Following the invalidation of the Voting Rights Act of 1965’s1 (VRA’s) preclearance scheme in Shelby County v. Holder,2 numerous restrictive election laws have faced challenges under section 2 of the VRA.3 Section 2 proscribes any “voting qualification or prerequisite to voting or standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”4 Congress added the statute’s “results” language in 1982 to clarify that section 2 violations do not require a showing of intentional discrimination — they can “be proved by showing discriminatory effect alone.”5 Until recently, circuits have been sharply divided on the appropriate disparate impact test to apply to section 2 vote denial claims.6
Recently, in Veasey v. Abbott,7 the Fifth Circuit addressed challenges to a Texas statute requiring that individuals present photo identification (ID) in order to vote.8 The court upheld the district court’s determination that the law violated section 2 due to its discriminatory effect on minority voters.9 In so holding, the court employed a two-part disparate impact test that has rapidly gained in popularity among the circuits since Shelby County.10 Opponents of the test may allege that it exceeds Congress’s enforcement powers under the Fourteenth and Fifteenth Amendments, but, in fact, the Supreme Court should affirm the test in its current form. Veasey’s results test falls squarely within the Court’s disparate impact jurisprudence as a congruent and proportional means of remedying America’s long history of denying African Americans the right to vote.
Texas began enforcing Senate Bill 1411 (SB 14) on June 25, 2013.12 The bill required voters to present one of six forms of photo ID in order to cast a ballot in person,13 with some limited exceptions.14 Advocacy groups and the United States sought an injunction against the enforcement of SB 14 from the U.S. District Court for the Southern District of Texas.15 The plaintiffs alleged a number of constitutional violations,16 and argued that SB 14 violated section 2 of the VRA due to both its “discriminatory effect and purpose.”17 Texas maintained that the legislature enacted SB 14 in order to reduce voter fraud and promote public confidence in elections, and denied that the law substantially burdened the right to vote.18
The district court decided for the plaintiffs on every issue. In evaluating the disparate impact claim, the district court employed a two-part test, first asking “whether the law has a disparate impact on minorities.”19 The court considered it an “understatement” to “call SB 14’s disproportionate impact on minorities statistically significant.”20 After all, the court found, African Americans and Hispanics make up a disproportionate portion of the poor in Texas as compared to whites due to “socioeconomic effects caused by decades of racial discrimination,” and the poor are over eight times less likely to own SB 14–qualifying ID.21 As a result, “SB 14 specifically burdens” minorities,22 who are less able than whites to bear the costs associated with obtaining SB 14 ID.23
Having decided that SB 14 satisfied the test’s first prong, the court moved on to the second prong, “whether that impact is caused by or linked to social and historical conditions that currently or in the past produced discrimination against” minorities.24 In evaluating this question, the court relied on nine “Senate factors”25 articulated in a Senate report accompanying the 1982 amendments to the VRA.26 The court held that the evidence supported a finding of seven of the factors,27 indicating that SB 14 disproportionately affected minorities “by its interaction with the vestiges of past and current racial discrimination.”28 Thus, SB 14 violated section 2 on disparate impact grounds.
The Fifth Circuit affirmed the lower court’s conclusion “that SB 14 violates Section 2 by disparately impacting minority voters.”29 Writing for the panel, Judge Haynes30 adopted the district court’s two-part results test to evaluate the disparate impact claim.31 The district court’s findings of statistical disparities between minorities and whites in terms of access to SB 14 ID established a disparate impact, satisfying part one of the test.32 Regarding part two, whether the disparate impact “is a product of current or historical conditions of discrimination,” the Fifth Circuit affirmed the district court’s use and application of the Senate factors.33 Because the district court “point[ed] to a defendant’s policy . . . causing” the disparate impact34 — in this case, SB 14’s interaction “with Texas’s legacy of state-sponsored discrimination”35 — the Fifth Circuit concluded that the district court’s analysis fully complied with the Supreme Court’s guidance in Thornburg v. Gingles.36
The Fifth Circuit’s disparate impact analysis indicates the recent convergence among circuit courts around a section 2 disparate impact test. Supporters of stricter voter ID laws have incentives to attack the test on constitutional grounds, as the Court has “sent ominous signals about the future of” Congress’s enforcement powers.37 However, any challenge to the results test on enforcement-power grounds faces an uphill battle against direct and long-standing precedent granting Congress broad authority to remedy the effects of past, purposeful voter discrimination through disparate impact theory. Critics may question the constitutional foundation of disparate impact theory, but, ultimately, the Supreme Court should affirm Veasey’s results test, as it falls well within Congress’s enforcement powers.
In contrast to the relative scarcity of section 2 vote denial claims before Shelby County, circuit courts decided a flurry of such claims in 2014. The Fourth and Sixth Circuits adopted a section 2 analysis that incorporated Supreme Court guidance pertaining to vote dilution cases and applied it to vote denial cases.38 Veasey’s adoption of the Fourth and Sixth Circuits’ results test makes its disparate impact analysis the leading circuit test for section 2 vote denial claims post–Shelby County.
