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Disparate Impact, Unified Law NICHOLAS O. STEPHANOPOULOS Disparate Impact, Unified Law abstract. The last decade has seen the largest wave of franchise restrictions since the dark days of Jim Crow. In response to this array of limits, lower courts have recently converged on a two-part test under section 2 of the Voting Rights Act. This test asks if an electoral practice (1) causes a disparate racial impact (2) through its interaction with social and historical discrimina- tion. Unfortunately, the apparent judicial consensus is only skin-deep. Courts bitterly disagree over basic questions like whether the test applies to specific policies or systems of election admin- istration; whether it is violated by all, or only substantial, disparities; and whether disparities refer to citizens’ compliance with a requirement or to their turnout at the polls. The test also sits on thin constitutional ice. It comes close to finding fault whenever a measure produces a disparate impact and so coexists uneasily with Fourteenth Amendment norms about colorblindness and Congress’s remedial authority. The section 2 status quo, then, is untenable. To fix it, this Article proposes to look beyond election law to the statutes that govern disparate impact liability in employment law, housing law, and other areas. Under these statutes, breaches are not determined using the two-part section 2 test. Instead, courts employ a burden-shifting framework that first requires the plaintiff to prove that a particular practice causes a significant racial disparity and then gives the defendant the op- portunity to show that the practice is necessary to achieve a substantial interest. This framework, the Article argues, would answer the questions that have vexed courts in section 2 cases. The frame- work would also bolster section 2’s constitutionality by allowing jurisdictions to justify their chal- lenged policies. Accordingly, the solution to section 2’s woes would not require any leaps of doc- trinal innovation. It would only take the unification of disparate impact law. author. Professor of Law and Herbert and Marjorie Fried Research Scholar, University of Chicago Law School. I am grateful to Charles Abernathy, Christopher Elmendorf, Joseph Fishkin, Owen Fiss, Aziz Huq, Vicki Jackson, Janai Nelson, George Rutherglen, Robert Schwemm, Stacy Seicshnaydre, Michael Selmi, and Charles Sullivan for their helpful comments. My thanks also to the workshop participants at Harvard Law School, the University of Chicago Law School, and the Washington and Lee School of Law, where I presented earlier versions of the Article. I am pleased as well to acknowledge the support of the Robert Helman Law and Public Policy Fund. 1566 disparate impact, unified law article contents introduction 1569 i. vote denial doctrine and its defects 1574 A. The Emerging Judicial Consensus 1575 B. The Academy’s Approval 1580 C. Unanswered Questions 1582 1. Specific Practice or Entire System? 1582 2. Does the Size of the Disparity Matter? 1583 3. Ability to Comply or Effect on Turnout? 1584 4. Is Interaction with Discrimination Necessary? 1585 5. Are Minority Preferences a Defense? 1586 6. How Does Tenuousness Work? 1587 7. What Is the Remedy? 1588 D. Looming Concerns 1589 ii. unifying disparate impact law 1595 A. The Usual Framework 1596 B. Applicability to Voting 1601 1. Legislative Histories 1601 2. Theoretical Accounts 1604 3. Nature of the Activity 1607 C. Answered Questions 1609 1. Specific Practice or Entire System? 1610 2. Does the Size of the Disparity Matter? 1611 3. Ability to Comply or Effect on Turnout? 1613 4. Is Interaction with Discrimination Necessary? 1614 5. Are Minority Preferences a Defense? 1616 6. How Does Tenuousness Work? 1617 7. What Is the Remedy? 1619 D. Resolved Concerns 1621 1567 the yale law journal 128:1566 2019 iii. objections and responses 1625 A. Text and Precedent 1626 B. Constitutional Convergence 1630 C. Prior Record 1632 iv. applications 1636 A. Photo ID Requirements 1637 B. Early-Voting Cutbacks 1640 C. All-Mail Voting 1643 conclusion 1646 1568 disparate impact, unified law introduction Say a state passes a law that makes it harder to vote, like a requirement to show photo ID or a cutback to early voting. (This is not a far-fetched scenario; more voting restrictions have been enacted over the last decade than at any point since the end of Jim Crow.1) Suppose also that the state’s new law has a disparate racial impact: that it affects a higher proportion of minority than nonminority citizens. (This too is a plausible assumption; minority citizens are less affluent, on average, and so more disadvantaged by measures that increase the resources required for voting.2) Courts and commentators agree that, standing alone, this racial disparity does not breach section 2 of the Voting Rights Act (VRA), the key statutory pro- vision banning racial discrimination in