# Ortiz v. City of Philadelphia Office of the City Commissioners Voter Registration Division > Court of Appeals for the Third Circuit · June 15, 1994 · 28 F.3d 306 URL: https://www.frixlaw.com/law-library/cases/3009672 ## Case - **Full name:** Angel 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 - **Court:** Court of Appeals for the Third Circuit - **Decided:** June 15, 1994 - **Citations:** 28 F.3d 306; 1994 WL 259745 - **Opinion:** Opinion - **Judges:** Sloviter, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, Nygaard, Alito, Roth, Lewis, McKee, Garth - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3009672 ## Opinion text Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 6-15-1994 Ortiz, et al v. City of Phila., Comm. Voter Registration Div. Precedential or Non-Precedential: Docket 93-1634 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Ortiz, et al v. City of Phila., Comm. Voter Registration Div." (1994). 1994 Decisions. Paper 49. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/49 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ---------- No. 93-1634 ---------- ANGEL 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 ---------- On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 91-06681) ---------- Argued January 20, 1994 BEFORE: SCIRICA, LEWIS and GARTH, Circuit Judges ---------- (Opinion filed June 15, 1994) ---------- Kenneth Kimerling Arthur A. Baer (Argued) Puerto Rican Legal Defense Fund and Education Fund, Inc. 99 Hudson Street, 14th Floor 1 New York, New York 10013 Attorneys for Appellants Judith E. Harris, City Solicitor Michael F. Eichert, Deputy City Solicitor (Argued) Office of City Solicitor 1600 Arch Street, 8th Floor Philadelphia, Pennsylvania 19103 Attorneys 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. § 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. Cons. 2 Stat. § 623-40.0 In the summer of 1991, approximately 21 percent of Philadelphia's registered voters (193,000 voters) were slated 0 Section 623-40 provides as follows: 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 cancelled 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 shall 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 cancelled 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 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 cancelled through error, such elector may petition the commission for 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. 3 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. § 1973, the First and Fourteenth Amendments of the United States Constitution, and the Pennsylvania Election Law, 25 Pa. Cons. 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 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. On November 10, 1992, a four-day trial was held to determine whether a permanent injunction should issue. On June 4 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 526-31,0 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.0 II Ortiz argues that the district court failed to apply the correct standard in concluding that he had failed to 0 Ortiz's expert testified to the following disparities in the rates at which white and minority voters in the City of Philadelphia were slated to be purged, and estimated rates at which they actually were purged: Philadelphia Voters % Slated For Purging / Estimated Purge Rates Whites African-American + Other 1989 4.1% / 3.9% 4.5% / 4.0% 1990 8.5% / 7.9% 11.7% / 11.1% 1991 17.3% / 13.2% 24.7% / 20.8% 1992 6.4% / 6.4% 6.6% / N/A 0 Ortiz has abandoned his claims under the United States Constitution and state law. In addition, we note that Ortiz's complaint was filed with respect to the 1991 election. Of course, both the purge preceding that election, and the election itself, have already occurred. Nevertheless, neither of the parties have argued that the issues presented on appeal are moot, nor could they so argue, inasmuch as Ortiz's complaint is "capable of repetition yet evading review." Weinstein v. Bradford, 423 U.S. 147 (1975). 5 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 (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, how- ever, 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 6 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, ___ U.S. ___, 111 S.Ct. 2354, 2358 (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 § 2 could be established by proof of discriminatory results alone." Id. 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) 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 7 class elected in numbers equal to their proportion in the population. (Emphasis added). In Thornburg v. Gingles, 478 U.S. 30 (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 § 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. 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 State or political sub- 8 division; 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 discrimina- tion; whether minorities have been excluded from any candidate slating process; the extent to which minority groups bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; the extent to which political campaigns have been characterized by overt or subtle racial appeals; the extent to which minority members have been elected to public office; whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of minority groups; whether the policy underlying the use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous. S. Rep. No. 97-417, 97th Cong., 2d Sess. 28-30, reprinted in 1982 U.S.C.C.A.N. 177 ("S. Rep."). 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 (1986), 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. That is, both the Court and the Committee recognized that other factors might be relevant to the 9 determination of whether, under the totality of the circum- stances, a given electoral procedure was discriminatory. On this much, the parties agree. Ortiz argues, despite the allegations in his complaint, that the district court completely negated the totality of the circumstances test set out by Section 2 in holding that if the purge statute was not "the dispositive force depriving minorities of equal access to the political process" then, under the "totality of the circum- stances," there was no violation of the Voting Rights Act.0 The City argues that the district court did not err in requiring Ortiz to show that the purge statute caused minority voters to have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. C. The primary legal issue before us, then, is whether the district court erred by factoring into its "totality of the circumstances" analysis the question of whether or not the purge statute caused minorities to be deprived of equal access to the political system. 0 As we read the district court's opinion, we construe it to mean that where, as here, a Section 2 plaintiff seeks to abolish or invalidate a particular election practice, such as a purge law, and pinpoints the particular practice in its complaint, the plaintiff necessarily must demonstrate and establish by evidence that the particular practice causes the alleged discrimination. 10 1. The Supreme Court wrote in Thornburg v. Gingles that "[t]he 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 representatives." 478 U.S. at 47 (1986) (emphasis added). That is, the Supreme Court recognized that there must be some causal connection between the challenged electoral practice and the alleged discrimination that results in a denial or abridgement of the right to vote. Three Courts of Appeal have required Section 2 plaintiffs to demonstrate a causal connection between asserted indicia of discrimination and the challenged electoral procedure at issue. In Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986), the plaintiffs argued that a Tennessee law which disenfranchised convicted felons had a disproportionate impact on blacks because a significantly higher number of black Tennesseeans are convicted of felonies than whites. The Court of Appeals rejected this argument, despite the district court's findings that there existed in Tennessee "a history of racial discrimination, the effects of which continue to the present day." Id. at 1261. The court held that, under the totality of the circumstances, the presence of some of the factors enumerated in the legislative history of Section 2 was outweighed by other factors such as the state's legitimate and compelling rationale for enacting the statute at issue. The court concluded that "the disproportionate 11 impact suffered by black Tennesseeans does not 'result' from the state's qualification of the right to vote on account of race or color and thus the Tennessee Act does not violate the Voting Rights Act." Id. at 1262. In Irby v. Virginia State Board of Elections, 889 F.2d 1352, 1358-59 (4th Cir. 1989), the Fourth Circuit upheld a district court's finding that Virginia's appointive system for selection of school board members did not violate Section 2 of the Voting Rights Act. That is, the Court of Appeals agreed with the district court's conclusion that, despite the existence of a "significant disparity" between the percentage of blacks in the population and the percentage of blacks on the school board, "[t]he evidence cast considerable doubt on the existence of a causal link between the appointive system and black underrepresentation in Buckingham and Halifax counties." Id. at 1359. Rather, the disparity arose from the fact that "although blacks comprise a large portion of the population, they are not seeking school board seats in numbers consistent with their percentage of the population." Id. at 1358, quoting, 693 F. Supp. 424, 434 (E.D. Va. 1988). Finally, in Salas v. Southwest Texas Junior College District, 964 F.2d 1542 (5th Cir. 1992), Hispanic voters challenged the use of an at-large system, as opposed to single member districts. The Fifth Circuit held that "the district court's ultimate finding that the cause of Hispanic voters' lack of electoral success is failure to take advantage of political opportunity, rather than a violation of § 2," was not clearly 12 erroneous. Id. at 1556.0 Noting that evidence introduced at trial showed that Hispanic voter turnout was roughly seven percentage points below that of Anglo-Saxon whites, the Court of Appeals agreed that "[o]bviously, a protected class is not entitled to § 2 relief merely because it turns out in a lower percentage than whites to vote." Id.0 0 The dissent's attempt to distinguish Salas misses the mark. See Dissent typescript at 28. Although the Court of Appeals in Salas did address the issue of whether or not a minority group which constitutes a majority of registered voters may bring a claim under Section 2 of the Voting Rights Act, concluding that it could, the court proceeded to consider the validity of the plaintiffs' claim on the merits, and stressed the need for the plaintiffs to establish that the challenged practice (i.e., the at-large system) caused the electoral dilution. After delineating the court's responsibility to analyze the impact of a challenged practice, and the plaintiffs' burden to prove that the practice denied them the opportunity to elect their preferred representatives, the Fifth Circuit noted that "[u]nderlying these functions of the court and the plaintiffs in a multimember district vote dilution case is an inquiry into causation--whether the given electoral practice is responsible for plaintiffs' inability to elect their preferred representatives." 964 F.2d at 1554 (5th Cir. 1992). 0 We note that the legislative history of the 1982 amendment also supports this construction of Section 2. For example, the Senate Judiciary Committee Report summarized the amendment's effect as follows: If as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political process and to elect candidates of their choice, there is a violation of this section. Sen R. at 28 (emphasis added). We read this language to provide that Congress intended that any alleged denial of equal access to the political process be the "result of the challenged practice or structure." The Report also stresses that the ultimate test for both permanent structural barriers to political participation, as well as episodic barriers, would be the standard enunciated by the Supreme Court in White v. Regester, 412 U.S. 755 (1973), and codified by Congress in its 1982 amendment of Section 2: 13 2. We agree that Section 2 plaintiffs must show a causal connection between the challenged voting practice and the prohibited discriminatory result. Ortiz's argument to the contrary is without legal foundation, devoid of endorsement in existing caselaw and the legislative history of Section 2 of the Voting Rights Act, and is not supported by evidence. In the present case, the district court properly considered whether or not Pennsylvania's non-voting purge statute0 caused the discrimination of which Ortiz complained. III A. "whether, in the particular situation, the practice operated to deny the minority plaintiff an equal opportunity to participate and to elect candidates of their choice." Sen. R. at 30 (emphasis added) (accompanying footnote discussed below). This language informs us that the Senate Judiciary Committee expected that courts ultimately would focus on the challenged procedure and its causal effects on equal opportunity to participate in the political process. Finally, the footnote accompanying the above-quoted text states that "purging of voters could produce a discriminatory result if fair procedures were not followed, Toney v. White, 488 F.2d 310 (5th Cir. 1973), or if the need for a purge were not shown or if opportunities for re-registration were unduly limited." S. Rep. at 30 n. 119. Thus, the Committee acknowledged that a purge statute which, itself, produced a discriminatory result, by virtue of the manner in which it was administered, might violate Section 2 of the Voting Rights Act. Implicitly, however, the Committee recognized that a purge statute which was administered fairly, and in an even-handed manner, would not run afoul of the law. 0 See, supra, note 1. 