[54] KEITH, Circuit Judge, dissenting.

Today, in its zeal to create a circuit split, the majority holds that minority groups cannot collectively file a complaint seeking protection from vote dilution under Section 2 of the Voting Rights Act. Specifically, the majority holds that a group of persons protected by the Voting Rights Act, able to meet each of the three factors set out in Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986), and able to establish that the "totality of circumstances" demonstrates these persons have less opportunity than others to participate in the political process, may not bring a claim under the Voting Rights Act if the group is comprised of different races. Because the majority misconstrues or ignores the history of the Voting Rights Act, principles of statutory construction and all of the federal case law on the subject and because the majority makes constitutionally impermissible distinctions on the basis of race, I DISSENT.

I. Statutory Language and Legislative History A. Statutory Language

When interpreting a statute, the court must first examine the statute's language. See Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49, 56 (1987); see also Anness v. United Steel Workers of America, 707 F.2d 917, 920 (6th Cir. 1993). Specifically, the court "must interpret the statute as a whole, making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless, or superfluous." Greenpeace, Inc. v. Waste Technologies Indus., 9 F.3d 1174, 1179 (6th Cir. 1993) (citing Lake Cumberland Trust, Inc. v. U.S. E.P.A., 954 F.2d 1218, 1222 (6th Cir. 1992) (citations omitted)).

Section 2 of the Voting Rights Act provides:

Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

(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 class elected in numbers equal to their proportion in the population.

42 U.S.C. §(s) 1973 (1994).

Congress' intended limitations on the phrase "protected class," when examined in the context of the entire statute, are unclear. Clearly, Section 2 protects both African-Americans, who have been discriminated against on the basis of race and color, and Hispanic-Americans, who have been discriminated against as language minorities. See 42 U.S.C. §(s) 1973(a) and (b)(f)(2). While any one of the listed groups qualifies as a "protected class," on its face, the Voting Rights Act does not indicate whether a coalition of African-Americans and Hispanic-Americans may constitute a single "class of citizens protected by [the Voting Rights Act whose] members have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice." 42 U.S.C. §(s) 1973(b) (emphasis added). The ambiguity of the phrase a "class of citizens," requires a look at legislative history for enlightenment.

B. Legislative History and Purpose

Where the language of a statute is ambiguous, this Court reviews the legislative history, see United States v. Barry, 888 F.2d 1092, 1093 (6th Cir. 1989), because the "cardinal canon of statutory construction [is] that statutes should be interpreted harmoniously with their dominant legislative purpose." Id. at 1096 (citing Spilker v. Shayne Lab., Inc., 520 F.2d 523, 525 (9th Cir. 1975)).

Before the enactment of the Voting Rights Act in 1965, in many parts of the country, systematic, government sanctioned discrimination insured the monopolization of American democracy by a predominantly white electorate. Consequently, our governing bodies, preoccupied with the concerns of their white constituencies, ignored the needs and interests of a large number of Americans. The Voting Rights Act expanded democracy to include groups previously excluded from the electorate — namely, African-Americans, and later, Hispanic-Americans.

1. The Original Act

In 1965, Congress passed the Voting Rights Act to more fully implement the Fifteenth Amendment. H.R. Rep. No. 439, 89th Cong., 1st Sess. 23 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2439. Originally, Section 2 essentially consisted only of subsection (a), the first part of today's amended Section 2. Notably, Section 2 protection originally did not include language minorities. Congress explicitly intended to redress "the systematic exclusion of Negroes from the polls that characterizes certain regions of this Nation." H.R. Rep. No. 439, 89th Cong., 1st Sess. 23 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2440. Further, "[t]he Act was aimed at measures that dilute the voting strength of groups because of their race, not their numerical inferiority." Salas v. Southwest Texas Jr. College Dist., 964 F.2d 1542, 1548 (5th Cir. 1992).

