On Thursday, the U.S. Supreme Court shocked many by narrowly ruling to protect one of the nation’s key civil rights laws. The Fair Housing Act — which bans discrimination in housing based on race, color, religion, sex, or national origin — survived a challenge from Texas’s Department of Housing and Community Affairs, which stood accused of exacerbating segregation in Dallas by only approving subsidized low-income housing in low-income neighborhoods of color.
The case hinged on whether victims of housing discrimination had to prove the government, banks or other entities consciously set out to discriminate against them — an often impossibly high legal bar — or whether they could simply prove they were disproportionately hurt by a certain policy.
The ruling will not only have a major role in protecting families of color from the kinds of subtle discrimination in home loans, housing vouchers and tax credits that remains rampant today, it could also play a major role in protecting voting rights.
Senior Attorney Kathy Culliton-Gonzalez with the Advancement Project, which is involved in several voting rights lawsuits around the country, said the ruling is “very helpful” because it asserts that it’s not necessary to prove intentional voter suppression based on race.
“These days it’s very, very hard to prove intent,” she said. “We have a lot of implicit bias and symbols of racism, like the Confederate flag, but we don’t always find state legislators saying, ‘We’re going to suppress the African American vote or the Latino vote.’ But there are things that are quite discriminatory in voting that occur on a regular basis.”
Ironically, the same Supreme Court that issued this strong decision protecting disparate impact claims ruled two years ago to gut Section 5 of the Voting Rights Act. With the bill to restore those provisions unlikely to pass a Republican-controlled Congress, lawyers fighting voter suppression have come to rely more on Section 2.
“It prohibits any practice or procedure that has the effect of diminishing the ability of voters of color to elect their candidates of choice,” Culliton-Gonzalez explained. “Like voter ID laws, requiring proof of citizenship, cuts to early voting, and modern day poll taxes and literacy tests. Now we’re seeing cases litigating new types of voter suppression that haven’t been tried in the past, and people are questioning whether ‘disparate impact’ is enough. It’s still very difficult to prove, but it’s been shored up by today’s opinion.”
Culliton-Gonzalez’s colleagues are part of the team suing the state of North Carolina over their law requiring a photo ID to vote, eliminating same-day voter registration and slashing the number of early voting days, among other provisions. Though she can’t speak in detail about the case, which goes to trial on July 13, she said the Supreme Court ruling should have a “very helpful and promising” impact on the effort to overturn North Carolina’s law.
“We’re living in a time where all around us there is evidence of racial injustice, so I’m glad the Court acknowledged ongoing racial discrimination and said it’s not unconstitutional to look at discriminatory impact in our legal system,” she said.