Perry-Bey v. City of Norfolk (678 F. Supp. 2d 348, 2009)

United States District Court for the Eastern District of Virginia 2009-01-15

The Public Health and Welfare

Citations

Full opinion text

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on Defendant’s “Motion of City of Norfolk to Dismiss Complaint Under Fed.R.Civ.P. Rules 12(b)(5) and 12(b)(6),” and Plaintiffs “Motion to Reconsider Plaintiffs Motion for Civil Contempt of Court and Issue Show Cause Order as a Matter of Law.” The parties, and amicus curiae Norfolk Branch of the National Association for the Advancement of Colored People (“NAACP”), appeared before the Court on September 17, 2008 for oral argument. The motions are now ripe for decision, and the Court considers the merits below.

I. Factual and Procedural History

A. The Collins Litigation

Collins v. City of Norfolk, Civil Action No. 83-526-N, is the precursor to this litigation. A proper understanding of the motions before this Court requires a review of that case. That suit was filed here in 1983 by seven African-American citizens of Norfolk, Virginia, and the Norfolk Branch of the NAACP, alleging that the “at-large system of electing members of the Norfolk City Council unlawfully dilute^] black voting strength in violation of Section 2 of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C. § 1973.” Collins v. Norfolk, 605 F.Supp. 377, 379 (E.D.Va.1984) (Collins I). The Collins plaintiffs also alleged that “the at-large system was adopted in 1918 and ha[d] been maintained for a racially discriminatory purpose in violation of their Fourteenth and Fifteenth Amendment rights and 42 U.S.C. § 1983.” Id.

After a trial before United States District Judge J. Calvitt Clarke, Jr., the District Court determined that there had been no violations of the Voting Rights Act, the Fourteenth Amendment to the United States Constitution, the Fifteenth Amendment to the United States Constitution, or 42 U.S.C § 1983. Id. at 406-07. The plaintiffs appealed the District Court decision denying their Voting Rights Act claim, but did not appeal the District Court decision on the two constitutional claims and the 42 U.S.C. § 1983 claim. The United States Court of Appeals for the Fourth Circuit affirmed that decision. Collins v. City of Norfolk, 768 F.2d 572 (4th Cir.1985) (Collins II). The United States Supreme Court then vacated the judgment of the Fourth Circuit and remanded the case for further consideration in light of its ruling the previous week in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Collins v. City of Norfolk, 478 U.S. 1016, 106 S.Ct. 3326, 92 L.Ed.2d 733 (1986) (Collins III). The Fourth Circuit then reversed the District Court’s judgment and remanded for further proceedings consistent with the Cingles decision, including reconsideration of the issues of racial polarization, minority electoral success, candidate slating, and government responsiveness in the East Ghent redevelopment. Collins v. City of Norfolk, 816 F.2d 932 (4th Cir.1987) (Collins TV).

Because the Collins plaintiffs had not appealed the District Court’s ruling on their Fourteenth and Fifteenth Amendment claims, nor their claims under 42 U.S.C. § 1983, those rulings were not before the District Court on remand. However, the District Court did consider the designated issues in the context of the plaintiffs’ Section 2 Voting Rights Act claim. On remand, the plaintiffs sought: a declaratory judgment that the at-large system of electing Norfolk’s City Council members unlawfully diluted African-American voting strength; an injunction prohibiting the holding of future City Council elections under the at-large system; and the replacement of the at-large system with a system of wards or single-member districts. Collins v. City of Norfolk, 679 F.Supp. 557 (E.D.Va.1988) (Collins V). The parties then agreed that the record from the prior trial was sufficient for the District Court to decide such issues, and therefore no additional evidence was submitted. Plaintiffs submitted a memorandum of law asking that the District Court “hold that at-large city council elections in Norfolk violated Section 2” of the Voting Rights Act. (Mem. For Pl.’s on Remand 49, filed Sept. 21,1987, Collins V.) After further consideration, and applying the new Gingles standard, the District Court again found that Norfolk’s at-large system for the election of City Council members did not violate Section 2 of the Voting Rights Act. Collins V, 679 F.Supp. at 587.

Plaintiffs again appealed the District Court’s decision to the Fourth Circuit. The Fourth Circuit reversed the District Court and directed that:

[u]pon remand, the district court should enjoin at-large elections for city council. The district court should afford the city a reasonable, specified time to prepare a plan that will remedy the vote dilution arising out of the city’s at-large electoral system. The city must then submit the plan for clearance under section 5 of the Voting Rights Act of 1965. 42 U.S.C. § 1973c. If the city fails to enact a legal plan, the court should prepare a single district plan for the conduct of future elections.

Collins v. City of Norfolk, 883 F.2d 1232, 1244 (4th Cir.1989) (Collins VI). The City of Norfolk then sought review by the Supreme Court, but the Supreme Court denied the Petition for Certiorari. City of Norfolk v. Collins, 498 U.S. 938, 111 S.Ct. 340, 112 L.Ed.2d 305 (1990) (Collins VII).

Once the matter was returned to the District Court, the parties submitted an agreed order signed by both counsel that was entered by the District Court on January 3, 1991. That order provided as follows:

This day came the parties, by counsel, upon the mandate of the United States Court of Appeals for the Fourth Circuit effective November 2, 1990, reversing the judgment of this Court and remanding for further proceedings consistent with the Court’s opinion of August 18, 1989. The Court of Appeals ruled that upon remand this Court should afford the City of Norfolk (“the City”) a reasonable, specified time to prepare an election plan that will remedy the vote dilution existing in the present plan and to submit such plan for clearance under Section 5 of the Voting Rights Act of 1965, and the Court has determined that the 1990 Census data should be available on or about January 31, 1991, for use in devising a remedial plan and the regularly-scheduled city council elections are not scheduled to be held until May, 1992.

