A very quick response to Brian, and then I will subside. The law invalidated in Hunter v. Underwood had a "racially discriminatory impact," which seemed to be the reason or at least a key reason that the Court did not follow Palmer v. Thompson. (Also, it was intended to have that disparate impact, and it was also intended to have a disparate impact on poor whites, as compared to other whites.)
Again, I would authorize issuance of licenses if I were Davis, but her refusal to authorize any licenses does not appear to have a discriminatory impact. Here is what the Court said in Hunter v. Underwood: "Citing Palmer v. Thompson ... and Michael M. v. Superior Court of Sonoma County, ... (plurality opinion), appellants make the further argument that the existence of a permissible motive for § 182, namely, the disenfranchisement of poor whites, trumps any proof of a parallel impermissible motive. Whether or not intentional disenfranchisement of poor whites would qualify as a 'permissible motive' within the meaning of Palmer and Michael M., it is clear that, where both impermissible racial motivation and racially discriminatory impact are demonstrated, Arlington Heights and Mt. Healthy supply the proper analysis. Under the view that the Court of Appeals could properly take of the evidence, an additional purpose to discriminate against poor whites would not render nugatory the purpose to discriminate against all blacks, and it is beyond peradventure that the latter was a 'but-for' motivation for the enactment of § 182." We could argue about the meaning of Hunter v. Underwood, but it seems clear that it was important that there was a racially discriminatory (disparate) impact. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Sep 6, 2015, at 7:28 PM, "Brian Landsberg" <blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> wrote: In Hunter v. Underwood the Court held that a law under which persons convicted of certain crimes was unconstitutional because it had been adopted with the intent of disqualifying African-Americans. The law disqualified both whites and blacks. As in the Davis case a facially indiscriminate deprivation of a fundamental right failed because of discriminatory motive. This seems a better analogy than Palmer v. Thompson, where no fundamental right was at stake. Sent from my iPad
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