2. 1975 Amendments Include Language Minorities

In 1975, Congress broadened the Act to protect language minorities. S. Rep. No. 295, 94th Cong., 1st Sess. 8 (1975), reprinted in 1975 U.S.C.C.A.N. 774. Language minority citizens are "racial minorities whose primary language is other than English," id. at 789, and include Hispanic-Americans, Asian-Americans, American Indians and Alaska Natives. Id. at 790. Congress extended the Act by replacing "race or color" with "race or color, or in contravention of the guarantees set forth in section 1973b(f)(2)" of the Act. Chisom v. Roemer, 501 U.S. 380, 392 (1991).

Congress recognized that the discrimination confronting citizens from non-English speaking environments was similar to the discrimination African-Americans faced. Congress stated that:

Language minority citizens, like blacks throughout the South, must overcome the effects of discrimination as well as efforts to minimize the impact of their political participation. The State of Texas, for example, has a substantial minority population, comprised primarily of Mexican Americans and blacks. Evidence before the Subcommittee documented that Texas also has a long history of discriminating against members of both minority groups.

S. Rep. No. 295 at 25, reprinted in 1975 U.S.C.C.A.N. at 791. Congress noted that many of the same barriers preventing African-Americans from full political participation existed for Hispanic-Americans, such as "invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others." Salas, 964 F.2d at 1549 n. 19 (citing S. Rep. No. 295 at 30, reprinted in 1975 U.S.C.C.A.N. at 796 (quoting Graves v. Barnes, 343 F. Supp. 704, 728 (W.D.Tex. 1972), aff'd in part and rev'd in part, White v. Regester, 412 U.S. 755 (1973)). Congress also recognized the "pattern of racial discrimination that has stunted the electoral and economic participation of the black and brown communities." Id.

In its discussion of the history of discrimination and the need for expanded protection in the 1975 amendments, the Senate cited at least one case in which African-Americans and Hispanics brought a joint claim under the voting rights act. See Wright v. Rockefeller, 376 U.S. 52 (finding Black and Puerto Rican voters failed to prove New York legislature drew district concentrating Black and Puerto Rican voters in one of four districts on racial lines), reh'g denied, 376 U.S. 959 (1964). If Congress was thus aware that more than one minority group could be considered to constitute one plaintiff class in determining the availability of Voting Rights Act protection, certainly the absence of an explicit prohibition of minority coalition claims compels a construction of Section 2 which allows them.

3. 1982 Amendments

In 1982, Congress clarified the standards necessary to prove a violation under Section 2. S. Rep. No. 97-417, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 178. Specifically, in response to the Supreme Court's holding in Mobile v. Bolden, 446 U.S. 55 (1980), that Section 2 required evidence of discriminatory intent to establish a Section 2 violation, Congress adopted a results test, Chisom v. Roemer, 501 U.S. at 392-93, while maintaining the original goal of eliminating voting discrimination on the basis of race or ethnicity. S. Rep. No. 97-417, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 181. Congress replaced "(n)o voting qualification . . . shall be imposed . . . to deny or abridge the right . . . to vote" with "(n)o voting qualification . . . shall be imposed . . . which results in a denial or abridgement of the right . . . to vote." (emphasis added). In adopting the results test, Congress also added a new subsection (b) requiring an inquiry into the "totality of the circumstances" to determine whether members of a protected class of citizens have less opportunity than others to participate in the political process. In expanding the Act, the Senate Judiciary Committee stated:

[I]f an electoral system operates today to exclude blacks or Hispanics from a fair chance to participate, then the matter of what motives were in an official's mind 100 years ago is of the most limited relevance. The standard under the Committee amendment is whether minorities have equal access to the process of electing their representatives.

S. Rep. No. 97-417, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 214 (emphasis added).

In Thornburg v. Gingles, the Supreme Court interpreted the 1982 amendments and clarified the requirements of a Section 2 claim. 478 U.S. 30, 50-51 (1986). Specifically, in Gingles, the Court set out three prerequisites which must be met before employing the "totality of circumstances" analysis. Under Gingles, a plaintiff class must prove:

(1) the class is sufficiently large and geographically compact to comprise a majority in a single-member district;

(2) political cohesiveness;

(3) the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances . . . usually to defeat the minority's preferred candidate.

Gingles, 478 U.S. at 50-51.