Accordingly, it is hereby ORDERED as follows:

1. Within sixty-five days after receipt of the 1990 Census for the City, the City Council of the City of Norfolk shall duly adopt after opportunity for public comment a remedial election plan and shall submit the same to the United States Department of Justice under Section 5 of the Voting Rights Act. Defendants, through counsel, promptly shall advise counsel for plaintiffs of the date of receipt of such Census data and shall provide plaintiffs’ counsel with a copy of such submission to the Justice Department when made.

2. If the Department of Justice preclears the City’s plan, defendants’ counsel promptly shall so notify plaintiffs’ counsel and this Court and defendants shall formally submit the plan for this Court’s consideration. Whereupon, the Court will set a hearing date to hear any objections from the plaintiffs concerning the City’s plan and to establish a timetable for the plan’s implementation.

3. If the Department of Justice objects to the City’s plan, in whole or in part, the court will set a hearing date to consider proposed court-ordered single-member district plans for the conduct of future city council elections. If such objections are subsequently resolved and the plan, as amended, is precleared, defendants may submit the City’s plan as precleared to the Court and such plan will be reviewed and considered by the Court as a remedial legislative plan pri- or to implementation of any proposed court ordered plan. Following adoption of a plan, the Court will establish a timetable for implementation.

4. Defendants are hereby enjoined from conducting at-large elections for the city council under the present plan under which all seven city council members are elected on an at-large basis and from implementation of a new plan until approved by this Court.

(Order Jan. 3, 1991 (Collins VIII), Def.’s Mem. in Supp. of Mot. to Dismiss Ex. B, Docket No. 13.)

With the concurrence of the Collins plaintiffs, the City of Norfolk submitted a proposed election plan to the Department of Justice that provided for a City Council comprised of five single-member wards and two single-member super-wards (the “5-2 plan”). The Department of Justice pre-cleared the proposed plan of the City of Norfolk, and a “Petition for Approval of Remedial Election Plan by the City of Norfolk” was filed with the District Court on June 11, 1991. The Petition indicated that the plaintiffs had no objection to the 5-2 plan, and requested “the entry of an order in this action approving Ordinance No. 36,374 as the remedial election plan for elections to Norfolk City Council and for entry of a final order of dismissal in this case.” (Def.’s Pet. for Approval of Remedial Election Plan, June 11, 1991, Collins VIII.)

A hearing on the request of the City of Norfolk for entry of a final order took place on June 24, 1991. At that hearing, counsel for the plaintiffs confirmed that plaintiffs had advised the Department of Justice that they had no objection to the election plan, and then stated that “[t]he only difference that we have this morning, Your Honor, is that plaintiffs believe that it would be possible for the Court to establish a timetable for implementation that would allow this plan to go into effect for the November elections, rather than for next May.” (Hr’g Tr., 3, June 24, 1991, Collins VIII.) After further argument, the District Court responded that it preferred that the election plan take effect in May of 1992. The proposed “Final Judgment Order” was then presented in open court to counsel for plaintiffs, who noted that he was going to sign it even though he disagreed with the implementation date. (Hr’g Tr., 15-16, June 24, 1991, Collins VIII.) The “Final Judgment Order” was entered by the District Court that same day-presumably in open court during the hearing-and provides as follows:

This day came the plaintiffs and the defendants, by counsel to be heard upon the Petition for Approval of Remedial Election Plan by the City of Norfolk, and was argued by counsel.

The plan for the election of members to Norfolk City Council as set forth in City Ordinance No. 36,374, adopted by Norfolk City Council on March 26, 1991, having been submitted to the United States Department of Justice, Civil Rights Division, for pre-clearance under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, pursuant to this Court’s Order of January 3, 1991, and it appearing that such pre-clearance has been accomplished as is evidenced by notification dated June 5, 1991, and the Court having reviewed the plan and being of the opinion that such plan is a proper remedial plan and noting that the plaintiffs do not object to the implementation of this plan, it is ORDERED that Ordinance No. 36,374 of Norfolk City Council is hereby approved as a remedy under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, and shall be implemented at the next regularly scheduled Norfolk City Council Election set for May 5, 1992.

And it appearing that nothing further remains to be done in this case, the Clerk shall enter this order upon the civil docket book as a Final Judgment Order and shall send a copy to each counsel of record.

(Final J. Order, June 24, 1991, Collins VIII, Def.’s Mem. in Supp. of Mot. to Dismiss Ex. B, Docket No. 13.)

B. The 5-2-1 Plan

After May 5, 1992, the City of Norfolk conducted its City Council elections under the 5-2 plan approved by the District Court in the June 24, 1991 “Final Judgment Order.” In 2000, the Virginia General Assembly authorized the City of Norfolk to hold an advisory referendum on the question of whether the mayor should be popularly elected. 2000 Va. Acts ch. 950. On July 18, 2000, the Norfolk City Council adopted Ordinance 40,041, calling for such a referendum during the general election of November 2000. The ordinance directed that the referendum question be stated as follows: “Shall the Charter of the City of Norfolk be amended to provide for the mayor of the City to be popularly elected rather than appointed by the members of Council from among its members?” (City of Norfolk Ordinance No. 40.041 at 1, July 18, 2000, Def.’s Mem. in Supp. of Mot. to Dismiss Ex. G, Docket No. 13.) A majority voted “yes” on the referendum question.

On December 21, 2004, the Norfolk City Council adopted Resolution 1,261 requesting that the Virginia General Assembly “amend the Norfolk City Charter so as to allow for the popular election of the May- or.” (City of Norfolk Resolution No. 1,261 at 1, Dec. 21, 2004, Def.’s Mem. in Supp. of Mot. to Dismiss Ex. I, Docket No. 13.) The proposed change retained the existing five single-member wards and two single-member super-wards, but also permitted the Mayor to vote on matters before council, effectively adding an eighth seat to City Council resulting from the election of a mayor by all the voters of the City of Norfolk. Id. This resulted in a “5-2-1 plan”-five single-member wards, two single-member super-wards, and one mayor elected city-wide that sat on City Council. The Virginia General Assembly approved the proposed charter change and the Governor signed the change into law in 2005. 2005 Va. Acts ch. 893. The change in the charter was later pre-cleared by the Department of Justice. (Letter from John Tanner, Dep’t of Justice, to Paul Jacob, Christian Barton (August 8, 2005), Def.’s Mem. in Supp. of Mot. to Dismiss Ex. J, Docket No. 13.) The City of Norfolk subsequently conducted an at-large election for mayor in May 2006 and a Caucasian was elected to that post.

