“Disparate impact” is a short legal phrase with a long reach.

For decades, it’s been used to reveal hidden racial discrimination in employment and housing laws and practices, and, until this month’s U.S. Supreme Court decision in the case of Brnovich vs. Democratic National Committee, it was a powerful tool for ferreting out voter suppression.

All debates about racism in the U.S. pretty much boil down to two dueling propositions: You can believe that racism, though an undeniable historical fact, has largely been eliminated by changes in societal attitudes. Or you can believe that patterns of racism have become so baked into society’s institutions that they’ve continued to adversely affect people of color even when whites intend them no harm (or at least profess not to).

The Republican Party has embraced the first and rejected the second proposition, labeling the latter reverse racism against whites and fashioning it into a potent culture war weapon under the rubric “Critical Race Theory” (CRT).

For me, it’s all about statistics. I’ve had little first-hand experience with overt racism. But I do believe in the power of data to expose broad social patterns lurking beneath society’s surface. If the empirical evidence points towards systemic racism, then I’m inclined to accept that it exists. That’s where the disparate impact doctrine comes in.

Simply put, disparate impact means that a law, rule or practice, though appearing neutral and even-handed on its face, can be judged illegally discriminatory if it disproportionately harms people of color. Such cases are established through statistical evidence rather than evidence of discriminatory intent.

Disparate impact analysis has played a significant role in voting rights cases — that is, until July 1, when the U.S. Supreme Court in its Brnovich decision ratcheted down its importance in the determination of whether restrictive state balloting rules violate the anti-discrimination provisions of the Voting Rights Act.

The case challenged an Arizona law prohibiting collection of absentee ballots by anyone other than a voter’s relative or caregiver and disqualifying ballots cast in the wrong polling district. In a 6-3 majority vote, the conservative bloc of the Court ruled that states, in the interest of preventing hypothetical voter fraud, could impose limits on the time, manner and place of casting ballots even if those restrictions caused minority voters demonstrable disadvantage (breezily characterized as “mere inconvenience”).

The statistics reflecting racial inequality in our society are shocking, and a full discussion of them is well beyond the scope of this column.

However a few key data points highlighting racial inequality, contained in a study by the Brookings Institution published in July 2020, are worth considering:

One in 13 Black Americans of voting age are disenfranchised from voting, due in large part to the fact that one in 11 Black adults are in prison or on probation or parole, most legally barred from casting a ballot.

Add to that, severe inequities Blacks experience in employment, asset ownership, housing, education and health care, and you begin to see why there might be a host of obstacles to their voting. Often working low-wage jobs, lacking flexible working hours, not owning a car, not having access to child care and suffering multiple health problems, many might not be able to travel to distant polling places, obtain or return their absentee ballots at a municipal office, or stand in line for hours waiting to cast a vote. Liberalized absentee ballot rules and readily accessible polling sites help to reduce this disadvantage.

The Voting Rights Act of 1965 was passed to realize what the post-Civil War 15th Amendment, ratified 95 years earlier, had sought to achieve – to prevent the right to vote from being “denied or abridged” based upon race, as typified by the heavy suppression of African-American voting in the Jim Crow South through poll taxes, literacy tests and property qualifications.

The 1965 Act was amended in 1982 to make it clear that voting rules can be challenged as discriminatory, without proof of intent to discriminate, if the political processes leading to nomination or election are not “equally open” to participation by non-whites “in that its members have less opportunity” – in other words, if the rules have a disparate impact on minority voting opportunities.

But in Brnovich, the Supreme Court held that disparate impact was only one of many factors to be considered, as part of “the totality of circumstances,” in determining whether a rule restricting voting rights violated the Act. Notable among the additional factors to be taken into account was a state’s interest in preventing voter fraud.

While Arizona’s law was relatively mild in terms of its impact, other Republican-controlled legislatures in states like Texas are pushing, or have already enacted, more ambitious voter suppression schemes.

With the “disparate impact” test reduced in stature by Brnovich, many of these schemes may now pass constitutional muster. That’s bad news for fulsome minority voter participation and bad news for democracy.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 10 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at [email protected]


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