“Disparate impact” is the favored but dubious legal theory of the Obama administration. It’s being used to attack everything from election integrity to the financial industry when DOJ doesn’t have any evidence of intentional discrimination. This theory lets DOJ attack completely neutral laws and practices that it doesn’t like for policy, not legal, reasons.We argue that under Section 2, courts should require some evidence of underlying disparate treatment on the basis of race. In addition, the courts should consider the state’s legitimate, non-discriminatory interest in a challenged practice, such as preventing voter fraud and maintaining public confidence in the fairness and integrity of the electoral process. Our paper can be found here, and this post briefly summarizes its arguments.
The potential conflict between Section 2 and the Constitution. In the wake of the Supreme Court’s decision last summer in Shelby County v. Holder, which struck down the coverage formula for Section 5 of the Voting Rights Act, the Obama administration has decided to bring lawsuits under another VRA provision — Section 2 — to challenge anti-fraud measures. The administration is likely to assert that Section 2, which is a permanent, nationwide provision, can be used to strike down such voter-ID laws even if the government cannot show that they were enacted with any racially discriminatory intent.
But construing Section 2 to create liability whenever there is a mere “disparate impact” with respect to race raises serious constitutional problems — problems that can be avoided if the statute is given a narrower, and at least equally plausible, interpretation.
Here’s why the pure “disparate impact” approach creates a problem: The 14th and 15th Amendments prohibit state actions only where there is “disparate treatment” on the basis of race. The U.S. Supreme Court has made clear that this means actions undertaken with racially discriminatory intent.
Thus, congressional legislation must be aimed at preventing intentional racial discrimination, not just actions that may have an effect that disproportionately affects racial minorities. This is especially so in light of federalism concerns and the fact that, as Justice Antonin Scalia noted in Ricci v. DeStefano, the disparate-impact approach actually encourages race-based decision-making, which would violate the Constitution’s guarantee of equal protection under the law.
It is possible to construe Section 2 so as to mitigate the constitutional problems that would be raised by a pure “disparate impact” statute — an important fact, since case law demands that courts construe statutes to avoid constitutional problems. This can be accomplished by interpreting the “results” language in the statute to require challengers to demonstrate a close nexus between the practice in question and actual disparate treatment (an action taken for a discriminatory purpose), and by giving defendants a rebuttal opportunity to show that they have legitimate, non-discriminatory reasons for the challenged practice. The “totality of circumstances” test and the phrase “on account of” in Section 2 arguably add just such a causality factor and rebuttal opportunity to its “results” test.
Require that disparate “results” have a close connection to disparate treatment. A court should not impose liability where only a disproportionate racial impact has been shown. As the Second Circuit stated in Muntaqim v. Coombe, “Congress did not wholly abandon its focus on purposeful discrimination when it amended the [Act] in 1982,” as it continued to bar only “practices that deny or abridge the right to vote on account of race or color.” Proving a violation requires more than a “showing of racially disparate effects.” Even with the “results” test, Section 2 still requires proof of discrimination “on account of race or color.” Other cases have taken this approach, too.
A plausible reading of Section 2 is that it prohibits, in addition to intentional discrimination, a practice that “results” in a disparate racial impact only if that result is “on account of race.” In the anti-fraud context, the plaintiff should have to show, for example, not just that a voter-ID law had a disproportionate racial result but that the result has discriminatory roots — that acceptable forms of voter ID are less likely to be held by African Americans because of past (but relatively recent) discriminatory practices.
For example, this could require proof that relatively few African Americans have valid drivers’ licenses because driving tests have been administered in a purposefully discriminatory way. In other words, the result has to be substantially caused by racial discrimination.
Allow rebuttal if legitimate, non-discriminatory reasons for the practice are shown. Disparate-impact lawsuits typically afford the defendant an opportunity to demonstrate that the challenged practice, even if it has a disproportionate racial effect, is justified. In an employment-discrimination case, for example, defendants are allowed to defend challenged selection criteria as being tied to some important, non-discriminatory business reason, and the same must be true in voting cases.
For instance, prohibiting children or non-citizens from voting may have a disparate impact on racial or ethnic groups if those groups contain a disproportionate number of young people or recent immigrants. However, it seems obvious that states have legitimate non-discriminatory reasons for these prohibitions. To deny states that opportunity would be impractical and bizarre, since it would seemingly require them to allow children, non-citizens, and otherwise ineligible individuals to vote. This would heighten the constitutional problems presented by Section 2.
The courts have recognized that there may be legitimate reasons to impose practices that end up having disparate racial results. The litigation in Houston Lawyers’ Ass’n v. Texas Attorney General, for instance, ultimately rejected a challenge to Texas’s countywide election system for district-court judges — notwithstanding that system’s alleged disparate impact on racial-minority candidates — because the state had a “substantial interest” in maintaining a close link between the electorate and the jurisdiction over which these elected officials would preside, thereby promoting “the fact and appearance of judicial fairness.” Likewise, the Sixth Circuit held that a state’s “legitimate and compelling interest” in disenfranchising felons outweighed any supposed racial impact.
The remaining question is how great an interest the state must show in order to satisfy its rebuttal requirement: Must it be “compelling” or merely “legitimate,” or something in between (say, “important”)? The Supreme Court’s language in Houston Lawyers’ Ass’n suggests a relatively modest hurdle, and a standard requiring a non-discriminatory — and thus legitimate — reason, such as ensuring integrity and public confidence in the election process, would avoid stretching Section 2 beyond the limits of the Constitution.
Courts should avoid construing Section 2 of the Voting Rights Act in ways that raise constitutional problems. In particular, the “results” language of the statute should be interpreted to require a close nexus to some disparate treatment and should provide defendants a rebuttal opportunity to show that they have legitimate, non-discriminatory reasons for the challenged voting practice. Without such an interpretation, Section 2 would likely be unconstitutional, just as the coverage formula for Section 5 was found to be.
- Hans A. von Spakovsky is senior legal fellow and manager of the Election Law Reform Initiative in the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.
Editors Note: Roger Clegg, president and general counsel of the Center for Equal Opportunity, contributed to this article.
Originally appeared in The National Review