C. The Collins Motion

On September 18, 2008, the NAACP filed “Motions to Reopen Case and Enforce Injunctions By Plaintiff Norfolk Branch of the NAACP” in Collins v. City of Norfolk, Civil Action No. 83-526N. The Court ordered the reopening of the case for the limited purpose of allowing the filing of the motions and notified the parties that they should file their briefs regarding the motions, which they have done. Oral argument took place on December 15, 2008. Although the Court has issued a separate order addressing the Collins motion, such order incorporates and relies upon the Court’s analysis of the motion to reconsider set forth below.

D. The Filing of this Suit

Christina D. Perry-Bey and Roy L. Perry-Bey filed the initial Complaint in this case, styled as a “Motion for Judgment and Injunctive Relief,” on April 21, 2008. (Compl., Docket No. 6.) Plaintiffs subsequently requested leave to amend their Complaint and proffered a proposed Amended Complaint. United States District Judge Rebecca Beach Smith’s Order of June 11, 2008 made the Amended Complaint the charging document in this litigation, removed Roy Perry-Bey as a party to the case, and made Christina Perry-Bey the sole Plaintiff. (Order, June 11, 2008, Docket No. 21.) The Amended Complaint, like the original Complaint, is styled as a “Motion for Judgment and Injunctive Relief.” (Am. Compl., Docket No. 22.)

The Amended Complaint contains two causes of action. The “First Cause of Action” asserts injury as a result of the City of Norfolk’s “conducting and implementation of an illegal at large elections [sic] voting for Mayor which minimizes and dilutes minority voting strength and deprives plaintiffs [sic] of an equal opportunity to vote for a candidate of their choice as guaranteed by the Voting Rights Act and Fourteenth and Fifteenth Amendments to the United States Constitution while acting under color of law.” (Am. Compl. 2, Docket No. 22.) The “Second Cause of Action” in the Amended Complaint asserts injury as a result of the City of Norfolk’s “illegal at large elections of voting [sic] for Mayor [which] violates the mandate in [Collins v. City of Norfolk, 883 F.2d 1232 (4th Cir.1989)], and rights secured by the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, and of the Fourteenth and Fifteenth Amendments to the United States Constitution and laws.” Id

On April 22, 2008, prior to the removal of Roy Perry-Bey as a plaintiff, the Plaintiffs filed a “Motion to Re-Instate Request Motion for Contempt of Court to Issue Show Cause Order.” (Docket No. 7.) The motion was followed by the filing, on May 5, 2008, of a proposed order holding the City of Norfolk in civil contempt. The motion for contempt was considered by Judge Smith and, by Order of June 11, 2008, was denied. In the Order of denial, the Court concluded as follows:

Plaintiffs are within their rights to allege that the current system of electing the mayor violates a law the Voting Rights Act of 1965. They reach too far, however, in asking the court to hold that defendant has disobeyed the order in Collins II. As the court already has explained, the city complied with Collins II seventeen years ago. That case is closed. No basis presently exists for holding the city in civil contempt. See 18 U.S.C. § 401(3) (defining civil contempt, in part, as “[disobedience or resistance to [a court’s] lawful ... order”). The court, therefore, DENIES plaintiffs’ contempt motion.

(Order, June 11, 2008, Docket No. 21 at 2.)

On July 11, 2008, Plaintiff filed a “Motion to Reconsider Plaintiffs Motion for Civil Contempt of Court and Issue Show Cause Order as a Matter of Law.” (Docket No. 27.) On the same day, the Norfolk Branch of the NAACP filed a Motion for Leave to File as Amicus Curiae. (Docket No. 25.) By Order of August 14, 2008, this Court granted the NAACP’s motion to file an amicus curiae brief and invited the NAACP to participate in oral argument. (Docket No. 34.) Oral argument took place on September 17, 2008. During that oral argument, counsel for the NAACP advised the Court that the NAACP intended to file the above-referenced motion to reopen the Collins case and seek an injunction preventing the City of Norfolk from continuing its implementation of the 5-2-1 plan.

II. Discussion

A. Motion to Dismiss

The City of Norfolk filed a motion to dismiss Plaintiff Perry-Bey’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5) and 12(b)(6) on May 14, 2008. (Docket No. 12.) At oral argument on this motion, the City of Norfolk withdrew its motion to dismiss for lack of proper service pursuant to Fed.R.Civ.P. 12(b)(5), and proceeded solely on its Fed. R.Civ.P. 12(b)(6) motion.

The City of Norfolk asserts that the Plaintiffs pro se Amended Complaint fails to state a claim for violations of the Voting Rights Act, the Fourteenth Amendment or the Fifteenth Amendment. Specifically, Defendant asserts that Plaintiff: 1) has stated no “facts” supporting her allegations as to counts I and II; 2) has failed to specifically identify which part of the Voting Rights Act she alleges was violated in counts I and II; 3) has failed to specifically allege the three Cingles preconditions to pursuing a Section 2 Voting Rights Act claim; 4) has failed to allege that she is a member of a protected minority; 5) has failed to allege facts supporting intentional discrimination as required for success on her Fourteenth and Fifteenth Amendment claims; 6) has not separated the three claims (Voting Rights Act, Fourteenth Amendment, Fifteenth Amendment) and stated facts in support of each; and, 7) has failed to allege a viable claim for violation of the Collins judgment because the Collins case is over and there is no continuing jurisdiction by this Court-as recognized by Judge Smith’s June 11, 2008 Order. (Mem. in Supp. of Mot. to Dismiss, Docket No. 13.)

