Excerpted From: Jancy Nielson, The Slow Race: Achieving Equity Through Legislative and Agency Minority Impact Statements, 41 Minnesota Journal of Law & Inequality 45 (Summer, 2023) (349 Footnotes) (Full Document)


JancyNielsonMinority impact statements serve as an integral tool for state and federal legislators. Often compared to environmental impact statements or fiscal notes, minority impact statements are analyses of the projected impact certain legislation will have on minority populations. Minority populations generally include individuals of different races and ethnicities, but they sometimes also include individuals of varying genders and socioeconomic statuses. The intent behind minority impact statements is to provide state and federal legislators with data and analysis regarding predicted impact to inform the decision-making process around halting or passing certain legislation. Minority impact statements are crucial, as even the most well-intentioned bills could have a negative impact on minorities that could go unnoticed without such analysis. Little in-depth research has been published on neither the key differences and efficacy of each state's enacted statutory language, nor about prominent concerns voiced by state elected officials interested in proposing legislation. This Article seeks to provide a greater research record and dive deeper into what these minority impact statements are. The intention of the Article is to present and evaluate all available information surrounding each state's actions in the subject, how well it is working in practice, and the concerns presented by states interested in proposing such legislation.

The minority impact statement movement emerged in 2007 when Marc Mauer, former Executive Director of the Sentencing Project, and Ryan King, former Policy Analyst, reported that Iowa was the worst state in the nation for Black incarceration compared to white incarceration. This report deeply disturbed former Democratic Iowa State Representative Wayne Ford. Following publication of the report, Representative Ford flew Mauer to Iowa for meetings with local and state officials that focused on the creation of a minority impact statement to further assess the disparity. These meetings ultimately produced the nation's first minority impact statement legislation, introduced in 2008 as House File 2393.

Although Representative Ford held the luxury of a Democratic trifecta in 2008 (a Democratic governor and both houses of the legislature being held by Democratic majority), he encountered some opposition from his own party. Legislative negotiations resulted in women and disabled individuals being included in Iowa's codified definition of “minority,” along with racial and ethnic minority-identifying populations. On April 17, 2008, one day after being sent to former Governor Chet Culver's desk, the nation's first piece of legislation requiring a minority impact statement was signed into Iowa state law.

This Article will evaluate why Iowa's language remains a national model despite notable flaws, whether partisan politics play a role in enacting this language, and the key differences in statutory language between states in which minority impact statement legislation is enacted. Differences will be evaluated based upon three categories: (1) the scope of who is included under each bill; (2) when and how these statements are triggered in the legislative process; and (3) whether mandatory information included in each analysis is specified.

Iowa remains a national model for four reasons. The first is quantity. With almost 200 minority impact statements drafted to date, Iowa has more impact statements than most states. The second is the statute's language, which includes a mandatory trigger in the legislative process. The third is the inclusion of a specific codified definition for “minority” that includes women and people living with disabilities, among other historically disadvantaged racial and ethnic groups. Finally, the fourth reason this legislation is effective is the strategic implementation and utilization of the Justice Data Warehouse for data collection. This Article will discuss the importance of these elements, as a lack of any of these elements-- particularly a lack of mandatory trigger or data collection mechanism-- illustrates the surprising inefficacy in other jurisdictions to date.

Enacting minority impact statement legislation has been a slow race. Since the movement's emergence fifteen years ago, eight states have enacted a minority impact statement bill, with a majority being passed within the past five years. The recent movement to enact this legislation arose from George Floyd's murder, the subsequent trial of Derek Chauvin, and the numerous social reckoning events that have flared the conversation regarding social and racial justice. States are also racing to propose statutory language after the Biden Administration took office and set forth its policy agenda, including racial and ethnic equity measures.

To briefly summarize the relevant actions in other states that fall short of actually enacting legislation regarding minority impact statements: Maryland and Minnesota have established innovative statewide pilot programs providing for minority impact analysis procedures without a formal legislative process. Florida formally partnered with Florida State University for further study on drafting procedures and data collection mechanisms; establishing a partnership like this is a trend that has caught significant interest in other states, as partnering with local colleges or universities can limit costs and/or political opposition. California passed a House Resolution providing for informal processes to be implemented within interested state legislative committees; this Article analyzes language officially signed into law by Governor Gavin Newsom.

The following research provides an in-depth analysis of each state's enacted language and the components that distinguish it from the others. It further provides an initial evaluation of the efficacy of each piece of legislation, which has never been published to date. Lastly, it provides recommendations for statutory language based upon research and conversations with state elected officials, followed by analysis of current federal action.

[. . .]

Piecemeal data and information regarding the movement for minority impact statements has led to a severe lack of knowledge surrounding the benefits, considerations, and efficacy of having enacted statutory language. A lack of centralized research and data has resulted in inaccurate analyses and a fractured national picture on the status of minority impact statement legislation. A complete history of state action, both enacted and proposed, is crucial to understanding how to move forward. Therefore, reference to the Appendix can provide valuable knowledge regarding what other states have proposed, how many times they have attempted to pass legislation, and citations to their statutory language, should states be interested in what similar jurisdictions are drafting. The Appendix also provides contact information for respective state representatives filing this language across the country.

Minority impact statement legislation holds promise at both the state and federal level. A history of bipartisan support, bipartisan utilization in request-driven jurisdictions, and the slow reduction of disproportionate incarceration rates, as shown in Iowa, serves as a strong foundation from which to build upon for even greater efficacy. However, the recommendations presented throughout this Article, along with those made by the National Juvenile Justice Network, need to be closely considered by states with enacted legislation as well as states proposing legislation. The next phase needs to not only focus on expanding the number of jurisdictions using minority impact statement processes, but also on improving the provisions currently enacted to unlock the full potential of this legislation.

Jancy Nielson is a May 2022 graduate from Drake University Law School with certifications in Legislative Practice and Public Service. Nielson's studies focused on the disparate impact legislative measures may have on various racial, ethnic, and gender groups.