Nixon v. Kent County

• Decision Date: 02 February 1996
• Docket Number: No. 93-1456,93-1456
• Citation: 76 F.3d 1381
• Parties: 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 Forsyth, Defendants-Appellants. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1381

76 F.3d 1381

64 USLW 2485

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 Forsyth, Defendants-Appellants.

No. 93-1456.

United States Court of Appeals Sixth Circuit.

Reargued June 14, 1995.

Decided Feb. 2, 1996.

David E. Hulswit, Jr. (argued and briefed), Pinsky, Smith, Fayette & Hulswit, Grand Rapids, MI, James R. Rinck (briefed), James R. Rinck Law Offices, Grand Rapids, MI, for Debra Nixon, Johnny Griffin, Sr., Bill Brown, Juan Jimenez, Sara Ramirez and Marshall Chavez.

Mark S. Allard (argued and briefed), Jon F. DeWitt, Kevin Abraham Rynbrandt, Varnum, Riddering, Schmidt & Howlett, Grand Rapids, MI, for Kent County, Thomas Shearer, Maurice DeJonge, John Boerema, William A. Forsyth and Kent County Apportionment Com'n.

Jacqueline A. Berrien (argued and briefed), New York City, for NAACP Legal Defense and Educ. Fund, Inc.

Before: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, MILBURN, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, and MOORE, Circuit Judges.

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 IIIA. 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 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 may 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 criteria ¹ 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 presence 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 banc)(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).

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. FACTS ³

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 Commission ⁵ met upon publication of the 1990 census.

The 1990 United States census revealed that the population of Kent County, Michigan, grew from approximately 440,000 in 1980 to a population of 500,631 in 1990. Of that number, 438,294, or 87.5%, are white; 14,684, or 2.9%, are Hispanic American; and 39,432, or 7.9 %, are African American. African Americans and Hispanic Americans make up 9.2% of the voting age population in Kent County. Although the population of Kent County increased between censuses, the Apportionment Committee approved a plan that reduced the number of districts, and therefore Board members, from twenty-one to nineteen. The new plan established one district made up of a 78.3% minority population, district 17, which included 66.5% African Americans and 11.8% Hispanic Americans. No other district included significant numbers of both. Defendants submitted evidence that the twenty-one district apportionment would have been malapportioned after the 1990 census, with district 6 containing more than 29,000 persons and district 17 containing less than 21,000 persons.

Plaintiffs charged defendants of packing district 17 with an excessive percentage of minority voters and of splitting the remaining minority voters among districts dominated by large white majorities. Plaintiffs proposed instead a plan that retained twenty-one districts, two of which contained a majority population of minorities, at 68% and 65%, respectively. One of the districts included both African Americans and Hispanic Americans in order to establish sufficient numbers and satisfactory geographical compactness.

Plaintiffs sought a preliminary injunction to enjoin defendants from implementing their plan and to require defendants to execute an apportionment plan that would include two districts in which minorities constituted voting majorities. The district court denied plaintiffs' motion on March 19, 1992, finding little likelihood of success on the merits because plaintiffs failed to demonstrate that Hispanics and African Americans were a politically cohesive group, as required by Gingles. Nixon v. Kent County, 790 F.Supp. 738 (W.D.Mich.1992). Defendants later filed a motion to dismiss, arguing that coalition claims are not covered by § 2. The district court denied the motion on December 23, 1992, holding that aggregation of minorities is permissible under the Act. The same day, the district court also granted defendants' motion to certify the issue to this court pursuant to 28 U.S.C. § 1292(b) (...