Brnovich and the Partial Unification of Disparate Impact Law

I wrote an amicus brief in Brnovich, based on this earlier law review article, recommending the same framework for Section 2 vote denial claims that’s already used for all other disparate impact claims. Under this framework, the plaintiff would first have to show that a particular electoral practice causes a significant racial disparity. Then the jurisdiction would have the chance to prove that the practice is necessary to achieve a substantial state interest. If the jurisdiction made that showing, the plaintiff would have a final opportunity to offer an alternative practice that causes a smaller racial disparity but that still achieves the jurisdiction’s stated interest.

The majority in Brnovich claimed that it rejected the usual disparate impact framework. According to the majority, “We also do not find the disparate-impact model employed in Title VII and Fair Housing Act cases useful here.” However, a better reading of the majority’s opinion is that it embraced some, but not all, of the usual framework. The majority didn’t fully unify disparate impact law, as I urged, but it did partially unify it.

There are two important points of similarity between the majority’s approach and the usual disparate impact framework. The first is that, in both cases, “[t]he size of any [racial] disparity matters.” Documenting a significant racial disparity is a plaintiff’s initial obligation in a conventional disparate impact suit. Doing so is also now critical in a Section 2 vote denial challenge.

The second overlap between the doctrines is that they both now emphasize the strength of a defendant’s interest and the extent to which it’s furthered by a given practice. According to the Brnovich majority, “the strength of the state interests served by a challenged voting rule is also an important factor.” More specifically, an electoral regulation must “reasonably pursue important state interests.” A regulation can’t be justified on the basis of an unimportant interest or if it’s an unreasonable way to promote an important interest.

Turning to the differences between the doctrines, one is that Section 2 vote denial law lacks the formal three-part structure of the usual disparate impact framework. The size of any racial disparity and the strength and fit of the defendant’s interests may be relevant in both cases. But those issues are analyzed simultaneously under the Brnovich majority’s approach, not sequentially as under the usual framework.

Another contrast involves how the fit between a practice and a defendant’s interest is scrutinized. The usual framework requires that a practice be necessary to achieve an interest. On the other hand, under the Brnovich majority’s approach, it’s sufficient if a practice is a reasonable means for pursuing an interest. This is obviously a more relaxed formulation that will allow more defendants to prevail on the issue of tailoring.

Lastly, three of the five factors named by the Brnovich majority have no analogue in the usual framework: the degree of the burden imposed on voting, the prevalence of practices today or in 1982, and the opportunities provided by a jurisdiction’s entire electoral system. To be sure, similar concerns often arise in Title VII and FHA cases. E.g., how onerous is a given employment or housing policy? How unusual is the policy (now or historically)? And how does the policy fit with rest of a defendant’s employment or housing procedures? But these questions are technically irrelevant under Title VII and the FHA, while they’re now material under Section 2.

Put this all together and you can see why the Brnovich majority’s supposed rejection of the usual framework is overblown. Yes, Section 2 vote denial law will now have certain idiosyncratic features (all, not coincidentally, disadvantageous for plaintiffs). But it will share with Title VII and the FHA a focus on whether racial disparities are significant and justified. Large and unwarranted disparities will be suspect under Section 2, just as they are under Title VII and the FHA. This isn’t the full unification of disparate impact law, but it is a step in that direction.

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