Amicus Curiae Brief — Mark Brnovich, Attorney General of Arizona, et al., Petitioners v. Democratic National Committee, et al.
Supreme Court briefDec 7, 2020
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Nos. 19-1257 & 19-1258
IN THE
Supreme Court of the United States
MARK BRNOVICH, IN HIS OFFICIAL CAPACITY AS
ARIZONA ATTORNEY GENERAL, ET AL.,
Petitioners,
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
Respondents.
ARIZONA REPUBLICAN PARTY, ET AL.,
Petitioners,
v.
DEMOCRATIC NATIONAL COMMITTEE, ET AL.,
Respondents.
On Writs of Certiorari to the United States Court of
Appeals for the Ninth Circuit
BRIEF OF AMICUS CURIAE
PROFESSOR NICHOLAS STEPHANOPOULOS
IN SUPPORT OF NEITHER PARTY
JENNA A. HUDSON
Counsel of Record
MARK A. PACKMAN
JANET SANCHEZ
GILBERT LLP
700 Pennsylvania Avenue, SE
Suite 400
Washington, DC 20003
(202) 772-3966
hudsonj@gilbertlegal.com
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................... iii
INTEREST OF AMICUS CURIAE ......................... 1
SUMMARY OF THE ARGUMENT......................... 1
ARGUMENT ............................................................ 6
I.
II.
THE USUAL DISPARATE-IMPACT FRAMEWORK
IS APPLICABLE TO VOTING. ............................. 6
A.
The Theoretical Justifications for the
Usual Framework Apply to Voting. ... 9
B.
Voting Is Sufficiently Similar to Other
Activities Covered by the Usual
Framework. ....................................... 11
THE USUAL DISPARATE-IMPACT FRAMEWORK
WOULD RESOLVE A SERIES OF ISSUES ABOUT
RACIAL-VOTE-DENIAL CLAIMS. ..................... 14
A.
Must a Plaintiff Challenge a Specific
Practice or the Whole Electoral
System? ............................................. 14
B.
Does the Magnitude of the Racial
Disparity Matter? ............................. 16
C.
What Kind of Racial Disparity Must
Be Shown? ......................................... 17
D.
Is Interaction with Discrimination
Necessary? ........................................ 19
ii
E.
III.
IV.
What Is the Proper Remedy? ........... 20
THE USUAL DISPARATE-IMPACT FRAMEWORK
WOULD BOLSTER SECTION 2’S
CONSTITUTIONALITY. .................................... 22
A.
The Usual Framework Tightens
Section 2’s Fit with Underlying
Constitutional Violations. ................ 23
B.
Compliance with the Usual
Framework Requires Less Focus on
Race. .................................................. 26
THE COURT IS FREE TO ADOPT THE USUAL
DISPARATE-IMPACT FRAMEWORK AS A MATTER
OF STATUTORY INTERPRETATION. ................. 29
CONCLUSION ....................................................... 33
iii
TABLE OF AUTHORITIES
Cases
Page(s)
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)........................................4, 17
City of Boerne v. Flores,
521 U.S. 507 (1997)........................................... 23
City of Mobile v. Bolden,
446 U.S. 55 (1980) (plurality
opinion).............................................................. 23
Connecticut v. Teal,
457 U.S. 440 (1982)............................ 4, 17, 18, 19
Democratic Nat’l Comm. v. Hobbs,
948 F.3d 989 (9th Cir. 2020) (en
banc) .................................................................... 2
Dothard v. Rawlinson,
433 U.S. 321 (1977)......................................19, 20
Farrakhan v. Washington,
359 F.3d 1116 (9th Cir. 2004)
(Kozinski, J., dissenting from
denial of rehearing en banc) ............................. 24
Frank v. Walker,
17 F. Supp. 3d 837 (E.D. Wis.
2014), rev’d on other grounds, 768
F.3d 744 (7th Cir. 2014) ................................... 20
iv
Frank v. Walker,
196 F. Supp. 3d 893 (E.D. Wis.
2016), aff’d in part and rev’d in
part sub nom. Luft v. Evers, 963
F.3d 665 (7th Cir. 2020) ................................... 20
Frank v. Walker,
768 F.3d 744 (7th Cir. 2014) .................15, 18, 19
Greater Birmingham Ministries v.
Merrill,
284 F. Supp. 3d 1253 (N.D. Ala.
2018), aff’d sub nom. Greater
Birmingham Ministries v. Sec’y of
State for Ala., 966 F.3d 1202 (11th
Cir. 2020)........................................................... 16
Griggs v. Duke Power Co.,
401 U.S. 424 (1971)................................11, 13, 32
Holder v. Hall,
512 U.S. 874 (1994)........................................... 31
League of United Latin Am. Citizens v.
Perry,
548 U.S. 399 (2006)........................................... 31
League of Women Voters of N.C. v.
North Carolina,
769 F.3d 224 (4th Cir. 2014) .................15, 16, 19
N.C. State Conf. of the NAACP v.
McCrory,
182 F. Supp. 3d 320 (M.D.N.C.
2016), rev’d on other grounds, 831
F.3d 204 (4th Cir. 2016) ..............................20, 31
v
N.C. State Conf. of the NAACP v.
McCrory,
997 F. Supp. 2d 322 (M.D.N.C.
2014), aff’d in part and rev’d in
part, 769 F.3d 224 (4th Cir. 2014).................... 16
Ne. Ohio Coal. for the Homeless v.
Husted,
837 F.3d 612 (6th Cir. 2016) (Keith,
J., concurring) ................................................... 15
Ohio Democratic Party v. Husted,
834 F.3d 620 (6th Cir. 2016) .......................15, 18
One Wis. Inst. v. Thomsen,
198 F. Supp. 3d 896 (W.D. Wis.
2016), aff’d in part and rev’d in
part sub nom. Luft v. Evers, 963
F.3d 665 (7th Cir. 2020) ................................... 18
Ricci v. DeStefano,
557 U.S. 557 (2009) (Scalia, J.,
concurring) .....................................................9, 27
Smith v. City of Jackson,
544 U.S. 228 (2005)........................................7, 32
South Carolina v. Katzenbach,
383 U.S. 301 (1966)........................................... 23
Texas Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, Inc.,
576 U.S. 519 (2015).................................... passim
Thornburg v. Gingles,
478 U.S. 30 (1986)..............................6, 29, 30, 32
vi
Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) (en
banc) ........................................................... passim
Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp.,
429 U.S. 252 (1977)........................................... 25
Washington v. Davis,
426 U.S. 229 (1976)........................................... 23
Watson v. Forth Worth Bank & Trust,
487 U.S. 977 (1988) (plurality
opinion).............................................................. 17
Rules
Supreme Court Rule 37.3 ........................................ 1
Supreme Court Rule 37.6 ........................................ 1
Statutes and Regulations
24 C.F.R. § 100.500 .................................................. 6
29 C.F.R. § 1607.4(D) ............................................. 17
78 Fed. Reg. at 11460 (Feb. 15, 2013) ......8, 9, 13, 16
85 Fed. Reg. 60288 (Sept. 24, 2020) ........................ 9
29 U.S.C. § 623(a)(2) .............................................. 32
42 U.S.C. § 2000e-2 ......................................... passim
42 U.S.C. § 3604(a)................................................. 32
vii
42 U.S.C. § 12112(b)(6) ............................................ 7
52 U.S.C. § 10301(a)..........................................31, 33
52 U.S.C. § 10301(b)......................................6, 29, 30
Policy Statement on Discrimination in
Lending, 59 Fed. Reg. 18266
(Apr. 15, 1994) .................................................... 7
Other Authorities
Christine Jolls, Antidiscrimination
and Accommodation, 115 Harv. L.
