When we think of landmark civil rights legislation in this country, we often focus on lunch counters, housing, affirmative action and voting rights. But there is one statutory yardstick that underpins all of those efforts to level the playing field and is rarely mentioned. Since a court ruling in 1971, the measure of whether or not an activity is discriminatory has been to prove that it has “disparate impact” on a protected class of citizens.
Adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex.
The key here is that a practice doesn’t have to intentionally discriminate, but if the impact primarily falls on those belonging to a protected class, it warrants investigation. That has been the yardstick for measuring discrimination for over forty years now. One can imagine that if a plaintiff had to prove intent to discriminate, almost no provision in the civil rights laws would ever be enforced.
That is some background to keep in mind as we look at the Supreme Court decision yesterday that upheld Ohio’s attempt to purge their voting rolls. You can read more about that case here. The idea is basically that if people don’t vote over a period of time and fail to respond to a prompt via snail mail, they are purged from the voting rolls. A Reuters analysis found that this practice meets the criteria of disparate impact in that, “neighborhoods that have a high proportion of poor, African-American residents are hit hardest.”
Richard Hasen pointed out that this might be how laws like the one in Ohio are eventually struck down. He notes what Justice Sonia Sotomayor wrote in her dissenting opinion.
Justice Sotomayor pointed out that another provision of the Motor Voter law requires that any removal program “be uniform, nondiscriminatory, and in compliance with the Voting Rights Act,” and this part of the law provides a potential path forward. As more states enact laws like Ohio’s, it will become further apparent that these laws have discriminatory effects.
If the yardstick for discrimination is disparate impact and that can be documented, then the Motor Voter law (a federal statute) will make the purges like the one enacted by Ohio illegal.
Justice Alito, who wrote the majority opinion in the Ohio case, didn’t like Sotomayor’s dissent and so he wrote a response. It is crucial to note that he ended by saying, “Justice Sotomayor has not pointed to any evidence in the record that Ohio instituted or has carried out its program with discriminatory intent.” Those last two words are no accident. Justice Alito is very well aware of the fact that legal precedent doesn’t require proving intent. For right now, he’s making a complete straw man argument by using a yardstick that does not exist. But perhaps he is also signaling where he and other conservatives on the court want to go.
This whole topic of disparate impact as opposed to discriminatory intent is the basis on which conservatives have been trying to undermine civil rights legislation for decades. Going back to the time he clerked for Justice Rehnquist and his time in the Justice Department of the Reagan administration, Chief Justice Roberts has been trying to undermine the notion of disparate impact. It is clear that he would be joined in those efforts by Justices Thomas, Alito and Gorsuch. The question is where Justice Kennedy will stand. In a housing case that was decided by the Supreme Court in 2015, he sided with the more liberal justices in holding up the standard of disparate impact. Based on his record, that might not indicate a blanket approval, but could be based on the specifics of the case.
Hasen makes a good point that, as Republicans in various states push forward on purging their voting rolls, the standard of disparate impact is likely to be challenged.
Justice Alito may be subtly signaling where the Court’s conservative majority is likely to go in future years. At some point the Court may well consider striking down as unconstitutional that part of the Voting Rights Act that holds it is illegal for states to pass voting laws that have a discriminatory impact. He may require plaintiffs to come up with proof of intentional racial discrimination, which is much harder to do.
If Alito is successful, it isn’t just the Voting Rights Act that will be affected. The basic standard for all civil rights legislation in this country could be at risk.