Huot et al v. City of Lowell et al
Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, this Court on October 17, 2017 DENIED the Defendants' motion to dismiss, ECF. No. 17 . See ECF No. 22 ."(Sonnenberg, Elizabeth)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CHANMONY HUOT, VLADIMIR SALDANA,
CHAMPA PANG, THOEUN KONG,
LIANNA KUSHI, DENISSE COLLAZO,
SUE J. KIM, SOADY OUCH,
TOOCH VAN, CARMEN BERMUDEZ, KEI
KAWASHIMA-GINSBERG, DANIEL K. UK, )
AND FAHMINA ZAMAN,
CITY OF LOWELL, MASSACHUSETTS;
KEVIN J. MURPHY, IN HIS
OFFICIAL CAPACITY AS LOWELL
CITY MANAGER; LOWELL CITY
COUNCIL; RITA MERCIER, RODNEY
M. ELLIOTT, EDWARD J. KENNEDY, JR.,)
JOHN J. LEAHY, WILLIAM
SAMARAS, JAMES L. MILINAZZO,
DANIEL P. ROURKE, COREY A.
BELANGER, JAMES D. LEARY, IN
THEIR OFFICIAL CAPACITIES AS
MEMBERS OF THE LOWELL CITY
COUNCIL; LOWELL SCHOOL
COMMITTEE; STEPHEN J. GENDRON,
JACQUELINE DOHERTY, CONNIE A.
MARTIN, ROBERT J. HOEY, JR.,
ROBERT JAMES GIGNAC, ANDRE
DESCOTEAUX, IN THEIR OFFICIAL
CAPACITIES AS MEMBERS OF THE
LOWELL SCHOOL COMMITTEE; LOWELL
ELECTION AND CENSUS COMMISSION;
AND BEVERLY ANTHES, JOSEPH MULLEN, )
THEL SAR, THOMAS FR. O’BRIEN,
IN THEIR OFFICIAL CAPACITIES
AS MEMBERS OF THE LOWELL
ELECTION AND CENSUS COMMISSION,
November 21, 2017
MEMORANDUM OF DECISION
Chanmony Huot, Vladimir Saldaña, Champa Pang, Thoeun Kong,
Lianna Kushi, Denisse Collazo, Sue J. Kim, Soady Ouch, Tooch
Van, Carmen Bermudez, Kei Kawashima-Ginsberg, Daniel K. Uk, and
Fahmina Zaman (“Plaintiffs”), have brought this action against
the City Of Lowell, Massachusetts; Kevin J. Murphy, in his
official capacity as Lowell City Manager; Lowell City Council;
Rita Mercier, Rodney M. Elliott, Edward J. Kennedy, Jr., John J.
Leahy, William Samaras, James L. Milinazzo, Daniel P. Rourke,
Corey A. Belanger, James D. Leary, in their official capacities
as Members of the Lowell City Council; Lowell School Committee;
Stephen J. Gendron, Jacqueline Doherty, Connie A. Martin, Robert
J. Hoey, Jr., Robert James Gignac, Andre Descoteaux, in their
official capacities as Members of the Lowell School Committee;
Lowell Election and Census Commission; and Beverly Anthes,
Joseph Mullen, Thel Sar, and Thomas FR. O’Brien, in their
official capacities as Members of the Lowell Election and Census
Commission (“Defendants”), alleging that the Defendants’ atlarge election system violated the Plaintiffs’ rights under (1)
Section 2 of the Voting Rights Act, 52 U.S.C. § 10301 (“Section
2”), (2) the Equal Protection Clause of the Fourteenth
Amendment, and (3) the Fifteenth Amendment.
moved to dismiss the complaint, arguing that it does not state a
claim upon which relief may be granted because (1) the
Plaintiffs do not plead sufficient facts to allege the existence
of a large and geographically compact district that would create
a majority-minority district, and (2) minority groups may not
aggregate their claims and form a minority coalition in order to
sustain a claim under Section 2.
The Plaintiffs opposed the
motion, arguing that they pled sufficient facts to show a
majority-minority district can exist and that minority coalition
claims are in fact cognizable under Section 2.