Rev. 642 (2001).................................................. 21
Civil Rights Div., U.S. Dep’t of Justice,
Title VI Legal Manual, § 7 (2017) ...................... 7
Daniel P. Tokaji, Applying Section 2 to
the New Vote Denial, 50 Harv.
C.R.-C.L. L. Rev. 439 (2015) ............................... 2
David C. Baldus & James W.L. Cole,
Statistical Proof of Discrimination
(1980)................................................................. 17
Jowei Chen & Nicholas O.
Stephanopoulos, The Race-Blind
Future of Voting Rights, 130 Yale
L.J. (forthcoming 2021) ...................................... 1
viii
Michael Selmi, The Evolution of
Employment Discrimination Law:
Changed Doctrine for Changed
Social Conditions, 2014 Wis. L.
Rev. 937 ............................................................. 20
Michael Selmi, Was the Disparate
Impact Theory a Mistake?, 53
UCLA L. Rev. 701 (2006).................................. 25
Nicholas O. Stephanopoulos, Civil
Rights in a Desegregating America,
83 U. Chi. L. Rev. 1329 (2016) ........................... 1
Nicholas O. Stephanopoulos,
Disparate Impact, Unified Law,
128 Yale L.J. 1566 (2019) ..........................1, 2, 24
Nicholas O. Stephanopoulos, Race,
Place, and Power, 68 Stan. L. Rev.
1323 (2016) .......................................................... 1
Nicholas O. Stephanopoulos, The
South After Shelby County, 2013
Sup. Ct. Rev. 55 .................................................. 1
Richard Primus, The Future of
Disparate Impact, 108 Mich. L.
Rev. 1341 (2010)................................................ 10
S. Rep. No. 97-417 (1982)..................................... 2, 6
Samuel Issacharoff, Voter Welfare: An
Emerging Rule of Reason in Voting
Rights Law, 92 Ind. L.J. 299 (2016) ................... 2
ix
Stacy E. Seicshnaydre, Is Disparate
Impact Having Any Impact? An
Appellate Analysis of Forty Years of
Disparate Impact Claims Under the
Fair Housing Act, 63 Am. U. L.
Rev. 357 (2013) ................................................. 25
1
INTEREST OF AMICUS CURIAE1
Professor Nicholas Stephanopoulos is a
Professor of Law at Harvard Law School, where he
specializes in election law. He is the author of a recent
article on how courts should address claims of racial
vote denial under Section 2 of the Voting Rights Act
(“VRA”). See Nicholas O. Stephanopoulos, Disparate
Impact, Unified Law, 128 Yale L.J. 1566 (2019). He
has also published extensively on other VRA issues.
See, e.g., Jowei Chen & Nicholas O. Stephanopoulos,
The Race-Blind Future of Voting Rights, 130 Yale L.J.
(forthcoming 2021); Nicholas O. Stephanopoulos,
Race, Place, and Power, 68 Stan. L. Rev. 1323 (2016);
Nicholas O. Stephanopoulos, Civil Rights in a
Desegregating America, 83 U. Chi. L. Rev. 1329
(2016); Nicholas O. Stephanopoulos, The South After
Shelby County, 2013 Sup. Ct. Rev. 55. He is a coeditor,
as well, of a leading election law casebook. See
Election Law: Cases and Materials (6th ed. 2017).
SUMMARY OF THE ARGUMENT
Over the nearly four decades that have passed
since Congress enacted Section 2 in its current form
in 1982, this Court has never decided a racial-votedenial case under the provision. (In contrast, the
Court has decided many racial-vote-dilution cases
under Section 2.) To rule in this matter, then, the
Court will have to determine the standard for liability
1 No party or its counsel had any role in authoring or made
any monetary contribution to fund the preparation or
submission of this brief. See Sup. Ct. R. 37. All parties have
consented to the filing of this brief and blanket letters of consent
have been filed with the Clerk. Id.
2
that applies to Section 2 vote-denial cases. The Court
should consider alternatives to the two-part test,
recently embraced by several lower courts, that asks
(1) whether an electoral regulation causes a disparate
racial impact, and (2) whether this disparity is
attributable to the regulation’s interaction with
historical and ongoing discrimination. In particular,
the Court should consider adopting the disparateimpact framework used for decades under Title VII of
the Civil Rights Act (“CRA”), the Fair Housing Act
(“FHA”), and many more laws. The first step of this
framework is the same: whether a particular practice
causes a significant racial disparity. But the
defendant then has the opportunity to show that the
practice is necessary to achieve a substantial interest.
And if that showing is made, the plaintiff may still
prevail by demonstrating that this interest could be
attained in a different, less discriminatory way.2
Scholars recommending an approach along these lines
include Samuel Issacharoff, Voter Welfare: An Emerging Rule of
Reason in Voting Rights Law, 92 Ind. L.J. 299, 316 (2016);
Stephanopoulos, Disparate Impact, Unified Law, supra; and
Daniel P. Tokaji, Applying Section 2 to the New Vote Denial,
50 Harv. C.R.-C.L. L. Rev. 439, 441 (2015).
This brief takes no position on what the result would be if
the usual disparate-impact framework were applied to the facts
of this case. However, the court below did thoroughly analyze
“whether the polic[ies] underlying” Arizona’s rules on out-ofprecinct ballots and third-party ballot collection are “tenuous.”
S. Rep. No. 97-417, at 29 (1982); see Democratic Nat’l Comm. v.
Hobbs, 948 F.3d 989, 1017 (9th Cir. 2020) (en banc) (“Of the
various factors, we regard . . . the tenuousness of the justification
for the challenged voting practices[] as particularly important.”).
As discussed below, the most obvious way to adopt the usual
disparate-impact framework in the Section 2 vote-denial context
2
3
This approach (the “usual disparate-impact
framework,” or “usual framework” for short) applies
to voting as naturally as to employment, housing, or
other activities that are subject to antidiscrimination
laws. Consider the most familiar theoretical account
of disparate-impact law: that it smokes out racially
discriminatory motives that cannot be proven
directly. This theory works perfectly well in the voting
context. When an electoral regulation differentially
affects minority and nonminority citizens—and this
disparate impact is unnecessary or could have been
mitigated—a discriminatory purpose may reasonably
be inferred. Absent such a purpose, after all, why
would the regulation have been enacted in the first
place?
As a substantive matter, voting also resembles
employment, housing, and other areas already
subject to the usual framework. Like a job or a home,
the franchise is a valued good to which access is
determined by criteria that not everyone can satisfy.
