Chris Elmendorf sent the following important post to the election law listserv, which I am reprinting here with permission:
On Wednesday, Rick commented on his blog that the en banc decision in Gonzalez v. Arizona is very important because, among other things, “it contains a major statement of what plaintiffs would need to show if they want to prove that a voter identification law violates section 2 of the Voting Rights Act.” What Rick did not point out is that the Gonzalez Court’s “major statement” is in serious tension with the last “major statement” from the same court on what plaintiffs must prove in Section 2 cases.
In Farrakhan v. Gregoire, the en banc Ninth Circuit held that plaintiffs challenging a felon disenfranchisement law under Section 2 must prove that “the [state’s] criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.” As Justin Levitt commented at the time, Farrakhan seemed to raise the bar for proving intentional discrimination above the already high mark set by the U.S. Supreme Court in Arlington Heights (an equal protection case).
Yet Gonzalez indicates that plaintiffs challenging a voter ID requirement under Section 2 need only establish a “statistical disparity between minorities and whites” that is “caused” by the ID requirement. The opinion recites some platitudes about the Senate Report factors, but it does not say that plaintiffs must trace the disparate impact of a voter ID requirement (assuming it be proved) to current or past intentional discrimination by state actors, let alone that plaintiffs must prove intentional discrimination with a highdegree of certainty. Oddly, Judge Kozinski’s concurring opinion does not even remark on the majority’s treatment of Section 2, even though Kozinski was a leading voice for requiring proof of intentional discrimination in Farrakhan.
The zigzag from Farrakhan to Gonzalez is just the latest in the 9th Circuit’s struggle to make sense of the place of intentional or subjective discrimination in Section 2 litigation. In a 1997 case, Smith v. Salt River Project, the Circuit rejected a Section 2 challenge to landownership qualifications for voting in certain special district elections because plaintiffs failed to show that the qualifications were established for discriminatory reasons, or gave electoral effect to intentional discrimination by other public or private actors. By contrast, in U.S. v. Blaine County (2004), the Ninth Circuit held that at-large electoral arrangements that prevent a minority community from electing its candidates of choice (given race-correlated voting patterns) violate Section 2 irrespective of whether the district map was adopted for discriminatory reasons, and whether the race-correlated voting patterns owe to racial prejudices.
Intentionally or inadvertently, Gonzalez moves the ball back towards Blaine County. But because Gonzalez does mention Salt River and the Senate Report factors in passing, it leaves enough wiggle room for a future panel to change course yet again.
(For my own efforts to steer a middle course on the role of subjective discrimination under Section 2, see Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. 377 (2012).)