After a hearing
on October 17, 2017, this Court DENIED the Defendants’ motion to
dismiss because (1) the Plaintiffs demonstrated in their
complaint that a majority-minority district could exist if
certain neighborhoods were combined, and (2) the majority of
circuits and district courts that address the issue have
persuasively concluded that minority coalitions may maintain
claims under Section 2.
This memorandum explains the Court’s
The Plaintiffs filed a complaint seeking injunctive and
declaratory relief against the Defendants on May 18, 2017.
Compl. 1, ECF No. 1.
The Defendants moved to dismiss for
failure to state a claim upon which relief can be granted.
Defs.’ Mot. Dismiss Failure State Claim (“Defs.’ Mot.”), ECF No.
The parties fully briefed the issues.
See Defs.’ Mem. Law
Supp. Mot. Dismiss (“Defs.’ Mem.”), ECF No. 18; Pls.’ Opp’n
Defs.’ Mot. Dismiss (“Pls.’ Opp’n”), ECF No. 21.
The Plaintiffs are members of the City of Lowell’s minority
community and are also registered voters.
Compl. ¶¶ 15-27.
Defendants are the City of Lowell, its City Manager, its City
Council, members of the City Council, its School Committee,
members of the School Committee, the Lowell Election and Census
Commission, and members of the Election and Census Commission.
Id. ¶¶ 28-35.
There are nine members in the Lowell City Council and six
members in the Lowell School Committee.
Id. ¶ 37.
the City Council and School Committee are elected in biennial
elections, held in odd-numbered years, and each candidate is
elected at-large, city-wide, in a plurality voting system.
The City of Lowell (“City”) is divided into eleven
separate wards, with each ward encompassing three precincts.
Id. ¶ 40.
The City votes as a single entity in an at-large,
plurality winner-take-all election system, a majority bloc of
voters can elect all of their preferred candidates to the Lowell
City Council and Lowell School Committee.
system allegedly dilutes the voting power of the City’s
Hispanic/Latino and Asian-American communities.
Minorities constitute over 49% of the City’s total
population, and Hispanics/Latinos and Asian-Americans combined
comprise approximately 40% of the total population.
Id. ¶ 45.
According to the U.S. Census Bureau’s 2011-2015 American
Community Survey, non-Latino whites constitute approximately
50.7% of the City’s total population, 55.7% of its voting age
population, and 61% of its citizen voting age population.
Asian-Americans constitute approximately 21.8% of the
City’s total population, 21% of its voting age population, and
17% of its citizens voting age population.
Hispanics/Latinos constitute approximately 18.1% of the City’s
total population, 15.4% of its voting age population, and 15.5%
of its citizen voting age population.
Americans constitute approximately 7.1% of the City’s total
population, 6.7% of its voting age population, and 5.3% of its
citizen voting age population.
According to the 2010 U.S.
Census, non-Latino whites constitute 52.8% of the total
population and 58.1% of the voting age population, AsianAmericans constitute 20.0% of the total population and 18.8% of
the voting age population, Hispanics/Latinos constitute 17.3% of
the total population and 14.3% of the voting age population, and
Blacks/African Americans constitute 6% of the total population
and 5.6% of the voting age population.
The growth in the
City’s minority populations has been steady and significant over
the last three decades.
Id. ¶ 47.
Such diversity is not
reflected on the Lowell City Council or the Lowell School
Id. ¶ 48.
There is allegedly a history of voting discrimination in
Id. ¶ 90.
Despite the size of each population, there
is not a single Asian-American or Hispanic/Latino sitting on the
Lowell City Council or Lowell School Committee.
Id. ¶ 50.
Asian-American and Hispanic/Latino candidates won only two seats
in the last five Lowell City Council elections.
American or Hispanic/Latino candidates won a seat on the Lowell
School Committee in the last five elections.
In the City, the preconditions in Thornburg v. Gingles, 478
U.S. 30 (1986)1 are allegedly met, and the totality of the
circumstances allegedly demonstrate that Asian-American and
Hispanic/Latino voters together have less opportunity than other
members of the electorate to participate in the political
process and to elect candidates of their choice to the Lowell
City Council and Lowell School Committee.
