Nixon v. Kent County Supplemental Brief on Rehearing En Banc of Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DEBRA NIXON; JOHNNY GRIFFIN, SR.; BILL BROWN;
JUAN JIMENEZ; SARA RAMIREZ; and MARSHALL CHAVEZ, 
on behalf of themselves and all others similarly situated,

Plaintiffs-Appellees

v.

KENT COUNTY, THOMAS SHEARER, MAURICE DEJONGE, 
JOHN BOEREMA and WILLIAM A. FORSYTH,

Defendants-Appellants.

No. 93-1456

On Appeal From The United States District Court 
For The Western District of Michigan

SUPPLEMENTAL BRIEF ON REHEARING EN BANC 
OF AMICUS CURIAE NAACP 

LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

ELAINE R. JONES 
Director-Counsel 

THEODORE M. SHAW 
JACQUELINE A. BERRIEN 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th FI. 
New York, NY 10013 
(212) 219-1900



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DEBRA NIXON; JOHNNY GRIFFIN, SR.;
BILL BROWN; JUAN JIMENEZ; SARA 
RAMIREZ; and MARSHALL CHAVEZ, on behalf 
of themselves and all others similarly situated,

Plaintiffs,

vs.

KENT COUNTY, THOMAS SHEARER, MAURICE 
DEJONGE, JOHN BOEREMA and WILLIAM A. 
FORSYTH,

Defendants.

No. 93-1456

DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

Pursuant to Sixth Circuit Rule 25, the Amicus Curiae NAACP Legal Defense and 
Educational Fund, Inc. makes the following disclosure:

1. Amicus Curiae NAACP Legal Defense Fund is not a subsidiary or affiliate of 
a publicly-owned corporation.

2. There is not a publicly-owned corporation, not a party to this appeal, that has 
a financial interest in the outcome of this matter.

10,
Respectfully submitted,

J/0CQUELINE A. BERRIEN 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013



TABLE OF CONTENTS

STATEMENT OF APPELLATE JURISDICTION ........................................................  1

STATEMENT IN SUPPORT OF ORAL ARGUMENT ..............................................  1

STATEMENT OF THE ISSU E ............................................................................................  2

STATEMENT OF THE F A C T S .......................................................................................... 2

SUMMARY OF A RG U M EN T............................................................................................  3

I. There Is No Basis For Departing From The Consistent Authority
Supporting The Maintenance of Section 2 Coalition Claims......................  4

II. Section 2 of the Voting Rights Act Supports Minority Coalition
Claims..................................................................................................................  9

III. The Recognition of Section 2 Claims On Behalf of Minority 
Coalitions Does Not Harm or Impair Any Legitimate Interests of
Third Parties....................................................................................................  12

CONCLUSION ....................................................................................................................  16

i



TABLE OF AUTHORITIES

CASES

Allen v. State Board of Elections,
393 U.S. 544 (1969) ................................................................................................. 10

Bridgeport Coalition v. City of Bridgeport,
26 F.3d 271 (2d Cir. 1994).................................................................................. passim

Campos v. City of Baytown,
840 F.2d 1240 (5th Cir. 1988), reh’g denied,
849 F.2d 943 (5th Cir. 1988), cert, denied, 492
U.S. 905 (1989) ..........................................................................................................  6

Chisom v. Edwards,
839 F.2d 1056 (5th Cir. 1988),
cert, denied, 488 U.S. 955 (1988)........................................................................  9, 11

Chisom v. Roemer,
501 U .S .___, 115 L. Ed. 2d 348, 111 S. Ct.
2354 (1991) ...............................................................................................................  10

Conley v. Gibson,
355 U.S. 41 (1957) ...................................................................................................  15

DeGrandy v. Johnson,
512 U .S .___, 129 L. Ed. 2d 775 (1994).................................................................. 12

Nixon v. Kent County,
34 F.2d 369 (6th Cir. 1994), ..................................................................................... 3

Ortiz v. City of Philadelphia,
824 F. Supp. 514 (E.D. Pa. 1993)......................................................................... 7, 8