Plaintiff responded with various factual and legal allegations that essentially restate the allegations in her Amended Complaint without addressing the substantive arguments contained in the City of Norfolk’s motion to dismiss. (Pl.’s Resp. to Mot. to Dismiss, Docket No. 26.) The City of Norfolk replied, asserting that: 1) Plaintiffs response provides “no facts whatsoever why the addition of a directly elected mayor violates Section 2 of the Voting Rights Act;” 2) as to count one, the response provides “no facts touching on the three pre-conditions to a Section 2 claim required in” Cingles; 3) the response fails to allege “[h]ow the direct election of the mayor is dilutive of minority voting strength when prior to the charter change, the Mayor was appointed, not elected;” and, 4) as to count two, the response continues to assert that the City of Norfolk has violated the “mandate” in Collins, despite the fact that Judge Smith ruled that the “city complied with Collins II seventeen years ago.” (Rebuttal Br., Docket No. 28 at 2-3.)

The amicus curiae, NAACP, has also filed a brief regarding the motion to dismiss. The NAACP argues that the City of Norfolk “is subject to a permanent injunction enjoining at-large elections to the Norfolk City Council,” resulting from the Collins litigation. (Amicus Curiae Mem., Docket No. 35 at 2.) The NAACP further argues that “[h]aving a mayor elected at-large to the city council reinstates, at least in part, the method of election that was challenged in Collins and found by the Fourth Circuit to be unacceptable.” Id. at 5. Taking a somewhat different position than the Plaintiff, the NAACP argues that, before changing its method of electing the mayor, the City of Norfolk should have filed a motion pursuant to Fed.R.Civ.P. 60(b)(5) seeking relief from the final judgment in the Collins case, and that “[ujnder the circumstances this Court is without the ability to address the effect of adding an at-large seat onto the Council in light of the findings and proscriptions of an earlier court.” Id. at 9. The NAACP concludes that because the City of Norfolk did not ask the Court for relief from the final judgment in Collins, it is “now improper for the City to ask this Court to rule on the validity of an order in another matter,” and further “requests that this Court not determine any issue in the present case that is related to the injunction issued in Collins v. City of Norfolk.” Id.

The City of Norfolk responds to the NAACP brief with many of the same arguments previously noted, but with an additional discussion of the manner in which the pre-clearance procedure in Section 5 of the Voting Rights Act interacts with orders for a remedial election plan under Section 2 of the Voting Rights Act. (Def.’s Reply Br. to Amicus Curiae, Docket No. 30.)

1. standard for consideration of motion to dismiss

Federal Rule of Civil Procedure 12(b)(6) permits a defendant to request dismissal of the claims against him if the plaintiff has filed a claim upon which relief cannot be granted. Fed.R.Civ.P. 12(b)(6). “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)).

“[A] Rule 12(b)(6) motion should only be granted if, after accepting all well-pleaded allegations in the plaintiffs complaint as true and drawing all reasonable inferences from those facts in the plaintiffs favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). Additionally, a complaint must be dismissed if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). As the Bell Atlantic Court explained, “a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.’ ” Id. at 1964-65. Accordingly, in Bell Atlantic, the Court upheld the dismissal of a complaint where the plaintiffs failed to “nudge[ ] their claims across the line from conceivable to plausible.” Id. at 1974.

A motion pursuant to Federal Rule of Civil Procedure 12(b)(6) must be read in conjunction with Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), so as “to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic, 127 S.Ct. at 1964. A court relies primarily on the allegations in the complaint when considering a Rule 12(b)(6) motion, but may also consider documents attached to the complaint and incorporated by reference. Simons v. Montgomery County Police Officers, 762 F.2d 30, 31-32 (4th Cir.1985). Simons documents may include undisputed public documents and copies of case law. Id.; see also Hall v. Commonwealth of Virginia, 276 F.Supp.2d 528, 531 (E.D.Va.2003).

The Court also notes that Plaintiff is representing her own interests and proceeding pro se, having disclaimed any interest in having counsel represent her when questioned by the Court about such possibility at oral argument. While pro se plaintiffs are not relieved of the obligation to provide sufficient factual allegations for a defendant to respond, they are entitled to have their pleadings held to “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citation omitted).

In this case, Plaintiff is therefore required to state her claim so as to give the Defendant fair notice of its nature and the grounds upon which it rests, with enough factual allegations to state a claim to relief that is plausible, not merely speculative.

2. standing to sue

Plaintiff alleges injury as a result of Defendant conducting “at large elections voting for Mayor which minimizes and dilutes minority voting strength and deprives plaintiffs of an equal opportunity to vote for a candidate of their choice as guaranteed by the Voting Rights Act and Fourteenth and Fifteenth Amendments to the United States Constitution while acting under color of law.” (Am. Compl. ¶ 5, Docket No. 22.) Defendant asserts that if Plaintiff is attempting to assert a Section 2 Voting Rights Act claim for vote dilution arising from racial bloc voting, she has filed a claim upon which relief cannot be granted because she does not allege that she is a member of a protected minority.

Plaintiff is attempting to assert constitutional and statutory claims for vote dilution arising from racial bloc voting. By raising Plaintiffs failure to assert membership in a protected class, Defendant questions whether she has been injured as a result of the alleged vote dilution. Stated another way, Defendant challenges Plaintiffs standing to sue. Such a standing challenge may be raised by filing a motion to dismiss pursuant to Federal Rule of Procedure 12(b)(6) for failure to state a claim, as Defendant has done. See Rent Stabilization Ass’n v. Dinkins, 5 F.3d 591, 594 n. 2 (2d Cir.1993).

Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to a court. The Court is aware that Defendant has challenged Plaintiffs standing only with respect to whether she is a member of a protected class for purposes of asserting vote dilution based upon racial bloc voting. Nonetheless, if there are other standing deficiencies, they are not subject to waiver. United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995) (“[I]t is the burden of the ‘party who seeks the exercise of jurisdiction in his favor[,] clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.’ ”). A district court is therefore required to address all deficiencies affecting standing, even if they are not raised by the parties, because federal courts are under an obligation to examine their own jurisdiction- and standing is among the most important components of jurisdiction. Id. Therefore, the Court must determine whether there are any standing issues other than the one (membership in a protected class) asserted by Defendant. However, before doing so, it is important to understand the requirements of standing.

The Court is essentially concerned with two different components of standing.

In analyzing the standing requirements, the Supreme Court has formulated a two-component framework, consisting of “irreducible” constitutional requirements and sub-constitutional prudential, that is, judge made, considerations. The two branches of the standing requirement differ both in analytical and consequential terms. Constitutional standing is grounded in Article Ill’s provision that limits the jurisdiction of federal courts to those litigants best suited to assert a particular claim. In contrast, prudential limitations on standing are judge-made and designed to limit access to the federal courts to those litigants best suited to assert a particular claim. Thus, because prudential limits are not dictated by the Constitution, they are subject to reversal by Congress. Standing limits derived from Article III, on the other hand, of course are not subject to congressional repeal.

15 James Wm. Moore et al., Moore’s Federal Practice § 101.22 (3d ed. 2008) (internal citations omitted); see Frank Krasner Enters. v. Montgomery County, 401 F.3d 230, 234 (4th Cir.2005).

Constitutional standing, as noted above, is an issue of subject matter jurisdiction because it goes to the existence of a “case or controversy,” which is a prerequisite to Article III jurisdiction described in the United States Constitution. See Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates, Co., 436 F.3d 82, 84-85 (2d Cir.2006). In Lujan v. Defenders of Wildlife, the Supreme Court noted that Article III constitutional standing includes three elements:

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of____ Third, it must be likely, as opposed to merely speculative, that the injury will be addressed by a favorable decision.

504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (footnote, citations, and internal quotation marks omitted); Burke v. City of Charleston, 139 F.3d 401, 405 (4th Cir.1998). The Supreme Court has repeatedly refused to recognize generalized grievances against alleged illegal government conduct as sufficient to establish federal jurisdiction. Lance v. Coffman, 549 U.S. 437, 442, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007); Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); see Winstead v. Stodola, No. 4:07cv682WRW, 2007 WL 2710096, at *1, 2007 U.S. Dist. LEXIS 68049, at *4 (E.D.Ark. Sept. 13, 2007). Furthermore, the burden of proof is on the party invoking a district court’s jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Therefore, plaintiffs are required to allege facts demonstrating that they are the proper parties to request judicial resolution of a dispute before a court. Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

The Court may also need to address prudential standing considerations. However, “[w]here Congress has expressly conferred standing by statute, prudential standing concerns are superseded.” Gen. Instrument Corp. v. Nu-Tek Elecs. & Mfg., 197 F.3d 83, 88 (3d Cir.1999) (citing Warth, 422 U.S. at 501, 95 S.Ct. 2197). Therefore, as a matter of statutory interpretation, Congress is presumed to have incorporated background prudential considerations, unless the statute expressly negates them. Conte Bros. Auto., Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 224 (3d Cir.1998).

The Court must review each of Plaintiffs claims to determine whether she has standing to assert the claim. In her Amended Complaint, Plaintiff attempted to assert statutory claims based on the Voting Rights Act and 42 U.S.C. § 1983. If the relevant statutes confer standing expressly, then only constitutional standing concerns remain because prudential standing considerations are superceded. For the reasons discussed in detail later in this opinion, the only viable statutory claim that Plaintiff has made is based upon the Voting Rights Act, which is examined below.

The Voting Rights Act creates a private cause of action permitting plaintiffs to file suit if they are an “aggrieved person.” 42 U.S.C. § 1973a. Because a “party who fulfills] the injury-in-fact prong of the constitutional standing requirements would also be a ‘person aggrieved’ and would therefore fulfill the plain language of the statute,” this Court need only examine the requirements of constitutional standing with respect to the Voting Rights Act claim. Gen. Instrument Corp., 197 F.3d at 88 (construing “any person aggrieved” in standing context); see Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 328-29, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (Congress’ use of “any person aggrieved” in the Census Act “eliminated any prudential concerns in [that] ease”); Sioux Falls Cable Television v. South Dakota, 838 F.2d 249, 252 (8th Cir.1988) (phrase “any person aggrieved” is “ordinarily sufficient to confer standing on any party satisfying the constitutional requirements”). In addition, if Plaintiff satisfies the constitutional standing requirements for a vote dilution claim under the Voting Rights Act, she also satisfies the constitutional standing requirements for a vote dilution claim under the Fourteenth and Fifteenth Amendments. Parker v. Ohio, 263 F.Supp.2d 1100, 1107 (S.D.Ohio 2003), aff'd, 540 U.S. 1013, 124 S.Ct. 574, 157 L.Ed.2d 426 (2003) (noting that same standing rules applicable to Fourteenth Amendment election case should apply to claims under Section 2 of Voting Rights Act “which was enacted to enforce the guarantees of the Fourteenth and Fifteenth Amendments”); see Casaburro v. Volusia County Corp., No. 6:07-cv-56-ORL-KRS, 2008 WL 1771774, at *3, 2008 U.S. Dist. LEXIS 31070, at *7 (M.D.Fla. Apr. 15, 2008) (finding no standing under Voting Rights Act or Fifteenth Amendment because of plaintiffs failure to allege they were personally discriminated against based on “race, color or a previous condition of servitude”); Gonzales v. City of Aurora, No. 02-C-8346, 2006 WL 681048, at *2 n. 2, 2006 U.S. Dist. LEXIS 10677, at *5 n. 2 (N.D.Ill. Mar. 13, 2006) (assuming that test for standing under Voting Rights Act is same as for Fourteenth Amendment). Therefore, the Court will only directly address constitutional standing under the Voting Rights Act.

