohesive because "if the minority group is not politically cohesive, it cannot be said that the selection of a multi-member electoral structure thwarts distinctive minority group interest." Id. at 51. Third, the minority group must establish the existence of white bloc voting. Id. at 50-51. White bloc voting is a necessary element of a vote dilution claim because the minority group must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it to usually defeat the minorities' preferred candidate. Id. If plaintiffs alleging vote dilution claims can satisfy this tri-partite test, they must then establish, based upon the totality of the circumstances, that they do not have an equal opportunity to participate in the political process and to elect their preferred representatives. Id.
Since I am not persuaded that the analysis outlined in Thornburg governs the voting rights issue presently under consideration, I decline to rule as a matter of law, that the Thornburg tri-partite test is a prerequisite to establishing that the operation of the voter purge law denies minority voters equal opportunity to participate in the political process and to elect their representatives of choice. Defendant recognizes that the claim considered by the Supreme Court in Thornburg is distinguishable from the claim presently before the Court: Thornburg involved a vote dilution claim challenging the use of multi-member districts, whereas plaintiffs' claim alleges that the voter purge law precludes otherwise eligible minority voters from exercising their right to vote and participate in the political process. Naturally, in the context of a vote dilution claim, plaintiffs should be required, as a threshold matter, to demonstrate the Thornburg standard because those factors directly address the ultimate issue in the case: namely, whether the use of a multi-member district denies minority voters equal access to the political process and the ability to elect their representatives of choice.
It is simply not clear that the Thornburg pre-conditions are relevant to the plaintiffs' challenge that the voter purge law violates § 2. This conclusion does not reflect the view that Thornburg is only applicable to vote dilution claims: it merely reflects my view that the Thornburg factors, while probative in the context of vote dilution cases, are peripheral issues bearing limited relevance to the plaintiffs' claim presently before the Court. See Roberts v. Wamser, 679 F. Supp. 1513, 1530 (E.D. Mo. 1987) ("without deciding whether or not such requirements are prerequisites to . . . the challenge presented here . . . the Court will consider the [Thornburg ] elements with respect to this case.") rev'd on other grounds, 883 F.2d 617 (8th Cir. 1989); Hall v. Holder, 955 F.2d 1563, 1568 (11th Cir. 1992) ("Gingles places a "gloss" on the Senate Report factors, limiting the use of the factors by requiring that the three Gingles factors be established to prove a vote dilution claim."). These elements, particularly whether the minority group is sufficiently large and geographically compact to constitute a majority in a single member district, and whether the minority group is politically cohesive, are generally "supportive of but not essential to" plaintiffs' allegations that the voter purge law violates § 2. Thornburg, 478 U.S. at 48 n.15.
Moreover, the Court is guided by the legislative history sanctioning the importance of applying a flexible approach when evaluating § 2 challenges, rather than a "mechanical" point counting analysis. S. Rep. No. 417, p. 207 n.117. In effectuating the intent of Congress, the Court will engage in a "searching and practical evaluation" of the political process to determine if the operation of the purge statute violates § 2 of the Voting Rights Act. Id. at 208. Engaging in such an analysis requires the Court to recognize that "if a challenged practice relates to a series of events or episodes, [such as the voter purge law], the proof sufficient to establish a violation would not necessarily involve the same factors as courts have utilized when dealing with permanent structural barriers." S. Rep. No. 417, p. 207 (emphasis added); Mississippi State Chapter Operation PUSH v. Allain, 674 F. Supp. 1245, 1264-65 (N.D. Miss. 1987) (racially polarized voting, racial appeals in campaigns, candidate slating process, discriminatory voting requirements such as large election districts and majority vote requirements, were irrelevant to the claim involving the challenged registration procedures); see also, Thornburg, 478 U.S. at 48 ("some Senate Report factors are more important to multi-member district vote dilution claims than others"). Accordingly, based upon the nature of plaintiffs' § 2 challenge and the specific facts of this case, it would be most appropriate to evaluate the merits of plaintiffs' claim by considering the objective Senate factors outlined in the legislative history of the 1982 amendments without consideration of the Thornburg test.
The Court, however, is also free to evaluate other factors or elements that are indicative of whether a challenged electoral procedure violates § 2. S. Rep. No. 417, p. 207 (while the enumerated senate factors will often be pertinent to certain types of § 2 violations other factors may also be relevant and should be considered); see also, Gomez v. Watsonville, 863 F.2d 1407, 1413 (9th Cir. 1988) (citing Thornburg, 478 U.S. at 45) (typical list of factors is neither comprehensive or exhaustive). Hence, I find that plaintiffs must additionally establish that the voter purge law caused minority voters to experience unequal opportunity to participate in the political process and to elect their preferred representatives.