II. Courts and Attorney General Allow Minority Coalitions

All courts addressing minority coalition claims under Section 2 have assumed they are permissible where the Gingles prerequisites are satisfied. Further, the Attorney General supports minority coalition claims. Specifically, the Fifth and the Eleventh Circuits have concluded that two separate minority groups who demonstrate politically cohesive behavior may constitute a single minority group for Section 2 protection. See Campos v. City of Baytown, Texas, 840 F.2d 1240, 1244 (5th Cir. 1988), cert. denied, 492 U.S. 905 (1989); Concerned Citizens v. Hardee County Bd., 906 F.2d 524, 526 (11th Cir. 1990); see also Bridgeport Coalition v. City of Bridgeport, 26 F.3d 271 (2d Cir.), vacated and remanded on other grounds, ___ U.S. ___, 115 S.Ct. 35 (1994); League of United Latin Am. Citizens v. Midland Indep. Sch. Dist., 648 F. Supp. 596 (W.D.Tex. 1986), aff'd, 829 F.2d 546 (5th Cir. 1987). In Campos, the Fifth Circuit noted:

There is nothing in the law that prevents the plaintiffs from identifying the protected aggrieved minority to include both Blacks and Hispanics. Section 1973(a) protects the right to vote of both racial and language minorities. See 42 U.S.C. §(s) 1973(a), 1973b(f)(2). Congress itself recognized "that voting discrimination against citizens of language minorities is pervasive and national in scope," 42 U.S.C. §(s) 1973b(f)(1), and similar discrimination against Blacks is well documented. If, together, they are of such numbers residing geographically so as to constitute a majority in a single member district, they cross the Gingles threshold as potentially disadvantaged voters.

Campos, 840 F.2d at 1244. Furthermore, although multiple ethnic groups in a specific district have failed factually to meet the Gingles prerequisites, no court has excluded minority coalition claims from Section 2 coverage.

Additionally, the Attorney General, the officer entrusted to enforce the Act, has argued that Section 2 applies to minority coalition claims. "[I]n light of the extensive role the Attorney General played in drafting the statute and explaining its operation to Congress," the Attorney General's interpretation of the Voting Rights Act provides compelling evidence of the original congressional interpretation of the Act. See United States v. Sheffield Bd. of Comm'rs, 435 U.S. 110, 131 (1978); see also Presley v. Etowah County Comm'n, 502 U.S. 491, 508 (1992). Since the enactment of the Voting Rights Act, the Attorney General has demanded an expansive construction of the Act. Chisom v. Edwards, 839 F.2d 1056, 1064 (5th Cir.), cert. denied, 488 U.S. 955 (1988). During congressional hearings prior to the 1965 passage of the Act, the Attorney General stated that the Act would cover "every election in which registered voters are permitted to vote." Voting Rights: Hearing Before Subcomm. No. 5 of the House Judiciary Comm., 89th Cong., 1st Sess. 21 (1965).

Continuing the trend of expansive interpretation to further the Act's remedial purpose, the Attorney General has advocated the use of minority coalition claims:

[Section 2] protects both Hispanic and black voters against election systems that dilute their voting strength. . . . As this Court explained in Gingles, the determination of whether an election system dilutes minority voting strength "depends upon a searching practical evaluation of the past and present reality . . . and on a functional view of the political process." . . . This is necessarily a "flexible, fact-intensive inquiry" . . . Accordingly, if the political reality is that Hispanics and blacks view themselves to a significant degree as a single unit, and are viewed by whites as disfavored "minorities", then it is sensible to treat them as one group under the Voting Rights Act. Thus, in our view, where Hispanics and blacks vote as a single cohesive bloc, and whites vote as a bloc to defeat their preferred candidates, Section 2 permits Hispanics and blacks to assert a vote dilution claim as a single combined minority.

Brief for the NAACP Legal Defense Fund as Amicus Curiae at 35-36 (quoting Brief for the Amicus Curiae United States Opposing Certiorari at 8-9, Baytown v. Campos, 492 U.S. 905 (1989) (No. 88-606)). Thus, the Attorney General's construction of the Act supports the finding that Section 2 permits minority coalition claims.