a. failure to allege facts supporting vote dilution

The Voting Rights Act was originally understood to confer standing in express terms only upon the Attorney General of the United States. See Conway Sch. Dist. v. Wilhoit, 854 F.Supp. 1430, 1432 (E.D.Ark.1994) (noting express language conferring standing in original statute). However, in Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), the Supreme Court held that private litigants attempting to protect their voting rights were also proper parties and found that there was standing for voters “seeking judicial enforcement of the prohibition” against infringements upon the right to vote based on race. Id. at 557, 89 S.Ct. 817. Congress then amended the Voting Rights Act to explicitly confer standing on “aggrieved persons” to enforce their voting rights. 42 U.S.C. § 1973a.

Standing to bring suit under the Voting Rights Act is now limited to the Attorney General and “aggrieved persons.” Roberts v. Wamser, 883 F.2d 617, 624 (8th Cir.1989). “[Aggrieved persons” are those whose “voting rights have been denied or impaired.” Id. The original purpose of the Voting Rights Act was to protect minority voters. Roberts, 883 F.2d at 621 (“The purpose of the Voting Rights Act is to protect minority voters.... ”); White-Battle v. Democratic Party of Virginia, 323 F.Supp.2d 696, 703 (E.D.Va.2004) (“the purpose of the Voting Rights Act is to protect minority voters.... ”); Newman v. Voinovich, 789 F.Supp. 1410, 1415-16 (S.D.Ohio 1992) (white plaintiff had no standing to represent rights of minority population in Voting Rights Act claim). Furthermore, the language in Section 2 of the Voting Rights Act bears this out, prohibiting practices or procedures that result in a denial or abridgement of the right to vote “on account of race or color.” 42 U.S.C. § 1973(a).

Plaintiff seeks to assert a vote dilution claim based upon racial bloc voting arising from an alleged at-large election method. In order to do so, she must have suffered an “injury in fact.” Gingles, 478 U.S. at 74, 106 S.Ct. 2752 (when addressing vote dilution claim based upon at-large voting, Court summarized holding by saying “we would hold that the legal concept of racially polarized voting, as it relates to claims of vote dilution, refers only to the exisfence of a correlation between the race of voters and the selection of certain candidates”). However, as Defendant has pointed out, while Plaintiff has alleged that the new method of electing the mayor “dilutes minority voting strength,” in her effort to allege an actual and concrete invasion of a protected interest, she has not alleged her race or that she is a member of a minority whose voting strength was diluted. (Am. Compl. ¶ 5, Docket No. 22.) Because the explicit language of the Voting Rights Act requires that alleged abridgement arise on account of race or color, and because the Supreme Court has read the Voting Rights Act to protect minority rights in vote dilution claims, Plaintiffs Amended Complaint is constitutionally and statutorily deficient for failure to allege an actual and concrete invasion of a protected interest. It fails to allege that she is a member of a minority group and that her right to vote has been abridged on account of her race or color, thus suffering a constitutional injury in fact.

b. failure to allege status as registered voter

As the Court explained above, any other standing deficiencies must be addressed, even if not raised by the Defendant. While the Amended Complaint states that Plaintiff is a “resident of the City of Norfolk and of the Commonwealth of Virginia and a citizen of the United States of America,” it contains no allegation that Plaintiff is a registered voter in the City of Norfolk. Id. at ¶ 3. Logic dictates that if the Voting Rights Act was intended to, among other things, provide “stringent new remedies against those practices which have most frequently denied citizens the right to vote on the basis of their race,” Allen, 393 U.S. at 548, 89 S.Ct. 817, then requiring citizens to allege they are a registered voter might close the courthouse doors to them if the basis of their claim was an unjustified refusal to allow them to register. In other words, such persons could suffer an injury in fact even if they were unregistered. But here, plaintiff does not allege such a voter registration violation. She alleges a dilution of minority voting strength as a result of the adoption and use of the 5-2-1 plan, and inferentially, dilution of her own vote. Therefore, because Plaintiff has failed to allege that she is a registered voter, she cannot have suffered a constitutional injury in fact by having her vote diluted. Having failed to allege her status as a registered voter, Plaintiff has not alleged facts that show she has standing to make her claim. Williams v. Bolivar County, No. 2:04cv282, 2007 WL 313840, at *3, 2007 U.S. Dist. LEXIS 6715, at *8-9 (N.D.Miss. Jan. 29, 2007) (no standing where plaintiff not a registered voter); Chen v. City of Houston, 9 F.Supp.2d 745, 750 (S.D.Tex.1998) (no standing where plaintiff not registered to vote); Fairley v. Forrest County, 814 F.Supp. 1327, 1329 (S.D.Miss.1993) (plaintiff not registered voter and could not “complain of election results from an election in which she was not qualified to participate because of her own inaction”).

c. ward residence

The final area of inquiry for standing purposes involves the ward in which Plaintiff resides. Plaintiff only states that she is a resident of Norfolk. She does not indicate in which ward she resides, or by which members of City Council she is represented. Plaintiffs basic allegation regarding her residency in the City of Norfolk may be sufficient for some purposes and not for others.