It is true that voting (unlike employment and
housing) is exclusively regulated by the state. But this
only means that it is public rather than private
interests that are the potential justifications for
disparate impacts. It is true as well that voting (again
unlike employment and housing) is a nonmarket
good. This too, though, simply takes off the table one
common rationale for racial discrepancies: private
actors’ pursuit of profit.
is precisely by highlighting this tenuousness factor. See
Argument IV, infra.
4
Turning to doctrine, the usual framework has
a major practical advantage. Because it has been
employed for so long, many contentious issues have
been resolved under it. For example, must litigants
establish a large disparate impact, or will any
discriminatory effect do? Lower courts have disagreed
in Section 2 vote-denial cases. But under the usual
framework, it has been clear for decades that, to make
out a prima facie case, a plaintiff must show that a
policy has “significantly different” effects on
minorities and nonminorities. Albemarle Paper Co. v.
Moody, 422 U.S. 405, 425 (1975) (emphasis added).
Similarly, what kind of disparate impact must
be proven in Section 2 litigation—a difference
between minority and nonminority citizens’
likelihoods of compliance with an electoral
requirement, or a racial gap in voter turnout? Again,
lower courts have arrived at divergent conclusions.
But under the usual framework, this Court long ago
rejected the “suggestion that disparate impact should
be measured only at the bottom line.” Connecticut v.
Teal, 457 U.S. 440, 451 (1982). The Court held, in
other words, that the racial discrepancies caused
directly by a policy are at least as probative as its
ultimate downstream consequences.
Beyond settling doctrinal issues, the adoption
of the usual framework would bolster Section 2’s
constitutionality. Section 2 enforces the Fourteenth
and Fifteenth Amendments. Both of these provisions
are generally violated only if a racially discriminatory
purpose is established. Such a purpose can seldom be
deduced from a racial disparity alone. But an
invidious aim can be inferred more readily when a
5
disparate impact is unnecessary and could have been
reduced by a different policy. In that case, “disparateimpact liability under the [usual framework] plays a
role in uncovering discriminatory intent.” Texas Dep’t
of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project,
Inc., 576 U.S. 519, 540 (2015). Accordingly, the usual
framework would tighten the fit between Section 2
and the underlying constitutional violations it seeks
to prevent or remedy.
The usual framework would also alleviate any
tension between Section 2 and the equal protection
principle of colorblindness. If electoral regulations
breach Section 2 whenever they produce racial
disparities, then jurisdictions might have to fixate on
race to avoid such disparities. This racial focus could
“cause race to be used and considered in a pervasive
way” and “serious constitutional questions then could
arise.” Id. at 542. In contrast, the usual framework
would not create the same incentive for jurisdictions
to operate race-consciously. Jurisdictions would
simply have to ensure that their electoral policies
actually advance important interests and do so
without creating unwarranted racial discrepancies.
Jurisdictions would not have to try to eliminate all
racial gaps in voting.
Lastly, the adoption of the usual framework
would be consistent with Section 2’s text and history.
On its face, Section 2 forbids one type of racial
disparity from leading automatically to liability.
“[N]othing in this section establishes a right to have
members of a protected class elected in numbers
equal to their proportion in the population.” 52 U.S.C.
§ 10301(b). The usual framework dovetails nicely with
6
this disclaimer since, under it, neither this nor any
other disparate impact would suffice, alone, to
invalidate an electoral regulation.
Moreover, the definitive Senate report that
accompanied the 1982 amendments to Section 2
identified as a probative factor “whether the policy
underlying [a jurisdiction’s electoral policy] is
tenuous.” S. Rep. No. 97-417, at 29 (1982). This
tenuousness factor has been highlighted by this
Court’s Section 2 decisions. See, e.g., Thornburg v.
Gingles, 478 U.S. 30, 37, 45 (1986). And the factor
could easily be construed to incorporate the second
and third steps of the usual framework. An electoral
practice that does not serve a substantial interest, or
is unnecessary to a substantial interest’s attainment,
has a tenuous justification. So does an electoral
practice whose disparate racial effects could have
been lessened without compromising a jurisdiction’s
legitimate goals.
ARGUMENT
I.
THE USUAL DISPARATE-IMPACT
FRAMEWORK IS APPLICABLE TO
VOTING.
The usual disparate-impact framework is
currently employed under a wide range of federal
statutes. Most prominently, it applies to employment
under Title VII of the CRA, see 42 U.S.C. § 2000e-2(k),
and to housing under the FHA, see 24 C.F.R.
§ 100.500. The usual framework also applies to
recipients of federal funds under Title VI of the CRA,
see Civil Rights Div., U.S. Dep’t of Justice, Title VI
7
Legal Manual, § 7, at 6 (2017), to age discrimination
under the Age Discrimination in Employment Act
(“ADEA”), see Smith v. City of Jackson, 544 U.S. 228,
233–40 (2005), to lending discrimination under the
Equal Credit Opportunity Act, see Policy Statement
on Discrimination in Lending, 59 Fed. Reg. 18266
(Apr. 15, 1994), and to disability discrimination under
the Americans with Disabilities Act, see 42 U.S.C.
§ 12112(b)(6). In fact, the only corner of disparateimpact law where the usual framework is not used, at
present, is voting.
To reiterate, the usual framework has three
sequential steps. First, the plaintiff must identify a
particular practice that causes a significant racial
disparity. Next, if this showing is made, the defendant
has the burden of proving that the practice is
necessary to achieve a substantial interest. Finally, if
the defendant carries this burden, the plaintiff must
demonstrate that this interest could be attained in a
different, less discriminatory way. The best-known
statement of this approach is found in the 1991
amendments to Title VII of the CRA. Under these
amendments, liability ensues if,
1. “[A] complaining party demonstrates that a
respondent uses a particular employment
practice that causes a disparate impact on
the basis of race[.]” 42 U.S.C. § 2000e2(k)(1)(A)(i).
2. “[T]he respondent fails to demonstrate that
the challenged practice is job related for the
position in question and consistent with
business necessity[.]” Id.
8
3. “[T]he complaining party makes the
demonstration”—that the disparate impact
could be mitigated without undermining
the employer’s business objectives—“with
respect to an alternative employment
practice and the respondent refuses to
adopt
such
alternative
employment
practice.” Id. § 2000e-2(k)(1)(A)(ii).
Another influential formulation of the usual
framework, used for decades in FHA cases, is as
follows: The “plaintiff first bears the burden of
proving . . . that a practice results in . . . a
discriminatory effect on the basis of a protected
characteristic.” Implementation of the Fair Housing
Act’s Discriminatory Effects Standard (“FHA
Implementation”), 78 Fed. Reg. 11460, 11460
(Feb. 15, 2013). Second, “[i]f the . . . plaintiff proves a
prima facie case, the burden of proof shifts to the . . .
defendant to prove that the challenged practice is
necessary to achieve one or more of its substantial,
legitimate, nondiscriminatory interests.” Id. And
third, “[i]f the . . . defendant satisfies this burden,
then the . . . plaintiff may still establish liability by
proving
that
the
substantial,
legitimate,
nondiscriminatory interest could be served by a
practice that has a less discriminatory effect.” Id.3
The Department of Housing and Urban Development
(“HUD”) recently made certain amendments to this formulation,
see HUD’s Implementation of the Fair Housing Act’s Disparate
Impact Standard, 85 Fed. Reg. 60288 (Sept. 24, 2020), but these
changes have not yet been recognized by any courts.
