Racially Neutral in Form, Racially Discriminatory in Fact: the Implications for Voting Rights of Giving Disproportionate Racial Impact the Constitutional Importance it Deserves

• Publication year: 2020

Racially Neutral in Form, Racially Discriminatory in Fact: The Implications for Voting Rights of Giving Disproportionate Racial Impact the Constitutional Importance It Deserves

Gary J. Simson

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Racially Neutral in Form, Racially Discriminatory in Fact: The Implications for Voting Rights of Giving Disproportionate Racial Impact the Constitutional Importance It Deserves

by Gary J. Simson^*

In two decisions in the mid-1970s, Washington v. Davis¹ and Village of Arlington Heights v. Metropolitan Housing Development Corp.,² the U.S. Supreme Court made clear that proving that a law racially neutral on its face disproportionately disadvantages racial minorities does not establish a violation of the Equal Protection Clause³ or even create a presumption that such a violation has occurred. Disproportionate racial impact "is not irrelevant," the Court explained, but "it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution."⁴ The key, according to the Court, lies in proving that the

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law was the product of a racially discriminatory purpose.⁵ My focus in this Article will be the fundamental inadequacy of that approach and the reprieve that it wrongly gives to voter identification laws, purges of voters from registration rolls, and other legal barriers to voting that, though framed in terms that make no mention of race, disproportionately disadvantage racial minorities.

Legal barriers to voting that disproportionately disadvantage racial minorities are hardly a modern phenomenon. Most obviously, it took a Civil War and the ratification in 1870 of the Fifteenth Amendment⁶ to put an end to state laws treating African Americans' race as a disqualification for voting,⁷ and it was not until Congress's enactment of the Voting Rights Act of 1965⁸ that states had to stop using literacy tests as a pretext to keep many blacks from the polls.⁹

However, as the U.S. Commission on Civil Rights documented in detail in a 2018 report,¹⁰ recent years have seen an increase in the variety and number of legal impediments to voting that disproportionately disadvantage racial minorities.¹¹ Voter identification laws, for example, "were not prominent until the late 20^th century,"¹² but by 2000, they existed in fourteen states in one or another form, and since 2000, that number has been "on the rise."¹³ Also according to the report, the justifications commonly offered in defense of legal barriers to voting that disproportionately disadvantage racial minorities tend to be exceptionally weak.¹⁴ Under the circumstances, one hardly needs to be a cynic to question the reality of a claimed justification and to believe

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instead that racial bias played a crucial role. After unanimously finding that "[r]acial discrimination in voting has proven to be a particularly pernicious and enduring American problem,"¹⁵ the Commission underlined the wide range of state-created impediments that in its view have perpetuated that problem. "In states across the country," the Commission maintained, measures that "wrongly prevent some citizens from voting have been enacted and have a disparate impact on voters of color and poor citizens, including but not limited to: voter ID laws, voter roll purges, proof of citizenship measures, challenges to voter eligibility, and polling place moves or closings."¹⁶

In Part I of the Article, I lay out more fully the lessons of Davis and Arlington Heights for challenges under the Equal Protection Clause to facially race-neutral laws that disproportionately disadvantage racial minorities. In Part II, I argue that, from the start, the Davis-Arlington Heights approach posed relatively little threat of invalidation to laws disproportionately disadvantaging racial minorities. Drawing on legal barriers to voting for illustrations, I maintain that, due to a combination of factors, the only laws truly threatened by the approach are ones at the extreme—ones patently and unmistakably the product of bias against racial minorities. In Part III, I argue that the Davis-Arlington Heights approach to disproportionate racial impact wrongly ignores basic assumptions about the lawmaking process that help explain the Court's longtime treatment as "suspect" of laws explicitly disadvantaging racial minorities. In Part IV, I propose an alternative approach that gives disproportionate racial impact the independent importance that I believe it deserves under the Equal Protection Clause. In Part V, I briefly discuss the implications of adopting my proposed approach, with special attention to the implications for prevalent legal impediments to voting. I conclude in Part VI by highlighting the practical importance of my proposal even if today's Supreme Court may not appear to be an ideal audience to embrace it.

