Here on the Liberty Blog, we have often posted about the perils of “disparate impact” laws; that is, laws that allow courts to find illicit discrimination in a facially neutral action without any showing of improper intent (here, here, and here, for example). These statutes require businesses and government actors to engage in pernicious racial balancing in order to avoid liability. In the employment discrimination and Fair Housing Act contexts, PLF has argued in amicus briefs that disparate impact theory is unconstitutional.
Recently, however, federal courts have expanded disparate impact analysis of voting laws under Section 2 of the Voting Rights Act, which prohibits any voting practice that “results in a denial or abridgement” of the right to vote on account of race . In a unanimous opinion last week, a panel of the Sixth Circuit held that Ohio’s decision to reduce early voting from 35 to 28 days would have a disproportionate impact on African-American voting strength and thus violated Section 2. Despite case law from other circuits that Section 2 plaintiffs must present more than a bare statistical showing of disparate impact, the panel relied heavily on just that, coupled with evidence of socioeconomic conditions. The Fourth Circuit today took a similar view in enjoining two provisions of North Carolina’s omnibus election reform bill, as did the Eastern District of Wisconsin in enjoining Wisconsin’s voter ID law.
These decisions are problematic for two reasons. First, they greatly expand the scope of liability without any connection to state action. Under these cases, states will likely be held liable under Section 2 without a showing of official discrimination in any area. Second, the cases greatly restrict a state’s ability to experiment with new voting laws. As the Sixth Circuit’s opinion demonstrates, once a state decides to add more days of early voting, it will be unable repeal that law without being subject to a Section 2 disparate impact claim. The Supreme Court rightly granted a stay of the Sixth Circuit’s ruling, but eventually one or more of these cases will reach the Court on the merits. The Court should step in to prevent disparate impact from becoming entrenched in election law.