Ortiz v. City of Philadelphia,
824 F. Supp. 544 (E.D. Pa. 1993).............................................................................  4

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ...................................................................................................  8

South Carolina v. Katzenbach,
383 U.S. 301, 15 L. Ed. 2d 769,
86 S. Ct. 803 (1966) ................................................................................................. 10

li



Thornburg v. Gingles,
478 U.S. 30 (1986) .............................................................................................. passim

United States v. Barry,
888 F.2d 1092 (6th Cir. 1989) ................................................................................ 10

STATUTES

H. Rep. No. 94-196, 94th Cong., 1st Sess.,
reprinted in 1975 U.S. Code Cong and Admin. News............................................ 11

S. Rep. No. 94-295, 97th Cong., 1st Sess.,
reprinted in 1975 U.S. Code Cong and Admin. News..........................................  11

S. Rep. No. 97-417, 97th Cong., 2d Sess., 
reprinted in 1975 U.S. Code Cong
and Admin. News............................................................................................ 11, 10, 11

42 U.S.C. § 1973 ..........................................................................................................  3, 9, 11

42 U.S.C. § 1973a.................................................................................................................. 11

MISCELLANEOUS

Stephen Breyer, "On The Uses of Legislative History 
In Interpreting Statutes," 65 S. Cal. L. Rev.
845 (1992) .................................................................................................................. 10

in



STATEMENT OF SUBJECT MATTER JURISDICTION

Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. hereby 

incorporate by reference the Statement of Subject Matter Jurisdiction contained in the 

Supplemental Brief of Plaintiff-Appellees Nixon, et al.

STATEMENT OF APPELLATE JURISDICTION

Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. incorporates 

by reference the Statement of Appellate Jurisdiction contained in its August 11, 1993 

Brief of Amicus Curiae.

STATEMENT IN SUPPORT OF ORAL ARGUMENT

This appeal presents significant questions concerning the construction of vitally 

important remedial legislation, Section 2 of the Voting Rights Act of 1965. Oral 

argument would permit a thorough presentation of the issues in this Court, and the 

NAACP Legal Defense and Educational Fund, Inc., respectfully requests the Court to 

allow oral argument.

1



STATEMENT OF THE ISSUE

Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. hereby 

incorporates by reference the Statement of the Issue contained in its August 11, 1993 

Brief of Amicus Curiae

STATEMENT OF THE FACTS

Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. hereby 

incorporates by reference the Statement of the Case and Statement of Facts contained 

in its August 11, 1993 Brief of Amicus Curiae and the procedural history set forth in the 

Brief of Plaintiffs-Appellees Barbara Nixon, et al.

2



SUMMARY OF ARGUM ENT

Amicus curiae NAACP Legal Defense and Educational Fund, Inc. previously filed 

an extensive brief addressing the central question presented in this appeal, that is 

whether a coalition of African American and Hispanic voters may state a claim under 

Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, where they 

alleged that the redistricting plan adopted for use in Kent County, Michigan County 

Commission elections affords them less opportunity than white voters to participate in 

the political process and elect candidates of their choice to the Kent County 

Commission. See generally Brief of Amicus Curiae NAACP Legal Defense and 

Educational Fund, Inc. (August 11, 1993).1 Circuit Judge Damon Keith, writing for the 

panel majority, concluded that "as a matter of law . . . minority coalition claims are 

permissible under the Voting Rights Act." Nixon v. Kent County, 34 F.2d 369, 378 (6th 

Cir. 1994), judgment vacated and rehearing en banc ordered, November 21, 1994.

Amicus files this Supplemental Brief in support of plaintiffss-appellees (hereafter 

"Appellees") Debra Nixon, et al., to address the following arguments advanced by the 

defendants-appellants (hereafter "Appellants") and by Judge Suhreinrich in his dissent 

from the recently vacated panel opinion as grounds for the dismissal of appellees’ *

'As directed by the Clerk of Court in correspondence accompanying this Court’s Order 
of November 21, 1994 vacating the decision of the panel and granting defendants- 
appellants’ petition for rehearing en banc, amicus has provided the Court with twenty-five 
copies of the previously filed Brief of Amicus Cuiiae NAACP Legal Defense and 
Educational Fund, Inc.