Plaintiffs acknowledge that Thornburg v. Gingles requires a showing that a multi-member district was responsible for minority voters inability to elect its candidates, but nevertheless contend that causation is only required in § 2 vote dilution cases. Plaintiffs' argument, however, is a distinction without a difference. There is no credible reason to assume that causation is only relevant to claims that an electoral procedure unlawfully dilutes the voting strength of minority voters. In my opinion, implicit in any finding that a challenged electoral procedure violates § 2 is the conclusion that the electoral procedure is the dispositive force depriving minorities of equal access to the political process, and that in the absence of such a procedure, minorities would not be deprived of equal access to the political process and the ability to elect their candidates of choice. Although plaintiffs state that "'causation' cannot logically or legally be deemed necessary for a § 2 challenge to a voter purge law," and defer to the "case law, the legislative history of the Voting Rights Act, and common sense," plaintiffs cite no cases to support their proposition that causation should be limited to cases involving vote dilution claims. Cf., Irby v. Virginia State Bd. of Elections, 889 F.2d 1352, 1358 (4th Cir. 1989) ("although the district court found a significant disparity . . . between the percentage of blacks in the population and the racial composition of the school boards, the court found no proof that the appointive process [the challenged procedure] caused the disparity.");
Wesley v. Collins, 605 F. Supp. 802, 812 (M.D. Tenn. 1985) ("the underlying premise of the results test . . . is that a causal connection must be established between the indicia of historically rooted discrimination and the [challenged electoral procedure]").
Plaintiffs erroneously rely on the legislative history accompanying the 1982 amendments to support their contention that causation is not a necessary element of proof for their § 2 challenge. Plaintiffs state that Congress explicitly recognized "that disproportionate educational, employment, income level, and living conditions arising from past discrimination tend to depress minority political participation" and "where these conditions are shown, and where the level of [minority] participation in politics is depressed, plaintiffs need not prove any further causal nexus between their disparate socio-economic status and the depressed level of political participation." S. Rep. No. 417, p. 207 n.114 (emphasis added).
The Court agrees that plaintiffs are not required to prove a causal nexus between disparate socio-economic status and political participation rates, since it is clear in most instances that socio-economic factors certainly influence the level of minority participation in the political process. Roberts, 679 F. Supp. at 1531 ("minority groups' present socioeconomic disadvantages may reduce that groups participation and influence in political affairs."). In fact, in evaluating a challenge to an election procedure pursuant to § 2, it would be myopic for a court to overlook the impact that such factors may have on minority voter turnout.
However, plaintiffs' argument does not negate the Court's conclusion that causation is a necessary element in establishing that the voter purge law is responsible for African-American and Latino voters' abridgement of the right to vote as defined by § 2. Collins v. Norfolk, 605 F. Supp. 377, 404 (E.D. Va. 1984) (". . . if the socio-economic statistics show a disparity between black and white residents and the level of black political participation is less than that of whites, the plaintiffs need not show a causal nexus between these two factors.") (emphasis added). The Court is mindful that the central inquiry applicable to all § 2 challenges is whether, based upon the totality of the circumstances, an electoral procedure operates to deny minority voters equal access to the political process. Although the factors that influence whether plaintiffs have presented sufficient evidence to make this determination may vary based upon the nature of the claim and the specific facts of the case, the fact remains that plaintiffs must demonstrate that the voter purge law, interacted with sociological, historical and economic factors to deny minority voters equal access to the political process. Thornburg, 478 U.S. at 47 ("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.").
The Court further concludes that evidence of causation is necessary even if plaintiffs successfully establish that the purge law disproportionately affects African-American and Latino voters in Philadelphia. Although plaintiffs essentially argue that any significant disparity in the purge rates among white, African-American and Latino voters, "a fortiori has the result of denying minority citizens an equal opportunity to participate in the electoral process and elect candidates of their choice," the Court disagrees with this conclusion.
A statistical disparity in purge rates, without additional evidence that the purge law causes minority voters unequal access to the political process, is insufficient to constitute a § 2 violation based upon the "results" test. Although the Court recognizes that in cases involving discriminatory effect as opposed to discriminatory intent, there is always an emphasis upon demonstrating a statistically significant impact, this emphasis is not a substitute for establishing that based upon the totality of the circumstances, the challenged electoral procedure is responsible for the minority groups' inability to participate in the political process and elect their representatives of choice. Garza v. County of Los Angeles, 918 F.2d 763, 770 (9th Cir. 1990).
