Byline: Steven Geoffrey Gieseler, SPECIAL TO THE WASHINGTON TIMES
Comment on last Monday's Supreme Court decision upholding Indiana's voter identification law has been swift, and wide in scope. Analysis has focused on topics ranging from the decision's impact on upcoming presidential primaries to how the 2000 election decision in Bush v. Gore informed the court's opinion. Yet one of the decision's most compelling and important aspects has gone somewhat unnoticed: how the court dealt (or didn't deal) with the "disparate impact" theory of discrimination law.
Common sense dictates that if you're trying to determine whether a government action violates the Constitution's guarantee of equal protection of the laws, you would look to see whether the government actually is protecting people unequally. That is, a law would violate equal protection principles if it treated different groups of people in a disparate manner.
Sadly, though, common sense isn't necessarily that common in modern courts. Some jurists have warped the Constitution's protections to require not equal protection, but equal results.
One private-sector example of this disparate impact argument involves college entrance exams. There is a statistical gap between the average scores of students from different racial backgrounds on these tests. Most would argue that these results are owed as much to societal factors such as the relative prevalence of two-parent homes and also income levels between racial groups.
Not so, say disparate impact theorists. If the tests produce different results for different groups, the test must be racially biased, they say. This tautology of sorts is, in its own way, impervious to logical argument. For under disparate impact analysis, actual bias in testing is irrelevant; the results are all that matters, and if they don't come out "right," the test discriminates.
It's not hard to see how such results-oriented absurdity could wreak havoc when applied to state actions. The Supreme Court itself has recognized the potential for chaos, writing in 1996 that "under a disparate-impact theory ... regulatory measures always considered to be constitutionally valid, such as sales taxes, state university tuition, and criminal penalties, would have to be
The court's prior recognition of the dangers of the disparate impact theory makes its decision in the voter ID case somewhat vexing. …