3



Section 2 claims:2 (1) whether there is any basis for departing from the consistent 

precedents supporting the recognition of Section 2 "coalition" claims; (2) whether claims 

under Section 2 of the Voting Rights Act may be presented only on behalf of a single 

protected class {see Section II.A., p.4, Appellants’ Supplemental Brief) and; (3) whether 

allowing a Section 2 claim on behalf of a coalition of African-American and Hispanic 

citizens provides safeguards for the rights of third parties {see Section III, pp. 8-11, 

Appellants’ Supplemental Brief).

I. There Is No Basis For Departing From The Consistent Authority Supporting
The Maintenance of Section 2 Coalition Claims.

The district court and the appeals panel both noted that every court that has 

considered the question presented here has expressly or implicitly held that groups 

protected by the Voting Rights Act (African-Americans and Hispanics here) may 

coalesce to assert claims that an electoral practice or structure violates Section 2 of the 

Act. 34 F.3d at 375; see also Brief of Amicus Curiae NAACP Legal Defense and 

Educational Fund, Inc. ("LDF Amicus Brief') at 10-11; Supplemental Brief of Plaintiffs- 

Appellees at 4. Amicus notes that recent decisions of two additional federal courts, 

Bridgeport Coalition v. City of Bridgeport, 26 F.3d 271 (2d Cir. 1994) and Ortiz v. City of 

Philadelphia, 824 F.Supp. 544 (E.D. Pa. 1993), offer further support for this holding of 

the district court and the appeals panel.

In Bridgeport Coalition v. City of Bridgeport, African-American and Hispanic 

registered voters and residents of Bridgeport, Connecticut filed a Section 2 challenge to l

lAmicus incorporates by reference the arguments presented in its previous amicus brief. 
See Brief of Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. at 5-37.

4



the reapportionment of the Bridgeport City Council. The African-American and 

Hispanic plaintiffs, who together comprise approximately 52 percent of the total 

population of the city, argued that the redistricting plan -  which contained one African- 

American majority district, one Hispanic majority district, and two districts with 

combined African-American and Hispanic majorities — diluted their voting strength, in 

violation of Section 2. Plaintiffs in the Bridgeport case, like appellees Debra Nixon, et al. 

here, urged the governing body responsible for reapportionment to adopt a redistricting 

plan which would provide for one additional district that would afford minority voters 

an opportunity to elect a candidate of their choice, 26 F.2d at 272 and 279-80. The 

Bridgeport plaintiffs brought their Section 2 challenge after the governmental body 

adopted a plan that provided an inferior opportunity for minority voters to participate in 

the electoral process and elect candidates of their choice, 26 F.3d at 272-73.3

The Second Circuit, reviewing the district court decision with reference to the 

standards set forth in Thornburg v. Gingles, 478 U.S. 30 (1986), affirmed the court’s 

holding that the redistricting plan violated the African-American and Hispanic plaintiffs’ 

rights secured by Section 2 of the Voting Rights Act. The Court reviewed and affirmed 

the district court’s findings that "[cojmbining minority groups to form [majority-minority] 

districts is a valid means of complying with § 2 if the combination is shown to be 

politically cohesive" and that white bloc voting "dilutefs] minority voting except in 

districts in which clear [minority-majorities] are established, by a single group or a

^The plaintiffs’ proposed Bridgeport City Council redistricting plan included 2 majority- 
Black districts; 2 majority-Hispanic districts’ and 1 Hispanic- and Black-majority district. 
26 F. 2d at 280.