3
9
A.
The Theoretical Justifications for
the Usual Framework Apply to
Voting.
To determine if the usual framework is
applicable to voting, a logical place to start is with the
theories that underpin disparate-impact law. These
theories, it turns out, extend to voting as readily as to
employment, housing, or any other activity covered by
antidiscrimination laws. First, one prominent account
of disparate-impact law sees it as a way to target
racially discriminatory motives that are suspected
but cannot directly be proven. On this view, few
contemporary defendants are so foolish as to create
records that reveal their invidious objectives. In the
absence of smoking guns, discriminatory intent must
be inferred from circumstantial evidence. And
perhaps the most probative such evidence is a
significant racial disparity, caused by a particular
practice, that could have been avoided without
compromising any legitimate interest.
Justice Scalia characterized disparate-impact
law in these terms in a 2009 concurrence, “framing it
as simply an evidentiary tool used to identify genuine,
intentional discrimination—to ‘smoke out,’ as it were,
disparate treatment.” Ricci v. DeStefano, 557 U.S.
557, 595 (2009) (Scalia, J., concurring). The Court has
shared this perspective, observing that “disparateimpact liability . . . plays a role in uncovering
discriminatory intent.” Texas Dep’t of Hous. & Cmty.
Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519,
540 (2015). Discriminatory intent, the Court added,
may include “unconscious prejudices,” “disguised
animus,” and “covert and illicit stereotyping.” Id.; see
10
also, e.g., Richard Primus, The Future of Disparate
Impact, 108 Mich. L. Rev. 1341, 1376–77 (2010)
(presenting disparate-impact law as “an evidentiary
dragnet intended to identify hidden intentional
discrimination”).
This model of disparate-impact law plainly
applies to voting. The logic that allows an invidious
aim to be inferred is identical whether the practice at
issue pertains to employment, housing, elections, or
some other activity. In each context, one may surmise
that a defendant intends to handicap minority
members when she adopts a policy that causes a
substantial and unjustified racial disparity. This sort
of disparity in the electoral process is as suspicious as
in any other domain. Put differently, the theory of
disparate-impact law as a proxy for deliberate
discrimination is trans-substantive. There is nothing
about it that is limited to a particular legal field.
The other leading account of disparate-impact
law stresses the removal of obstacles that
unjustifiably prevent racial minority members from
enjoying the same opportunities as nonminority
members. By lowering these hurdles, disparateimpact law is supposed to improve conditions for
minorities, to prevent their existing disadvantages
from spreading into new areas, and ultimately to
undermine the racial hierarchies of American society.
This Court invoked this anti-racial-stratification
model in Griggs v. Duke Power Co., 401 U.S. 424
(1971), the decision that first recognized a disparateimpact cause of action under Title VII. So construed,
Title VII would facilitate “the removal of artificial,
arbitrary, and unnecessary barriers to employment”
11
that “operate as ‘built-in headwinds’ for minority
groups.” 401 U.S. at 431, 432. In Inclusive
Communities, likewise, the Court quoted this
language from Griggs and criticized housing policies
that “arbitrarily creat[e] discriminatory effects or
perpetuat[e] segregation.” 576 U.S. at 540; see also,
e.g., Primus, supra, at 1376 (noting that disparateimpact law can be seen as “redress[ing] selfperpetuating racial hierarchies inherited from the
past”).
This theory, too, is as germane to voting as to
employment, housing, or any other area where
discrimination is prohibited. Elections, like
workplaces or real estate, often exhibit racial
discrepancies. (In the electoral context, these
discrepancies are between minority and nonminority
citizens’ political participation.) Some of these
discrepancies, in any domain, are justifiable or
unavoidable. But some are not. These racial gaps
could be eliminated, or at least reduced, without
impeding defendants’ legitimate objectives. Under the
anti-racial-stratification model, disparate-impact law
helps to induce the removal of these unnecessary
gaps. It thus makes progress toward a society where
unwarranted racial disparities no longer exist—not in
voting and not anywhere else either.
B.
Voting Is Sufficiently Similar to
Other Activities Covered by the
Usual Framework.
To be sure, voting differs from employment and
housing (the areas at the core of the usual framework)
in certain key respects. Voting is exclusively
12
regulated by the state; indeed, it cannot even occur
unless the government first establishes and
administers an electoral system. In contrast, private
actors make most decisions about workplaces and real
estate based on their own considerations, rather than
those of any public authority. Voting is also not a
market good; it has no price set by the forces of supply
and demand. Conversely, market dynamics largely
determine the wages of employees and the costs of
residences. And voting is not a rival good either; when
one citizen casts a ballot, she does not stop another
from doing the same. But when a job is filled or a
home is sold, the position or the property becomes
unavailable to everybody else.
Significant as these distinctions are, they do
not render the usual framework any less apt for
voting. Instead, they either are legally irrelevant or
suggest that courts should have fewer qualms about
striking down electoral (as opposed to employment or
housing) practices. Start with the fact that the
defendant in Section 2 vote-denial cases is necessarily
the government. This does not actually distinguish
these cases from Title VII and FHA suits, which can
be brought against public employers and housing
providers as readily as against private ones.
Additionally, the governmental status of Section 2
defendants simply means that public rather than
private interests must be analyzed under the usual
framework’s second and third prongs. Public interests
like preventing fraud, conserving resources, and
efficiently administering elections are different from
the private pursuit of profit. But they are no less
amenable to being weighed for their importance,
scrutinized for their fit with challenged policies, and
13
having this fit compared to that of alternative
measures. See, e.g., FHA Implementation, 78 Fed.
Reg. at 11,470 (explaining, in the FHA context, that
the usual framework “applies to individuals,
businesses, nonprofit organizations, and public
entities” (emphasis added)).
Similarly, the main implication of voting not
being a market good is that there is no market-based
reason to limit it. The burdening of the franchise, that
is, cannot be justified by what Griggs called “business
necessity,” 401 U.S. at 431, or Inclusive Communities
described as “the practical business choices and
profit-related decisions that sustain a vibrant and
dynamic free-enterprise system,” 576 U.S. at 533. The
most familiar rationale for countenancing racial
disparities is thus off the table when it comes to
disputed electoral practices. To defend such
disparities, jurisdictions must cite non-market
interests.
As for voting’s lack of scarcity, it avoids a
potential pitfall of judicial intervention. When a good
(like employment or housing) is in short supply,
courts may be concerned about the innocent victims
of their decisions: the nonminority job applicants who
would no longer get offers if a hiring criterion were
dropped, the nonminority homebuyers who would no
longer be sold units if a housing policy were revised,
and so on. These worries may convince courts not to
invalidate challenged practices, or at least to dilute
the remedies they ultimately impose. But with a
nonrivalrous good like voting, there is no risk of such
collateral damage. A ruling that makes it easier for
minority citizens to vote does not inhibit nonminority
14
citizens from casting ballots. In fact, it helps them to
vote, thus yielding innocent beneficiaries rather than
victims.
II.
THE USUAL DISPARATE-IMPACT
FRAMEWORK WOULD RESOLVE A
SERIES OF ISSUES ABOUT RACIALVOTE-DENIAL CLAIMS.