14 Ortiz argues that the district court erred in holding that, under the totality of the circumstances, Ortiz had "failed to demonstrate that the purge law interacts with social and historical conditions to deny minority voters equal access to the political process and to elect their preferred representatives." Ortiz, 824 F. Supp. at 539 (E.D. Pa. 1993).0 As previously observed, the ultimate question of whether a challenged electoral procedure has a discriminatory effect is a question of fact which we review for clear error. See, supra, Section II(A). The district court made extensive findings with respect to the aforementioned objective factors delineated in the Senate Judiciary Committee Report. The district court found that there was racially polarized voting in Philadelphia, Ortiz, 824 F. Supp. at 532-33, and a "general pattern" of racial appeals in some Philadelphia political campaigns. Id. at 536-37. The court found that there were "substantial socioeconomic disparities among African-American, Latino and white residents of the City of 0 Ortiz challenges a number of the district court's underlying factual findings. In particular, Ortiz argues that the district court erred in finding that the City's failure to send out bilingual "intent to purge" notices, in violation of an order in Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa. 1974), did not have a discriminatory impact on the ability of Latino voters to equally participate in the political process. Ortiz also claims that the district court erred in finding that minority voters did not suffer a disproportionate burden of re- registration, and that the disproportionate placement of older voting machines in minority wards did not have a discriminatory impact on minority voters. None of these findings of fact were clearly erroneous. In any event, they are subsumed by the district court's ultimate factual determination that Ortiz had failed to establish that the purge statute caused minority voters to be purged at a disproportionate rate. 15 Philadelphia, which affect the ability of these minority groups to participate in the political process and to elect their candidates of choice." Id. at 535.0 In addition, the court found that the needs of minority citizens have not always been adequately addressed by city officials, and that this factor, as well as the impact of various socioeconomic factors, could influence minority participation in the political process. Id. at 538. Nevertheless, the district court found that there was no evidence of historical voting-related discrimination infringing upon the rights of Latinos or African-Americans to vote. Id. at 531-32. There was no evidence of discrimination in the candidate slating process that denied minority candidates equal access to the political process. Id. at 533. Nor was there evidence that minorities experience difficulty in electing representatives of their choice. Id. at 537-38.0 Finally, the district court found that the policy reasons underlying the City's implementation of the voter purge were substantial and were based upon a valid state interest of 0 In particular, the district court found disparities in the rates of educational attainment, home ownership, housing discrimination, health care coverage, employment, and income among African-Americans and Latinos in comparison to the general population of the City of Philadelphia. The court also found that minority voters in Philadelphia do not exercise their right to vote to the same extent as white voters, which in part may be attributable to discrimination and the overall socioeconomic status of minorities in Philadelphia. Ortiz, 824 F. Supp. at 533-35. 0 See, infra, note 16, and accompanying text. 16 ensuring that elections in Philadelphia are not plagued with fraud. Id. at 538-39. Ultimately, the district court concluded that Ortiz had failed to establish a per se violation of Section 2: Plaintiffs have failed to demonstrate that the purge law interacts with social and historical conditions to deny minority voters equal access to the political process and to elect their preferred representatives, particularly since it is undisputed that the purge procedure is administered fairly and that there is ample opportunity for purged voters to re-register to vote. Although it is clear that the operation of the purge law removes African-American and Latino voters from the voter registration rolls at higher rates than white voters, this disproportionate impact does not rise to the level of a per se violation of § 2, even when considered in light of the court's findings of the existence of racially polarized voting, socioeconomic disparities in education, employment and health, racial appeals in some elections, and the failure of the City in some instances to address the needs of minority citizens. While it is clear that these factors may contribute to decreased minority political participation rates, plaintiffs' evidence simply does not justify the conclusion that the purge law is the dispositive force in depriving minority voters of equal access to the political process in violation of § 2. Ortiz, 824 F. Supp. at 539.0 B. We hold that the district court did not err in concluding that Ortiz had failed to show that Philadelphia's minority population has had less opportunity than other members of the electorate to participate in the political process and to 0 Examining the district court's opinion as a whole, it is apparent that the court's use of the phrase "the dispositive force" means a cause which, in that context, would be legally dispositive. 17 elect representatives of their choice, as a result of Pennsylvania's purge statute. The Supreme Court has stated categorically that the right to vote is of the very essence of democratic society. Shaw v. Reno, ___ U.S. ___, 113 S.Ct. 2816, 2822 (1993), quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964). Although we are mindful of the fact that it was not until relatively late in our nation's history that this right was extended to every American citizen, without regard to race, we note that the Fifteenth Amendment, the Voting Rights Act, and numerous judicial decisions all have sought to raze any enduring historical bastions of state-administered voter discrimination. Here, however, it is not the State which prevents citizens from exercising their right to vote, from participating in the political process, and from electing representatives of their own choosing. We are not confronted with an electoral device -- such as "race-neutral" literacy tests, grandfather clauses, good-character provisos, racial gerrymandering, and vote dilution -- which discriminates against minorities, which has no rational basis, and which is beyond the control of minority voters. Rather, we are faced with the fact that, for a variety of historical reasons, minority citizens have turned out to vote at a statistically lower rate than white voters.0 0 The following statistics, upon which the district court relied, Ortiz, 824 F. Supp. at 536 (E.D. Pa. 1993), are illuminative: Voter Registration and Voter Turnout in General Elections by Year and Ethnicity Eligible Voters Actual Voters Percentage 18 As we read Ortiz's complaint, the entire document is drawn to allege that Pennsylvania's purge statute "caused" the disparate purge rates between Philadelphia's white and minority communities. Yet, there is nothing before us, not even one iota of evidence introduced at trial or present in the record, which would establish that fact, despite the claims made by the dissent. On the contrary, it is well established that purge statutes are a legitimate means by which the State can attempt to prevent voter fraud.0 More importantly, registered voters are Ye White Black Other White Black Other White Blac Other ar k 19 529,863 370,768 56,143 369,76 249,14 27,888 69.7 67.2 48.6 87 3 1 19 540,397 384,712 74,897 390,96 238,75 40,424 72.5 62.1 54.2 88 5 2 19 515,984 369,733 77,751 233,60 112,73 10,267 45.3 30.5 20.8 89 6 0 19 464,350 321,417 88,653 252,22 120,34 27,079 54.3 37.4 30.5 90 1 9 19 408,143 267,172 120,64 155,98 155,98 53,936 67.2 58.3 44.7 91 2 7 7 0 For example, the Fourth Circuit stated as follows in rejecting a constitutional challenge to Maryland's voter purge statute: The statute in question here is designed to curb vote fraud. It removes from the registered voter list those who have moved without notifying the voter registration board, those who have died when the city has not been notified of such deaths, and those who have become disqualified as a result of conviction for infamous crime if the city did not receive notice of such convictions. Without removing the names, there exists the very real danger that impostors will claim to be someone on the list and vote in their places. And the absent voting statutes open the door for vote fraud by this means. Accordingly, keeping accurate, reliable and up-to-date voter registration lists is an important state interest. . . . Even considering that 19 purged -- without regard to race, color, creed, gender, sexual orientation, political belief, or socioeconomic status -- because they do not vote, and do not take the opportunity of voting in the next election or requesting reinstatement.0 It is true that in certain years minority voters have turned out in proportionately lower numbers than have non- minority voters. But the purge statute did not cause the statistical disparities which form the basis of Ortiz's complaint. We agree with the Fifth Circuit that "a protected class is not entitled to § 2 relief merely because it turns out in a lower percentage than whites to vote." Salas v. Southwest Texas Junior College District, 964 F.2d 1542, 1556 (5th Cir. 1992). C. re-registration may be somewhat burdensome, it is a small price to pay for the prevention of vote fraud. Hoffman v. Maryland, 928 F.2d 646, 649 (4th Cir. 1991). See also Rosario v. Rockefeller, 410 U.S. 752, 761 (1973) (recognizing that "preservation of the integrity of the electoral process is a legitimate and valid state goal"); Barilla v. Ervin, 886 F.2d 1514, 1523-24 (9th Cir. 1989) (recognizing legitimate state interest in preventing electoral fraud). See, infra, discussion at 27-30. 0 We note that the procedures for re-registering to vote are identical to those for registering in the first place; therefore, they are no more complicated, burdensome, or discriminatory than the requirement of initial registration. See Williams v. Osser, 350 F. Supp. 646, 653 (E.D. Pa. 1972) (recognizing that "[t]he burden [of re-registration under the non-voting purge law] does not nearly approach the requirements of initial registration.") 20 Section 2 of the Voting Rights Act requires minority claimants to prove that they "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." Chisom v. Roemer, ___ U.S. ___, 111 S. Ct. 2354, 2365 (1991). That is, Section 2 plaintiffs must demonstrate that they had less opportunity both (1) to participate in the political process, and (2) to elect representatives of their choice. In Chisom, the Supreme Court stated: Any abridgement of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election. . . . [H]owever, the inability to elect representatives of their choice is not sufficient to establish a violation unless, under the totality of the circumstances, it can also be said that the members of the protected class have less opportunity to participate in the political process. 111 S. Ct. at 2365 (holding that state judicial elections fall within the scope of Voting Rights Act). In contrast to the situation discussed by the Court in Chisom, here the district court not only made a finding of minority participation in the political process, Ortiz, 824 F. Supp. at 539, but it also made an explicit finding of fact that Philadelphia's minority population has not had difficulty electing minority representatives. Id. at 537-38. In fact, despite the dissent's charges, there is no evidence in the record that minorities have been denied fair access to the political process in the City of Philadelphia, nor is there any evidence that the purge law "impairs their ability to influence the 21 outcome of an election." Chisom, 111 S.Ct. at 2365.0 To the contrary, a minority candidate, Wilson Goode, had won election to two four-year terms as Mayor of the City of Philadelphia, in 1983 and 1987, and the district court found that the Philadelphia City Council consistently has had a strong minority presence, including seven of the seventeen council seats at the time the district court issued its opinion.0 0 The dissent quotes footnote 117 from the Senate Judiciary Committee Report as follows: "[E]ven a consistently applied practice premised on a racially neutral policy would not negate a plaintiff's showing through other factors that the challenged practice denies minorities fair access to the process." Dissent typescript at 35. Ortiz, however, has failed to prove that "the challenged practice [i.e., the purge statute] denies minorities fair access to the process." 