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 discrimination. 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 administration; 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 opportunity 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 framework would also bolster section 2’s constitutionality by allowing jurisdictions to justify their challenged policies. Accordingly, the solution to section 2’s woes would not require any leaps of doctrinal 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.