The Supreme Court has not spoken directly on the viability of minority coalition claims. In Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075 (1993), the Supreme Court assumed (without deciding) that coalition claims were viable under the Voting Rights Act. Although the Court, after an analysis of the claim under the factors enunciated in Gingles, held that the specific minority coalition involved did not meet those factors, id. at 1083-85, the Court did not rule out the viability of a coalition claim which meets the Gingles factors and the totality of the circumstances test. In the instant case, the majority would deny the plaintiffs even the chance to present evidence of size, geographical compactness, political cohesiveness and majority bloc voting before determining that they, by virtue of their multiple races, are not intended to have Voting Rights Act protection.

III. Analysis A. Statutory Language and Legislative History Permit Coalitions

The majority holds that because the Voting Rights Act does not expressly address minority coalition claims, Congress clearly did not intend to provide Section 2 protection for such claims. I disagree.

Section 2, subsection (a) provides protection to persons whose rights are denied or abridged on the basis of race, color or language. 42 U.S.C. §(s) 1973. Section 2, subsection (b) provides that protection shall be provided when those persons establish unequal access to participation in the political process. Id. On the face of Section 2 it is irrelevant that individuals protected under the Voting Rights Act encompass different ethnicities. See id. Rather, such individuals comprising the protected class must only meet the tests set out in the statute as interpreted by the Supreme Court. See Gingles, 478 U.S. at 50-51.

The majority ignores this reading of the statute to find that minority coalition claims are prohibited although there is nothing in the statute which expressly prohibits them. Given the differing conclusions of the majority and those who dissent from its holding, the phrase, "class of citizens," is certainly ambiguous with regard to Congress' intent to allow or disallow minority coalition claims. The majority failed to comply with the mandates of statutory construction by examining the legislative history and relevant case law for guidance on the interpretation of Section 2 of the Voting Rights Act.

The Voting Rights Act should be "interpreted . . . in a manner which affords it `the broadest possible scope' in combatting racial discrimination." Chisom v. Edwards, 839 F.2d at 1059 (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 565 (1969)). In Chisom v. Roemer, the United States Supreme Court, addressing a question similar to the issue raised here, held Section 2 of the Voting Rights Act applies to state judicial elections. Chisom v. Roemer, 501 U.S. at 404. Although neither the language of the statute nor the legislative history expressly addressed whether judges constituted "representatives" under Section 2, the Court rejected respondents' argument that Congress' use of the word "representative" denoted legislators and excluded the election of judges from coverage under the Act. Id. at 395-402, 404. The Court, finding it "difficult to believe that Congress . . . [would withdraw], without comment, an important category of elections from [such] protection," determined that the broad term "representatives" included elected judges. Id. at 404. Our court reached an identical conclusion three years earlier in Mallory v. Eyrich, 839 F.2d 275, 281 (6th Cir. 1988).

In the present case, as in Chisom v. Roemer and Mallory, neither the language of the statute nor the legislative history limits Section 2 protection to cases involving only one historically disadvantaged ethnic group. While the majority points to the singular tense of the word "class" in section (b) as determinative of Congress' intent to ban minority coalition claims, nothing in that word negates the intent of section (a) to provide full voting rights protection to those citizens enumerated therein. Interestingly, the "class" language which the majority uses to restrict the voting rights protection was added in 1982, after language minorities were brought under the Act's protection. It does not make sense that Congress would, through the addition of subsection (b), prevent the listed protected groups from bringing a claim together. This is especially true where Congress has, in the Senate Report, referred to cases in which Blacks and Hispanics constitute one claimant class.

Here, the majority finds the absence of language addressing minority coalitions indicates Congress unambiguously did not intend for "protected class" under Section 2 to include minority coalitions. Just as the Court did in Chisom v. Roemer, such a construction of the Voting Rights Act must be rejected because "if Congress had such an intent, Congress would have made it explicit in the statute, or at least some of the Members would have identified or mentioned it at some point in the unusually extensive legislative history of the 1982 amendment." Chisom v. Roemer, 501 U.S. at 396. In the absence of any legislative history or statutory language to the contrary, the only acceptable interpretation of the Act is that classes of minorities from different ethnic backgrounds are protected. See Chisom v. Edwards, 839 F.2d at 1061-62.