voting.3 In the oft-repeated words of one district court, “a plaintiff must demonstrate something more than dispropor- tionate impact to establish a Section 2 violation.”4 Or as a prominent VRA liti- gator has put it, “Section 2 plaintiffs [must] establish . that the disparate im- pact of a challenged vote denial practice is not merely a statistical accident.”5 Now imagine that a litigant does come up with “something more” than a na- ked racial disparity—specifically, evidence that the disparity is caused by the law’s interaction with historical and ongoing patterns of racial discrimination. In a photo ID case, this evidence might show that minority citizens are poorer than nonminority citizens; that their relative poverty is the product of discrimi- nation; that because they are poorer, they are less likely to own cars; and that because they drive less, they are also less likely to have driver’s licenses. In an early-voting case, the causal chain might run from discrimination to worse job 1. See, e.g., New Voting Restrictions in America, BRENNAN CTR. FOR JUST. (May 10, 2017), https:// www.brennancenter.org/new-voting-restrictions-america [https://perma.cc/8QE6-8F8N] [hereinafterNew Voting Restrictions] (counting twenty-four states that have adopted new vot- ing restrictions since the 2010 election). 2. See, e.g., Daniel J. Hopkins et al., Voting but for the Law: Evidence from Virginia on Photo Identi- fication Requirements, 14 J. EMPIRICAL LEGAL STUD. 79, 83 (2017) (surveying eleven studies of photo ID possession, almost all of which found substantial racial disparities). 3. Section 2 is codified at 52 U.S.C. § 10301 (2018). It is even more important now that the VRA’s other pillar, section 5, has been neutered. See Shelby County v. Holder, 133 S. Ct. 2612 (2013) (striking down the coverage formula used to determine which jurisdictions would be subject to section 5’s preclearance requirement). 4. Brown v. Detzner, 895 F. Supp. 2d 1236, 1249 (M.D. Fla. 2012). I am one of those who have repeated this language. See Nicholas O. Stephanopoulos, The South After Shelby County, 2013 SUP. CT. REV. 55, 108. 5. Dale E. Ho, Voting Rights Litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial Claims, 17 N.Y.U. J. LEGIS. & PUB. POL’Y 675, 680 (2014). 1569 the yale law journal 128:1566 2019 qualifications to less flexible work conditions to greater difficulty voting on Elec- tion Day to heavier reliance on early voting. Given this kind of record, the emerging judicial consensus is that section 2 is violated. In the Fourth, Fifth, Sixth, Seventh, and Ninth Circuits—though not necessarily in the Supreme Court, which has yet to decide a vote denial case un- der the VRA—liability ensues if an electoral policy (1) has a disparate racial im- pact that (2) is attributable to the policy’s interaction with discriminatory con- ditions.6 And properly so, according to many scholars. To cite a high-profile pair, Sam Issacharoff lauds the courts’ two-part test as a “breakthrough,”7 while Pam Karlan extols its capacity “to disrupt politics as usual in the service of full civic inclusion for long-excluded minority citizens.”8 But there is a problem with construing section 2 in this fashion. Section 2 is a disparate impact provision—a law that imposes liability on the basis of dis- criminatory effect, not invidious intent. Section 2, however, is not the only such provision. Rather, disparate impact theories are also recognized by Title VII of the Civil Rights Act, by the Fair Housing Act (FHA), and by several more stat- utes.9 In these other areas, a violation is not established simply because a policy interacts with discriminatory conditions to produce a disparate impact. Instead, courts follow a well-developed framework under which (1) the plaintiff must prove that a particular practice causes a significant discriminatory effect; (2) the defendant next has the opportunity to show that the practice is necessary to achieve a substantial interest; and (3) the plaintiff may then demonstrate that this interest could be attained in a different, less discriminatory way. The emerg- ing consensus in the vote denial context thus threatens to drive a wedge between section 2 and every other disparate impact provision. It risks turning section 2 into a lonely island in the disparate impact sea. My aim in this Article, then, is to resist this consensus—to urge consistency rather than variety in disparate impact law and to bring vote denial cases into the familiar disparate impact fold. To state my thesis another way: to date, courts have focused on the explanations for racial disparities in voting, especially the ex- tent to which they are intertwined with past and present discrimination. In my view, though, courts should scrutinize the interests that allegedly justify these 6. See Dale E. Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County, 127 YALE L.J.F.
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