Alito addresses it pretty thoroughly in his opinion which I cited. A portion:
The size of any disparities in a rule’s impact on members of different racial or ethnic groups is also an important
factor to consider. Small disparities are less likely than
large ones to indicate that a system is not equally open. To
the extent that minority and non-minority groups differ
with respect to employment, wealth, and education, even
neutral regulations, no matter how crafted, may well result
in some predictable disparities in rates of voting and noncompliance with voting rules. But the mere fact there is
some disparity in impact does not necessarily mean that a
system is not equally open or that it does not give everyone
an equal opportunity to vote. The size of any disparity matters. And in assessing the size of any disparity, a meaningful comparison is essential. What are at bottom very small
differences should not be artificially magnified. E.g., Frank
v. Walker, 768 F. 3d 744, 752, n. 3 (CA7 2014).
A disparate impact is only one of five factors to consider.
That is exactly what the en banc Ninth Circuit did here.
The District Court found that among the counties that reported out-of-precinct ballots in the 2016 general election,
roughly 99% of Hispanic voters, 99% of African-American
voters, and 99% of Native American voters who voted on
election day cast their ballots in the right precinct, while
roughly 99.5% of non-minority voters did so. 329 F. Supp.
3d, at 872. Based on these statistics, the en banc Ninth
Circuit concluded that “minority voters in Arizona cast [outof-precinct] ballots at twice the rate of white voters.” 948
F. 3d, at 1014; see id., at 1004–1005. This is precisely the
sort of statistical manipulation that Judge Easterbrook
rightly criticized, namely, 1.0 ÷ 0.5 = 2. Properly understood, the statistics show only a small disparity that provides little support for concluding that Arizona’s political
processes are not equally open.
So, pretty much what I said. Any voting regulation at all would have a disparate impact under the Plaintiff’s argument, so that cannot be the test.
I’m glad he thinks Easterbrook is some authority on this. Remember, he’s the guy who says that voting restrictions are perfectly wonderful and lovely as long as the target is political beliefs, not race. I guess if you want to acknowledge that the intent is to make it harder for Democrats to vote than Republicans, I’ll only say “racism” under my breath, instead of really loud. That work for you?
Someone once said…
So, as long as we target minorities because of the fact that they lean more towards the Democrats is just peachy and you think that’s eminently reasonable? Fuck that noise.
And one of his five factors is whether or not a voting restriction or regulation was common in 1982, which is a completely made-up factor that has no real relevance at all to the issue. When Congress amended Section 2 in 1982, their aim was precisely to ensure that disparate impacts could be addressed, not to bake the existing discrimination into the rules forever.
I agree with that as a general point, but when you look at a law that was passed in 1982 to address particular instances of voting discrimination, it would be a pretty bold and aggressive interpretation to say that Congress believed that the voting practices then in effect in 47 states (and the other 3 were just a smidge less strict) was an example of the type of discrimination it intended to outlaw when nobody mentioned it at the time, nor was there any suggestion that it was doing so.
Alito’s discussion of it seems spot on. Under the previous versions, you had to prove that the state acted with discriminatory intent. This requirement was removed. If the law was intended or understood to enact such a sea change in election procedure, you would think someone would have said something at the time.
And again, that is just one piece of the puzzle, not the end all of the analysis.
It feels like you think it’s hunky dory to be racist as hell as long as it can’t be proven beyond a shadow of a doubt that there was racist intent behind the racist decision.
The rest of us know that the voter suppression laws (excuse me, “burdensome regulations that happen to have a greater affect on minorities purely by accident”) are created by people fully cognizant of the disparate racial impact that their laws will have and push them forward anyway, not in spite of that, but because of that. The ONLY goal is to reduce the turnout of a subset of the electorate in order for Klansmen-In-Charge to maintain power as often and as long as possible.
Now, would (and do) the Republicans also attempt to suppress the voting frequency of white Democrats? Sure, but that often takes more effort.