Additionally, the context of the 1982 amendments supports the conclusion that the broad term "protected class" includes minority coalitions. The majority essentially holds that the phrase "protected class" is a narrowing term intended to divide individuals of protected ethnicities and limit possible claims under the Voting Rights Act. This treatment of "protected class" is inconsistent with the purpose of the 1982 amendments to extend application of the Act. Congress' clear intention to broaden the Voting Rights Act suggests that "protected class" includes any group consisting of individuals protected under the Voting Rights Act which satisfies the Gingles prerequisites. "Any other construction of section 2 would be wholly inconsistent with the plain language of the Act and the express purpose which Congress sought to attain in amending Section 2; that is, to expand the protection of the Act." Chisom v. Edwards, 839 F.2d at 1061. Just as Chisom v. Roemer and Mallory refused to limit "representatives" to legislators, we should refuse to limit "protected class" to a single ethnic group protected under Section 2.

B. The Majority Makes Impermissible Distinctions on the Basis of Race 1. Racial Homogeneity Is Not Required

Although no case law supports their position, the majority seizes onto the reasoning from Judge Patrick Higginbotham's dissent in Campos v. City of Baytown, 849 F.2d 943, 945 (5th Cir. 1988), cert. denied, 492 U.S. 905 (1989), to hold African-Americans and Hispanic-Americans lack the same "statutory disability," and therefore are no more than a political alliance or coalition. I disagree.

The majority opinion mistakenly focuses upon the origins of discrimination plaguing African-Americans and Hispanic-Americans, rather than the results of such discrimination. Past motives behind discriminatory treatment are of limited relevance. S. Rep. No. 97-417, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 214. The question is not how to distinguish between majoritarian society's discriminatory motives regarding African-Americans and Hispanic-Americans. Rather, the proper inquiry is whether, "as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice." Gingles, 478 U.S. at 44 (quoting S. Rep. No. 97-417 at 28). The majority's ruling that in all cases voters historically denied access to the political process, protected under the Voting Rights Act, and sharing identical interests must be ethnically classified and segregated from one another denigrates the spirit and the language of the constitution.

Racial homogeneity, which divides victimized Americans and conquers any opportunity they have to participate in democracy, is not a requirement under the Voting Rights Act. Although the Voting Rights Act prohibits formation of separate "minority" districts when a protected ethnic group and the white majority vote together and have common interests, the majority mandates segregation of two protected minority groups who vote together, have common interests and have been denied access. Where all elements of the Gingles prerequisites are satisfied, I would refuse to impair the right to an effective voice in our society by diluting minority voting influence through mere racial classification.

2. The Majority's Imposition of Racial Classifications is Constitutionally Impermissible.

The majority, today, segregates the Black and Hispanic beneficiaries of Voting Rights Act protection solely on the basis of race. According to the current law of this land, "[l]aws classifying citizens on the basis of race cannot be upheld unless they are narrowly tailored to achieving a compelling state interest." Miller v. Johnson, ___ U.S. ___, 115 S.Ct. 2475, 2482 (1995); see e.g., Adarand Constructors, Inc. v. Pena, ___ U.S. ___, ___, 115 S.Ct. 2097, 2112 (1995); Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989) (plurality opinion). The Supreme Court reemphasized this standard in Miller:

"Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination. . . . This perception of racial and ethnic distinctions is rooted in our Nation's constitutional and demographic history." Regents of Univ. of California v. Bakke, 438 U.S. 265, 291, 98 S.Ct. 2733, 2748, 57 L. Ed. 2d 750 (1978) (opinion of Powell, J.). This rule obtains with equal force regardless of "the race of those burdened or benefited by a particular classification."

Miller, ___ U.S. ___, 115 S.Ct. at 2482 (quoting Croson, 488 U.S. at 494 (plurality opinion)). Persons whose voting rights are abridged or denied because of their race, color, or language have been singled out by Congress in Section 2, subsection (a) of the Voting Rights Act as requiring protection based on the history of discrimination lodged against non-white persons in the voting arena. What compelling state interest requires the segregation of Voting Rights Act claimants when they are of differing races? I can think of none.

