Texas filed a petition on Friday for a writ of certiorari in the U. S. Supreme Court to reinstate its voter ID law, saying the Court needs to resolve the “exceptionally important circuit split” on the appropriate test for Section 2 discriminatory-effect claims.
This Court’s review is necessary because the Fifth Circuit enjoined a law for “denying” or “abridging” the right to vote where plaintiffs presented no evidence that the law resulted in diminished minority political participation or prevented even a single person from voting. That holding turns VRA §2 on its head and creates a split with the Sixth, Seventh, and Ninth Circuits over the proper test for determining whether a voting prerequisite violates VRA §2.
Under the Fifth Circuit’s decision below, and a subsequent Fourth Circuit opinion, voting prerequisites can be invalid under VRA §2 even if there is no evidence that they affect voter participation. The Fifth Circuit held that a discriminatory effect can be shown by identifying a statistical racial disparity—other than voter turnout or registration—and then recognizing the uncontested fact, which could be proved in any case, that some degree of statistical correlation exists between racial and socioeconomic classifications.
In contrast, the Sixth, Seventh, and Ninth Circuits have correctly required an actual effect on voter participation to establish a discriminatory effect under VRA §2. These Circuits have thus rejected the Fourth and Fifth Circuits’ sweeping test for VRA §2 liability, which would jeopardize numerous legitimate voting provisions such as registration laws, age restrictions, and Tuesday elections…
The Sixth, Seventh, and Ninth Circuits correctly require VRA §2 plaintiffs to show that a challenged voting prerequisite causes a measurable effect on minority voting—that is, an actual effect on voter turnout or registration. The Fourth and Fifth Circuits, by contrast, hold that a voting prerequisite can violate VRA §2 even if there is no evidence whatsoever that it negatively affects minority political participation or prevents a single person from voting.
This Court has never decided a “vote-denial” or “vote-abridgement” case under VRA §2’s results prong; its cases have all involved “vote-dilution” claims. As the Fifth Circuit correctly observed, “there is little authority on the proper test to determine whether the right to vote has been denied or abridged on account of race” under §2… This Court’s guidance is therefore needed to resolve this exceptionally important circuit split.