Nixon v. Kent County Supplemental Brief on Rehearing En Banc of Amicus Curiae
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January 20, 1995

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Brief Collection, LDF Court Filings. Nixon v. Kent County Supplemental Brief on Rehearing En Banc of Amicus Curiae, 1995. f6d5b2a1-bf9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/741a85af-349d-4a2b-8295-0f6f75e0c71c/nixon-v-kent-county-supplemental-brief-on-rehearing-en-banc-of-amicus-curiae. Accessed June 13, 2025.
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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