Although the majority concedes the Voting Rights Act is remedial legislation, citing Judge Edith H. Jones' concurrence in League of Latin Am. Citizens v. Clements, 999 F.2d 831, 894 (5th Cir. 1993), cert. denied, 114 S.Ct. 878 (1994), they cast the protection the Act affords victims of discrimination and its remedies for discriminatory limitations on the right to vote as giving minorities an unfair advantage over the majority if minority coalitions are protected. This illogical argument ignores the extensive safeguards already in place to ensure the burdens of proof imposed upon Section 2 plaintiffs are consistent and coextensive with the remedial reach of Section 2. Gingles requires minority plaintiffs to demonstrate 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. The district court in the instant case stated clearly, "[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." Nixon v. Kent County, 790 F. Supp. 738, 743 (W.D.Mich. 1992) (emphasis added).

The majority submits minority coalitions should not be allowed because political cohesiveness may not be proved. This implies 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 when it concluded 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 that the reason for their status as a `combined' discrete minority is their shared discriminatory treatment at the hands of the majority."

Opinion of Dec. 23, 1992 at 4-5 (motion to dismiss), Nixon v. Kent County, 790 F. Supp. 738 (W.D.Mich. 1992) (No. 91-792) (quoting Katharine I. Butler and Richard 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 PAC. L.J. 619 (1990)).

The majority's position is offensive to the extent it assumes automatic homogeneity of interest within and automatic divergence of interests between racial groups. At the same time, the majority's position offends to the extent it dismisses the significant convergence of interests within and among minority groups. While it is true that all African-Americans do not "`think alike, share the same political interests, [or] prefer the same candidates at the polls,'" Miller, ___ U.S. at ___, 115 S.Ct. at 2486 (quoting Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 2827 (1993)), African-Americans and other minorities share a place in history that often translates into shared political goals. Judge Leon Higginbotham discussed this phenomenon in his commentary on the Supreme Court's decision in Miller, supra:

Because of its lofty, color-blind goals, the court held that a Georgia district, in which African-Americans represented a majority of voters, violated the equal protection clause of the Constitution because the Georgia Legislature had relied on race as a "predominant factor" in drawing the district. The court reasoned that the Legislature had created a political community where none existed before, since the African-Americans in the district did not seem to share any common interests other than their race.

This reasoning, we imagine, will come as a shock to most African-Americans. African-Americans have contributed much to this country's cultural heritage. Moreover, when some politicians need to garner the "white" vote, they have no difficulty in portraying African-Americans as a single community from whose pathologies "decent" society needs to be protected. (Remember the Republicans' Willie Horton photos used by President Bush's Campaign?) Finally, if the tumultuous history of blacks in America is not enough to qualify us as a "community," it is difficult to imagine which group could possibly fit that description.

A. Leon Higginbotham, Jr. and Aderson Bellegarde Francois, The Supreme Court's Blinders, The Boston Sunday Globe, July 9, 1995, at 63.

Certainly, African-Americans and Hispanic-Americans, separately and collectively, have experienced societal discrimination and as a result, will sometimes share similar political interests they wish to advance. The purpose of the Voting Rights Act is to allow these political interests a voice in circumstances where the majority white community blocks, by design or result, the expression of these communities' political voice. At times, the evidence will show that a group of African-Americans is disabled by the shapes and sizes of certain districts from speaking with its politically cohesive voice. At times, the evidence will show that a group of Hispanic-Americans has been silenced by a districting plan that reduces its votes to meaningless acts. At times, the evidence will show that a community, sufficiently large and geographically compact and politically cohesive is prevented from pronouncing its voice in the political arena due to a white majority bloc vote. At times, a minority community will not receive Section 2 protection because it fails to produce evidence sufficient to satisfy the three pronged Gingles test. After today's majority opinion such a community will lay unprotected, whether or not the evidence produced satisfies Gingles, if it is multi-ethnic, diverse and/or integrated. In the instant case, the plaintiffs have been denied their day in court simply because they are of different races.