0 The district court included in its opinion the following germane statistics with respect to minority representation in the Pennsylvania legislature: Representatives from Philadelphia in the State House and Senate by percentage of minorities represented House Senate Ye Total Minority % Total Minority % ar 197 34 10 29% 8 3 32% 9 198 34 11 32% - - - 0 198 29 12 41% 7 3 42% 2 198 29 13 44% 7 3 42% 5 198 29 13 44% - - - 6 198 29 13 44% - - - 8 199 29 13 44% - - - 0 199 27 13 44% 7 3 42% 2 22 These findings by the district court are not clearly erroneous. Thus, we conclude that Ortiz, in failing to establish causation, has also failed to satisfy both elements of a Section 2 cause of action and, accordingly, has failed to establish a basis upon which his requested relief could be granted. IV The dissent argues at great length that societal conditions -- discrimination in housing, education, wages, etc. - - constitute a totality of the circumstances with which the practice (the purge law) interacts to create inequality (discrimination). The dissent, however, has overlooked the fact that the individuals to whom the purge law applies apparently have surmounted and overcome the societal disadvantages which it emphasizes, and have registered to vote at least once, if not more often.0 Had they continued to do so, the purge law could not have affected them, inasmuch as the purge law operates against only those who have registered to vote at least once, but then do not vote or register again. Conversely, if individuals have never registered and have never voted, the purge law still 0 Thus, the dissent's reliance on Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), aff'd, 932 F.2d 400 (5th Cir. 1991), is misplaced. See dissent typescript at 23-25. In that case, Mississippi's onerous dual registration requirement, and prohibition on off-site voter registration, were the causes of black voters' registering at lower rates than white voters. In the present case, no part of the purge statute prevents minority voters from registering to vote and from actually voting. In fact, as mentioned in text, the statute only applies to those voters who already have registered to vote. 23 could not be applied to them because, as stated, the purge law affects only those who have once registered to vote. Once having registered to vote, such individuals could not have been impeded by the practices which Ortiz claims have diluted their participation in the voting process.0 This may very well account for the fact that no reported case has ever dealt with a non-voting purge law as a racially discriminatory instrument in violation of Section 2 of the Voting Rights Act, and the dissent, accordingly, has been unable to cite any such authority. It certainly accounts for the result which the district court reached in the present case, and which we reach today. The societal disadvantages cited by the plaintiffs and the dissent just are not relevant. They are not relevant because they could not have diluted voting by a registrant or voter who had already registered and/or voted. As previously stated, the record reveals no link between the societal conditions and factors recited by the dissent and the electoral practice (i.e., the purge law) challenged by Ortiz. In addition, the dissent argues at length that "the City did not prove 'the need' for Pennsylvania's non-voting purge law," (Dissent typescript at 33), and that the City properly should have been required to do so. The dissent derives such a requirement from footnote 119 in the Senate Judiciary Committee's Report,0 and its own analogy to Title VII disparate impact law.0 0 See, supra, note 14. 0 Footnote 119 provides in relevant part as follows: "purging of voters could produce a discriminatory result if fair procedures were not followed, Toney v. White, 488 F.2d 310 (5th 24 However, no relevant authority has been cited for imposing such a burden upon the City.0 Even if there were such a requirement, we are satisfied that a review of the record and present reality demonstrates that the City's purge statute meets an important and Cir. 1973), or if the need for a purge were not shown or if opportunities for re-registration were unduly limited." (Emphasis added.) In the present case, none of these qualifications are relevant, nor has Ortiz proved the presence of any of them. 0 In Title VII disparate impact cases, plaintiffs are permitted to come forward with evidence of less discriminatory alternatives to refute their employers' business justifications because such evidence "would belie a claim by [employers] that their incumbent practices are being employed for non- discriminatory reasons." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660-61 (1989) (recognizing that employer's practice need not be "essential" or "indispensable" to the employer's business for it to pass muster as a business justification). Here, there is no allegation, no implication, no imputation, and, of greatest importance, no evidence, that the purge statute was enacted, or is being employed, by the City of Philadelphia for anything but nondiscriminatory reasons. Moreover, even if the dissent was correct in drawing an analogy to Title VII jurisprudence -- an analogy which is inapposite -- we note that in Title VII cases, it is the plaintiff, not the defendant, as the dissent would have it, see Dissent typescript at 43, who, at all times, bears the burden of proving discrimination. St. Mary's Honor Center v. Hicks, ___ U.S. ___, 113 S. Ct. 2742, 2749 (1993); Dothard v. Rawlinson, 433 U.S. 321 (1977); Newark Branch, NAACP v. Town of Harrison, 940 F.2d 792, 798 (3d Cir. 1991). In the present case, Ortiz has failed to carry any such burden. 0 In Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986), the Sixth Circuit did not require the State of Tennessee to show that its statute disenfranchising convicted felons was "necessary." Nor could the State have made such a showing were it required to do so. Rather, the Court of Appeals held: [T]he existence of other social and political factors present in this case leads to the inescapable conclusion that the Voting Rights Act was not violated. Chief among those factors was the state's legitimate and compelling rationale for enacting the statute here in issue. Id. at 1261. 25 legitimate civic interest and is needed to prevent electoral fraud. Notably, and of recent date, Philadelphia's Senate election, in which the Democratic candidate ostensibly had prevailed, was invalidated on the basis of findings that absentee votes cast by non-residents and deceased voters had been fraudulently obtained and counted. See Marks v. Stinson, No. 93- 6157 (E.D. Pa. Feb. 18, 1994), vacated in part, 19 F.3d 873 (3d Cir. 1994). Indeed, as recently as April 13, 1994, the Philadelphia Inquirer reported under the headline, "City Purging 2d District Voter Rolls," that at least twenty-two individuals were "purged" because they either had died or no longer lived in the district but had, nevertheless, cast votes in the most recent election -- the very fraudulent acts which the purge statute was designed to overcome.0 Even the dissent acknowledges that 0 That article recited in part: · The Board of Elections has begun purging the Second Senate District voting rolls of people who no longer live there -- including a woman whose vote was recorded after she died and another whose vote was cast while she lived on a Greek island. · Election officials said the 22 names -- including an individual who city investigators found living in New Jersey -- would immediately be purged from computerized voting rolls and notification would be delivered to the addresses on their voter registration. · Among the 22 people being purged in the Sixth Division of the 42d Ward is one individual who has been living in Las Vegas for two years, though a vote was cast in her 26 electoral fraud has been a part of Philadelphia's landscape for over 100 years. See Dissent typescript at 39 n.22. V In its final analysis, the dissent's rhetoric still fails to bridge the gap between the societal disadvantages which it catalogues at great length, and the purpose and effect of Philadelphia's non-voting purge act. Once again, we emphasize that the sole purpose of that act is to prevent the very electoral fraud which can diminish the voting power of all citizens who have registered and voted, including registered and voting members of minority groups. Despite the dissent's attempt to attribute society's voting ills to the purge act, neither the plaintiffs nor the dissent have been able to demonstrate that the purge act has had any effect whatsoever on any rights which are protected by Section 2 of the Voting Rights Act. The dissent repeatedly charges the purge act with discrimination against minorities. See, e.g., Dissent typescript at 7, 47, 50. Yet, not one word appears in the dissent to name in the November election without her knowledge, and a second individual who said he did not vote in any of the five Philadelphia elections in which ballots were cast for him since 1988. · Between 1988 and 1993, for example, at least 60 improper ballots were cast in the Sixth Division of the 42d Ward, 27 by machine and 33 by absentee ballot. Mark Fazlollah, City Purging 2d District Voter Rolls, Phila. Inquirer, April 13, 1994, at A1, A7. 27 substantiate such charges. Of even greater importance, the entire record is devoid of evidence which could support such a conclusion. It is not enough, in an attack on a non-voting purge law, simply to express distress over the very real societal disadvantages that afflict some members of minority groups. Such sympathy and concern, though shared by all of us, are extraneous to the legal challenge mounted by Ortiz. The dissent's single-minded focus on societal disadvantages might be entitled to somewhat greater weight in a suit challenging, not Philadelphia's purge act, but, perhaps, more generally, Philadelphia's voter registration procedures themselves. It is apparent to us that the dissent, while charging the purge act with a discriminatory effect, essentially is railing against registration procedures not at issue here. For example, if Ortiz had alleged that, because of disadvantages in education, housing, health, income, and the like, minority citizens could not afford to travel to registration centers, or in some other way avail themselves of registration opportunities, the dissent's essay might have some meaning. But Philadelphia's voter registration laws, as a whole, are not under attack here. The sole statute assailed by Ortiz is § 623-40, the non-voting purge act. That act operates only after a would-be registrant has overcome whatever societal obstacles, such as those detailed in the dissent, were in his path. When, if ever, a claimant mounts an attack against Philadelphia's voter registration provisions, then and only then will it be the time to assess the legality of such procedures in 28 light of the societal disadvantages highlighted by the dissent. This case, this appeal, and our opinion, however, are not the time or place for such a discussion. Until proofs can be assembled -- and we can think of none that are relevant -- to establish that a benign and neutral non-voting purge law discriminates against a particular class, we decline to invalidate such a statute. VI We hold that the district court did not err in denying Ortiz's request for declaratory and permanent injunctive relief. Therefore, we will affirm the district court's June 1, 1993 order granting judgment in favor of the City. Costs will be taxed against the appellant, Ortiz. 29 Ortiz v. City of Philadelphia, No. 93-1634 SCIRICA, Circuit Judge, concurring. Nothing undermines democratic government more quickly than fraudulent ele Any practice that impairs a fair process or rigs the count devalues and dilutes the of each citizen, including each minority citizen, who has lawfully voted. Voter fra including the practice of voting dead or non-resident citizens, is no stranger to Pennsylvania, especially to the City of Philadelphia. In 1937, the Pennsylvania Ge Assembly made a judgment that a non-voting purge law was necessary to prevent voter 25 Pa. Stat. Ann. § 623-40 (1963 & 1993 Supp.). Thirty-five years later, a three j federal court upheld the constitutionality of Pennsylvania's law, based on the vali interest in protecting the integrity of the electoral process. Williams v. Osser, F.Supp. 646 (1972).0 The court held that was a policy decision the General Assembly 0 As Judge Max Rosenn stated: The principal state interest which the statute protects is the prevention of fraudulent voting. Maintaining voter rolls that include persons who no long reside in a precinct, or who reside there but do not vote, conduces to fraud. Pennsylvania discovered that political operatives knowledgeable of the status such registrants and weaknesses in the system were able to cast votes in the non-voters' names. The two-year period allows removal of the names before the political operatives can take advantage of the situation. If the period were four years instead of two, they would have greater opportunity to seize upon t registrant's non-voting status and defeat the purpose of the purge. Such considerations led the state legislature to change the purge period from four two years in 1941 after considerable public concern over voting fraud. Mr. Welsh testified that the change was prompted by a suit instituted in 1940 by t Committee of Seventy, charging fraud by "phantom voters." 