Both disparate-impact theory and the nature of
voting, then, indicate that the usual framework could
be applied to Section 2 vote-denial claims. One
compelling reason why it should be applied to them is
that doing so would resolve a number of issues that
have arisen under Section 2. To date, these issues
have divided the lower courts. But they have been
settled—and reasonably so—over the decades in
which the usual framework has been employed in
other fields. Accordingly, if the usual framework were
extended to Section 2, these doctrinal solutions would
come with it.
A.
Must a Plaintiff Challenge a
Specific Practice or the Whole
Electoral System?
To begin with, what exactly is a Section 2 votedenial plaintiff supposed to challenge—a particular
electoral practice or a jurisdiction’s integrated system
of election administration? Some courts have
individually examined a series of measures, making
factual findings and reaching legal conclusions as to
each discrete policy. See, e.g., Ne. Ohio Coal. for the
Homeless v. Husted, 837 F.3d 612, 658 (6th Cir. 2016)
(Keith, J., concurring) (observing that the court
15
“engage[d] in a piecemeal freeze frame approach . . .
finding that each new requirement in a vacuum does
not meet the standard for disparate impact”); League
of Women Voters of N.C. v. North Carolina, 769 F.3d
224, 242 (4th Cir. 2014). In contrast, other courts have
evaluated the collective results of all relevant
electoral rules. See, e.g., Ohio Democratic Party v.
Husted, 834 F.3d 620, 628 (6th Cir. 2016) (analyzing
an Ohio cutback to early voting as “one component of
Ohio’s progressive voting system”); Frank v. Walker,
768 F.3d 744, 753 (7th Cir. 2014).
Under the usual framework, this question has
a clear answer: A disparate-impact plaintiff must
ordinarily attack a specific practice. In the Title VII
context, Congress opted for particularity in most
circumstances in its 1991 amendments to the CRA. As
a general matter, Congress required “the complaining
party [to] demonstrate that each particular
challenged employment practice causes a disparate
impact.” 42 U.S.C. § 2000e-2(k)(1)(B)(i) (emphasis
added). The only exception arises “if the complaining
party can demonstrate to the court that the elements
of a respondent’s decisionmaking process are not
capable of separation for analysis.” Id. HUD took the
same position when it clarified the operation of the
usual framework in FHA cases. Typically, a plaintiff
must “identif[y] the specific practice that caused the
alleged discriminatory effect.” FHA Implementation,
78 Fed. Reg. at 11,469 (emphasis added). On occasion,
though, “it may be appropriate to challenge the
decision-making process as a whole.” Id.
16
B.
Does the Magnitude of the Racial
Disparity Matter?
Second, does a policy’s disparate racial impact
have to reach a certain magnitude before Section 2
can be violated? Some courts have said yes, rejecting
claims where the differences in political participation
between minority and nonminority citizens were
small. See, e.g., Greater Birmingham Ministries v.
Merrill, 284 F. Supp. 3d 1253, 1274 (N.D. Ala. 2018)
(ruling against a challenge to Alabama’s photo ID
requirement where “the discrepancy in photo ID
possession rates among white, Black, and Hispanic
registered voters in Alabama is miniscule”), aff’d sub
nom. Greater Birmingham Ministries v. Sec’y of State
for Ala., 966 F.3d 1202 (11th Cir. 2020); N.C. State
Conference of the NAACP v. McCrory, 997 F. Supp. 2d
322, 367–68 (M.D.N.C. 2014), aff’d in part and rev’d
in part, 769 F.3d 224 (4th Cir. 2014). Conversely,
other courts have concluded that any racial
discrepancy caused by an electoral requirement is
sufficient. See, e.g., League of Women Voters, 769 F.3d
at 244 (“[W]hat matters for purposes of Section 2 is
not how many minority voters are being denied equal
electoral opportunities but simply that ‘any’ minority
voter is being denied . . . .”).
The usual framework has also resolved this
issue. In some of its first decisions interpreting Title
VII, this Court held that only employment practices
that have “significantly different” effects on
minorities and nonminorities establish a prima facie
case. Albemarle Paper Co., 422 U.S. at 425 (emphasis
added); see also, e.g., Teal, 457 U.S. at 446 (requiring
“a significantly discriminatory impact” (emphasis
17
added)). Consistent with the Court’s rulings, the
Equal
Employment
Opportunity
Commission
(“EEOC”) published guidelines in 1978 stating that
employment practices’ “differences in selection rate”
may “constitute adverse impact” when “they are
significant in both statistical and practical terms.”
29 C.F.R. § 1607.4(D) (emphasis added).4 These
guidelines have long been treated as “a rule of thumb
for the courts.” Watson v. Forth Worth Bank & Trust,
487 U.S. 977, 995 n.3 (1988) (plurality opinion).
C.
What Kind of Racial Disparity Must
Be Shown?
Third, how should a racial disparity be
measured—in terms of minority and nonminority
citizens’ likelihoods of compliance with a provision, or
based on the provision’s downstream effect on voter
turnout? Some courts have taken the former approach
under Section 2, focusing on a policy’s immediate
consequences for minority and nonminority citizens.
See, e.g., Veasey v. Abbott, 830 F.3d 216, 260 (5th Cir.
2016) (en banc) (“[W]e decline to require a showing of
lower turnout to prove a Section 2 violation.”); One
Wis. Inst. v. Thomsen, 198 F. Supp. 3d 896, 953 (W.D.
Wis. 2016), aff’d in part and rev’d in part sub nom.
4 The EEOC’s guidelines also suggested a specific threshold
for a racial disparity: “[a] selection rate for any race . . . which is
less than four-fifths (4/5) (or eighty percent) of the rate for the
group with the highest rate.” 29 C.F.R. § 1607.4(D). This
approach is less useful than determining the statistical
significance of the difference between minority and nonminority
selection rates, however, when these rates are low or when the
number of observations is small. See, e.g., David C. Baldus &
James W.L. Cole, Statistical Proof of Discrimination 88–90, 154
(1980).
18
Luft v. Evers, 963 F.3d 665 (7th Cir. 2020). However,
other courts have insisted that a measure ultimately
reduce the turnout of minority citizens to a greater
extent than that of nonminority citizens. See, e.g.,
Ohio Democratic Party, 834 F.3d at 639; Frank, 768
F.3d at 747 (asking “[d]id the requirement of photo ID
reduce the number of voters below what otherwise
would have been expected?” and “[d]id that effect
differ by race or ethnicity?”).
Under the usual framework, again, this
problem has been solved. In Teal, this Court held that
disparate impact under Title VII refers to the direct
effects of employment practices, not their
downstream consequences. The Court faced an
employer whose written exam for promotion to
supervisor caused a racial disparity but whose
affirmative action program ensured a proportional
share of minority supervisors. 457 U.S. at 443–44.
The Court ruled that the “‘bottom line’” of
proportionality “does not preclude [plaintiffs] from
establishing a prima facie case, nor does it provide
[defendants] with a defense to such a case.” Id. at 442.
The Court explained that a racial disparity at one
stage of the promotion process, which bars certain
minority employees from becoming supervisors,
cannot be offset by racial balance after the process has
concluded, which benefits a different set of minority
employees. “Title VII does not permit the victim of a
. . . discriminatory policy to be told that he has not
been wronged because other persons of his or her race
. . . were hired.” Id. at 455.