Perhaps what is most disturbing is that the practical effect of the majority's holding requires the adoption of some sort of racial purity test, so that minority group members can be properly identified and kept in their place. If we are to make these distinctions, where will they end? Must a community that would be considered racially both Black and Hispanic be segregated from other Blacks who are not Hispanic? Should the dwindling numbers of Native Americans be further decimated by a parsing of Navaho from Apache? Must Puerto-Ricans and Dominicans in the same neighborhood be separated based on their separate cultural and historical backgrounds? Perhaps we will return to a time of classifying African-Americans as quadroons and octoroons for the purposes of racial classification.

If both African-Americans and Hispanic-Americans share a history of discrimination and a current exclusion from the political process, and if the Voting Rights Act was meant to redress and rectify voting schemes that enforce such oppression, it seems the clear and only reasonable interpretation of the Voting Rights Act is one that protects African-Americans and Hispanic-Americans individually and collectively. To put it another way, if the Voting Rights Act was enacted to prevent white voting blocs from silencing African-Americans and if the Voting Rights Act was amended to prevent white voting blocs from rendering meaningless the political participation of Asian-Americans, Native Americans, Hispanic-Americans and Alaska Natives, it is logical to conclude that the Voting Rights Act was intended to prevent white voting blocs from diminishing the voting rights of African-Americans and language minorities at the same time. If the Voting Rights Act will not protect minorities it must protect those who wish to subjugate minorities. Sadly, we return full circle to the original reasons for the Voting Rights Act. Non-white Americans, those generally considered minorities by their fellow white Americans, are today denied the right to free and meaningful political participation if they live next to and with one another. Do we make these distinctions between whites of Italian, German or Yugoslavian descent who constitute a voting bloc? No. That is not the way this country works. Many have been able to blend into the melting pot which is America and claim full entitlement to the fruits and opportunities which make this land great. Some, as the legislative histories demonstrate, are constantly and consistently kept on the outside due to their phenotypic differences. These are our communities of color. We all long for a day when there will be no need for a Voting Rights Act. The existence of the Voting Rights Act confirms our fears that racism is alive and well in the United States of America; that some Americans in various parts of the country continue to prevent minorities from enjoying the full privileges of citizenship based on their race, color and language. Today, the majority further discriminates by compartmentalizing the discriminated against into segregated boxes from which their potential to participate fully in political life is significantly diminished. This holding violates the spirit and letter of the Constitution and reminds us of the reasons for enacting the Voting Rights Act in the first place.

3. Minority Vote Dilution

Finally, the majority further justifies its holding by concluding judicial approval of coalition claims, absent statutory restrictions, could be used to dilute voting strength of minorities. Specifically, the majority, citing Judge Patrick Higginbotham's dissent from denial of rehearing en banc in Campos, 849 F.2d at 946, finds that "a coalition theory could just as easily be advanced as a defense in Voting Rights Act cases" since an apportionment committee could combine two ethnic groups to submerge the interests of one of those groups.

Once again, the majority loses sight of the mechanisms in place that govern the Voting Rights Act's effect. The very same standard that a coalition of one or more groups must reach in order to demonstrate entitlement to Section 2 protection precludes attempts to submerge divergent interests. The coalition created must be in all circumstances politically cohesive. Moreover, the judiciary is in no position to legislate a prohibition of minority coalitions when to do so would contravene congressional intent.

IV. Conclusion

I would affirm the district court's conclusion that coalitions of protected minority groups may assert a claim under Section 2 of the Voting Rights Act. Today, the majority goes to great lengths to foster the re-creation and continuance of the very same white majority voting blocs that provided the impetus for the creation of the Voting Rights Act. When one carefully considers voting rights law, its history, its practical application and effects and the majority's terribly flawed logic, it becomes clear that the majority has no other intention than to create a circuit split on this important issue in blind pursuit of its preferred result. However, those who have already obtained their freedom should not set a timetable on another group's freedom. Voting is so precious and so basic to the spirit of our Constitution that to be deprived of that right is tantamount to being deprived of one's liberty.