I. The Lessons of Davis and Arlington Heights

To understand the lessons of Davis and Arlington Heights, it is helpful to begin with a decision by the Court several years earlier—Palmer v. Thompson¹⁷ in 1971. Faced with a judgment declaring that it

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was violating the Equal Protection Clause by maintaining racially segregated public swimming pools, the city of Jackson, Mississippi closed all the pools. Various African-American residents then challenged the closings in federal court as violating the Equal Protection Clause. After the federal district and appellate courts rejected the challenge, the Supreme Court by a 5-4 vote affirmed.

Whether in the majority or in dissent, the Justices seemed agreed that the case turned on the city's purpose in closing the pools. They disagreed sharply, however, as to what the city's purpose should be understood to be. From the perspective of Justice White, who authored the principal dissent,¹⁸ the city's claim that it had closed the pools out of concern that, if integrated, the pools could not be operated safely and economically was not even "colorable."¹⁹ The "only evidence in this record" to support the existence of any such purpose, Justice White maintained, "is the conclusions of the officials themselves, unsupported by even a scintilla of added proof."²⁰ In his view, the city's purpose in closing the pools was "solely" to circumvent the desegregation order,²¹ and the city's acting pursuant to that purpose "express[ed] its official view that Negroes are so inferior that they are unfit to share with whites this particular type of public facility."²² The impact of the closings, according to Justice White, therefore fell equally on blacks and whites only in the most superficial sense. "[T]he reality" was a markedly disproportionate negative impact on the minority.²³ "Whites feel nothing but disappointment and perhaps anger at the loss of the facilities," Justice White explained. "Negroes feel that and more. They are stigmatized by official implementation of a policy that the Fourteenth Amendment condemns as illegal."²⁴

Writing for the majority, Justice Black took a very different view of the city's purpose—a view that led him to conclude that there was no equal protection problem at all. From Justice Black's perspective, it was a very simple case: The city had argued that it closed the pools because

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"they could not be operated safely and economically on an integrated basis";²⁵ there was "substantial evidence in the record"²⁶ to lend support to that description of the city's purpose; and under that understanding of the city's purpose, there was no reason to think that the pool closings impacted blacks any differently than whites, and the challengers' equal protection claim necessarily failed. As Justice Black saw it, the dissent's charge that the city's stated purpose was pretextual and that the city instead had acted on the basis of an invidious purpose of avoiding the mixing of the races was simply out of bounds. "[N]o case in this Court," Justice Black maintained, "has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it,"²⁷ and he made clear that he was not about to start striking down laws on that basis in Palmer.

To illuminate the "pitfalls"²⁸ of courts' inquiring into purposes other than those acknowledged by the lawmaker, Justice Black first cited a page in one of Chief Justice Marshall's legendary opinions. The page alluded to the sensitivity of courts' questioning the motives of "members of the supreme sovereign power of a State" and spoke of the need for a "principle by which judicial interference would be regulated" if courts were to embark on invalidating laws passed with improper motive.²⁹ Justice Black then ticked off a series of practical objections: "it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment"; "[i]t is difficult or impossible for any court to determine the 'sole' or 'dominant' motivation behind the choices of a group of legislators"; and "there is an element of futility in a judicial attempt to invalidate a law [based on] the bad motives of its supporters" because "it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons."³⁰

Several years later, when the Court handed down its decision in Washington v. Davis, the majority opinion was authored by Justice White, who had objected so strenuously in Palmer to the Court's refusal there to take seriously any purpose that the lawmaker was unwilling to claim as its own. Perhaps because Justice Black was no longer on the Court to object, Justice White was content to rely on a rather oblique reference to Palmer in a footnote to signal that the Palmer approach to

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motive was officially dead,³¹ but there could be no doubt that his opinion had laid it to rest. Davis was an equal protection challenge³² to a District of Columbia police department's use of a written qualifying exam that had the effect of screening out a much higher proportion of...