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Brooklyn Law Review

Authors

Steve Sanders

Abstract

In 2012, the U.S. Court of Appeals for the Sixth Circuit ruled that Michigan voters had violated principles of the fair lawmaking process when they amended their state constitution to prohibit race-conscious affirmative action in public university admissions, reasoning that the amendment, known as “Proposal 2,” constituted a political restructuring that had violated the Equal Protection Clause by disadvantaging African Americans from being able to equally access political change. However, the Sixth Circuit was careful to avoid saying that Proposal 2 created a racial classification or was motivated by a purpose of discriminating on the basis of race. Instead, consistent with the view that the Hunter/Seattle doctrine allowed for the finding of a constitutional violation based only on the detrimental political process effects of a restructuring on a minority group, the court eschewed any need to apply what it called “traditional” equal protection analysis, which requires an intentional decision to create a racial classification or discriminate invidiously. In a deeply fractured 2014 decision with no majority opinion, the Supreme Court reversed the Sixth Circuit in Schuette v. Coalition to Defend Affirmative Action. In the plurality opinion, Proposal 2 simply reflected disagreement on the public policy question of affirmative action that the citizens of Michigan were entitled to settle as they saw fit. While the Schuette opinions settled the constitutionality of Proposal 2, they created confusion and uncertainty going forward about how we should think about political restructurings as a matter of constitutional equal protection.

This article provides an in-depth exposition of the restructuring cases that came before Schuette, an analysis of the Schuette decision’s place within the equal protection doctrine, and some observations about judicial review of political restructurings in the future. It advances three arguments. First, this article argues that the best-known political restructuring cases, Hunter and Seattle, did not create an exception to the principle that a violation of the Equal Protection Clause requires intentional discrimination. Second, Schuette is, above all, a decision reflecting the current state of the Supreme Court’s racial equal protection jurisprudence, not a decision about political restructurings as such. Third, Schuette does not alter the lesson from restructuring precedents that courts can and should give more careful scrutiny to political restructurings than is provided by the baseline, highly deferential form of rational basis review that is applied to ordinary legislative enactments. Finally, this article explains why careful judicial scrutiny of restructurings for invidious purposes remains both permissible and necessary, especially given the inherent flaws of direct democracy.