Plaintiffs Amended Complaint can potentially be read as an allegation that the addition of the mayor to City Council under the 5-2-1 plan dilutes minority voting strength throughout the City of Norfolk. To that extent, it might be said that all minority voters in Norfolk have standing to assert an injury. However, the Amended Complaint can also be interpreted to the effect that the addition of the mayor to City Council means that there are now three minority council members out of eight, whereas before the change to the 5-2-1 plan, there were three minority council members out of seven, thereby diluting the voting strength of the minority members on City Council and their constituents. This is the interpretation suggested by amicus curiae NAACP at oral argument. Such a claim would require Plaintiff to allege that she was a registered voter in a minority-represented ward, and that she suffered injury when her elected representative’s power was reduced by the addition of the new popularly-elected mayor to City Council. Winstead, 2007 WL 2710096, at *2-3, 2007 U.S. Dist. LEXIS 68049, at *7-8 (allegation that new powers of mayor increased his power, and the power of at-large representatives, to detriment of minority-ward representatives, required assertion that plaintiff voted in a minority ward); see Hays, 515 U.S. at 745, 115 S.Ct. 2431 (where plaintiff does not allege she lives in a district suffering representational harm, she does not suffer a racial classification harm for standing purposes). Plaintiff has failed to make such allegations regarding her ward residence, and she has therefore failed to assert a constitutional injury in fact because she did not assert an actual and concrete invasion of a legally protected interest.

Affording this pro se Plaintiffs Amended Complaint the careful reading to which it is entitled, the Court finds that Plaintiff has failed to allege sufficient facts to show that she has standing to assert the claims in her Amended Complaint. Accordingly, Plaintiffs Amended Complaint is DISMISSED without prejudice. Because this dismissal is without prejudice to Plaintiffs right to amend, the Court will address the remaining arguments.

3. Constitutional and statutory claims

Several amendments in the United States Constitution restrict the power of the states to place qualifications on the exercise of the right to vote. Among these protections are the Equal Protection Clause of the Fourteenth Amendment, and the Fifteenth Amendment’s denial to federal and state governments of power to deprive a citizen of the right to vote on account of race, color, or previous condition of servitude. See Joseph G. Cook, Civil Rights Actions § 3-18, at 18.01 (2008) (containing thorough discussion of such protections).

While the Fourteenth and Fifteenth Amendments are self-executing, each of these amendments authorizes Congress to enforce their substantive proscriptions “by appropriate legislation.” Id. Congress has enacted legislation to protect these rights, including the Enforcement Act of 1870, 16 Stat. 140, the Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634, the Civil Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86, and the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. Id. Due to a lack of progress resulting from these statutes, Congress enacted the Voting Rights Act of 1965 pursuant to its authority under the Fourteenth and Fifteenth Amendments. Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-l (1994)). Id.

With this constitutional and statutory history in mind, and after careful review of Plaintiffs Amended Complaint, the Court construes the Amended Complaint as an effort to allege the following causes of action: 1) a violation of the Fourteenth Amendment, 2) a violation of the Fifteenth Amendment, 3) a violation of the Voting Rights Act of 1965, and 4) a violation of 42 U.S.C. § 1983. Plaintiffs effort to allege each of these claims is addressed below.

a. Fourteenth Amendment

The Court construes Plaintiffs allegation of a Fourteenth Amendment violation as falling under the Equal Protection Clause due to Plaintiffs statement in paragraph five that she has been deprived of “an equal opportunity to vote for a candidate of [her] choice as guaranteed by the [... ] fourteenth [... ] amendment ] while acting under color of state law.” (Am. Compl. ¶ 5, Docket No. 22.)

The Equal Protection Clause of the Fourteenth Amendment provides that “no State shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. In the context of elections, it is well established that the protection of this amendment applies to state and local elections. Avery v. Midland County, 390 U.S. 474, 481, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968) (because state governments exercise extensive power over their units of local government, “[w]e therefore see little difference, in terms of the application of the Equal Protection Clause and of the principles of Reynolds v. Sims, [377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)], between the exercise of state power through legislatures and its exercise by elected officials in the cities, towns, and counties”). In addition to the clear textual provisions in the Constitution that protect the right to vote, the Supreme Court has repeatedly declared that the right to vote is a fundamental right protected under the Equal Protection Clause, even though the clause itself does not specifically mention voting. Kramer v. Union Free Sch. Dist., 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966).

Recognizing the importance of the right to vote, the Supreme Court has explained that “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds, 377 U.S. at 555, 84 S.Ct. 1362. “[A]ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government.” Kramer, 395 U.S. at 626, 89 S.Ct. 1886. Furthermore, the right to vote is a “fundamental political right” because it is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Laws infringing on the right to vote must, therefore, meet strict constitutional scrutiny. Harper, 383 U.S. at 667, 86 S.Ct. 1079. As the Supreme Court explained in Harper, “[especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Id.

Employing such careful scrutiny, the Equal Protection Clause forbids certain forms of classification that cannot be justified by compelling or important governmental objectives. Black v. McGuffage, 209 F.Supp.2d 889, 897 (N.D.Ill.2002). The Supreme Court has constructed a system of varying levels of scrutiny depending on the classification involved. Id. (reviewing the various classifications). Therefore, the first question that must be asked when evaluating an equal protection claim, is whether there is a classification. Id.

There are two basic types of Equal Protection classifications. The first type of classification occurs when the classification exists on the face of the law at issue. For example, a law that only people of a specific race can operate a motor vehicle is obviously a racial classification existing on the face of the law. The second type of classification occurs when a law is neutral on its face, but has a discriminatory impact or effect from the administration of that law. Erwin Chemerinsky, Constitutional Law, Principle and Policies § 9.1.2 (2d ed. 2002). Demonstrating such a race classification in the constitutional Equal Protection arena re quires proof that there is a discriminatory purpose behind the law. Mobile v. Bolden, 446 U.S. 55, 66, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Therefore, laws neutral on their face, but which happen to have a disparate impact on certain groups, do not necessarily violate the Equal Protection Clause absent such discriminatory purpose. Black, 209 F.Supp.2d at 897 (citing Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)).