1 entitled to make. In this statutory challenge, as set forth in the court's opinion plaintiffs in this case failed to prove the Pennsylvania law violated Section 2 of Voting Rights Act of 1965, as amended, 42 U.S.C. § 1971-73 (1988 & 1992 Supp.), in minority citizens "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." is significant is that the concerns that led to the passage of the Pennsylvania law alive; as Judge Garth has noted, fraudulent voting in Philadelphia remains egregiou flagrant today. For some time now, Congress and the state legislatures, concerned by low rates, have commendably sought to increase voter participation. Last year, citing steady decline of citizen participation in federal elections (except for 1992) and penalty imposed on non-voters by removing their names from the rolls,0 Congress deci promote voter registration by passing the National Voter Registration Act, 42 U.S.C §1973gg (1994 Supp.).0 In the process, Congress sought to strike a balance between Williams v. Osser, 350 F. Supp. 646, 652 (1972) (citation omitted) (footnote omitte Footnote 10, following this passage, stated: The court takes judicial notice that on April 8, 1941, a Special Federal Grand Jury presentment found that there were 50,000 ineligible voters on the Philadelphia registrations lists. Of course, voting fraud was not a new probl at the time the two-year purge was enacted. Id. n.10 (citations omitted). 0 H.R. Rep. No. 9, 103rd Cong., 1st Sess. (1993), reprinted in 1993 U.S.C.C.A.N. 105 S. Rep. No. 6, 103rd Cong. 1st Sess. 17 (1993). 0 It appears the Act, which applies to all federal elections, will take effect in Pennsylvania January 1, 1995. 2 facilitating registration and preventing fraudulent voting,0 but in the overall sche appears the new Act will make it more difficult for the states to cull out ineligib voters and remove them from the rolls.0 Like the policy decision made by the Pennsylvania legislature to deter el fraud, the new Act represents a policy choice by Congress to promote registration a voter participation. Absent practices that violate other statutes or the Constitut such as unlawful discrimination, it is for the legislature to strike the balance he 0 Congress stated the purposes of the Act as follows: The purposes of this subchapter are-- (1) to establish procedures that will increase the number of eligible cit who register to vote in elections for Federal office; (2) to make it possible for Federal, State, and local governments to impl this subchapter in a manner that enhances the participation of eligible citi voters in elections for Federal office; (3) to protect the integrity of the electoral process; and (4) to ensure that accurate and current voter registration rolls are main 42 U.S.C.A. § 1973gg(b). 0 Under the National Voter Registration Act, persons cannot become ineligible simply failing to vote. While directing states to make reasonable efforts to prevent frau Act provides that any such state program or activity "shall not result in the remov the name of any person from the official list of voters registered to vote in an el for Federal office by reason of the person's failure to vote." 42 U.S.C.A. §1973gg 6(b)(2). 3 Angel Ortiz, et al. v. City of Philadelphia Office of the City Commissioners Voter Registration, et al. No. 93-1634 LEWIS, Circuit Judge, dissenting. Assuredly, much progress has been made since the enactment of the Voting Act in 1965. But in spite of the contributions the majority quite properly credits eradicating many of the most glaring forms of discrimination in voting, the law has ensure that members of minority groups will have an equal opportunity to participat the political process. We cannot pretend, and I do not read the majority opinion t suggest, that the discrimination prohibited by the Voting Rights Act has been releg an unfortunate but closed chapter of American history. Discrimination and its effe remain a part of our present reality. If we deny the continued existence of this p we not only lose our ability to recognize and remedy present instances of unlawful inequality; we also guarantee that discrimination and the damage it does to the int and effectiveness of democratic government will be a more prevalent and intractable feature of our country's future. The majority and I share these broader concerns, but I have a different understanding of the way in which they are implicated in this case. In my view, th district court erred in concluding that Pennsylvania's non-voting purge statute doe violate § 2 of the Voting Rights Act. Moreover, the purge statute serves as a clea reminder that the law has yet to eliminate discrimination and its enduring effects area of voting. For these reasons, I dissent. 4 Because of my deep concerns about the impact that I fear today's decision have, both on the residents of Philadelphia who will not be able to exercise their to vote in upcoming elections, and on future efforts to properly apply the Voting R Act, I have set forth my views at considerable length. I. Early every January, in keeping with Pennsylvania's non-voting purge law, Voter Registration Division of Philadelphia's City Commissioners Office determines registered voters have voted during the previous two calendar years. Those who hav done so are slated for purging. After identifying these voters, the City sends the "intent to purge notices." The notices, which are printed only in English, state: NOTICE OF FAILURE TO VOTE WITHIN TWO YEARS 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) ten days prior to the next Primary or Election, signed by you, giving your present residence. This is the only notice you will receive. Appendix ("A.") at 362. The address of the Voter Registration Division appears on notices beneath this statement.0 The notices do not, however, provide any instruct to how an individual might "File with this Commission a written request for Reinstatement," nor do they contain any information regarding what such a "request Reinstatement" must contain (other than a signature and address). 0 Additionally, in smaller type and without any explanation, "MU6-1500" appears in th upper left corner of the notices, and "MU6-1501" appears in the upper rig corner. At trial, Robert Lee, the Director of the Voter Registration Div testified that those markings represent the Division's phone numbers. Acc to Lee, that was "obvious." A. at 283. Lee further testified that his o did receive calls from registered voters who asked for explanations of in to-purge notices that they had received. A. at 286. 5 Voters who are sent an intent to purge notice and who fail either to vote upcoming spring primary or to file a written request for reinstatement are purged f registration rolls. Once purged, an individual must re-register in order to vote i future. The non-voting purge has a substantially disparate impact on black and La Philadelphians. The uncontroverted statistical evidence presented at trial, which district court credited, showed that each year, greater percentages of black and La voters were slated for purging than were white voters. The evidence further showed white voters were reinstated at higher rates than blacks and Latinos, thus increasi adverse disparate impact on these minority groups as a result of the non-voting pur at 32-35. The differences between the way this challenged voting practice affected and blacks, as compared to the way it affected whites, were substantial and consist According to the plaintiffs' expert, Dr. Alan Lichtman, the statistical data showed Pennsylvania's non-voting purge created a "clear and consistent pattern" of systema purging black and Latino voters at significantly greater rates than whites. See, e at 38-39 (testimony of Dr. Lichtman, describing the differences as far exceeding th standards of statistical significance, and as reflecting "systematic" results of th process); A. at 385, 394-95 (declaration of Dr. Lichtman, stating: "The disparate i on minorities of Philadelphia's non-voting purge is both substantial and systematic extending through a full four-year electoral cycle."). Dr. Lichtman's expert analy the registration and purging statistics was uncontroverted and scientifically sound district court, relying on his trial testimony and declaration, found that the expe 6 evidence "clearly reveals that African-American and Latino voters are slated for pu at higher rates than their white counterparts, and further, that minorities are pur higher rates than white registrants." Ortiz v. City of Philadelphia, 824 F. Supp. 530 (E.D. Pa. 1993). "This finding," the court stated, "is not limited by the fact there were fluctuations in the purge rate from year to year." Id.0 The district court made a number of other factual findings, which the maj accurately recounts. Particularly significant among those, for reasons I discuss b the court found that Latino and black Philadelphians have suffered significant disadvantages in education, employment, housing, health care, and income.0 These "substantial socioeconomic disparities among African-American, Latino, and white re 0 In his declaration, based on the statistics that appear in the district court majority opinions, Dr. Lichtman explained: "To put this [disparate impact non-voting purge] into perspective, if the black [purge] rate in 1991 had as low as the white rate, about 28,000 fewer black registrants would have [slated for purging] in 1991. Conversely, if the white purge rate in 199 been as high as the black rate, about 41,000 more white registrants would been [slated for purging] in 1991." A. at 386. The 1991 purge was the largest of the four years studied, as it affected all registrants who had not voted since the 1988 presidential election. About 21% registrants were slated for purging, and over 80% of those slated were ultimat purged. (Again, whites reinstated themselves at higher rates than blacks and Latinos.) According to Dr. Lichtman, the large numbers involved in the 1991 p made that the "key year for assessing racially differential impact" of Pennsyl law. A. at 385. While the numbers of registrants purged, as well as the magn of the disparate impact, decreased in other years, that fact does not undermin significance of the 1991 figures. To the contrary, as Dr. Lichtman explained, that a relatively smaller proportion of black than white registrants were avai for purging after 1991, it is striking that in 1992 even a small difference be whites and blacks persists." A. at 391. 0 In stating its findings with respect to housing and employment, the district c observed that the City has been held liable for practicing discrimination these areas. Ortiz, 824 F. Supp. at 533-35. 7 of the City of Philadelphia," the court concluded, "affect the ability of these min groups to participate in the political process and to elect candidates of their cho Ortiz, 824 F. Supp. at 535. In the court's view, that conclusion was "further supp by statistical evidence demonstrating that minority voters in Philadelphia do not e their right to vote to the same extent as white voters, which in part may be attrib to discrimination and the overall socioeconomic status of minorities in Philadelphi Id. The record thus shows that Pennsylvania's non-voting purge law operates t remove blacks and Latinos from Philadelphia registration rolls at substantially hig rates than whites. In addition, it establishes that black and Latino Philadelphian suffer disadvantages and discrimination in various socioeconomic categories. Specifically, the findings indicate that members of these groups are less educated. are in poorer health, and they experience greater difficulty acquiring adequate med care. They own fewer homes. They are less frequently employed. They have lower in Finally, they do not vote as often. The district court even demonstrated its unders of the relationship between these familiar facts: that socioeconomic disparities, w are linked to past and present discrimination, make members of minority groups less and less likely to participate in the political process. Prior to today's decision would have thought that given this proven reality, courts could easily appreciate t discriminatory effect of Pennsylvania's non-voting purge law, as well as the legal significance of that effect under § 2 of the Voting Rights Act. II. 8 In 1982, in response to the Supreme Court's decision in Mobile v. Bolden, U.S. 55 (1980), Congress amended § 2 to make clear that in determining whether this provision of the Voting Rights Act has been violated, courts should apply the "resu test" that the Supreme Court articulated in White v. Register, 412 U.S. 755 (1973), than require plaintiffs to prove that a voting practice or procedure was motivated discriminatory intent. E.g., Thornburg v. Gingles, 478 U.S. 30, 35 (1986). Accord § 2(a) prohibits all states and political subdivisions from applying any qualificat prerequisite to voting, or any standard, practice, or procedure "in a manner which in a denial or abridgement of the right of any citizen of the United States to vote is a member of a protected class. 42 U.S.C. § 1973(a) (emphasis added). Section 2 sets forth the legal standard for meeting the results test adopted in § 2(a); drawn directly from the Court's language in White, § 2(b) states: A violation of subsection (a) is established if, based on the totality of 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) 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. 