[EL] SCOTUS (no AZ redistricting, but...)

[Rick Hasen]

    #SCOTUS Fair Housing Decision May Have Effect on Voting Rights Act
    <http://electionlawblog.org/?p=73758>

Posted onJune 25, 2015 7:29 am 
<http://electionlawblog.org/?p=73758>byRick Hasen 
<http://electionlawblog.org/?author=3>

This morning on a 5-4 vote the Supreme Court upheld the use of a 
disparate impact test in a fair housing case. Justice Kennedywrote the 
opinion <http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf>, 
joined by the Court’s four liberals and over four dissenting Justices.

A parallel issue arises under the effects test of Section 2 of the 
Voting Rights Act.  What does one have to show in the vote denial cases, 
such as when voter id laws have a disparate impact on racial minorities? 
Statistical disparities are not enough in the housing context, but 
looking at them is ok provided there is proof of causality:

    But disparate-impact liability has always been properly limited in
    key respects that avoid the serious constitutional questions that
    might arise under the FHA, for instance, if such liability were
    imposed based solely on a showing of a statistical disparity.
    Disparate-impact liability mandates the “removal of artificial,
    arbitrary, and unnecessary barriers,” not the displacement of valid
    governmental policies./Griggs/,/supra/, at 431. The FHA is not an
    instrument to force housing authorities to reorder theirpriorities.
    Rather, the FHA aims to ensure that those priorities can be achieved
    without arbitrarily creatingdiscriminatory effects or perpetuating
    segregation.

    Unlike the heartland of disparate-impact suits targetingartificial
    barriers to housing, the underlying dispute in this case involves a
    novel theory of liability. See Seicsh-naydre, Is Disparate Impact
    Having Any Impact? An Appellate Analysis of Forty Years of Disparate
    ImpactClaims Under the Fair Housing Act, 63 Am. U. L. Rev.357,
    360–363 (2013) (noting the rarity of this type of claim). This case,
    on remand, may be seen simply as anattempt to second-guess which of
    two reasonable approaches a housing authority should follow in the
    soundexercise of its discretion in allocating tax credits for
    low-income housing.

    An important and appropriate means of ensuring that disparate-impact
    liability is properly limited is to givehousing authorities and
    private developers leeway to state and explain the valid interest
    served by their policies.This step of the analysis is analogous to
    the business necessity standard under Title VII and provides a
    defense against disparate-impact liability. See 78 Fed. Reg. 11470
    (explaining that HUD did not use the phrase “business necessity”
    because that “phrase may not be easily understood to cover the full
    scope of practices covered by the Fair Housing Act, which applies to
    individuals, busi-nesses, nonprofit organizations, and public
    entities”). As the Court explained in/Ricci/, an entity “could be
    liable for disparate-impact discrimination only if the [challenged
    practices] were not job related and consistent with business
    necessity.” 557 U. S., at 587. Just as an employer may maintain a
    workplace requirement that causes adisparate impact if that
    requirement is a “reasonable measure[ment] of job
    performance,”/Griggs/,/supra/, at 436, so too must housing
    authorities and private developers be allowed to maintain a policy
    if they can prove it is necessary to achieve a valid interest. To be
    sure, the Title VII framework may not transfer exactly to the
    fair-housing context, but the comparison suffices for present purposes…

    In a similar vein, a disparate-impact claim that relies on a
    statistical disparity must fail if the plaintiff cannot point to a
    defendant’s policy or policies causing that disparity. A robust
    causality requirement ensures that “[r]acialimbalance . . . does
    not, without more, establish a primafacie case of disparate impact”
    and thus protects defendants from being held liable for racial
    disparities they did not create./Wards Cove Packing Co./v./Atonio/,
    490 U. S. 642, 653 (1989), superseded by statute on other grounds,42
    U. S. C. §2000e–2(k). Without adequate safeguards atthe prima facie
    stage, disparate-impact liability mightcause race to be used and
    considered in a pervasive way and “would almost inexorably lead”
    governmental orprivate entities to use “numerical quotas,” and
    seriousconstitutional questions then could arise. 490 U. S., at 653/./

I expect lower courts will look at this language in the Section 2 vote 
denial cases.

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    Obamacare Survives Latest Challenge: Read King v. Burwell Decision
    <http://electionlawblog.org/?p=73755>

Posted onJune 25, 2015 7:15 am 
<http://electionlawblog.org/?p=73755>byRick Hasen 
<http://electionlawblog.org/?author=3>

Here. <http://electionlawblog.org/wp-content/uploads/KINGVBURWELL.pdf>

Some analysis to come later.

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Posted instatutory interpretation 
<http://electionlawblog.org/?cat=21>,Supreme Court 
<http://electionlawblog.org/?cat=29>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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rhasen at law.uci.edu
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http://electionlawblog.org

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