Citation
Nicholas Stephanopoulos, Disparate Impact, Unified Law, 128 Yale L.J. 1566 (2019). Winner of the AALS Distinguished Scholarship in Election Law prize.
Abstract
The last decade has seen the largest wave of franchise restrictions since the dark days of Jim Crow. In response, lower courts have recently converged on a two-part test under Section 2 of the Voting Rights Act: whether an electoral practice causes a disparate racial impact through its interaction with social and historical discrimination. Unfortunately, the apparent consensus is only skin-deep. Courts bitterly disagree over basic questions — whether the test applies to specific policies or to systems of election administration; whether it is violated by all, or only substantial, disparities; and whether disparities refer to citizens’ compliance with a requirement or to their turnout at the polls. The test also sits on thin constitutional ice.
To fix it, this Article proposes to look beyond election law to the statutes governing disparate impact liability in employment, housing, and other areas. Under these statutes, courts employ a burden-shifting framework that first requires the plaintiff to prove that a particular practice causes a significant racial disparity, then gives the defendant the opportunity to show that the practice is necessary to achieve a substantial interest. This framework would answer the questions that have vexed courts in Section 2 cases and would bolster Section 2’s constitutionality by allowing jurisdictions to justify their challenged policies. The solution to Section 2’s woes would not require leaps of doctrinal innovation — only the unification of disparate impact law.