The Supreme Court has made clear that "[a]ny abridgement of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election." Chisom v. Roemer, 501 U.S. at 397. In direct violation of the Voting Rights Act, the majority requires a racially homogeneous "class," thus denying the rights of those protected by the Voting Rights Act to participate in the political process on account of their race, color, or minority language status. The majority artificially classifies victims of discrimination based on "statutory disabilities," even though members of a protected class may share identical interests and satisfy the Gingles prerequisites. Such compartmentalization is hauntingly similar to an "enforced separation of the two races." Plessy v. Ferguson, 163 U.S. 537, 551 (1896). In short, today's decision requiring racial homogeneity within Voting Rights Act claims dilutes minority voting power, multiplies the impact of discriminatory white bloc voting, and impairs the ability of protected minorities to influence the outcome of an election. I am deeply troubled by the majority's deplorable disregard for fundamental fairness. For the sake of racial and language minorities who have been long denied full participation in the political process of this great Nation, I DISSENT.

[115] BOYCE F. MARTIN, Jr., Circuit Judge, dissenting.

Judge Keith has very ably stated my position in sections I, II and IIIA of his dissent, and I join with him in those parts. I also join Judge Jones' dissent for it speaks so well to our loss of an historic perspective in this most vital issue of the right to vote for a candidate of one's choice.

[117] NATHANIEL R. JONES, Circuit Judge, dissenting.

I add this word to Judge Daughtrey's dissent expressing appreciation for the historical perspective of the Voting Rights Act, which was provided by Judge Keith. I think that it is particularly significant for this statement to be made at this time in that the nation is reflecting on the centennial of the pernicious decision handed down by the Supreme Court in Plessy v. Ferguson, 163 U.S. 537 (1896).

Were I so empowered, I would decree that every Judge, federal and state, be required to read Justice Henry Billings Brown's majority opinion and Justice John Marshall Harlan's dissenting opinion. Our current civil rights remedies cannot be properly understood without a knowledge of how the United States Supreme Court constitutionalized policies and practices that relegated an entire race of people, based on color, to second-class status. See Plessy, 163 U.S. at 540-50 (holding that Louisiana segregation statute did not violate the Thirteenth and Fourteenth Amendments).

One of the principal reasons that our nation is tossing and turning over the issue of race and racial remedies is the separate-but-equal road taken by Justice Brown and his Supreme Court colleagues in 1896. There was a clear alternate road available to them which they refused to take. Had they the courage and foresight of the late Justice Harlan, this nation would be spared the current travail.

The road not taken by Justice Brown and the Plessy majority consisted of this plain proposition, eloquently articulated by Justice Harlan:

[I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

Plessy, 163 U.S. at 559.

As Judge Keith notes, the Voting Rights Act is one of Congress's significant attempts to provide a remedy that the Fifteenth Amendment authorizes, because of the "road not taken" in 1896.

If we cannot effectively enforce this Act, we are once again guilty of what the late Justice Potter Stewart stated in Jones v. Mayer Co.: that the Constitution has "made a promise which the Nation cannot keep." 392 U.S. 409, 443 (1968).

The issues of this case and the centennial of Plessy affords a timely occasion to be reminded of this history.

[126] DAUGHTREY, Circuit Judge, dissenting.

I join Judge Keith's dissent and eloquent defense of the laudable goals of the Voting Rights Act, as amended. I write separately, however, to underscore my firm belief and fervent hope that the majority's decision today is guided only by a failure to adhere to the spirit and the letter of that Act and the analysis mandated in Thornburg v. Gingles, 478 U.S. 30 (1986), and not by any improper or unjust intent.

[128] MOORE, Circuit Judge, dissenting.

For the reasons ably explained by Judge Keith in Parts I, II, and IIIA of his dissenting opinion, traditional principles of statutory interpretation require that Section 2 of the Voting Rights Act be interpreted to include within a "protected class" a coalition of groups of persons protected by the Voting Rights Act. Therefore I DISSENT from the majority opinion and join in Parts I, II, and IIIA of Judge Keith's dissenting opinion.