42 U.S.C. § 1973(b). Distilling the central meaning of this statutory language in Gingles, the Supreme Court stated: "The essence of a § 2 claim is that a certain el law, practice, or structure interacts with social and historical conditions to caus inequality in the opportunities enjoyed by black and white voters to elect their pr representatives." Gingles, 478 U.S. at 47 (emphasis added).0 0 The Gingles Court only referred to blacks because of the facts of that case. discussion of § 2 applies equally to Latinos, who are also members of a protected class under the Voting Rights Act. 42 U.S.C. §§1973b(f)(2), 1973l(c)(3). 9 When Congress amended § 2, it instructed that in determining whether poli processes remain equally open to members of protected groups, in the way the Act re courts must conduct "a searching practical evaluation of the `past and present real S. Rep. No. 97-417, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982 U.S.C.C.A.N. ("Sen. Rep.").0 The Supreme Court had taken such an approach in White, 412 U.S. at 70, and, following the 1982 amendments, it has emphasized the importance of the congressional mandate to maintain a searching practical perspective when evaluating effects, and thus the lawfulness, of a challenged voting practice or procedure. Se Gingles, 478 U.S. at 45, 62-63, 66 (repeatedly quoting and following Congress's instruction to conduct a searching practical evaluation of reality in § 2 inquiries Additionally, in expanding on this required approach, Congress instructed that in a § 2, courts should take a functional view of political processes as opposed to a formalistic one. Sen. Rep. at 30 n.120; see also Jenkins v. Red Clay Consolidated Dist. Board of Education, 4 F.3d 1103, 1122 (3d Cir. 1993) ("The Senate Report repe emphasizes that the court must evaluate plaintiffs' claims under `a searching pract evaluation of the past and present reality and on a functional view of the politica process.'" (quoting Gingles, 478 U.S. at 45; omitting internal quotation and citati petition for cert. filed, 62 U.S.L.W. 3396 (U.S. Nov. 17, 1993) (No. 93-812). In keeping with this clearly expressed congressional intent, as well as w post-1982 Supreme Court and Third Circuit decisions which faithfully do so, we must functional rather than a formalistic view of political processes and the way in whi 0 The Supreme Court has relied upon the Report of the Senate Judiciary Committee "authoritative source for legislative intent" behind the 1982 amendments. Gingles, 478 U.S. at 43 n.7. 10 are affected by challenged voting measures. Our understanding of what the Voting R Act means when it requires that such processes remain "equally open to participatio members of a protected class must be informed by a searching practical evaluation o and present reality. With this functional, practical, and realistic perspective --w in my view, the majority fails to achieve -- we can then turn to the question that Supreme Court has identified as the essence of a § 2 claim: whether "a certain elec law, practice, or structure interacts with social and historical conditions to caus inequality in the opportunities" enjoyed by members of racial and language minoriti Gingles, 478 U.S. at 47. 11 A. The majority devotes considerable effort to supporting the proposition th order to prove a violation of § 2, plaintiffs must demonstrate "some causal connect between the challenged electoral practice and the alleged discrimination." Maj. Op. Typescript at 11. In fact, in its view, that is the "the primary legal issue befor Id. I agree that § 2 plaintiffs must show a causal connection between the voting p they challenge and the deprivation of equal political opportunity they allege. Thi -- which, I believe, the plaintiffs also accept0 -- is not open to question. The l of the Voting Rights Act, the legislative history of the 1982 amendments, and contr precedent all foreclose any argument that a voting practice can violate § 2 without resulting in, or playing some part in causing, the abridgement of citizens' voting The majority, however, actually requires something more than and different from the connection it initially describes. From its uncontroversial answer to what it pres the primary legal question, it departs from and distorts the meaning of § 2. 0 According to the majority, the plaintiffs have argued that they need not show causal connection between a challenged voting practice and the discrimina effect of which they complain. Maj. Op. Typescript at 15. That is not a accurate characterization of the plaintiffs' position. In their brief, t plaintiffs insist that they have "never asserted that the discriminatory need not be in part attributable to the purge." Appellants' Brief at 41 The district court misunderstood them, they explain, when it formed the impression that they denied that causation was relevant to their claim. Neither the majority nor the City has advanced a waiver argument. Thus, regardless of whether the plaintiffs ever took the untenable position for they received credit in the district court, the important point, for pres purposes, is that contrary to the majority's description of their argumen have not denied the relevance of causation here. 12 On two occasions, the district court stated that the plaintiffs had not p violation of § 2 because they had failed to demonstrate that "the purge law is the dispositive force in depriving minority voters of equal access to the political pro . . ." Ortiz, 824 F. Supp. at 539 (emphasis added); see also id. at 524. That is proper legal standard. Section 2 does not require plaintiffs to prove that a chall voting practice or procedure is "the dispositive force," or the only cause, or even principal cause, of unequal political opportunity. Neither the statute, nor its legislative history, nor the relevant case law supports such a reading. To the con that authority requires us to determine whether a challenged law interacts with oth external conditions to limit the political opportunities available to members of pr classes. Gingles, 478 U.S. at 47. As White and § 2(b) state, we must consider the totality of the circumstances. Those circumstances -- the "social and historical conditions" that make up the "past and present reality" surrounding political proce create the factual environment in which a challenged voting practice operates. As they necessarily contribute to the effect that a practice has on individuals' polit opportunities. In order to properly apply § 2 in this case, we cannot require the plaintiffs to prove that Pennsylvania's non-voting purge law operates, by itself an independently of other circumstances, to produce discriminatory results. The chall law must certainly be a contributing cause of unequal opportunity, but it need not the district court twice suggested, "the dispositive force." At oral argument, the City conceded this point. It did not defend the "dispositive force" language that appears in the district court's opinion, but inst argued that in spite of these erroneous comments, the court understood and applied 13 proper legal standard. To an extent, I am inclined to agree with that position. A (though slightly charitable) reading of the district court's analysis reveals that, least on occasion, it seems to have understood that while § 2 plaintiffs must demon that a voting practice interacts with other, external circumstances to cause an act effect, such plaintiffs need not establish that the practice is the dispositive or primary cause of the results giving rise to their claim. The majority, however, in contrast to the City, does not in any way quali support for the district court's statements.0 Instead, it adopts the view that in o to have established a violation of § 2, the plaintiffs would have needed to prove t non-voting purge operated independently of social and historical conditions to caus inequality of which they complain. Thus, the majority concludes that while black a Latino voters have turned out in lower numbers, the purge law did not cause that statistical disparity. Maj. Op. Typescript at 21. And because the plaintiffs have shown that the purge law itself has prevented members of minority groups from votin have failed to prove the kind of causation that the majority reads § 2 to require. this construction, a challenged voting law is permissible unless it is entirely responsible for the abridgment of plaintiffs' political opportunities; if other fac 0 The majority understands the phrase "the dispositive force," as the district c used it, to mean "a cause which, in that context, would be legally dispos Maj. Op. Typescript at 18 n.11. I do not grasp the purpose or effect of translation. The majority does not disagree with the substance of the co statements; instead, it reads § 2 to require proof of a "legally disposit cause, by which it means a single cause of all relevant circumstances, th entirely responsible for the discriminatory effect of which a plaintiff complains. There is no place, in the majority's construction of § 2, for contributing causes of inequality which are not themselves products of th challenged voting law. As I explain below, I do share this view. 14 interact with the challenged law to bring about such a discriminatory result -- abs proof that those factors are themselves products of the law -- no violation of § 2 occurred.0 Accordingly, the majority states that the discrimination and disadvantage the plaintiffs experienced in education, employment, health care, housing, and inco which the district court found and documented, "just are not relevant." Maj. Op. Typescript at 25; see also id. at 29 (stating that societal disadvantages are "extr to the plaintiffs' legal claim). Such social and historical conditions do not matt explains, because "the record reveals no link", by which the majority means no caus 0 Interestingly, while the majority first asserts that the plaintiffs have argue causation is unimportant (see supra p. 10 n.6), it later claims that Orti entire complaint "is drawn to allege that Pennsylvania's purge statute `c the disparate purge rates between Philadelphia's white and minority communities." Maj. Op. Typescript at 19-20 (quotation unattributed); see Maj. Op. Typescript at 10 n.4 and accompanying text (perhaps suggesting t plaintiffs' complaint improvidently endorsed the majority's construction § 2). That would certainly be a curious way for a party who rejected the relevance of causation to plead a § 2 case. In fact, the plaintiffs have pleaded, accepted, or claimed to have met the legal standard of causation the majority now adopts. See Appellants' Brief at 37 (arguing that "[t]h does not require a demonstration that the practice in and of itself resul discriminatory result," and claiming to have "demonstrated that historic, political, and socio-economic discrimination interacts with the non-votin to disproportionately disenfranchise Latinos and African-American voters" at 14, 31, 41 n.8 (arguing that the purge law, operating in conjunction w social and historical conditions, was a contributing cause of the disproportionate purging of Latinos and blacks); see also A. at 18-20 (plaintiffs' complaint, not pleading any view of § 2 causation). Nor have plaintiffs pleaded or argued the opposite extreme -- that causation is irrelevant. As they state in their brief, they accept that in order to p they must show that the discriminatory result of which they complain must attributable, in part, to the law they challenge. Appellants' Brief at 4 n.8. Of course, even if the plaintiffs had taken either of the directly opposing erroneous positions the majority attributes to them, that would require us to adopt an erroneous construction of § 2 in deciding this cas 15 link, between those factors and the purge law. Id. at 25. After all, nothing in t record suggests that the non-voting purge makes black and Latino residents of Phila so much worse off. It is not the purge law that causes members of minority groups less frequently, and therefore to lose the ability to vote more often by removing t disproportionately high rates from the registration rolls. That is the kind of "leg dispositive" causal connection that the majority would require the plaintiffs to es in order to prevail on their § 2 claim.0 0 The majority's reading of the Senate Report casts additional light on the subs of its rationale. In its view, the Report expresses the expectation that would "focus on the challenged procedure and its causal consequences . . Maj. Op. Typescript at 14 n.6. The "focus" the majority has in mind, how is quite restrictive; it encompasses nothing more than the challenged law it excludes all other factors that the law has not created, but which nonetheless might contribute to the law's effect. Thus, under the majori reading of the Senate Report, Congress has instructed that § 2 might proh purge statute which "itself" produces discriminatory results. Id. The Senate Report does support the well-settled point that plaintiffs must pro causal connection between the law they challenge and the discriminatory result identify. Congress in no way, however, expressed any agreement with the majori view that the challenged law must itself account for its unlawful effects. Ac to the Senate Report, a court's "focus" must remain broad and varying enough t encompass the totality of the circumstances with which a voting practice invar interacts to influence the nature of political processes. In concluding its opinion, the majority appears to abandon its causation argum The dissent might have meaning, it states, in a § 2 challenge to registration procedures in which plaintiffs alleged that as a result of socioeconomic disadvantages, they experienced greater difficulty traveling to