Good will hunting: how the Supreme Court's Hunter doctrine can still shield minorities from political-process discrimination.

AuthorMurray, Kerrel

INTRODUCTION I. UNCLEAR BEGINNINGS: THE HUNTER, SEATTLE, AND CRAWFORD DECISIONS II. SYNTHESIZING THE DOCTRINE: TWO HIGH BARS TO ITS APPLICATION A. A High Bar for Racial Classifications: Few Laws Are Truly "Peculiarly Tailored". B. Direct Democracy's Qualities Indicate Hunter Should Be Limited to That Context C. The Doctrine's Utility when Conventional Equal Protection Doctrine Fails III. RESOLVING THE CIRCUIT SPLIT: WHY THE SIXTH CIRCUIT GOT IT WRONG A. Coalition to Defend Affirmative Action v. Regents of the University of Michigan B. Coalition for Economic Equity v. Wilson C. Resolution: Why Michigan's Proposal 2 Did Not Evidence a Nonneutral Power Allocation D. Addressing Criticisms IV. HUNTING FOR APPLICATIONS CONCLUSION INTRODUCTION

Imagine complete frustration. You have been advocating for a school redistricting policy that allows redistricting officials to take race into account in an effort to combat the negative effects of de facto segregation in the local school system. Your organization has been lobbying the local government to implement this policy, and although the campaign has had its share of setbacks, it has recently paid off: the school board has voted yes. But now, before the policy has even been implemented, you receive word that your opponents have placed an initiative on the next statewide election's ballot that will reverse your victory. You and your opponents both know that most state residents opposed the board's decision and that the initiative will almost certainly pass. To reverse its passage, you would have to somehow convince the same electorate that overwhelmingly reversed your policy that they were completely incorrect--a nearly insurmountable burden. You believe your opponents are motivated by a desire to shackle minority interests in the political process but cannot prove it because the initiative's text is neutral on its face, simply touting the benefits of a colorblind society. Thus, your legal counsel tells you, a conventional equal protection challenge will likely fail; to invalidate a facially neutral law, courts must find that the law was passed "because of" an intent to hurt minorities. This standard is always hard to meet, and

it's even harder here because it's particularly difficult to impute a single intent to an entire electorate. You feel helpless, and as the election draws closer, you renew your efforts, trying to find some legal basis for fighting the initiative. Is there any constitutional doctrine you can rely upon? And, if one exists, should it? That is, can any doctrine that allows courts to invalidate a facially neutral policy preference enacted by a direct vote of the people work without granting too much power to unelected judges? In this Note, I argue that the answer to all of these questions is yes.

Admittedly, it cannot always constitute a constitutional violation when minorities lack the ability to implement their policy preferences. Numbers should matter in a representative democracy, and minorities by definition lack numerical strength. This relative powerlessness, however, can become problematic when the majority intentionally uses its comparative strength to entrench that powerlessness. Non-minorities have often pushed back when minorities attempt to enact certain "minority-favoring" policy preferences like race-conscious school redistricting or affirmative action. One can argue whether these policies are generally desirable or not, but regardless of one's position, minorities support them far more than non-minorities. (1)

This asymmetry in support often encourages opponents of these policies to turn to the direct democracy process to halt their enactment. (2) Because that process is the most unfiltered representation of the people's will, it presents unique procedural dangers for minorities, who lack the numbers to ensure that their voices matter. It lets opponents bypass the advantages the representative process gives minorities, making it easier to drown out their policy preferences. And although anti-minority motivations may be apparent from context, conventional equal protection law's focus on explicit discrimination may be insufficient to protect minority interests, leaving supporters of these policies searching for other options.