19
D.
Is Interaction with Discrimination
Necessary?
Fourth, must a practice’s disparate racial
impact be linked to its interaction with historical and
ongoing discrimination? The second element of the
two-part test recently adopted by certain lower courts
for Section 2 vote-denial claims requires such a
connection. These courts also view the factors
identified by the critical 1982 Senate report as
valuable evidence of the discriminatory conditions
with which a practice must interact. See, e.g., Veasey,
830 F.3d at 244–45 (emphasizing the Senate factors);
League of Women Voters, 769 F.3d at 240 (same). In
contrast, other courts have declined to consider
private (as opposed to public) discrimination as well
as any socioeconomic differences it may have caused.
See, e.g., Frank, 768 F.3d at 753 (Section 2 “does not
require states to overcome societal effects of private
discrimination that affect the income or wealth of
potential voters”).
The usual framework has answered this
question as well: The reason for a policy’s disparate
impact need not be the policy’s interaction with
discriminatory conditions. In Dothard v. Rawlinson,
this Court examined two hiring criteria for Alabama
prison guards: a minimum height of five feet two
inches and a minimum weight of 120 pounds. 433 U.S.
321, 323–24 (1977). In tandem, these criteria
excluded far more women than men. Id. at 329–30.
But they did so not through any interaction with
historical and ongoing discrimination, but rather
because women, as a biological matter, tend to be
shorter and lighter than men. The Court nevertheless
20
found Alabama liable under Title VII on a disparateimpact theory. Id. at 331. As scholars have
recognized, the Court thus codified the principles that
“the reason the [practice] has an adverse impact is
[not] at issue” and that “the mere fact of adverse
impact requires the employer to justify its practice.”
Michael Selmi, The Evolution of Employment
Discrimination Law: Changed Doctrine for Changed
Social Conditions, 2014 Wis. L. Rev. 937, 963.
E.
What Is the Proper Remedy?
Lastly, what relief is appropriate when an
electoral requirement violates Section 2? Some courts
have opted to invalidate unlawful practices,
permanently enjoining their future use. See, e.g., N.C.
State Conf. of NAACP, 831 F.3d at 239 (“[T]he proper
remedy . . . is invalidation.”); Frank v. Walker, 17 F.
Supp. 3d 837, 879 (E.D. Wis. 2014), rev’d on other
grounds, 768 F.3d 744 (7th Cir. 2014). Conversely,
other courts have ruled that measures should be
softened when they contravene Section 2—relaxed for
minority and nonminority citizens alike—not struck
down in their entirety. See, e.g., Veasey, 830 F.3d at
271 (“The remedy must be tailored to rectify only the
discriminatory effect on those voters who do not have
[photo] ID or are unable to reasonably obtain such
identification.”); Frank v. Walker, 196 F. Supp. 3d
893, 916 (E.D. Wis. 2016), aff’d in part and rev’d in
part sub nom. Luft v. Evers, 963 F.3d 665 (7th Cir.
2020).
Under the usual framework, once more, this
issue has been decided. Under Title VII, “the usual
remedy in a disparate impact case” is “general
21
invalidation of the challenged policy.” Christine Jolls,
Antidiscrimination and Accommodation, 115 Harv. L.
Rev. 642, 680 (2001). The court simply nullifies the
unlawful employment practice; it does not try to
reduce the practice’s racial disparities or to make the
practice more “consistent with business necessity.”
42 U.S.C. § 2000e-2(k)(1)(A)(i). Under the FHA,
likewise, this Court held in Inclusive Communities
that “[r]emedial orders in disparate-impact cases
should concentrate on the elimination of the offending
practice.” 576 U.S. at 544. Unlike such relief,
“[r]emedial orders that impose racial targets or
quotas might raise more difficult constitutional
questions” and so are disfavored. Id. at 545.
***
If the usual framework were imported to
Section 2, then, vote-denial cases would follow the
same rules as disparate-impact proceedings under
Title VII, the FHA, and many other laws. (1) Plaintiffs
would challenge particular electoral practices, not
whole
systems
of
election
administration.
(2) Significant (but not all) racial disparities in
citizens’ access to the franchise would be actionable.
(3) Disparities caused directly by disputed practices
would be relevant, while ultimate voter turnout
would not be. (4) Disparities would not have to be
linked to practices’ interaction with historical and
ongoing discrimination. And (5) if liability were
imposed, invalidation of the offending measure would
typically be the remedy.
To be clear, these doctrinal parameters may or
may not be optimal. But they are certainly
22
reasonable—comporting with the goals of disparateimpact law and plausibly balancing plaintiffs’ and
defendants’ interests. Equally important, these rules
are settled by decades of legislative, administrative,
and judicial precedent. The unification of disparateimpact law would thus answer many of the lingering
questions about Section 2 vote-denial claims and
answer them in defensible ways. It would provide the
benefit of doctrinal coherence without exacting any
serious cost.
III.
THE USUAL DISPARATE-IMPACT
FRAMEWORK WOULD BOLSTER
SECTION 2’S CONSTITUTIONALITY.
The other advantage of adopting the usual
framework for Section 2 vote-denial claims is
constitutional rather than doctrinal. If Section 2 is
construed as a pure disparate-impact provision—
imposing liability for racial discrepancies, standing
alone—then it runs into two constitutional objections.
First, it may exceed Congress’s enforcement powers
under the Reconstruction Amendments. Second, it
may conflict with the equal protection norm of
colorblindness. Both of these concerns dissipate,
however, if Section 2 is implemented through the
usual framework. In that case, Section 2’s fit with
underlying constitutional violations tightens, and
jurisdictions may comply with Section 2 without
fixating on race.
23
A.
The Usual Framework Tightens
Section 2’s Fit with Underlying
Constitutional Violations.
The first constitutional issue that arises if
Section 2 is understood as a pure disparate-impact
provision is easy to spot. Under the Fourteenth
Amendment, there must be “congruence and
proportionality” between Congress’s chosen means
and the “injury to be prevented or remedied.” City of
Boerne v. Flores, 521 U.S. 507, 520 (1997). Under the
Fifteenth Amendment, Congress must use “rational
means” to enforce “the constitutional prohibition of
racial discrimination in voting.” South Carolina v.
Katzenbach, 383 U.S. 301, 324 (1966). And under both
of these provisions, the essential evil to be avoided or
cured is intentional racial discrimination. See, e.g.,
City of Mobile v. Bolden, 446 U.S. 55, 62 (1980)
(plurality
opinion)
(Fifteenth
Amendment);
Washington v. Davis, 426 U.S. 229, 240 (1976)
(Fourteenth Amendment).
Consequently, if Section 2 could be violated by
racial disparities, without more, then it would
prohibit a broad swath of conduct that is
constitutionally innocuous: electoral regulation that
lacks a discriminatory purpose but produces a
disparate impact. This wide reach could arguably
make
Section
2
noncongruent
with,
and
disproportionate to, the underlying injury of
intentional racial discrimination. Similarly, a
provision of such sweep could arguably be an
unreasonable
response
to
deliberate
racial
discrimination in voting. See, e.g., Veasey, 830 F.3d at
315 (Jones, J., concurring in part and dissenting in
24
part) (if Section 2 “eliminate[s] disparate impact,”
then it is “not congruent and proportional as a remedy
for violation of voting rights”); Farrakhan v.