registration c or in some other way availing themselves of registration opportunities. Maj. Typescript at 29. That surprising comment cannot be reconciled with the major legal argument. If the conditions of inequality the district court found here extraneous to the plaintiffs' legal claim, those circumstances could not be re in the hypothetical suit the majority describes. In neither case could member protected class show that the laws they challenged caused the practical diffic they experienced. In neither case would the laws themselves be responsible fo 16 Finally, the majority reasons that this type of causation could not, unde circumstances, exist here, because a non-voting purge law, by its very nature, only affects people who have managed to register at least once. Maj. Op. Typescript at Such people, it points out, must have already demonstrated their ability to overcom whatever barriers might prevent them from participating in the political process, a law that merely requires them to do so again could not violate §2. Id. The premis underlying this reasoning can only be that unless a law has prevented members of a protected class from ever having registered or cast a vote, it is permissible under Voting Rights Act. According to the Supreme Court, the essence of a § 2 claim is that a cert electoral law interacts with other circumstances to cause unequal political opportu Gingles, 478 U.S. at 47. The majority takes a different position. In its view, th essence of a § 2 claim is that a certain electoral law actually causes whatever circumstances might contribute to the deprivation of political equality of which a plaintiff complains. Respectfully, that is an unsupported and insupportable distort the Voting Rights Act with which I could not disagree more strongly. disparately harmful effects on minority citizens. Rather, under the majority' theory of § 2 causation, the unfortunate results of whatever registration laws in mind would merely represent another of "society's voting ills" that would n subject to challenge under the Voting Rights Act. I do not know and cannot guess why the majority believes that I am actually co with Philadelphia registration procedures that the plaintiffs have not challen rather than with what I view as the discriminatory effect of the non-voting pu law. I also cannot perceive a difference between the majority's hypothetical where, it states, socioeconomic disadvantages might have meaning --and the one us now. In any event, I do not read the majority's conclusion as expressing a purposeful modification or qualification of its earlier analysis of § 2 causat 17 The majority offers a simple explanation for the fact that a disproportio high number of Latinos and blacks have been removed from Philadelphia's registratio rolls: minority citizens are purged more because they vote less. The majority's re of § 2 does not require it to know anything more about the underlying causes of the effect. It need not look any deeper, or any more closely. It need not concern its with why blacks and Latinos vote less; so long as the purge law itself is not respo no violation of § 2 has occurred. The majority's explanation for the purge law's effect -- the fact that mi voters simply do not vote as often --does not explain much. Rather, that fact lies the surface of the past and present reality confronting members of minority groups might try to participate in the political process. As the district court demonstra is not difficult to look beneath the surface. And contrary to the majority's view, inquiry is not only important, but necessary. The majority has erred in concluding § 2 does not require a more searching evaluation of the reasons why Latinos and bla not vote as often. The district court recognized that the lower minority turnout statistics part be attributable to discrimination and the overall socioeconomic status of mino in Philadelphia." Ortiz, 824 F. Supp. at 535. And regardless of any uncertainty t court had about the relationship between discrimination and socioeconomic disadvant on the one hand, and lower participation rates, on the other, Congress and the Supr Court have provided answers. The Senate Report states that, as the Court observed White, disadvantages in education, employment, income levels, and living conditions arising from past discrimination tend to depress minority political participation. 18 Rep. at 29. "Where these conditions are shown," the Report continues, "and where level of black participation in politics is depressed, plaintiffs need not prove an further causal nexus between their socioeconomic status and the depressed level of political participation." Id.0 As early as 1899, W.E.B. Du Bois described the barriers to meaningful pol participation that black Philadelphians experienced as a result of their poverty, l education, and susceptibility to manipulation by local party organizations. See W. 0 Significantly, in White -- the case from which Congress borrowed the words th make up § 2, and on which Congress relied most heavily in explaining what it intended that language to mean -- the Court did not look for or require any " between the challenged reapportionment plan and the factors that contributed plan's discriminatory effect. White recounts, among other circumstances, the following findings: Texas had a "history of official racial discrimination . which at times touched upon the right of Negroes to register and vote and participate in the democratic processes", 412 U.S. at 767; "the Bexar communi along with other Mexican-Americans in Texas, had long `suffered from, and con to suffer from, the results and effects of invidious discrimination and treat the fields of education, employment, economics, health, politics, and others' U.S. at 768 (footnote omitted; quoting district court opinion); and "[t]he ty Mexican-American suffers a cultural and language barrier that makes his participation in community processes extremely difficult . . . ." Id. (footno omitted). "The residual impact of this history," the Court observed, "reflec itself in the fact that Mexican-American voting registration remained very po the County . . . ." Id. Plainly, these social and historical conditions had been brought about by a reapportionment plan that Texas promulgated in 1971. Rather, they interacted with the challenged multimember districts to result i invidious discrimination. As the Supreme Court stated, "[b]ased on the total the circumstances," the district court had properly assessed the lawfulness o multimember district, "overlaid, as it was, on the cultural and economic real of the plaintiff class. White, 412 U.S. at 769 (emphasis added). Those real of course, predated and existed independently of the recent reapportionment. the White Court, that did not matter. For the majority, nothing else would. in codifying and relying on White when it amended the Voting Rights Act, Cong could not have shared the majority's understanding of the kind of causation § requires. 19 Bois, The Philadelphia Negro: A Social Study 373-75 (1899). Gunnar Myrdal, in a wo which the Supreme Court has relied in defining equal justice under law, has also no "the striking relationship between nonvoting and poverty." Gunnar Myrdal, An Ameri Dilemma: The Negro Problem and Modern Democracy, 493 (1944) (cited in Brown v. Boar Education, 347 U.S. 483, 494 n.11 (1954)). But we should not have to depend on lan works of social science to understand this point. We need only follow Congress's instruction that in assessing the way a voting law affects individuals' opportuniti participate in political processes, we conduct an evaluation of past and present re Councilman Ortiz described that reality at trial, where he testified that in Philadelphia's Latino community: [Y]ou have a population that is surviving from day to day[,] and to try to bring the concept of voting into their world, into their vista, is difficult. [T]hey have a survival mode. They have to be able to put some food on the table for the next day. And we've had difficulties trying to convince folks that the political system is going to make a difference in their lives, that by participating in the process, they're going to effect a change. A. at 127 (repetitive speech omitted). Black and Latino residents of Philadelphia, as the district court found, have suffered discrimination and disadvantage in every socioeconomic category, have fewer resources to devote to the tasks of registration voting. Moreover, their experience has often taught them that such efforts will no improve their lives. Frustration and alienation can lead to apathy, which decreases participation, which further erodes the political power of minority groups. Judge 0 The evaluation need not be particularly searching. As the district court put "In fact, in evaluating a challenge to an election procedure pursuant to § 2, would be myopic for a court to overlook the impact that [socio-economic] fact have on minority voter turnout." Ortiz, 824 F. Supp. at 525. Under the major construction of § 2, however, courts have no need for even limited vision of underlying causes which contribute to a challenged law's effect. 20 described this cycle of discrimination, disadvantage, and disenfranchisement in Uni States v. Marengo County Comm'n, 731 F.2d 1546, 1567 (11th Cir. 1984), where he not "[p]ast discrimination may cause blacks to register or vote in lower numbers than w [and] may also lead to present socioeconomic disadvantages, which in turn can reduc participation and influence in political affairs." A law that purges registrants f failing to vote can only contribute to the symbiotic causes and effects of socioeco and political inequality. Thus, for Latinos and blacks, having their registration nullified only confirms what they are more likely to already believe: that given th higher costs and lower benefits of participating in the political process, there is no point in making the effort. Even if we could not achieve our own understanding of this reality, its t plain enough that Congress and the Supreme Court have told us to take it on faith. citing White, the Senate Report states that where plaintiffs can show socioeconomic disadvantage and discrimination along with depressed rates of political participati they need not prove any further causal nexus between these facts. Sen. Rep. at 29 Of course, if the majority is right, the existence of such a causal nexus would def challenge to a law that had a disparate impact on those who voted less often. The majority, once again, would require the plaintiffs here to have proven that the pur itself caused minority voters to be removed from the registration rolls at disproportionately high rates. Factors like poverty, lack of education, and inabil find work or housing as a result of discrimination, it states, are simply not relev Maj. Op. Typescript at 25. However, we know that while the non-voting purge law ma some part in further discouraging black and Latino political participation, it is l 21 societal discrimination and socioeconomic disadvantage, of the sort the district co found, that operate to depress minority turnout rates. If discrimination and disad cause blacks and Latinos to vote less often, which we discover by consulting either record or reality, then the purge law itself cannot be responsible for removing so more members of these groups from the registration rolls. That is undeniable. The plaintiffs do not and cannot argue otherwise. So, if the majority is right, Congre the Supreme Court -- by relieving plaintiffs of the need to prove a causal connecti between discrimination and socioeconomic disadvantage, on the one hand, and lower participation rates, on the other -- have effectively immunized non-voting purge la § 2 challenges. Such laws cannot be responsible for the disparate impact they have as a matter of law, discrimination and disadvantage are at least principally to bla Clearly, though, Congress and the Court have done no such thing, and the majority h erred in its construction of § 2. The district and appellate court decisions in Mississippi State Chapter, Operation PUSH v. Allain 674 F. Supp. 1245, 1263-68 (N.D. Miss. 1987) ("Operation I"), aff'd sub nom. Mississippi State Chapter, Operation PUSH, Inc. v. Mabus ("Oper PUSH III"), 932 F.2d 400 (5th Cir. 1991), a case which closely parallels this one, properly apply § 2 and reject the majority's position. In Operation PUSH, the plai challenged two Mississippi registration laws: one, the State's "dual registration process," required citizens to register first with a county registrar in order to v federal, state, and county elections, and again with a municipal clerk in order to municipal elections; the other, the State's prohibition of "satellite registration, severely limited the extent to which citizens could register at places other than t 22 registrar's office. Operation PUSH III, 932 F.2d at 402. The district court found these procedures had a substantial disparate impact on black registration rates. T disparity, it concluded, resulted in minority members of the electorate having less opportunity to participate in the political process and thus established a violatio § 2. Operation PUSH I, 674 F. Supp. at 1268. Of course, Mississippi's registratio had not themselves caused the failure of blacks to register as often as whites. Th inequality occurred, as the court of appeals put it, "[b]ecause a significant perce of Mississippi's black citizens do not have (1) access to the transportation necess travel to the county courthouse to register or (2) the type of jobs that would allo to leave work during business hours to register to vote . . . ." Operation PUSH II F.2d at 403; see also Operation PUSH I, 674 F. Supp. at 1255-56.0 Those circumstanc interacted with the challenged law to create a disparity in registration rates, whi rise to a § 2 violation. Operation PUSH I, 674 F. Supp. at 1255-56, 1268. In affi that ruling, the Eleventh Circuit did not express any doubt as to the soundness of 0 The district court found that the registration laws had "a disparate impact o opportunities of black citizens in Mississippi to register to vote because of socio-economic and occupational status." Operation PUSH I, 674 F. Supp. at 1 In particular, the court focused on three significant forms of socioeconomic disadvantage: (1) "that black workers in Mississippi predominate in blue-coll service worker positions in which they are likely to be working for an hourly and are less likely to be able to take off from work to register to vote duri regular office hours . . . [;]" (2) that "black citizens are also much less a than whites to travel to the county courthouse, or other centralized voter registration locations" because black households were much less likely to hav vehicle available; and (3) that "a disproportionately high percentage of blac households do not have a telephone available for household use," which made i difficult for blacks to obtain information about procedures for registering. 