Id. ¶ 59.
Gingles sets forth three preconditions for a cognizable
claim under Section 2: (a) the minority group is sufficiently
large and geographically compact to constitute a majority in a
single-member district; (b) the minority group is politically
cohesive; and (c) the white majority votes as a bloc to defeat
the minority’s preferred candidate. 478 U.S. at 50-51.
Hispanic/Latino and Asian-American residents together are
allegedly sufficiently numerous and geographically compact to
form a majority of the total population, voting age population,
and citizen voting age population in at least one district of a
reasonable and properly apportioned district-based election
Id. ¶ 60.
A district comprising portions of the Acre,
Lower Highlands, and Highlands neighborhoods of the City
allegedly can be drawn.
This district would allegedly satisfy
the Gingles precondition that Asian-Americans and
Hispanics/Latinos form a majority in a single member district.
Id. ¶ 61.
The City’s Hispanic/Latino and Asian-American voters
are allegedly politically cohesive as a coalition minority group
and they tend to vote together in support of minority candidates
of their choice, particularly Asian-American and Hispanic/Latino
Id. ¶ 62.
The City’s predominantly white majority
electorate allegedly votes as a bloc in support of different
candidates from those supported by Asian-Americans and
Hispanics/Latinos, and bloc voting by the predominately white
majority consistently defeats the candidates preferred by AsianAmerican and Hispanic/Latino voters.
Id. ¶ 63.
In 2013, two
Cambodian-American candidates lost their elections for City
Council despite heavy support from Asian-American and
Id. ¶ 65.
In 2015, four Cambodian-
American candidates ran for City Council and two ran for the
Both groups lost despite heavy
support from Asian-American and Hispanic/Latino voters.
all elections, the white majority voting bloc allegedly
overwhelmingly favored other candidates and elected its top
Id. ¶¶ 65-67.
Only four Asian-American or Hispanic/Latino candidates have
ever been elected to the Lowell City Council, and none has ever
been elected to the Lowell School Committee.
Id. ¶¶ 64-68.
Asian-American or Hispanic/Latino candidate has been elected to
either body since the 2011 election, despite the fact that these
groups together comprise approximately 40% of the City’s
Candidates elected by the predominantly white
majority bloc are allegedly less responsive to the needs and
concerns of minority communities in the City.
Id. ¶ 72.
The Defendants moved to dismiss on two grounds.
Defendants argued that the Plaintiffs did not plead a
sufficiently large and geographically compact district in which
they would constitute the voting majority, in accordance with
the first factor under Gingles.
Defs.’ Mem. 6-9.
See 478 U.S. at 50; see also
Second, they argued that the Plaintiffs should
not be allowed to proceed with their claims because Section 2
does not allow for different minority groups to aggregate their
claims as a minority coalition.
Defs.’ Mem. 9-13.
concluded that the Defendants’ arguments were meritless.
Court will address the Defendants’ coalition claim first, given
that a ruling in their favor under this claim would render the
rest of the Plaintiffs’ claims essentially moot.
Growe v. Emison, 507 U.S. 25, 41 (1993); Nixon v. Kent County,
76 F.3d 1381, 1385-86 (6th Cir. 1996).
To survive a Rule 12(b)(6) motion to dismiss, the
Plaintiffs must include “enough facts [in their complaint] to
state a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
must “accept as true all well-pleaded facts alleged in the
complaint and draw all reasonable inferences therefrom in the
Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st
Cir. 2011); see also Simmons v. Galvin, 575 F.3d 24, 30 (1st
The Court “need not accept ‘bald assertions,
unsupportable conclusions, periphrastic circumlocutions, and the
Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.
1996) (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.
A claim under Section 2 fails unless the three-part test
articulated in Gingles is satisfied.
See 478 U.S. at 50-51; see
also Metts v. Murphy, 363 F.3d 8, 10 (1st Cir. 2004).
the minority group must be able to demonstrate that it is
sufficiently large and geographically compact to constitute a
majority in a single-member district.”
