Nixon v. Kent County

76 F.3d 1381, 1996 WL 38985
Court of Appeals for the Sixth Circuit·Decided February 2, 1996·No. No. 93-1456·Published·Cited by 46 cases

Opinions

SUHRHEINRICH, J., delivered the opinion of the court, in which MERRITT, C.J., KENNEDY, MILBURN, NELSON, RYAN, BOGGS, NORRIS, SILER, and BATCHELDER, JJ., joined. KEITH, J. (pp. 1393-1403), delivered a separate dissenting opinion, in which JONES and DAUGHTREY, JJ., joined and in which MARTIN and MOORE, JJ., joined in Parts I, II, and IILA MARTIN (p. 1403), JONES (pp. 1403-04), DAUGHTREY (p. 1404), and MOORE (p. 1404), JJ., delivered separate dissenting opinions, with Judge MARTIN also joining in Judge JONES’ dissent.

SUHRHEINRICH, Circuit Judge.

I. INTRODUCTION

Section 2 of the Voting Rights Act, as amended, prohibits any voting practice or procedure 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 [language].” 42 U.S.C. § 1973(a)(1988). Members of a minority group may establish a violation of this provision if they can show that as a result of a challenged practice or procedure, the political [1383] 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 ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Id. § 1973(b). The question before the en banc court in this interlocutory appeal is whether members of two protected minority groups, each of insufficient numbers individually to make a prima facie case of voting dilution under the Voting Rights Act, may collectively seek § 2 protection by forming a “coalition” of minorities.

Plaintiffs, three African Americans and three persons of Hispanic national origin, brought a class action suit against defendant Kent County and the individual members of the Kent County Apportionment Committee alleging that the redistricting plan the committee proposed following the 1990 census violated § 2 of the Voting Rights Act by diluting minority influence. The district court denied defendants’ motion to dismiss for failure to state a claim, but granted their motion to certify the question of whether two protected minority groups may aggregate to pursue a § 2 vote dilution cause of action.

A divided panel of this court held that protected minorities máy join together and be treated as a single “protected class” under § 2. The majority reasoned that the ambiguity of the term “class of citizens,” coupled with the absence of any statutory language or legislative history to the contrary meant that classes of minorities from different ethnic backgrounds may aggregate to meet § 2 requirements. It also held that the context of the 1982 amendments supported its conclusion that the broad term “class of citizens” includes minority coalitions. The dissent stated that because the text of the Act does not recognize such suits, and nothing in the legislative history reflected even the possibility of such suits, the plaintiffs’ action was precluded.

The Supreme Court explicitly avoided resolving the issue before us in Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), a case in which the Court reversed a district court finding that a Minnesota redistricting plan violated the Voting Rights Act. The Growe suit was brought by a group of plaintiffs which included African Americans and Native Americans. The Court assumed without deciding that a coalition suit was permissible, and dismissed because the Gingles criteria1 could not be satisfied. Id. 507 U.S. at 41, 113 S.Ct. at 1085.2 Only the Fifth Circuit has expressly held that coalition suits are permitted, provided that the plaintiffs can demonstrate the pres ence of the three Gingles factors. See Campos v. City of Baytown, 840 F.2d 1240 (5th Cir.), reh’g denied, 849 F.2d 943 (1988), cert. denied, 492 U.S. 905, 109 S.Ct. 3213, 106 L.Ed.2d 564 (1989); see also League of United Latin Am. Citizens v. Midland Indep. Sch. Dist., 812 F.2d 1494 (5th Cir.)(assuming African Americans and Mexican Americans could aggregate to pursue vote dilution claim), vacated and rev’d on state law grounds, 829 F.2d 546 (5th Cir.1987) (en bane)(hereinafter LULAC). All of the other circuits addressing minority coalition claims under § 2 have simply assumed they are permissible as long as the Gingles test is satisfied. See, e.g., Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271, 275 (2d Cir.), cert. granted and judgment vacated on different grounds, — U.S. -, 115 S.Ct. 35, 129 L.Ed.2d 931 (1994); Badillo v. City of Stockton, 956 F.2d 884, 891 (9th Cir.1992); Concerned Citizens of Hardee County v. Hardee County Bd. of Comm’rs, 906 F.2d 524, 526 (11th Cir.1990)(citing Campos and LULAC); Butts v. City of New York, 779 F.2d 141, 149 n. 5 (2d Cir.1985)(employing analysis from the Gingles district court opinion), cert. denied, 478 U.S. 1021, 106 S.Ct. 3335, 92 L.Ed.2d 740 (1986).

[1384] Despite the tacit recognition of coalition suits by these courts, the legitimacy of such claims under § 2 has not gone unchallenged. In Campos, the defendants’ petition for rehearing by the Fifth Circuit en banc was denied over the vigorous dissent of Judge Higginbotham, who sought to have the entire court consider the issue. See Campos v. City of Baytown, 849 F.2d 943, 945 (5th Cir.1988) (hereinafter Campos Reh’g) (Higginbotham, J., dissenting from denial of reh’g en banc); LULAC, 812 F.2d at 1503 (Higginbotham, J., dissenting). See also League of United Latin Am. Citizens v. Clements, 999 F.2d 831, 894 & n. 2 (5th Cir.1993) (en banc) (Jones, J., concurring) (urging en banc court to “lay to rest minority coalition theory of vote dilution claims”; endorsing Judge Higginbotham’s dissents in Campos Reh’g and LULAC), cert. denied, — U.S. -, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994).

II. FACTS3

Kent County, Michigan, is governed by a Board of Commissioners, and each member is elected from a single-member district.4 The Board has consisted of twenty-one members since its inception in 1968. In accordance with Michigan law, which requires redistricting after every United States census count, see Mich. Comp. Laws § 46.401 (1979), the five-member Kent County Apportionment Commission5 met upon publication of the 1990 census.

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Nixon v. Kent County, 76 F.3d 1381, 1996 WL 38985 (6th Cir. 1996).

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