Accordingly, to make out a Fourteenth Amendment Equal Protection claim against voting laws that are neutral on their face, there must be an allegation that the challenged practice was conceived or operated as a purposeful device to further racial discrimination. As the Supreme Court noted in Mobile, 446 U.S. at 66, 100 S.Ct. 1490: Despite repeated constitutional attacks upon multimember legislative districts, the court has consistently held that they are not unconstitutional per se, e.g., White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314; Whitcomb v. Chavis [403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363], supra; Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771; Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376; Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401. We have recognized, however, that such legislative apportionments could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. See White v. Regester, supra; Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To prove such a purpose it is not enough to show that the group allegedly discriminated against has not elected representatives in proportion to its numbers. White v. Regester, supra, at 765-766, 93 S.Ct. 2332; Whitcomb v. Chavis, 403 U.S. at 149-150, 91 S.Ct. 1858. A plaintiff must prove that the disputed plan was “conceived or operated as [a] purposeful [device] to further racial ... discrimination,” id., at 149, 91 S.Ct. 1858.

This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870. The Court explicitly indicated in Washington v. Davis that this principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination.

Mobile, 446 U.S. at 66-67, 100 S.Ct. 1490; Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481-82, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (“[s]ince 1980, a plaintiff bringing a constitutional vote dilution challenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the state or political subdivision acted with a discriminatory purpose”); Rogers v. Lodge, 458 U.S. 613, 617-19, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) (“in order for the Equal Protection Clause to be violated, ‘the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose’ ”). The required discriminatory intent need not be proved by direct evidence, it “may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” Rogers, 458 U.S. at 618, 102 S.Ct. 3272.

With those principles in mind, the Court must examine Plaintiffs allegations. Because the 5-2-1 plan clearly contains no classification on its face, Plaintiff must, if at all, allege an adverse impact or effect from the administration of the facially-neutral plan. Plaintiff alleges that she has been deprived of “an equal opportunity to vote for a candidate of [her] choice as guaranteed by the [... ] fourteenth [... ] amendment [ ] while acting under color of state law.” (Am. Compl. ¶ 5, Docket No. 22.) This language, when combined with Plaintiffs allegation that the election of the mayor “minimizes and dilutes minority voting strength,” is enough to put Defendant on notice that she is alleging that the 5-2-1 plan has a discriminatory impact. But, this language is devoid of any allegation that the Defendants intended to discriminate against minority voters. Accordingly, because of such deficiency, even if Plaintiff had standing, Plaintiffs Fourteenth Amendment claim would be DISMISSED without prejudice.

b. Fifteenth Amendment

The Court further construes Plaintiffs Amended Complaint as an allegation of a Fifteenth Amendment violation because of the statement in her “First Cause of Action” that she was injured as a result of the City of Norfolk’s “implementation of an illegal at large elections voting for May- or which minimizes and dilutes minority voting strength and deprives plaintiffs [sic] of an equal opportunity to vote for a candidate of their choice as guaranteed by the ... Fifteenth Amendment ] to the United States Constitution.” (Am. Compl., Docket No. 22, at 2.)

Section 1 of the Fifteenth Amendment provides that: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV § 1. The Supreme Court addressed the Fifteenth Amendment’s application to vote dilution cases in Mobile, 446 U.S. at 61-62, 100 S.Ct. 1490. In Mobile, the Supreme Court noted that the Fifteenth Amendment does not confer the right to vote upon any one, but it has “invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” Id. The Supreme Court further noted that “action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose.” Id. The Court went on to state that the amendment “prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote ‘on account of race, color, or previous condition of servitude.’ ” Id. at 65, 100 S.Ct. 1490. Therefore, it is clear that proof of racially motivated discrimination is a necessary element in a Fifteenth Amendment vote dilution claim.

As noted above, the language of Plaintiffs Amended Complaint is devoid of any allegation that the City of Norfolk intended to discriminate against minority voters. Accordingly, even if Plaintiff had standing, Plaintiffs Fifteenth Amendment claim would be DISMISSED without prejudice.

c. Voting Rights Act of 1965

Despite the protections of the Fourteenth and Fifteenth Amendments, and the voting rights provisions of the 1957, 1960, and 1964 Civil Rights Acts, initially “little progress was made towards enfranchising African-American voters, particularly in the [southern United States].” Cook, supra, § 3-18 at 18.02 (citing H.R. Rep. No. 439, 89th Cong., 1st Sess. 9-11 reprinted in 1965 U.S.C.C.A.N. 2440-42). Because of this lack of progress, Congress enacted the Voting Rights Act of 1965 pursuant to its authority under the Fourteenth and Fifteenth Amendments to enact “appropriate legislation” enforcing such amendments. Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-l (1994)). The most significant provisions of the original Act are aimed at those states and political subdivisions where Congress concluded that literacy tests and other voter qualification devices were being used to discriminate on the basis of race. Id.

The 1965 Act has been amended several times, including in 1982, when Congress substantially amended Section 2 in response to the Supreme Court’s opinion in Mobile. The original version of Section 2 provided that:

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

Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437. In Mobile, the plaintiffs asserted constitutional and Section 2 challenges to a multi-member election system on the ground that it diluted the voting strength of African-American voters. Mobile, 446 U.S. at 58, 100 S.Ct. 1490. The Supreme Court held that Section 2, like the Fourteenth and Fifteenth Amendments, is violated only if a multi-member district was conceived or operated as a purposeful device to further racial discrimination. Id. The Court said that a racially discriminatory impact or effect was not enough to establish a constitutional violation or a violation of Section 2 of the Voting Rights Act of 1965. Id.

The 1982 amendment to Section 2 effectively overturned the Supreme Court’s construction of the Voting Rights Act in Mobile as requiring proof of intentional discrimination. The 1982 amendment was for the express purpose of making clear that the discriminatory result of the challenged practice-without explicit proof of any kind of discriminatory purpose-is sufficient to establish a violation of the section. See Sen. Rep. No. 417, 97th Cong., 2d Sess. 27-30, reprinted in 1982 U.S.C.C.A.N. 177, 204-08. However, Congress also specifically stated that, by enacting the amendment, it did not intend to establish any right to proportional representation. As revised, Section 2 provides that:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or 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 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 clas