Gingles, 478 U.S. at 50.
“Second, the minority group must be able to show that it is
Id. at 51.
“Third, the minority must be
able to demonstrate that the white majority votes sufficiently
as a bloc to enable it -- in the absence of special
circumstances, such as the minority candidate running unopposed
-- usually to defeat the minority's preferred candidate.”
(internal citation omitted).
Minority Coalition Under Section 2
The Defendants first argued that the plain language of
Section 2 does not allow the Plaintiffs to aggregate their
Defs.’ Mem. 9-11.
In response, the Plaintiffs
maintained that the plain language of Section 2 does permit
minority coalition claims.
Pls.’ Opp’n 13-15.
Defendants argued that the Court would contravene the
legislative intent of Section 2 by allowing these claims to
Defs.’ Mem. 11-13.
The Plaintiffs, in turn, argued
that a majority of the courts which have addressed this issue
agree that minority coalition claims are cognizable under
Pls.’ Opp’n 16-20.
For the reasons that follow, the
Court agrees that minority coalition claims are cognizable under
Minority View: Nixon v. Kent County.
In Nixon, three African-Americans and three persons of
Hispanic origin filed a class action lawsuit against Kent
County, claiming that the proposed redistricting plan violated
76 F.3d at 1383.
The Sixth Circuit held that
coalition claims were not cognizable under Section 2.
The Sixth Circuit explained that the plain language of
the statute “does not mention minority coalitions, either
expressly or conceptually,” that Section 2 “consistently speaks
of a ‘class’ in the singular,” and that if Congress “had
intended to sanction coalition suits,” the statute would have
read “participation by members of the classes of citizens
protected by subsection (a).”
Id. at 1386.
The Sixth Circuit further outlined four policy
considerations to support the conclusion that minority
coalitions were not cognizable under Section 2.
Id. at 1390-93.
First, Congress did not find that minority groups form a
distinct “protected minority” when they are aggregated.
Second, the authorization of minority coalitions would
allow legislators to “pack” districts with minorities and
“frustrate those who, in good faith, seek to draw district lines
according to the Voting Rights Act's nebulous requirements.”
Id. at 1391.
Third, “[p]ermitting coalition suits effectively
eliminates [the first Gingles threshold question], or, at the
very least, limits it to cases in which the total of all the
protected minorities is less than a majority in any one
Fourth, “allowing coalition suits could change
the Act's purpose from preventing discrimination to advancing
political interest groups and undermining the very meaning and
purpose of democratic government.”
Sara Michaloski, A Tale Of
Two Minority Groups: Can Two Different Minority Groups Bring A
Coalition Suit Under Section 2 Of The Voting Rights Act Of 1965,
63 Cath. U.L. Rev. 271, 288-89 (2013); see Nixon, 76 F.3d at
Majority View: Fifth and Eleventh Circuits
Both the Fifth and Eleventh Circuits recognize minority
coalition claims under Section 2.
In League of United Latin
American Citizens, Council No. 4386 v. Midland Independent
School District, 812 F.2d 1494, 1496 (5th Cir. 1987), vacated on
state law grounds, 829 F.2d 546 (5th Cir. 1987), Hispanic and
Black voters filed a class action lawsuit against the school
district, claiming that the at-large system of voting in the
election of trustees for the school district diluted their
The Fifth Circuit held that there was no error in the
district court’s finding that Hispanic and Black voters could
aggregate their claims.
Id. at 1500.
The Fifth Circuit
explained that both groups “share[d] common experiences in past
discriminatory practices” and that “the two groups have
political goals that are inseparable.”
The Fifth Circuit
also noted that “coalition formation will often prove to be
mutually beneficial to the two groups” and that “[t]estimony
presented showed that Blacks and Hispanics worked together and
formed coalitions when their goals were compatible.”
One year later, in Campos v. City of Baytown, 840 F.2d 1240
(5th Cir. 1988), the Fifth Circuit again endorsed minority
coalition claims by holding that “[t]here is nothing in the law
that prevents the plaintiffs from identifying the protected
aggrieved minority to include both Blacks and Hispanics.”
