The New York Times has an editorial in which it calls for Section 3 of the Voting Rights Act to be amended so that it applies not just when there has been a showing of intentional discrimination, but also whenever a jurisdiction has adopted a practice with a disproportionate racial “effect.” This approach has also been endorsed, the Times says, by the Congressional Black Caucus.
But an “effects” test will ensure two results, both bad. First, it will cause racially gerrymandered and segregated voting districts; we know this because that is the principal use to which the effects test in Section 5 of the Voting Rights Act has been put. Second, it will be used to challenge many perfectly legitimate antifraud measures; we know this because many liberals hate, for example, voter-ID requirements.
When voting practices and procedures are neutral on their terms, in their intent, and in their application, they are not “discriminatory” by any reasonable definition of the word, even if they do have a disproportionate effect on this or that group. For example, a law aimed at ensuring that noncitizens are not voting may have a disproportionate effect on Latinos in some jurisdictions, but that doesn’t make the law discriminatory.
In sum, there is nothing wrong with requiring a plaintiff to prove actual discrimination under the federal civil-rights laws before he is awarded relief. No new legislation is needed.
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