The Supreme Court should affirm the current majority-circuit test because it adheres nearly exactly to the Court’s disparate impact analysis in Gingles. In that case, the Court held that section 2 allowed for disparate impact liability, foreclosing statutory interpretation arguments to the contrary.39 Gingles’s two-part results test required that plaintiffs show (1) that the challenged law “cause[d] an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives” and (2) that this inequality was the result of the challenged law’s “interact[ion] with social and historical conditions” of racism.40 The Veasey test is nearly indistinguishable, including its use of the Senate factors to guide the second step of the inquiry.41 While it is true that Gingles most directly controls vote dilution cases,42 the Court has implied that its analysis also applies to vote denial claims: “The results test mandated by the 1982 amendment is applicable to all claims arising under § 2.”43
Despite this precedent, the future of disparate impact theory under section 2 is far from certain. In recent decades, the Court has radically altered the core twentieth-century constitutional bases of federal antidiscrimination laws. For example, the Court’s restriction of the scope of the Commerce Clause44 has eroded the constitutional authority underlying landmark civil rights legislation.45 Even more recently, in Shelby County, the Supreme Court overturned the centerpiece of the Voting Rights Act.46 Meanwhile, the Court has engaged in “stringent judicial supervision of Section 5 [of the Fourteenth Amendment] antidiscrimination legislation,”47 in some cases without so much as a dissenting opinion protesting the diminution of section 5 powers.48 While many of these cases are distinguishable from Veasey, they indicate that the Court may be receptive to more restrictive readings of section 5 powers than its past cases require.49 This posture of the Court may thus embolden supporters of stricter voter ID laws to challenge the Veasey test as an ultra vires application of Congress’s enforcement powers.50
An enforcement power challenge begins from the premise that the Fourteenth and Fifteenth Amendments protect the right to be free from intentional discrimination, but not from disparate impact.51 However, the Court has also long held that in order to “prevent and deter unconstitutional conduct,”52 Congress has broader powers under those amendments’ enforcement sections than under their specific substantive provisions.53 To enforce those substantive rights, Congress may “enact prophylactic legislation proscribing practices that are discriminatory in effect [even] if not in intent.”54 Such enforcement statutes face an important limitation, though, to ensure that Congress does not create new substantive constitutional rights55: “There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”56
Veasey’s results test applies section 2 so that it remains congruent and proportional to preventing intentional discrimination against minority voters in two ways. First, the results test requires that conditions of racial discrimination interact with the challenged policy to cause the disparate impact.57 This requirement serves to connect disparate impact theory with indicators of discriminatory purpose.58 At the same time, it “protects defendants from being held liable for racial disparities they did not create,”59 an outcome that would be incongruent with enforcing the right to be free from purposeful discrimination.
Second, in order to proportionally enforce the Fourteenth and Fifteenth Amendments, disparate impact tests may prevent only “artificial, arbitrary, and unnecessary barriers”60 to voting. Courts determine the arbitrariness and necessity of a challenged policy by balancing its burden against the state’s legitimate interests in the law.61 Many disparate impact tests do so through the use of burden-shifting frameworks.62 For example, the Court recently affirmed such a framework in upholding a disparate impact claim under the Fair Housing Act (FHA).63 While the Court’s holding in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.64 is arguably limited to the FHA, the majority went so far as to declare that “disparate-impact suits [must] incorporate at least the safeguards discussed here,” which included a causal requirement and a burden-shifting framework, so as to avoid “displac[ing] valid governmental . . . priorities.”65
Despite the fact that the Veasey results test did not employ a burden-shifting analysis, it should still withstand an enforcement power challenge. The ninth Senate factor — which inquires into the “tenuous[ness]” of the government’s interests in the policy66 — ensures that the government’s legitimate interests receive due consideration even without being directly balanced against the discriminatory burden. After all, the district court’s analysis of the ninth factor (left undisturbed by the Fifth Circuit) consisted of evaluating the strength of the government’s justification for SB 14.67 For example, the Fifth Circuit noted that the government’s interests in preventing voter fraud and increasing confidence in elections were legitimate,68 but agreed with the district court that SB 14 did not advance those interests.69 In dismissing each of the stated justifications for SB 14, the court considered the government’s interests alongside the act’s burden on minorities, resembling the weighing of the burden against challenged interests that the Court requires of vote denial claims made under the Equal Protection Clause.70
Given the trend since Shelby County, statutory disparate impact claims will only increase in importance, as courts decide more vote denial challenges that preclearance would have otherwise prevented.71 To resolve the circuit split over section 2 results tests, the Supreme Court may soon address whether Veasey’s disparate impact test exceeds Congress’s enforcement powers. The outcome should not be a close call — the test congruently and proportionally enforces the Fourteenth and Fifteenth Amendments. But given the current Court’s receptivity to overturning precedent in this area to police Congress, supporters of federal antidiscrimination laws have reason for mild anxiety. In conjunction with the Court’s gradual erosion of Congress’s Commerce Clause powers, any ruling limiting section 5 enforcement authority of the VRA will have profound consequences for federal antidiscrimination laws.