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Disparate Impact

The Right Way to Interpret the Voting Rights Act

As Eric Holder’s Justice Department attacks voter-ID laws in Texas and North Carolina, Hans von Spakovsky of the Heritage Foundation and I have written a paper that warns the courts that they should be wary of construing Section 2 of the Voting Rights Act to find liability when only a “disparate impact” on the basis of race has been shown.

“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 race-neutral laws and practices that it doesn’t like for policy 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, nondiscriminatory 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 email 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 antifraud measures. The administration is likely to assert that Section 2, which is a nationwide provision, can be used to strike down such voter-ID laws whenever they have a disproportionate racial effect.

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 in the context that means actions undertaken with racially discriminatory intent.

Thus, congressional legislation must be aimed at preventing intentional racial discrimination, not just actions that may have just 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 decisionmaking, which would violate the Constitution’s guarantee of equal protection.

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, nondiscriminatory 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 the statute’s “results” language.

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.  The word “results” seems to be something of a compromise between pure effects and pure intent, and the statute’s legislative history is consistent with that.  As the Second Circuit stated in Muntaqim v. Coombe, “Congress did not wholly abandon its focus on purposeful discrimination when it amended the [Voting Rights 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 antifraud 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 have substantial roots in racial discrimination.

Allow rebuttal if legitimate, nondiscriminatory 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, nondiscriminatory business reason, and the same must be true in voting cases.

For instance, prohibiting children or noncitizens 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. But it seems obvious that states have legitimate nondiscriminatory reasons for these prohibitions. To deny states that opportunity would be impractical and bizarre, since it would seemingly require them to allow children and noncitizens 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 simply a nondiscriminatory and legitimate reason, such as ensuring integrity and public confidence in the election process, would avoid stretching Section 2 beyond the limits of the Constitution.

Conclusion.  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, nondiscriminatory 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.

Mt. Holly and “Disparate Impact”

This year the Supreme Court had agreed to resolve a fundamental question about the Fair Housing Act that it has never answered: Can you be found guilty of racial discrimination if you have not engaged in racial discrimination?

Suppose, for example, that the owner of an apartment complex decides that she does not want to rent units to individuals who have been convicted of drug offenses. She makes that decision without regard to race, her policy on its face does not treat people differently because of race, and indeed she enforces it in an evenhanded way, so that it applies equally to all applicants, without regard to race. Should she be liable for racial discrimination under the Fair Housing Act if it turns out that the policy in her neck of the woods has a disproportionate effect on this or that racial or ethnic group?

The Obama administration and the civil-rights establishment say, “Yes,” even though most everyone else would say, “No.” The administration and the civil-rights groups are afraid, in particular, that the Supreme Court will answer the question, “No,” too, and so they want very much to keep the Court from resolving this issue.

The (Illegitimate) Elephant in the Room

“Quid Pro Quota” is the apt title of an editorial this month in the Wall Street Journal (behind the paywall here). Here’s the story: Earlier this year, the Supreme Court was poised to hear oral arguments in the fully briefed Magner v. Gallagher, a case presenting the issue of whether a “disparate impact” cause of action may be brought under the Fair Housing Act.

Disparate Impact Insanity

In case you missed it, on February 26 I had an op-ed in the Wall Street Journal titled “How Not To Fight Discrimination.”  Here it is:

Welcome to the era of "disparate impact."

The Obama administration this month issued regulations formally adopting the "disparate impact" approach to its enforcement of the Fair Housing Act, the 1968 law designed to protect buyers and renters from discrimination (racial and otherwise). This approach is increasingly becoming standard in housing and every area of the law.

Happy Thanksgiving, and more

First of all, a Happy Thanksgiving to you and yours from the Center for Equal Opportunity! We at CEO have much to be thankful for this year, and that certainly includes supporters like you.

One thing we would not put on our most-thankful-for list, however, is wacky interpretations of the civil-rights laws. Speaking of which …

The Supreme Court granted review earlier this month in Magner v. Gallagher, which presents the question whether a “disparate impact” cause of action can be brought under the Fair Housing Act. Such lawsuits would allow plaintiffs to challenge housing-related practices that lead to disproportionate racial or ethnic results, whether or not they have anything to do with actual discrimination. For example, a preference for tenants without criminal records could be attacked if this or that racial or ethnic group was more likely to have such a record. Many lower courts have recognized disparate-impact lawsuits, alas, but the Supreme Court has never resolved the issue.