1253, 1256. Because of these disadvantages, the district court concluded, bla experienced greater difficulty in overcoming the administrative barriers to registering that Mississippi had created through its challenged laws. Id. at 23 district court's reasoning. The only question, in its view, was whether the court erred in finding that blacks had registered in significantly lower numbers. Operat PUSH III, 932 F.2d at 409-13. Given the evidentiary support for the trial judge's determination that such a disparity did exist, the Eleventh Circuit upheld the deci that the challenged laws, and the effect they had, violated § 2. Unlike the majority, the Operation PUSH courts did not merely note that b registered less often, and that the registration laws themselves were not responsib the disparity. Instead, the courts looked to the way in which the challenged laws interacted with social and historical conditions, such as the class members' occupa status and limited access to transportation and information, to result in a lack of opportunity for the plaintiffs to participate in the political process. The obviou that the causes of those conditions had little or nothing to do with the challenged registration laws was legally irrelevant to the Operation PUSH courts, which clearl not share the majority's understanding of § 2.0 0 The majority's attempt to distinguish the Operation PUSH cases is unpersuasiv states that in Operation PUSH, unlike this case, the challenged voting laws w "the causes of black voters' registering at lower rates than white voters." Op. Typescript at 24 n.17 (emphasis added). The Operation PUSH courts, howev clearly did not find, and did not require the plaintiffs to show, that Missis registration procedures were "the causes" of the statistical disparity in registration rates. There was no established causal "link" -- as the majorit it elsewhere -- between the challenged laws, on the one hand, and either the of jobs black residents held, or the facts that they possessed fewer cars and telephones, on the other. Rather, those conditions interacted with the regis procedures to produce a discriminatory result, and that constituted a violati § 2. The majority's treatment of Operation PUSH also suggests that it sees a meani difference between laws that make registration more difficult to begin with, 24 United States v. Marengo County Comm'n, 731 F.2d 1546 (11th Cir. 1984), i similar, in significant respects, to Operation PUSH, and also rejects the majority' of the kind of causation a plaintiff must show in order to prevail on a § 2 claim. Marengo County, black plaintiffs challenged laws that provided for the at-large ele of members of the County Commission and the school board. The district court, in dismissing the case, had "attributed the absence of elected black officials to `vot apathy' and `a failure of blacks to turn out their votes.'" Marengo County, 731 F. 1568 (quoting the district court opinion). The Eleventh Circuit rejected the distr court's findings as clearly erroneous and reversed. In reaching its decision, the Marengo County court relied, in part, on th plaintiffs' showings that (1) the County Board of Registrars was open infrequently never visited outlying areas to register rural voters, and (2) the County had not permitted a black person to serve as a deputy registrar. Id. at 1570. The distric had stated that it did not see how such policies discriminated against blacks. The of appeals responded: These policies, however, unquestionably discriminated against blacks because fewer blacks were registered. . . . By holding short hours the Board made it harder for unregistered voters, more of whom are black than white, to register. By meeting only in Linden the Board was less accessible to eligible rural voters, who were more black than white. By having few black poll officials and spurning the voluntary offer of a black citizen to serve as a registrar, county officials impaired black access to the political system and the confidence of blacks in the system's openness. one hand, and laws that make it more difficult for someone to stay registered the other. In my view, that is not a reasonable distinction. 25 Marengo County, 731 F.2d at 1570 (footnote and citation omitted). Like the Operatio courts, the Eleventh Circuit did not require the plaintiffs to prove that the measu they challenged were responsible for their failure to register or vote. In fact, i rejecting the district court's finding that blacks had simply failed to overcome th apathy, the court explained that a variety of social and historical circumstances accounted for the fact that blacks participated in significantly lower numbers than whites. Id. at 1568, 1574. Those proven circumstances, in conjunction with the challenged voting practices, had a discriminatory effect on blacks. For that reaso court concluded, the record compelled a finding that the County's at-large election violated § 2. Id. at 1574.0 The majority relies on Salas v. Southwest Texas Junior College Dist., 964 1542 (5th Cir. 1992), for the proposition that "a protected class is not entitled t relief merely because it turns out in a lower percentage than whites to vote." Maj. Typescript at 21. The context of that statement, however, reveals that Salas provi support for the majority's holding. In Salas, Hispanic voters, who constituted a m of the registered voters in an at-large district, challenged the use of the at-larg 0 Other cases that do not share the majority's view of § 2 include: Harris v. Graddick, 593 F. Supp. 128 (M.D. Ala. 1984) (awarding an injunction to black citizens who claimed that a state's failure to appoint greater numbers of bla officials violated § 2), and sub nom., Harris v. Siegelman, 695 F. Supp. 517 Ala. 1988) (holding that plaintiffs established violations of § 2, based on t conclusion that social and historical circumstances interacted with the chall law, as well as with the disproportionately low number of black polling offic to discourage black political participation); and Brown v. Dean, 555 F. Supp. (D.R.I. 1982) (enjoining a city's use of a polling facility based on a findin the facility's location would be a substantial deterrent to voting by a class black residents). 26 system (as opposed to single-member districts) under § 2. The court held that the plaintiffs had failed to satisfy the third element of the threshold test for vote d claims that the Supreme Court adopted in Thornburg v. Gingles, because they had not demonstrated that white bloc voting usually prevented Hispanics from electing their preferred representatives. Salas, 964 F.2d at 1555. The Fifth Circuit reasoned th though the plaintiffs were members of a class that included a majority of the regis voters in the challenged district, they might nonetheless, in some instances, have able to show that minority bloc voting frustrated their chances of electoral succes For example, if such plaintiffs could establish that they faced "practical impedime voting" or that "low turnout at elections was the result of prior official discrimination," they could prove that their registered majority did not allow the to overcome opposition from a cohesive minority of whites. Id. at 1555-56. In such circumstances, which the plaintiffs in Salas had failed to prove, an at-large distr would be subject to a § 2 challenge brought by members of a majority class. But th plaintiffs had not accounted, in any way, for their inability to take advantage of majority status. In that context, we can understand the court's statement that "a protected class is not entitled to § 2 relief merely because it turns out in a lowe percentage than whites to vote." Salas, 964 F.2d at 1556. Here, the plaintiffs are not members of a majority class confronting the difficult task of satisfying the Gingles preconditions. The questions this case pr and the factors that we must take into account in providing answers, are somewhat different. Nonetheless, to the extent that Salas does provide guidance, the decisi actually rejects the majority's reading of the Voting Rights Act. According to the 27 Circuit, the plaintiffs in Salas could have prevailed if they had shown the existen "practical impediments to voting" or low turnout rates resulting from prior discrim (as may have occurred here, according to the district court). Those circumstances, court reasoned, could interact with the state's districting plan in such a way as t deprive class members of an equal opportunity to participate in the political proce to elect their chosen representatives. Under the majority's construction of § 2, h the Salas plaintiffs would have needed to prove that the voting measure they challe an at-large district, actually caused the practical impediments to voting or the lo turnout rates that compromised their chances for success. Of course, that is an impossible requirement. District lines, like purge laws, cannot by themselves caus "totality of the circumstances" that courts are supposed to consider in applying § Fifth Circuit would not have required the Salas plaintiffs to make such a showing. majority here, in contrast, holds that because Pennsylvania's non-voting purge law itself the cause of blacks' and Latinos' failure to vote more often, the plaintiffs not established a violation of § 2. Salas does not take that view, and neither do 0 In addition to Salas, the majority relies on Irby v. Virginia State Board of Elections, 889 F.2d 1352 (4th Cir. 1989). It is difficult to overstate the differences between Irby and the case before us. In Irby, a group of individ black plaintiffs and two civil rights organizations challenged a law that pro for the appointment, rather than the election, of school board members. Firs assuming appointive systems are subject to challenge under § 2 -- a propositi about which the Fourth Circuit expressed "considerable doubt", Irby, 889 F.2d 1357 -- the legal and factual variables involved in such a case, where no vot no electing has ever occurred, could not be comparable to those involved here elsewhere). Second, in Irby, the plaintiffs had failed to show any causal connection between the selection system they challenged and the underrepresen of blacks on school boards; for example, the court pointed out, in one of the counties where a statistically significant disparity did exist, every black r who had requested appointment to the school board since 1971 had been selecte 28 In amending § 2, Congress devoted most of its attention to vote dilution White v. Register, for example, the case from which Congress drew the legal standar defining a violation of § 2, involved a challenge to state reapportionment plans. Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), which articulated and enumerate factors that the Court had taken into consideration in White, addressed the legalit multi-member districts. The Senate Report's now-familiar list of "typical" (but no exclusive or required) factors that plaintiffs can show in establishing a violation is drawn directly from Zimmer. See Sen. Rep. at 29. Congress made clear, however, while it had focused and relied mainly on vote dilution cases in amending § 2 and explaining the new provision's meaning, § 2 would continue to prohibit "all voting discrimination," including "episodic" practices which did not involve the "permanen structural barriers" to political equality seen in the vote dilution context. Sen. 30. The Report explains: If the challenged practice relates to such a series of events or episodes, the proof sufficient to establish a violation would not necessarily involve the same factors as the courts have utilized when dealing with permanent structural barriers. Of course, the ultimate test would be the White standard codified by this amendment of Section 2: whether, in the particular situation, the practice operated to deny member. Id. at 1358. In light of those facts, the Fourth Circuit concluded the appointive system did not produce a disparate effect. Id. at 1359. The I court had no occasion even to consider a causation requirement such as the on majority adopts here, because the challenged practice played no part in bring about the lower number of blacks on the two school boards. Such a situation at all similar to one in which a purge law directly removes disproportionatel numbers of minority citizens from the registration rolls. At the very most, Irby provides incremental support for the position that § 2 plaintiffs must show some causal connection between a challenged voting pract the disparity at issue. As I have stated, that is not a controversial point, neither the plaintiffs nor I suggest otherwise. 