5



combination of African-American and Latino voters." Bridgeport Coalition, id. at 275 

(emphasis added). The plaintiffs’ proposed plan, which included one district in which 

African-Americans and Hispanics together constituted a majority of the population, was 

accepted by the Court as proof in support of its finding that the first Gingles factor (i.e., 

that the minority group "is sufficiently large and geographically compact to constitute a 

majority in afnother] single-member district") was satisfied in the case. 26 F.3d at 275- 

76. The Court also considered "evidence that African-Americans and Hispanics in 

Bridgeport are politically cohesive." 26 F.3d at 276. Finally, the Court affirmed the 

district court’s findings that African-Americans and Hispanics in Bridgeport shared a 

common history of discrimination. Id. at 279 II (n).

The Bridgeport decision not only continues the unbroken series of cases holding, 

expressly or implicitly, that groups protected by the Voting Rights Act may combine to 

bring claims under Section 2 of the Act in appropriate circumstances, but also illustrates 

that much of the opposition to the recognition of such claims is unwarranted, and does 

not support the conclusion that coalition claims should not be recognized under the Act. 

For example, Judge Suhreinrich’s dissenting opinion here, citing Judge Patrick 

Higginbotham’s dissent from the denial of rehearing en banc in Campos v. City of 

Baytown,4 expresses, inter alia, concern that "a ’coalition’ theory could just as easily be 

advanced by defendants in Voting Rights Act cases . . . [and t]he possibility of 

defendants ’packing’ districts with African-Americans and Hispanic-Americans casts . . .

4840 F.2d 1240 (5th Cir. 1988), reh’g denied, 849 F.2d 943 (5th Cir. 1988), cert, denied, 
492 U.S. 905 (1989)

6



doubt on the majority’s conclusion that Congress intended to protect ’coalitions’ of 

minorities." 34 F.3d 369, 381. However, the Bridgeport case involved precisely this 

situation. Bridgeport, 26 F.3d at 275 (noting the district court’s observation that 

"[dilution results from overpacking districts with minority voters, precluding an 

opportunity in enough districts to effectuate their choices"). Nevertheless, the Court 

was able to properly apply the standards for assessing minority vote dilution set forth in 

Gingles and ultimately remedy the dilution resulting from the packing of African- 

Americans and Hispanics in a limited number of districts. See also, id , at 279-80 HIT (s) 

and (t) (comparison of majority-minority districts in challenged plan and plaintiffs’ 

proposed plan).

In Ortiz v. City of Philadelphia, 824 F.Supp. 514 (E.D. Pa. 1993), African- 

American and Latino plaintiffs together alleged that Pennsylvania’s voter purge law 

disproportionately denied their right to participate in the political process, in violation 

of Section 2 of the Voting Rights Act. While the Court ultimately concluded after trial 

that plaintiffs’ proof was insufficient to show that the purge law ”wa[s] responsible for 

the minority groups’ inability to participate in the political process and elect their 

representatives of choice," id. at 526, the Court never questioned the propriety of 

allowing the claim to proceed as a coalition claim. The district court observed that "the 

central inquiry applicable to all § 2 challenges is whether, based upon the totality of the 

circumstances, an electoral procedure operates to deny minority voters equal access to 

the political process," id. at 525, and concluded that the three-prong Gingles test was not 

an appropriate vehicle for conducting such an inquiry in light of the claims presented by

7



the Ortiz plaintiffs. In reaching this conclusion, the United States District Court for the 

Eastern District of Pennsylvania emphasized that the legislative history of Section 2 

"sanctioned] the importance of applying a flexible approach when evaluating § 2 

challenges," 824 F.Supp. at 524.

The Bridgeport Coalition v. City of Bridgeport and Ortiz v. City of Philadelphia 

decisions, like eveiy other decision cited by the panel majority and the district court, 

support the affirmance of the decision below denying defendants-appellants’ motion to 

dismiss plaintiffs-appellees’ Section 2 claims for failure to state a claim upon which 

relief may be granted. See also LDF Amicus Brief at 10-11 (citing numerous cases 

where Section 2 claims on behalf of minority coalitions were allowed); Supplemental 

Brief on Rehearing En Banc of Plaintiffs-Appellees Debra Nixon, et al. at 2-5 (same). 