The Fifth Circuit reasoned that Section 2 protected
the right to vote for both racial and language minorities.
So long as both groups met the Gingles requirements, they could
aggregate their claims under Section 2.
In Concerned Citizens of Hardee County v. Hardee County
Board Of Commissioners, 906 F.2d 524 (11th Cir. 1990), Black and
Hispanic voters filed separate suits against the county
commissioners and school board, alleging that the at-large
voting system used in their elections diluted their combined
votes in violation of Section 2.
Id. at 525-26.
The suits were
The Eleventh Circuit held that “[t]wo
minority groups (in this case blacks and hispanics) may be a
single section 2 minority if they can establish that they behave
in a politically cohesive manner,” thus satisfying the second
Id. at 526.
Because the plaintiffs in
Concerned Citizens of Hardee County could not present evidence
of political cohesiveness, their Section 2 claim failed.
Other Support for Minority Coalitions
Judge Keith dissented in Nixon, explaining that minority
coalition claims are cognizable under Section 2.
at 1396 (Keith, J., dissenting).
Nixon, 76 F.3d
He reasoned that the term
“class of citizens” is ambiguous and requires an examination of
the legislative history of the statute for clarification.
He pointed out that the 1975 amendment to the statute,
which broadened Section 2 to protect language minorities,
suggests that Congress was aware of the need for protected
groups to aggregate their claims.
Moreover, before the
amendment was passed the Supreme Court decided Wright v.
Rockefeller, 376 U.S. 52 (1964), a case in which Black and
Puerto Rican voters aggregated their claims under Section 2.
Judge Keith explained that “[i]f 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.”
Nixon, 76 F.3d at 1395.
Other circuits have assumed, arguendo, that minority
coalitions are allowed under Section 2.
In Badillo v. City of
Stockton, 956 F.2d 884 (9th Cir. 1992), Hispanic and Black
voters filed suit against the city, claiming that its new atlarge voting system for the general election violated Section 2.
Id. at 885-86.
The Ninth Circuit held that the district court
did not err in finding that “hispanics and blacks together could
form a majority in a single-member district,” even though “the
evidence failed to establish that such a combined group of
blacks and hispanics would vote in a politically cohesive manner
that would guarantee election of a minority representative.”
Id. at 886.
Consequently, the plaintiffs in Badillo did not
satisfy the second Gingles factor and their claims failed.
see also Growe v. Emison, 507 U.S. 25, 37-42 (1993) (assuming,
without deciding, that minority coalition claims are cognizable
under Section 2, but holding that the plaintiff failed to
establish political cohesion under Gingles).
Similarly, in Bridgeport Coalition for Fair Representation
v. City of Bridgeport, 26 F.3d 271 (2d Cir. 1994), vacated and
remanded on other grounds, 512 U.S. 1283 (1994), the Second
Circuit held that a preliminary injunction was warranted against
the city because its reapportionment plan violated Section 2.
Id. at 276.
The Second Circuit explained that coalition
districts are appropriate under Section 2 so long as the Gingles
factors are met.
Section 2’s remedial purpose is best served by allowing
minority coalition claims: “If two minority groups experience
oppression at the hands of the majority, and they are able to
establish the same burden of proof as one minority group might,
then congressional intent to allow minority groups equal
participation in our democratic system of government is best
served by allowing them to form a coalition.”
63 Cath. U.L. Rev. at 291.
Moreover, “[s]eparating two
different minority groups for the purpose of bringing a Section
2 violation further separates, classifies and labels minority
groups, thereby further entrenching their minority status rather
than promoting the Act's voting equality goal.”
Id. at 292.
addition, as explained in the cases above, even when suits are
brought by a minority coalition, the coalition must still
satisfy all three Gingles factors in order to prove a violation
of Section 2.
See id. at 294.
First Circuit View on Coalition Claims
The First Circuit has yet to address coalition claims
directly, but there is jurisprudence to guide this Court in
making its decision to allow coalition claims under Section 2.
In Latino Political Action Committee, Inc. v. City of Boston,
784 F.2d 409 (1st Cir. 1986), a pre-Gingles case, a group of
Black, Hispanic, and Asian voters sued the city.