Having reviewed numerous voting rights cases, I found no cases that rely solely upon the presence of a statistical disparity in concluding that a challenged electoral procedure violates § 2. The cases relied upon by plaintiffs to support their conclusion that a statistical disparity is sufficient to establish a § 2 violation are inapposite in several respects. Plaintiffs rely upon Gomez v. Watsonville, 863 F.2d 1407 (9th Cir. 1988), in which the ninth circuit reviewed the lower court's decision upholding the challenged electoral procedure. In reversing the lower court's decision, the circuit court clearly found the presence of the Thornburg factors in addition to the statistical disparity noted by plaintiffs. See also, Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990) (acknowledging a statistical disparity but affirming the district court expressly on the basis of its holding that the county engaged in intentional discrimination); see also, Toney v. White, 488 F.2d 310 (5th Cir. 1973) (election set aside due to racially discriminatory purge); Wesley, 605 F. Supp. at 811 ("proof that [the challenged practice] results in disparate racial impact does not establish a per se violation [of § 2] . . .").
Similarly, plaintiffs rely upon United Parents Assoc. v. Board of Elections, No. 89-0612, (E.D.N.Y. Mar. 10, 1989) and N.A.A.C.P. v. Nassau County Bd. of Elections, No. 90-0306 (E.D.N.Y., Feb. 2, 1990), to support their proposition that statistical disparity is sufficient to establish a violation. However, the Court does not find these cases dispositive because despite the presence of a statistical disparity, I am unable to ascertain what other factors, if any, influenced the court to find that the voter purge statute at issue in these cases violated § 2. Therefore, the Court concludes that evidence of statistical disparity is not dispositive of whether the challenged electoral procedure deprives minority voters equal access to the political process and the ability to elect their chosen representatives.
Accordingly, the standard of proof for plaintiffs in this action will be based upon an evaluation of the evidence presented at trial in light of the Senate factors outlined in the legislative history accompanying the 1982 amendments. Furthermore, to prevail on their § 2 claim, plaintiffs must demonstrate that based upon the totality of the circumstances, the challenged electoral procedure interacted with social and historical conditions to deny minority voters equal access to the political process and the ability to elect their preferred candidates.
Having set forth the general factual background of the voter purge law, and the law applicable to the present action, the Court now makes its findings of fact and conclusions of law.
IV. FINDINGS OF FACT
A. Impact of the Purge Statute on African-American and Latino Voters in Philadelphia
Plaintiffs contend that the operation of the voter purge law has a disparate impact on African-American and Latino voters, because they are removed from the voter registration rolls at disproportionately higher rates that white voters. Plaintiffs' evidence regarding the impact of the voter purge law on African-American and Latino voters in Philadelphia is based primarily upon a statistical analysis performed by Dr. Allan Lichtman, plaintiffs' expert witness.
Dr. Lichtman's analysis focused upon whether there were statistical differentials in the rates that African-American, Latino, and white voters were purged from the voter registration rolls over a four year period from 1989 - 1992. His analysis does not reveal why people were removed from the voter registration rolls, but reveals only that they were purged. Transcript, I - 54-55. Dr. Lichtman concluded that African-American and Latino voters were purged at higher rates that white voters.
Dr. Lichtman's analysis of 1989 and 1990 was based upon ecological regression analysis and extreme case analysis, which he explained were standard methodologies for inferring information about groups based upon race. He explains these methodologies as follows:
. . . The regression methodology generates prediction equations that indicate how the racial composition of each ward relates to the differential rates of purging in each ward. These equations provide information needed to estimate purge rates for different racial groups. Extreme case analysis examines the actual percentage of voters purged in the most heavily white and most heavily black or non-white wards in Philadelphia . . . Extreme case analysis provides a check on the results obtained from ecological regression. . . . extreme case analysis . . . simply tallies the actual purge rates in the heavily white and heavily minority wards.
Plaintiffs' Ex. No. 35.
In 1989, approximately 4.5% of "African-American other" registrants were slated for purging, as compared to 4.1% of white registrants. Although the .04 percentage point differential suggests that the purge rate is 9 percent higher for minorities than for whites, Dr. Lichtman's extreme case analysis and ecological regression analysis revealed that in 18 wards where the registered voters were ninety percent or more white, the purge rate was 3.9%, as compared to a 4.0% purge rate in 19 wards where whites comprised ten percent or less of the registered voters.
In 1990, approximately 11.7% of "African-American other" registrants were slated for purging, compared to 8.5% of the white registrants. These figures suggest that the purge rate for "African-Americans others" is approximately 38 percent higher for minorities than for whites. Ecological regression and extreme case analysis revealed that in 16 wards where the registered voters were ninety percent or more white, the purge rate was 7.9%, as compared to 11.1% in 18 wards where whites comprised ten percent or less of the registered voters. These results are summarized in Table Two.
ESTIMATED PURGE RATES FOR WHITES AND
by year and race
YEAR: % SLATED FOR PURGING ESTIMATED PURGE RATES
White African-American White African-American
1989 4.1% 4.5% 3.9% 4.0%
1990 8.5 11.7 7.9 11.1
SOURCE: DECLARATION OF DR. ALLAN LICHTMAN
Plaintiffs' Expert Witness, Ortiz v. City of Philadelphia, 1992