Amicus concurs in the argument of plaintiffs-appellees that this "unbroken line of 

precedent" deserves the Court’s most serious consideration. Id. at 6. See Patterson v. 

McLean Credit Union, 491 U.S. 164, 172 (1989) (”’[T]he doctrine of stare decisis is of 

fundamental importance to the rule of law . . . [T]he burden borne by the party 

advocating the abandonment of an established precedent is greater where the Court is 

asked to overrule a point of statutory construction. Considerations of stare decisis have 

special force in the area of statutory interpretation, for here . . . the legislative power is 

implicated").

II. Section 2 of the Voting Rights Act Supports Minority Coalition Claims.

Given that the Voting Rights Act is designed to eliminate discrimination aimed 

at minority groups by providing them with the opportunity to elect candidates of choice,

8



it is reasonable to conclude that Section 2 was intended to cover a plaintiff class 

composed of the veiy minority groups Congress identified as sharing a common history 

of voting discrimination and targeted for relief under the Act. The legislative 

history supports an expansive interpretation of the Voting Rights Act and the inclusion 

of minority coalition claims under Section 2. Furthermore, given Congress’ expressed 

intention to expand Section 2 protection in the 1975 and 1982 amendments to the Act, it 

would be wholly inconsistent with the purpose of the Voting Rights Act to restrict 

minority coalitions claims. Chisom v. Edwards, 839 F.2d at 1061.

The language of the Act supports the recognition of claims presented by a 

coalition of protected groups and there is no express prohibition against minority 

coalition claims in the legislative history or the Act itself. Section 2, subsection (a) of 

the Voting Rights Act protects citizens whose right to vote is denied or abridged "on 

account of race, color or in contravention of the guarantees set forth in section 1973b 

(4)(f)(2) . . . ." [Section 4(f) (2) extends Section 2 protection to language minorities.] A 

violation occurs when "the political processes . . . 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." 42 U.S.C. § 1973 

(1994) (emphasis added).

Based on the express statutory language defining a "class" under Section 2, the 

panel majority correctly concluded that a coalition of protected citizens may bring a 

cognizable vote dilution claim so long as they form a class whose members have less of

9



an opportunity than other members of the electorate to participate in the political 

process. Had Congress intended to restrict Section 2 voting dilution claims to classes of 

singular racial, ethnic or linguistic groups, it could easily have narrowed this expansive 

definition. Furthermore, permitting minority coalitions to bring Section 2 vote dilution 

claims is in complete accord with Voting Rights Act’s purpose of combatting voting 

discrimination.* 5 *

It is a "cardinal canon of statutory construction that statutes should be 

interpreted harmoniously with their dominant legislative purpose." United States v.

Barry, 888 F.2d 1092, 1096 (6th Cir. 1989) (citing Spilker v. Shayne Laboratories, Inc., 520 

F.2d 523, 525 (9th Cir. 1975). The Voting Rights Act was enacted "for the broad 

remedial purpose of ’rid[ding] the country of racial discrimination in voting’. . . [and]. . . 

should be interpreted in a manner that provides "the broadest possible scope’ in

combatting racial discrimination." Chisom v. Roemer, 501 U .S ___, 115 L.Ed.2d 348,

368, 111 S.Ct. 2354 (1991) (quoting South Carolina v. Katzenbach, 383 U.S. 301, 315, 15 

L.Ed. 2d 769, 86 S.Ct. 803 (1966); Allen v. State Board of Elections, 393 U.S. 544, 567 

(1969). The legislative history of the Voting Rights Act clearly indicates that the

5Cf,  Stephen Breyer, "On The Uses of Legislative History In Interpreting Statutes," 65
S. Cal. L. Rev. 845-74 (1992), reprinted in 3 Sutherland Statutory Construction 371-404 (5th
ed. 1992) ("A court often needs to know the purpose a particular statutory word or phrase 
serves within the broader context of a statutory scheme in order to decide properly whether 
a particular circumstance falls within the scope of that word or phrase. . . . Sometimes [a 
court] can simply look to the surrounding language in the statute or to the entire statutory 
scheme and ask, ’Given this statutory background, what would a reasonable human being 
intend this specific language to accomplish?’ . . . .  [When] the surrounding statutory history 
and the ’reasonable human purpose’ test cannot answer the question . . . legislative history 
may provide a clear and helpful resolution"). Id. at 379-80.

