At NRO, Roger Clegg and Hans von Spakovsky summarize their Heritage Foundation report “Disparate Impact” and Section 2 of the Voting Rights Act: From the report: In its voter ID lawsuits, the DOJ emphasizes its claims that the changes made by these states will make it more difficult for minorities to vote, but a claim that a challenged practice has a statistical impact greater than the status quo ante does not mean that there has been a violation of Section 2, since Section 2, unlike Section 5, is not a “retrogression” statute. It seems that the DOJ is refusing to accept the Shelby County decision and is trying to convert Section 2 into an “anti-retrogression” statute to replace the fallen Section 5. The important factor to consider under Section 2 is whether the challenged practice, such as a voter ID requirement, imposes a burden greater than the usual sort associated with voting… In this regard, Justice John Paul Stevens’s majority opinion in Crawford v. Marion County Election Board found that the burden of getting a voter ID does not rise above the “usual burdens of voting,” calling into question the validity of the Justice Department’s claims under Section 2 against Texas and North Carolina.
As Eric Holder’s Justice Department attacks voter-ID laws in Texas and North Carolina, the Heritage Foundation has warned courts that they should be wary of construing Section 2 of the Voting Rights Act to find liability when only a “disparate impact” on the basis of race has been shown.