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Under section 2(b) of the Voting Rights Act, 52 U.S.C.S. § 10301(b), a voting standard or practice, to be actionable, must result in an adverse disparate impact on protected class members' opportunity to participate in the political process. But this formulation cannot be construed as suggesting that the existence of a disparate impact, in and of itself, is sufficient to establish the sort of injury that is cognizable and remediable under section 2. § 10301(a)-(b). A showing of disproportionate racial impact alone does not establish a per se violation of section 2. Accordingly, proof of a disparate impact - amounting to denial or abridgement of protected class members' right to vote - that results from the challenged standard or practice is necessary to satisfy the first element of the test, but is not sufficient to establish a valid section 2 vote-denial-or-abridgement claim. The first element of a section 2 claim requires proof that the challenged standard or practice causally contributes to the alleged discriminatory impact by affording protected group members less opportunity to participate in the political process.
The law, known as Senate Bill 238, amends Ohio Revised Code § 3509.01 to allow early in-person voting for a period of 29 days before Election Day. Though the law is facially neutral, the district court held that it results in an impermissible disparate burden on some African-American voters. The district court enjoined enforcement of S.B. 238, thereby effectively restoring Ohio's preexisting 35-day early in-person voting period. Ohio officials promptly moved for a stay, arguing that implementing the district court's order ahead of a special election on August 2, 2016, and the general election on November 8, 2016, would cause irreparable harm to its boards of elections and voting public. The court granted Ohio's motion in part, staying its order only with respect to the special election that has since taken place on August 2. Ohio officials did not appeal the court's ruling on the motion to stay, but asked the appeals court to expedite the merits appeal so the matter may be resolved prior to the November general election.
Does the challenged law result in a cognizable injury under the Constitution or the Voting Rights Act?
The court held that plaintiffs' equal protection challenge failed because the State's justifications easily outweigh and sufficiently justify the minimal burden that some voters may experience. Plaintiffs also failed to establish a violation of section 2 of the Voting Rights Act, 52 U.S.C.S. § 10301, because plaintiffs failed to establish a cognizable disparate impact.