10



indicating the purpose of the Act, the only reasonable interpretation of the Act is that a 

plaintiff class comprised of a coalition of protected minority groups, whose members 

have less opportunity to participate in the political process, may advance a Section 2 

claim. See Chisom v. Edwards, 839 F.2d at 1061-02 (5th Cir. 1988), cert, denied, 488 

U.S. 955 (1988).

III. The Recognition of Section 2 Claims On Behalf of Minority Coalitions Does Not
Harm or Impair Any Legitimate Interests of Third Parties.

Although appellants concede that the Voting Rights Act is remedial legislation, 

they nevertheless argue that the protection the act affords victims of discrimination and 

its remedies for "discriminatory limitations on the right...to vote" are the equivalent of 

"preferential treatment." Appellants’ Supp. Brief at 9-10. Arguing that minority 

coalitions constitute a "fourth protected class," id. at 7, appellants inaccurately portray 

the Voting Rights Act as an "infringefment] upon the constitutional rights of innocent 

parties." Id. at 1.

The difficulty with this argument is that it completely ignores the extensive 

safeguards already in place — and equally applicable to plaintiffs-appellants here -- to 

ensure that the burdens of proof imposed upon Section 2 plaintiffs are consistent and 

coextensive with the remedial reach of Section 2. As the Supreme Court has explained 

in Thornburg v. Gingles7 and its progeny, and Congress thoroughly discussed in the 

legislative history, minority plaintiffs are required to present extensive evidence before 

they may prevail in Section 2 vote dilution cases, and relief is only afforded under the

7478 U.S. 30 (1986).

12



Act to those who can satisfy the burden of demonstrating that a challenged election 

practice or system denies them an equal opportunity to participate in the political 

process and elect candidates of their choice on account of race or language minority

status. Cf. DeGrandy v. Johnson, 512 U .S .___, 129 L.Ed.2d 775, 788 (1994) (Section 2

prohibits racially dilutive "line-drawing where its result, ’interacting] with social and 

historical conditions,’ impairs the ability of a protected class to elect its candidate of 

choice on an equal basis with other voters") (citations omitted).

The district court’s well-reasoned decision, affirmed by the panel here, clearly 

demonstrates that the defendants-appellants’ professed fears about uncontrolled 

trammeling of the rights of third parties or expansions of the reach of the Act are 

completely unwarranted. The District Court, in complete conformity with Thornburg v. 

Gingles, carefully enunciated the analysis that would apply to plaintiffs-appellees’ vote 

dilution claims, and took great pains to guard against expansion of the reach of the Act 

or easing of plaintiffs’ burden of proof. In particular, the district court unequivocally 

indicated that recognition of a minority coalition claim did not alter the Gingles 

requirement that plaintiffs demonstrate their political cohesiveness: "[T]he 

congressional intent to bar voting discrimination on account of race, color, or national 

origin mandates application of the statute to a group consisting of various of these 

protected minorities, if sufficient commonality or cohesion between the groups is 

demonstrated.” Mem. Op. (Enslen, J.) (Mar. 19, 1992) J.A. Vol. II at 575 (emphasis 

supplied); accord Mem. Op. (Enslen, J.) (Dec. 23, 1992) J.A. Vol. II at 623 ("[T]he 

congressional intent to bar voting discrimination on account of race, color, or national

13



origin mandates application of the statute to a group consisting of various of these

protected minorities, if sufficient cohesion between the groups is demonstrated").

