In mainstream constitutional law, there’s a sharp distinction between claims based on rights burdens and claims based on unequal treatment. Substantive due process is the quintessential doctrine of rights burdens. In that area, the theory is always that some right (privacy, procreation, abortion, etc.) has been overly or unjustifiably encumbered. In contrast, equal protection is the classic locus of grievances based on unequal treatment. Here, the argument is always that certain individuals have been treated differently than other individuals (often on the basis of race, sex, or some other protected classification).
The same distinction between rights burdens and unequal treatment holds when the Constitution is applied to election law. Anderson-Burdick sliding-scale scrutiny is the election law-specific doctrine of rights burdens. An Anderson-Burdick claim always asserts that the right to vote (or some other related right) has been impermissibly encumbered by some governmental regulation. It’s the degree of that encumbrance that’s pivotal under Anderson-Burdick—not whether the encumbrance is uniformly or differentially distributed among the population. On the other hand, the crux of a Bush v. Gore challenge is indeed the differential impact of some governmental policy (or set of policies). Most commonly, the argument is that voters in certain geographic areas are affected differently by electoral rules than voters in other geographic areas.
There’s no question on which side of this divide Section 2 of the Voting Rights Act falls. Section 2 is violated when elections aren’t “equally open” to minority citizens in that they have “less opportunity” than other citizens to participate. The italicized terms—equally, less—are the distinctive elements of an unequal treatment theory. They make clear that Section 2 seeks to eliminate racial disparities in voting. They also indicate that Section 2 isn’t concerned with burdens on voting per se. Voting burdens only fall within Section 2’s purview when they cause disparate racial impacts.
Regrettably, the Supreme Court’s decision in Brnovich blurred this distinction between rights burdens and unequal treatment. One of the Court’s five factors—“the size of any disparities in a rule’s impact on members of different racial or ethnic groups”—is entirely appropriate. The size and significance of racial disparities are highly relevant in all disparate impact suits. In fact, they’re the very first steps of the analysis under the framework used for disparate claims under Title VII, the Fair Housing Act, and many other statutes.
However, three of the Court’s factors involve rights burdens rather than unequal treatment. Factor one explicitly asks about “the size of the burden imposed by a challenged voting rule.” Factor two inquires whether a regulation was “standard practice” in 1982 (when Section 2 took its current form). This matters, according to the Court, because the 1982 status quo is a “benchmark with which the burdens imposed by a challenged rule can be compared.” And factor four instructs courts to “consider the opportunities provided by a State’s entire system of voting.” The whole electoral regime is relevant, again, because “any burden imposed on voters . . . cannot be evaluated without also taking into account the other available means” of voting.
The Court’s conflation of rights burdens and unequal treatment is unfortunate for two reasons. First, conceptually, it undermines a distinction that has long helped to organize constitutional law generally and election law specifically. Encumbering a right is just different, as a matter of logic and (until now) law, from treating people unequally. It’s confusing and unsettling to mix these two separate ideas.
Second, practically, the Court’s decision will force future plaintiffs to prove that an electoral regulation both causes a (sufficient) racial disparity and imposes a (sufficient) voting burden. It will no longer be enough for plaintiffs to establish a statistically significant disparate impact. They’ll also have to show that the disparate impact is the product of a rule that makes it too hard for all citizens (of all races) to vote. But this is just stacking the deck against plaintiffs so they’ll lose more often. It’s inventing additional hoops for plaintiffs in the hope that they’ll fail to jump through all of them. It’s ideological opposition to Section 2, not statutory interpretation.