Brnovich amicus brief

I helped to author an amicus brief in Brnovich, the Supreme Court’s pending case on racial vote denial claims under Section 2 of the VRA. Consistent with a recent article of mine, the brief argues that the burden-shifting framework already used under Title VII, the Fair Housing Act, and several more statutes could also be applied to Section 2 vote denial claims. Here are some excerpts from the brief’s introduction:

Over the nearly four decades that have passed since Congress enacted Section 2 in its current form in 1982, this Court has never decided a racial-vote-denial case under the provision. (In contrast, the Court has decided many racial-vote-dilution cases under Section 2.) To rule in this matter, then, the Court will have to determine the standard for liability that applies to Section 2 vote-denial cases. The Court should consider alternatives to the two-part test, recently embraced by several lower courts, that asks (1) whether an electoral regulation causes a disparate racial impact, and (2) whether this disparity is attributable to the regulation’s interaction with historical and ongoing discrimination. In particular, the Court should consider adopting the disparate-impact framework used for decades under Title VII of the Civil Rights Act (“CRA”), the Fair Housing Act (“FHA”), and many more laws. The first step of this framework is the same: whether a particular practice causes a significant racial disparity. But the defendant then has the opportunity to show that the practice is necessary to achieve a substantial interest. And if that showing is made, the plaintiff may still prevail by demonstrating that this interest could be attained in a different, less discriminatory way.

This approach (the “usual disparate-impact framework,” or “usual framework” for short) applies to voting as naturally as to employment, housing, or other activities that are subject to antidiscrimination laws. Consider the most familiar theoretical account of disparate-impact law: that it smokes out racially discriminatory motives that cannot be proven directly. This theory works perfectly well in the voting context. When an electoral regulation differentially affects minority and nonminority citizens—and this disparate impact is unnecessary or could have been mitigated—a discriminatory purpose may reasonably be inferred. Absent such a purpose, after all, why would the regulation have been enacted in the first place? . . .

Turning to doctrine, the usual framework has a major practical advantage. Because it has been employed for so long, many contentious issues have been resolved under it. For example, must litigants establish a large disparate impact or will any discriminatory effect do? Lower courts have disagreed in Section 2 vote-denial cases. But under the usual framework, it has been clear for decades that, to make out a prima facie case, a plaintiff must show that a policy has “significantly different” effects on minorities and nonminorities. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975) (emphasis added). . . .

Beyond settling doctrinal issues, the adoption of the usual framework would bolster Section 2’s constitutionality. Section 2 enforces the Fourteenth and Fifteenth Amendments. Both of these provisions are generally violated only if a racially discriminatory purpose is established. Such a purpose can seldom be deduced from a racial disparity alone. But an invidious aim can be inferred more readily when a disparate impact is unnecessary and could have been reduced by a different policy. In that case, “disparate-impact liability under the [usual framework] plays a role in uncovering discriminatory intent.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 540 (2015). Accordingly, the usual framework would tighten the fit between Section 2 and the underlying constitutional violations it seeks to prevent or remedy. . . .

Lastly, the adoption of the usual framework would be consistent with Section 2’s text and history. On its face, Section 2 forbids one type of racial disparity from leading automatically to liability. “[N]othing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 52 U.S.C. § 10301(b). The usual framework dovetails nicely with this disclaimer since, under it, neither this nor any other disparate impact would suffice, alone, to invalidate an electoral regulation.

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