“Disparate Impact” and Section 2 of the Voting Rights Act

In the aftermath of 2013’s Shelby County v. Holder decision, the Obama Administration is likely to assert that another provision of the Voting Rights Act—Section 2—can be used to strike down voter integrity laws even if the government cannot show that they were enacted with any racially discriminatory intent. Courts should be wary, however, of construing Section 2 to allow liability when only a “disparate impact” on the basis of race—with no evidence of underlying disparate treatment on the basis of race—has been shown. The courts also should consider as part of Section 2’s “totality of circumstances” test the state’s legitimate, nondiscriminatory interest in a challenged practice, such as preventing voter fraud and maintaining public confidence in the fairness and integrity of the electoral process.

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