Id. at 410.
The plaintiffs argued that the city’s districting plan for the
election of members of the City Council and of the School
Committee violated Section 2.
The First Circuit held that
the claims failed, not because of aggregation of minority
groups, but because the plaintiffs did not present any evidence
of cohesion among the groups, a factor which later became known
as the second factor in Gingles.
Id. at 414.
In Black Political Task Force v. Galvin, 300 F. Supp. 2d
291 (D. Mass. 2004) (Selya, J.)2, “the plaintiffs pursued a
theory of aggregation, namely, that African-American and
Hispanic voters function in Boston as a combined cross-racial
coalition with shared interests.”
300 F. Supp. 2d at 294 n.1.
“At trial, however, the testimony concentrated on the voting
patterns of African-Americans.”
The District Court,
however, did not fully address the aggregated claims, and ruled
that “the district lines must be redrawn” because the
Redistricting Act discriminated against black voters.
District Court, therefore, did not need to “probe the complex
question of whether the plaintiffs' evidence revealed a cohesive
coalition among African-American and Hispanic voters.”
Of the United States Court of Appeals for the First Circuit, sitting
Accordingly, in order properly to serve Section 2’s
legislative intent of curing past discrimination and remain
faithful to the reasoning of the majority of the circuit and
district courts which have considered the issue, this Court
DENIED the City’s motion to dismiss because minority coalition
claims are cognizable under Section 2.
Majority-Minority District under Gingles3
The Defendants argued that the Plaintiffs did not comply
with the first Gingles factor because they did not provide any
evidence of a majority-minority district.
Defs.’ Mem. 6-9.
They did not argue that the Plaintiffs are obligated to produce
a map of the proposed district, but that the Plaintiffs must
identify more than just the portions of neighborhoods which
would be part of the majority-minority district.
Id. 8 n.4.
The Plaintiffs argued that they alleged sufficient facts to show
that a majority-minority district could be created.
This Court DENIED the motion to dismiss because the
Plaintiffs adequately pled a majority-minority district in
paragraphs 45-46, 61, 106, and 117 of their complaint in
accordance with the first factor in Gingles.
The Defendants do not argue that the Plaintiffs failed to
satisfy the remaining two Gingles factors: political
cohesiveness and white majority voting bloc.
The first Gingles factor requires the minority group “to
demonstrate that it is sufficiently large and geographically
compact to constitute a majority in a single-member district.”
Gingles, 478 U.S. at 50.
“[M]ere recitation of the Gingles
precondition” is not enough adequately to plead a Section 2
Luna v. County of Kern, No. 16-cv-00568-DAD-JLT, 2016 WL
4679723, at *4 (E.D. Cal. Sept. 2, 2016).
The First Circuit
cautions against the dismissal of a Section 2 claim at the
See Metts, 363 F.3d at 11 (“It is no accident
that most cases under section 2 have been decided on summary
judgment or after a verdict, and not on a motion to dismiss.”).
Here, the Plaintiffs alleged in their complaint that
“minorities constitute over 49% of Lowell’s total population,
and Hispanics/Latinos and Asian-Americans combined comprise
approximately 40% of the total population.”
Compl. ¶ 45.
Plaintiffs also alleged that “[i]t is possible to draw
redistricting maps for the City of Lowell in which AsianAmericans and Hispanics/Latinos would form a majority of the
population in at least one reasonable and properly-apportioned
single-member district for both the Lowell City Council and the
Lowell School Committee . . . [and] a district comprising
portions of the Acre, Lower Highlands, and/or Highlands
neighborhoods of Lowell can be drawn that satisfies this
Id. ¶ 61.
These allegations satisfy the first
Gingles factor because they do more than just recite the first
factor, they actually offer an idea of what the proposed
district would look like by describing the possible
neighborhoods that could create the district.
See Luna, 2016 WL
4679723, at *4.
For the foregoing reasons, this Court on October 17, 2017
DENIED the Defendants’ motion to dismiss, ECF No. 17.
/s/ William G. Young
WILLIAM G. YOUNG
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