29 the minority plaintiff an equal opportunity to participate and to elect candidates of their choice. Id. Thus, events or episodes occurring during the administration of elections that resulted in unequal political opportunity would remain unlawful, although the facto relevant to proving such discriminatory effects might well be different from those involved in vote dilution cases. In a footnote to the statement quoted above, Congress mentions purging as variety of the "episodic discrimination" that § 2 would continue to prohibit.0 The states: "[P]urging of voters could produce a discriminatory result if fair procedur not followed, Toney v. White, 488 F.2d 310 (5th Cir. 1973), or if the need for a pu were not shown or if opportunities for re-registration were unduly limited." Sen. 30 n.119 (emphasis added).0 For two reasons, this statement does not support an affirmance here. First, as I discuss at greater length below, the City did not pro need" for Pennsylvania's non-voting purge law. The district court found that the l 0 While purging could be conducted "episodically" -- that is, on discrete occas in a related series of events -- I would not describe the annual operation of Pennsylvania's non-voting purge law as "episodic." It is not "structural" in same way as a redistricting plan; nor is it temporary, however, and the law p its discriminatory effects in a reliable and consistent manner from year to y Therefore, I will not refer to the kind of purging that occurred in this case "episodic" voting practice. 0 By making clear that purging can violate § 2, the Senate Report creates a pot problem for the majority's argument that these laws, because they only affect individuals who have registered and voted, must be permissible. The majority with this problem by emphasizing that in each example of unlawful purging the Report mentions, it is the statute "itself" that produces a discriminatory re Putting aside, for the moment, my more important disagreements with the major reading of § 2's legislative history, and with its theory of causation, the f remains that even a purge law that itself produces unlawful results can only voters who have already registered. This troublesome point, however, is only minor symptom of the infirmity afflicting the majority's argument. 30 served the legitimate purpose of preventing fraud, but laws are not necessary merel because they serve a valid purpose. Second, Congress mentioned purging as an examp the "episodic discrimination" that would remain within the scope of § 2, and the ty purges it listed in the one sentence it devoted to the subject are merely more spec examples of the way in which purging can have a "discriminatory result." Congress provided no indication that purging could not produce discriminatory results, and t violate § 2, in other ways. Indeed, such a suggestion would run directly counter t flexible approach to § 2 cases that Congress intended courts to follow in situation involving different factual and legal variables.0 In the majority's view, however, the Senate Report's brief and illustrati reference to purging contains an "implicit" recognition "that a purge statute which administered fairly, and in an even-handed manner, would not run afoul of the law." Op. Typescript at 14 n.6. I have no idea where the majority finds such an implicat The text of the footnote plainly does not support it. See Ortiz, 824 F. Supp. at 5 (recognizing that the list in the footnote merely "provides several examples of how purging voters could violate § 2," and that it does not "establish any prerequisite plaintiffs . . . must establish in order to state a cognizable claim under the Act" also, Steve Barber et al., Comment, The Purging of Empowerment: Voter Purge Laws an Voting Rights Act, 23 Harv. C.R-C.L. L. Rev. 483, 520 (1988) (stating that as the f makes clear, the types of purges it lists "are merely examples of situations that m 0 As the district court accurately stated, the legislative history expresses "t importance of applying a flexible approach when evaluating § 2 challenges, ra than a `mechanical' pointcounting analysis." Ortiz, 824 F. Supp. at 524; see Jenkins, 4 F.3d at 1125, 1129 (recognizing the need to maintain a flexible ap in order to promote the goals and underlying principles of the Voting Rights 31 produce a discriminatory result, rather than an exhaustive list of the only ways in purges could violate Section 2"). Moreover, Congress expressly disavowed the kind purpose the majority believes it implied, stating: "[E]ven a consistently applied p premised on a racially neutral policy would not negate a plaintiff's showing throug factors that the challenged practice denies minorities fair access to the process." Rep. at 29 n.117. Finally, under the majority's perception of what Congress implic recognized, not even all the examples included in the Report's brief reference to p would constitute violations of § 2. An unnecessary purge law that "unduly limited" opportunities for re-registration, for instance, would not, in the majority's view, afoul of the Voting Rights Act so long as the law was administered fairly. Congres statements, which express a different view, do not dissuade the majority from relyi an unsupported implication that would severely, and I believe improperly, limit the of § 2 in challenges to the purging of registered voters. The Senate Report acknowledges that especially outside the context of vot dilution claims, the factors that courts should consider in determining whether a challenged voting practice violates § 2 may well be different than those appearing list of "typical" factors drawn from White and Zimmer. The Report does not, however provide any guidance with respect to what factors courts should consider in the typ case we confront here. The majority makes no effort to identify or explore the considerations that figure into an evaluation of the effect and legality of a non-v purge law, probably because, in light of its theory of causation, it sees no need t so. The district court, in contrast, addressed this important question, see Ortiz, Supp. at 523-24, and I agree with some of its conclusions. As the district court 32 recognized, the factors making up the threshold test for vote dilution claims that Supreme Court adopted in Thornburg v. Gingles, 478 U.S. at 49-51, have little place § 2 challenge to a purge law. Ortiz, 824 F. Supp. at 523 (describing the Gingles preconditions as "peripheral issues bearing limited relevance to the plaintiffs' cl see also Operation PUSH I, 674 F. Supp. at 1264 (concluding that the occurrence of polarized voting is not germane to a § 2 challenge to registration procedures); cf. v. Treen, 574 F. Supp. 325, 350 (E.D. La. 1983) (three-judge court) ("To the extent the enumerated factors are not factually relevant, they may be replaced or substitu other, more meaningful factors."). The size, geographic insularity, and political cohesion of minority or majority groups are all irrelevant to the question of wheth non-voting purge statute has a discriminatory effect. Such a law operates to nulli registration of individuals who fail to vote or reinstate themselves. Therefore, t important factors are those that influence peoples' willingness and ability to part or seek reinstatement. As discussed, the existence of discrimination and socioecon disadvantage is of primary importance among those factors.0 Other significant considerations could include: a history of official discrimination in voting, effor with the design or effect of limiting the political power of minority groups, the difficulty minority constituents have experienced in trying to elect their preferre candidates, and a lack of responsiveness on the part of elected officials to the 0 Contrary to the majority's assertion, I have not stated, nor do I believe, th societal conditions such as discrimination and socioeconomic disadvantage "constitute" the totality of the circumstances that a court should consider i evaluating the legality of a non-voting purge statute. Rather, those factors particularly significant circumstances, among others, which contribute to the totality. Additionally, as should be clear, I do not mean for the list of re factors I mention here to be exhaustive. 33 particular needs and concerns of minority communities. Each of those factors could further discourage participation and therefore, each could interact with a non-voti purge statute to cause an unlawful abridgement of a group's opportunity to particip the political process and to elect its chosen representatives.0 Given the majority's erroneous construction of § 2, however, this task of identifying and weighing relevant factors is of secondary importance. The critical it bears repeating, is that contrary to the majority's view, whatever the relevant are, they need not be products of, or causally linked to, a challenged voting law i to merit consideration in a court's determination of the law's effect and legality. a law's interaction with the totality of the circumstances, and not its creation of circumstances, that § 2 requires us to evaluate. B. The plaintiffs have argued that in order to prove that Pennsylvania's non purge law violates § 2, they must, in addition to showing the law's disparate impac blacks and Latinos, demonstrate that the State could achieve its legitimate goal of preventing election fraud in a less discriminatory way. As noted above, the Senate provides some support for that position by stating that if the "need for a purge" i shown, the practice could constitute an instance of prohibited "episodic discrimina Sen. Rep. at 30 n.119. Here, the plaintiffs want to take on the burden of proving Pennsylvania does not need a purge law that results in the disenfranchisement of 0 The existence of racial appeals, in contrast, could conceivably increase mino turnout and thus work against any discriminatory effect that a non-voting pur might have. I imagine that this factor could point either way, depending on nature of the evidence presented in a particular case. 34 disproportionately high numbers of Latinos and blacks. Moreover, they have asked u find that they carried that burden at trial. I agree with much, though not all, of the plaintiffs' argument. In enact amending § 2, Congress did not intend to mandate equal political opportunity at the expense of state and local governments' abilities to pursue legitimate goals such a prevention of voting fraud. Where measures are in fact necessary to achieve such objectives, Congress would have surely meant for them to remain in effect. There i point in guaranteeing equal access to corrupt political processes that have no demo value. To the contrary, the Voting Rights Act is premised on the existence of free fair elections that reflect popular will with accuracy and integrity, and it should interpreted to prevent such elections from occurring.0 However, a voting practice th compromises equality, as I believe Pennsylvania's purge statute does, should only b permitted if it is in fact necessary to achieve or preserve this type of public int 0 I share the majority's concern about Philadelphia's need to guard against fra voting practices in administering its elections. The dispute arising out of State Senate race between Bruce Marks and William Stinson provides a recent r of the seriousness of this problem. See Marks v. Stinson, 19 F.3d 873 (3d Ci 1994). Of course, as we all recognize, the City is no Newcomer to dishonest election tactics. Nearly 100 years ago, Dr. Du Bois described the widespread practice of buying votes in Philadelphia, and stated: "To-day the government city and State is unparalleled in the history of republican government for br dishonesty and bare-faced defiance of public opinion." W.E.B. Du Bois, The Philadelphia Negro: A Social Study 372, 376-77 (1899). 0 According to the majority, "it is well established that purge statutes are a legitimate means by which the State can attempt to prevent voter fraud." Maj Typescript at 20 & n.13. By "legitimate," the majority cannot mean permissib under § 2 of the Voting Rights Act. The published reports do not contain a s case, other than this one, that decides a § 2 challenge to a non-voting purge The only scholarship directly addressing the question argues that such laws a likely to violate § 2. Barber, supra p. 34, at 517-527. 35 Title VII disparate-impact law, in my view, provides a particularly appro analogy supporting the adoption of such a standard. In disparate-impact cases, emp can justify their use of challenged practices that have a greater negative effect o members of a protected class by proving that such practices constitute a "business necessity." See, e.g., Griggs v. Duke Power, 401 U.S. 424, 431-32 (1971) (first articulating the concept of business necessity); Dothard v. Rawlinson, 433 U.S. 321 32 (1977) (holding that defendant-employer failed to show business necessity, and t therefore, plaintiffs properly prevailed in [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3009672. Public record. Not legal advice.