Section 2: Under Construction?

Rick linked, here, to an argument by Mr. Clegg and Mr. von Spakovsky about the proper construction of section 2 of the Voting Rights Act. The argument is predicated on the notion that it’s constitutionally questionable to construe section 2 to exact liability upon statistical evidence of disparate impact alone. They ask the courts to steer clear of this purported danger zone, and counsel for a much narrower interpretation of section 2.

But the statute only needs extra steering if there’s actually a danger.  The image of section 2 as predicated on effects alone is yet another bad caricature of what the Voting Rights Act does.  (I’ve been working on a sequel to that linked paper.  There are plenty of assumptions about what section 2 does and doesn’t do that aren’t based on the actual statute.)

It’s true that section 2 is often called an “effects” or “results” test — as imprecise shorthand.  But as Mr. Clegg and Mr. von Spakovsky mention, and as I’ve explained, that’s not what the text does.  At least recently (and perhaps since the 1982 amendment), courts have demanded more than just purely disparate results.  That is, “calling section 2’s test a ‘results test’ is something of a misnomer” — US v. Blaine County, 363 F.3d 897, 909 (9th Cir. 2004).  And Mr. Clegg and Mr. von Spakovsky themselves cite a litany of cases holding that section 2 is not violated purely by a showing of disparate impact.

If the actual statute doesn’t create liability on disparate impact alone (with nothing more to add to the “totality of circumstances”), and if courts aren’t misconstruing the statute to do so, doesn’t that suggest that section 2 is already tailored to avoid the supposed constitutional difficulty?

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