Washington, 359 F.3d 1116, 1123 (9th Cir. 2004)
(Kozinski, J., dissenting from denial of rehearing en
banc) (if Section 2 is breached by “nothing but
disparities,” that “destroys Section 2’s congruence and
proportionality”).
Of course, the two-part test recently adopted by
certain lower courts does not make Section 2 a pure
disparate-impact provision. The test’s second element
requires an electoral policy’s disparate impact to be
caused by the policy’s interaction with historical and
ongoing discrimination. This second element, though,
can usually be satisfied when plaintiffs comply with
the test’s first criterion by identifying a racial
disparity caused by an electoral practice. In fact, “of
all the recent Section 2 vote denial decisions, only one
seems to have found a racial disparity but then
concluded that it was not the result of a measure’s
interaction with discrimination.” Stephanopoulos,
Disparate Impact, Unified Law, supra, at 1591. “In
every other case, if a court discerned a disparate
impact, it also managed to link that impact to past
and present discrimination, as illuminated by the
Senate factors.” Id. at 1591–92; see also id. at 1592
n.141 (collecting cases).5
The two elements’ correlation should not be surprising.
When an electoral policy causes a racial disparity, it rarely does
so at random—because a condition for voting just happens to be
associated with race. Rather, the causal chain connecting the
policy with the disparity usually includes a role for historical and
5
25
In contrast, the usual framework does not risk
collapsing into a single requirement that a policy
cause a racial disparity. Plaintiffs who satisfy the
usual framework’s first step frequently lose in Title
VII and FHA cases. And the reason for their defeats
is that the usual framework’s second step has real
teeth. Defendants, that is, are often able to show that
their challenged practices are necessary to achieve
their substantial interests. See, e.g., Michael Selmi,
Was the Disparate Impact Theory a Mistake?, 53
UCLA L. Rev. 701, 738–39, 749 (2006) (finding that
plaintiffs bringing disparate-impact claims under
Title VII win only 20–25 percent of the time, and that
“the business necessity prong . . . always proved [a]
greater hurdle” than establishing a racial disparity);
Stacy E. Seicshnaydre, Is Disparate Impact Having
Any Impact? An Appellate Analysis of Forty Years of
Disparate Impact Claims Under the Fair Housing Act,
63 Am. U. L. Rev. 357, 393, 413–14 (2013) (finding
that plaintiffs’ win rate in FHA disparate-impact
cases is about 20 percent, and that defendants
generally have an “easier time” justifying their
policies).
The constitutional implications of the usual
framework’s rigor are straightforward. Intentional
racial discrimination can rarely be inferred from a
racial disparity alone. See, e.g., Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266
n.15 (1977) (noting “the limited probative value of
ongoing discrimination. Discrimination helps explain minority
citizens’ worse education, higher poverty, and greater residential
isolation. These socioeconomic disadvantages, in turn, help
explain why minority citizens are less likely to register to vote,
to have photo IDs, to vote on Election Day, and so on.
26
disproportionate impact”). But when a racial
discrepancy cannot be justified by a defendant’s valid
interests, it becomes easier to conclude that the
defendant’s motivation is invidious. As this Court
stated in Inclusive Communities, a needless
discrepancy helps to “uncover[] discriminatory intent”
and so “permits plaintiffs to counteract unconscious
prejudices and disguised animus.” 576 U.S. at 540.
If Section 2 were enforced through the usual
framework, then, the provision would forbid only
electoral practices that are, or plausibly might be,
driven by racial bias. In other words, Section 2 would
bar only governmental activity that unjustifiably
causes a racial disparity—and that thus supports a
finding of a discriminatory purpose. This narrow
scope, in turn, would enhance Section 2’s fit with the
Reconstruction Amendments. These Amendments are
offended only by deliberate racial discrimination, and
that is all that Section 2 would target: voting
requirements that are actually invidious or from
which an invidious objective can reasonably be
inferred. Section 2 would not reach the wider zone of
governmental conduct, involving disparate impact
alone, that does not permit this inference to be drawn.
B.
Compliance with the Usual
Framework Requires Less Focus on
Race.
The second constitutional issue with
construing Section 2 as a pure disparate-impact
provision involves the Equal Protection Clause rather
than Congress’s authority under the Reconstruction
Amendments. In Inclusive Communities, this Court
27
warned that if a statute “cause[s] race to be used and
considered
in
a
pervasive
way,”
“serious
constitutional questions then could arise” under the
Equal Protection Clause. Id. at 542–43. The statute
could conflict with the equal protection principle of
colorblindness by, as Justice Scalia put it on a
different occasion, “plac[ing] a racial thumb on the
scales” and “requiring [jurisdictions] to evaluate the
racial outcomes of their policies, and to make
decisions based on (because of) those racial outcomes.”
Ricci, 557 U.S. at 594 (Scalia, J., concurring).
Under the two-part test recently adopted by
certain lower courts, jurisdictions might be induced to
act in such race-conscious ways. To the extent the
test’s two elements are mistakenly reduced to a single
criterion—whether an electoral practice causes a
racial disparity—jurisdictions might decide to take
race into account when they change (or maintain)
their electoral regulations. They might analyze each
potential (or existing) measure’s racial effects, and
depending on what they find, they might implement
race-related policies in order to avoid liability. See,
e.g., Veasey, 830 F.3d at 317 (Jones, J., concurring in
part and dissenting in part) (arguing that a pure
disparate-impact approach “force[s] considerations of
race on state lawmakers who will endeavor to avoid
litigation by eliminating any perceived racial
disparity in voting regulations”).
Under the usual framework, on the other hand,
jurisdictions would lack this incentive to operate raceconsciously. Suppose a state wants to ensure that one
of its electoral practices is lawful. The state would not
have to amend or annul the practice if it turns out
28
that it produces a racial disparity. To the contrary,
the state would only have to confirm that the practice
is necessary to achieve its substantial interests (and
that these interests could not be equally achieved by
a different policy choice with a smaller disparate
impact). Put differently, a pure disparate-impact
provision induces jurisdictions to try to eradicate
racial disparities. The usual framework, however,
merely asks jurisdictions to reduce racial disparities
to the extent they may do so without compromising
their legitimate objectives. This is a less intrusive—
and less race-conscious—command.
For precisely this reason, this Court held in
Inclusive Communities that as long as “disparateimpact liability [is] properly limited in key respects,”
the usual framework “avoid[s] the serious
constitutional questions that might arise” otherwise.
576 U.S. at 540. One of these limits is allowing
defendants “to state and explain the valid interest
served by their policies.” Id. at 541. “This step of the
analysis . . . provides a defense against disparateimpact liability.” Id. Another constraint is “[a] robust
causality requirement” compelling a plaintiff to “point
to a defendant’s policy or policies causing th[e]
disparity.” Id. at 542. With these safeguards in place,
the usual framework does not “cause[] race to be used
and considered in a pervasive and explicit manner.”