Rather than lowering the evidentiary hurdles for the plaintiffs, the district court in fact

indicated that the plaintiffs would probably need to meet an extraordinarily high

standard of proof: "[A] coalition of various minorities must bear a greater burden in

order to prove that they vote as a cohesive bloc." J.A. Vol. II at 584.
The purpose of Section 2 is to prohibit election practices 
that result in minorities losing elections because of 
discrimination and exclusion, not because of fractional 
political alliances. In other words . . . plaintiffs must show 
that the reapportionment challenged in this case was 
instituted by defendants to dilute plaintiffs’ voting power 
because of defendants’ common bigotry against both 
minorities.

J.A. Vol. II at 576. Therefore, certainly no less -- and arguably even more -- than any 

single-minority plaintiff group, appellees here may not prevail without demonstrating 

that they satisfy the Gingles precondition of political cohesiveness.

Defendants-appellants’ logic dictates that if minority coalitions should not be

allowed because political cohesiveness may not be proven, single-minority claims should

never fail because every single-minority plaintiff group must necessarily be politically

cohesive. The district court wisely recognized the flaw in that logic and again, carefully

set forth an analysis that ensures that minority coalition claims are subject to no less

stringent analysis than Section 2 claims brought by only one minority group:

When one minority group claims voting discrimination . . . 
the members’ common basis for claiming discriminatory 
inequality in the electoral process is apparent. When more 
than one minority group is claiming aggregate discrimination, 
the common basis is not so obvious. Plaintiffs [therefore] 
must . . . show that "the two groups are indeed ’one’ and

14



that the reason for their status as a ’combined’ discrete 
minority is their shared discriminatory treatment at the 
hands of the majority."

J.A. Vol. II at 624-25, 649-50 (<quoting Butler and Murray, "Minority Vote Dilution Suits 

and the Problem of Two Minority Groups: Can a ’Rainbow Coalition’ Claim the 

Protection of the Voting Rights Act?," 21 Pacific L. Rev. 619 (1990)).

The panel correctly affirmed the decision of the district court, which simply held 

that plaintiffs-appellants Debra Nixon, et al., like any other plaintiffs challenging 

government action under Section 2 of the Voting Rights Act, have stated a claim by 

alleging that a group of voters protected by Section 2 are a sufficiently large and 

geographically compact minority of the population of Kent County, Michigan to 

constitute a numerical majority in at least one additional single-member district; that 

they are politically cohesive; and that white bloc voting usually results in the defeat of 

their preferred candidates. J.A. Vol. I at 110 (First Amended Complaint), 1111 21-24, 32; 

cf. Gingles, id. at 50-51. On the basis of the evidence before it on the motion to dismiss 

and construing the complaint in the light most favorable to plaintiff, Conley v. Gibson, 

355 U.S. 41 (1957), the district court reached the only permissible conclusion: that 

there are "no cases in which a court has concluded that, regardless of whether 

commonality or cohesiveness could be proven, the statute was inapplicable to a coalition 

group of protected minorities." J.A. Vol. II at 622.

15



CONCLUSION

For the reasons set forth herein, and in our previous amicus brief, the NAACP

Legal Defense and Educational Fund, Inc., respectfully urges the Court to affirm the

decision of the panel.

Respectfully submitted,

THEODORE M. SHAW 
JACQUELINE A. BERRIEN 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Counsel for Amicus Curiae

16



CERTIFICATE OF SERVICE
I hereby certify that copies of the Supplemental Brief on 

Rehearing En Banc of Amicus Curiae NAACP Legal Defense and

Educational Fund, Inc. and Motion of NAACP Legal Defense and 
Educational Fund for Leave to File Supplemental Amicus Curiae Brief 

were served by United States Mail, postage prepaid, upon the 
following:

Mark S. Allard
Varnum, Riddering, Schmidt & Howlett 
The Bridgewater Place 
P.0. Box 352
Grand Rapids, MI 49501-0352
David E. Hulswit, Jr.
Pinsky, Smith, Fayette & Hulswit 
1515 McKay Tower 
Grand Rapids, MI 49503
James R. Rinck
1108 McKay Tower
Grand Rapids, MI 49503

This day of January, 1995.

acceueline A. Berrien