This search recently proved fruitful. In November 2012, in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the Sixth Circuit revived a long-dormant strand of Fourteenth Amendment jurisprudence to strike down Michigan's Proposal 2, a popularly enacted constitutional amendment that banned affirmative action policies statewide. (3) The court held that Proposal 2 created a "comparative structural burden," undermining the Equal Protection Clause's guarantee of "equal access to the tools of political change" to all citizens. (4) In doing so, the Sixth Circuit applied what is known as the Hunter doctrine, first recognized by the United States Supreme Court in Hunter v. Erickson (5) and reaching its zenith with Washington v. Seattle School District No. 1. (6)

Although rooted in the Equal Protection Clause, the Hunter doctrine differs from conventional equal protection doctrine as articulated in Washington v. Davis, which makes it nearly impossible to have a facially neutral law invalidated. (7) Significantly, the Hunter doctrine lets courts scrutinize legislation--even if apparently facially neutral--that places political-process burdens on minorities and makes it comparatively more difficult for them to "achieve legislation that is in their interest." (8) When such legislation reveals a non-neutral allocation of governmental power that uses the "racial nature of a decision to determine the decisionmaking process," it must be invalidated absent a compelling state interest. (9)

The Sixth Circuit's holding, however, created a circuit split regarding whether the doctrine reaches an anti-affirmative-action measure passed by initiative. The Ninth Circuit's 1997 decision in Coalition for Economic Equity v. Wilson held that Proposition 209 (nearly identical to Proposal 2 in wording and effect) did not violate the Hunter doctrine. (10) Considering the doctrine's opacity, the fact that there is a circuit split is less surprising than the thirty years it took for one to arise. The Supreme Court's March 25, 2013, grant of certiorari in Schuette v. Coalition to Defend Affirmative Action merely confirmed the need for clarity.

Granted, parts of the doctrine are straightforward. The Court's global purpose was protecting racial minorities' fight to "full participation in the political life of the community." (11) The evil the Court wished to address was also clear: a "political structure that treats all individuals as equals, yet more subtly distorts governmental processes" for the purpose of hindering minorities in the political process. (12) The mechanism for achieving these ends is less clear. Commentators and courts have noted the doctrine's imprecise limits, (13) and the Supreme Court has not applied the doctrine in over thirty years. Furthermore, the changes in Fourteenth Amendment law over those thirty years raise the question of whether the Hunter doctrine would be applied the same way today. (14) And, although the Colorado Supreme Court used the doctrine to uphold a preliminary injunction against Colorado's Amendment 2, (15) the Supreme Court declined the opportunity to follow suit, eventually striking down the amendment on another rationale. (16) Thus, the doctrine is admittedly on shaky ground.

Still, it is unobjectionable that a doctrine protecting the integrity of the political process is laudable, if it can be applied coherently. A successful doctrinal formulation must not only make sense of the cases, but must not encroach on our system of separated powers by improperly enlarging judicial power to invalidate democratically enacted laws.

Given that background, I argue in this Note that the Hunter doctrine, if clarified and limited, still provides a shield for minorities in the political process. In Part I, I explain why this deviation from classic equal protection law is necessary at all, and describe the Court's reasoning in the cases comprising the doctrine's framework. In Part II, I synthesize a clearer rule from those cases, and propose two limitations on the doctrine's reach: First, opposing holdings in the seemingly identical cases of Seattle and Crawford v. Board of Education (17) reveal that the doctrine does not grant courts unbounded discretion to determine a "nonneutral' power allocation. Furthermore, the analysis courts must undertake to make that determination is no jurisprudential orphan--in fact, its similarities to the process used in other equal protection cases confirms courts have the ability to apply this test. Second, the doctrine's rarity and confinement to the direct democracy context is no coincidence. Rather, it appeared in these cases because of direct democracy's unique qualities. It therefore should be limited to that context, where it can do the most good while appropriately circumscribing the judiciary's role.

In Part III, I apply the doctrine to resolve the circuit split--perhaps counterintuitively, against the Sixth Circuit's pro-affirmative-action holding. I also show that this is the best reading by addressing some criticisms of the result. Finally, in Part IV, I discuss a hypothetical that shows the doctrine's continued vitality, despite the limits this formulation places on it.

  1. UNCLEAR BEGINNINGS: THE HUNTER, SEATTLE, AND CRAWFORD DECISIONS

    I must briefly recapitulate conventional equal protection doctrine to demonstrate the Hunter doctrine's deviation from that norm. In Washington v. Davis and Personnel Administrator v. Feeney, (18) the Supreme Court laid out its approach to equal protection challenges to facially neutral laws. (19) This analysis still controls constitutional challenges brought on this basis today. (20) Under this approach...

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