Id. at 543. It does not “inject racial considerations into
every [regulatory] decision” or “perpetuate race-based
considerations rather than move beyond them.” Id.
29
IV.
THE COURT IS FREE TO ADOPT THE
USUAL DISPARATE-IMPACT
FRAMEWORK AS A MATTER OF
STATUTORY INTERPRETATION.
Finally, as a matter of statutory interpretation,
it would be straightforward for this Court to adopt the
usual framework for Section 2 vote-denial claims.
Section 2’s text is more consistent with the usual
framework than with a pure disparate-impact
approach. Section 2’s text also refers to relevant
circumstances—one of which, the tenuousness of a
jurisdiction’s rationale for an electoral practice, is
essentially shorthand for the usual framework. And
because Section 2 facially reaches discriminatory
results, not just discriminatory purposes, the usual
framework’s adoption in the voting context would be
less complex than under other statutes that do not
explicitly mention disparate impacts.
To start the statutory analysis, consider the
proviso at the end of 52 U.S.C. § 10301(b). “[N]othing
in this section,” the proviso reads, “establishes a right
to have members of a protected class elected in
numbers equal to their proportion in the population.”
Id. This language was “essential to the compromise
that resulted in passage of” Section 2 in its current
form. Gingles, 478 U.S. at 84 (O’Connor, J.,
concurring in the judgment). This language also
identifies an obvious kind of racial disparity that
could be caused by an electoral policy—
disproportionately low representation for a minority
group—and states that, alone, it cannot give rise to
liability. Nothing in Section 2 creates a right to
proportional representation for a minority group. By
30
the same token, a jurisdiction cannot violate Section 2
simply by failing to provide a minority group with
proportional representation.
The usual framework is true to the letter and
spirit of this proviso. It does not impose liability due
to a minority group’s disproportionately low
representation, standing alone. Indeed, it does not
impose liability due to any type of racial disparity
solely on that basis. The usual framework thus
necessitates neither proportional representation for
minority citizens nor the elimination of any other
disparate impact. On the other hand, the two-part
test recently adopted by certain lower courts could be
construed as requiring the eradication of many racial
disparities caused by electoral practices. As explained
above, many such disparities are attributable to
challenged measures’ interaction with historical and
ongoing discrimination. Accordingly, the two-part test
risks “establish[ing] a right to have members of a
protected class” affected by an electoral policy “in
numbers equal” to nonminority citizens. 52 U.S.C.
§ 10301(b).
Turn next to the beginning of § 10301(b), which
mandates the consideration of “the totality of
circumstances”
to
find
liability.
Id.
The
“circumstances that might be probative of a § 2
violation” are listed by the Senate report
“accompanying the bill that amended § 2.” Gingles,
478 U.S. at 36. One of these factors is “whether the
policy underlying the state or political subdivision’s
use of such voting qualification, prerequisite to
voting, or standard, practice or procedure is tenuous.”
Id. at 37 (quoting S. Rep. No. 97-417, at 29 (1982)
31
(emphasis added)). This Court has emphasized the
tenuousness factor in its post-Gingles vote-dilution
decisions. See, e.g., League of United Latin Am.
Citizens v. Perry, 548 U.S. 399, 441 (2006); Holder v.
Hall, 512 U.S. 874, 878 (1994). So have numerous
lower courts in Section 2 vote-denial cases. See, e.g.,
Veasey, 830 F.3d at 262–64; N.C. State Conf. of the
NAACP v. McCrory, 182 F. Supp. 3d 320, 440–65
(M.D.N.C. 2016), rev’d on other grounds, 831 F.3d 204
(4th Cir. 2016).
The usual framework’s second and third steps
are essentially an elaboration of the tenuousness
factor. Under the second step, a jurisdiction has the
burden of showing that its challenged practice is
necessary to achieve its substantial interests. When a
practice is not actually necessary to attain a
jurisdiction’s substantial goals, or when a
jurisdiction’s goals are not actually substantial, the
policy underlying the jurisdiction’s use of the practice
is tenuous. Under the third step, a plaintiff has the
burden of proving that a jurisdiction’s substantial
interests could be served equally by some different,
less discriminatory measure. Again, when a plaintiff
makes this demonstration, the policy underlying the
practice is tenuous. See, e.g., Issacharoff, supra, at
316 (arguing that the tenuousness factor is “the
statutory hook for shifting the inquiry onto the state’s
justification”).
A last textual point involves a comparison of
52 U.S.C. § 10301(a)’s wording to that of other
statutes under which this Court has embraced the
usual framework. Section 2 forbids any electoral
practice that “results in a denial or abridgement of the
32
right . . . to vote on account of race or color.” Id.
(emphasis added). In contrast, when the Court
applied the usual framework to Title VII in Griggs,
the provision did not explicitly state whether it could
be violated solely by disparate treatment or also by
disparate impact. See 42 U.S.C. § 2000e-2(a)(2)
(making it unlawful for an employer to “deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual’s race”). The ADEA and the FHA are
similarly unclear, on their face, as to whether they
encompass disparate-impact liability. See, e.g.,
29 U.S.C. § 623(a)(2) (paralleling Title VII’s language
except with respect to age rather than race); 42 U.S.C.
§ 3604(a) (making it unlawful to “otherwise make
unavailable or deny[] a dwelling to any person
because of race”). The Court nevertheless extended
the usual framework to the ADEA in Smith, see
544 U.S. at 233–40 (plurality opinion), and to the
FHA in Inclusive Communities, see 576 U.S. at 530–
46.
Textually, the usual framework’s further
extension to Section 2 would be even easier. Again,
Title VII, the ADEA, and the FHA are ambiguous as
to whether they can be breached without a showing of
discriminatory intent. In Griggs, Smith, and Inclusive
Communities, the Court therefore had to resolve this
ambiguity first; only then could it rule that the usual
framework would govern disparate-impact claims in
these areas. However, there is no doubt that Section 2
can be infringed even in the absence of an invidious
motive. The whole point of its 1982 revision was to
make this clear, see, e.g., Gingles, 478 U.S. at 71, and
the provision now overtly bans electoral practices that
33
“result[] in” a race-based denial or abridgment of the
franchise, see 52 U.S.C. § 10301(a) (emphasis added).
Consequently, it would take the Court just one step,
not two, to apply the usual framework to Section 2.
The Court would not have to puzzle over whether
Section 2 recognizes disparate-impact discrimination
since it obviously does. Instead, the Court could skip
ahead to holding that this form of discrimination,
when it relates to voting, is regulated by the usual
framework.
CONCLUSION
For the foregoing reasons, the Court should
consider applying the usual disparate-impact
framework, already used in many other contexts, to
claims of racial vote denial under Section 2.
December 7, 2020
Respectfully submitted,
Nicholas
Stephanopoulos
Areeda Hall 230
1545 Massachusetts
Avenue
Cambridge, MA
02138
Jenna A. Hudson
Counsel of Record
Mark A. Packman
Janet Sanchez
GILBERT LLP
700 Pennsylvania Avenue SE
Suite 400
Washington, DC 20003
(202) 772-3966
hudsonj@gilbertlegal.com
Counsel for Professor
Nicholas Stephanopoulos
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.