Schuette, Electoral Process Guarantees, and the New Neutrality

JurisdictionUnited States,Federal
CitationVol. 94
Publication year2021

94 Nebraska L. Rev. 60. Schuette, Electoral Process Guarantees, and the New Neutrality

Schuette, Electoral Process Guarantees, and the New Neutrality

Mark Strasser(fn*)


I. Introduction .......................................... 60

II. Electoral Process Guarantees .......................... 62

A. Reitman Plants the Seeds ......................... 62

B. The Jurisprudence Is Clarified ..................... 66

C. Referenda Not Targeting Minorities ............... 71

D. Dueling Cases Help Establish Which Considerations Are Key in the Jurisprudence ...................... 74

E. An Apparent (but Not Actual) Electoral Process Guarantees Case? ................................. 79

III. Schuette .............................................. 82

A. Background Changes in Equal Protection Jurisprudence ..................................... 82

B. Schuette ........................................... 84

C. On Neutrality ..................................... 95

IV. Conclusion ............................................ 98


In 2014, in Schuette v. Coalition to Defend Affirmative Action,(fn1) the United States Supreme Court addressed the breadth of electoral process guarantees, which have stood as a bulwark against attempts to impose extra electoral burdens on discrete minorities. While the Schuette holding is clear-federal constitutional guarantees are not necessarily violated by the voters' amending their state constitution to preclude the state from affording racial preferences(fn2)-the plurality opinion raises more questions than it answers both with respect to the particular constitutional doctrine before the Court and with respect to equal protection jurisprudence more generally. In its haste to reverse


the 6th Circuit,(fn3) which had taken the Court at its word,(fn4) the plurality has now not only left open what electoral process guarantees mean(fn5) and whether they have any force,(fn6) but has also muddled equal protection jurisprudence. Both the ways in which the plurality modified equal protection jurisprudence, and that it did so sub silentio ,(fn7) will doubtless convince some that the Court is no longer committed to the fair and equal treatment of the laws. In any event, Schuette is bound to bring about much confusion in the lower courts until the Court clarifies what it means.(fn8)

Part II of this Article discusses several cases in which the Court developed the electoral process guarantees jurisprudence, concluding that the jurisprudence was reasonably clear in paradigmatic cases where extra electoral burdens were placed on racial minorities who sought the benefits or protections that other groups might seek. Part III discusses Schuette, focusing on some of the ways that the plurality mischaracterized the then-existing jurisprudence. The Article concludes that the Schuette plurality not only undermined the electoral process jurisprudence that it claimed to follow, but misapplied settled equal protection principles, which will create chaos in the lower courts unless corrected or clarified.



In a series of cases, the Court has explained some of the electoral process protections provided by the Fourteenth Amendment to the United States Constitution.(fn9) That long-evolving jurisprudence is designed to assure a level playing field so that minorities will not have to overcome extra electoral burdens when seeking the kinds of benefits and protections that others seek.(fn10) While the level-playing-field analogy is relatively straightforward, the Court has never adequately explained all aspects of the jurisprudence, for example, which groups are protected by the guarantees. Instead, the cases in which the guarantees were triggered often involved analyses of the conditions under which electorates were prohibited from imposing special burdens on racial minorities, leaving open which groups could successfully invoke these guarantees to invalidate extra electoral burdens placed upon them. Up until Schuette was decided, the Court had been content with providing guidance in the paradigmatic cases with respect to what counted as electoral burdening and what did not, and then permitting lower courts to decide other kinds of cases in light of that guidance.

A. Reitman Plants the Seeds

Reitman v. Mulkey (fn11) spelled out some of the elements(fn12) that would later be central in electoral process guarantees jurisprudence.(fn13) At issue in Reitman was the constitutionality of Proposition 14, adopted by referendum, which specified:

Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.(fn14)

The referendum nullified existing legislation precluding racial discrimination in the housing market.(fn15) The California Supreme Court characterized Proposition 14 as having had the "immediate design and intent . . . 'to overturn state laws that bore on the right of private sellers and lessors to discriminate,' the Unruh and Rumford Acts."(fn16) While the California court was correct that the amendment nullified the existing statutory protections, such a result was not in and of itself constitutionally offensive, because the state does not have an affirmative constitutional obligation to prevent private discrimination. "[T]he State [is] permitted a neutral position with respect to private racial discriminations and . . . the State [is] not bound by the Federal Constitution to forbid them."(fn17) But that means to be constitutionally offensive, Proposition 14 would have to be construed as non-neutral in the relevant sense and as effecting more than a mere repeal.(fn18)

State neutrality with respect to private discrimination is distinguishable from state promotion of private discrimination, and "a significant state involvement in private discriminations [can] amount to unconstitutional state action."(fn19) The California high court reasoned that "the intent [behind the referendum was] . . . to create a constitutional right to discriminate on racial grounds in the sale and leasing of real property"(fn20) and, further, that the Proposition was designed "to forestall future state action that might circumscribe this right."(fn21) By forestalling future action that might limit the right to discriminate, the Proposition was not merely repealing existing law(fn22) but was, in addition, making it more difficult to reinstate antidiscrimination protections.

Suppose that the referendum had not amended the California Constitution but instead had merely repealed the laws passed by the legislature. Those in favor of the repealed legislation might have tried to build coalitions within the legislature and might have again sought to convince legislators of the wisdom of passing antidiscrimination legislation, perhaps after taking into account some of the objections that


had swayed the electorate to enact a repeal.(fn23) By amending the state constitution, Proposition 14 precluded those seeking antidiscrimination protections from simply going back to their legislators. Instead, the state constitution would have to be amended before such protections could be enacted.

A mere repeal of legislation would have been treated in the same way that the failure to pass that legislation in the first place would have been treated.(fn24) The California high court "did not posit a constitutional violation on the mere repeal of the Unruh and Rumford Acts."(fn25) It was the additional elements that made Proposition 14 constitutionally offensive, because the referendum "would and did have wider impact than a mere repeal of existing statutes."(fn26) In addition, the "right to discriminate, including the right to discriminate on racial grounds, was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of the state government."(fn27) The Reitman Court noted that the challenged proposition "authorize[d] racial discrimination in the housing market. [Thus] [t]he right to discriminate . . . [became] one of the basic policies of the State."(fn28) Because there were "no persuasive considerations indicating that [the California Supreme Court's] judgments should be over-turned,"(fn29) the United States Supreme Court deferred to the California high court's determination that the referendum's passage "will significantly encourage and involve the State in private discriminations."(fn30) The Court's deference on that point was important. States are constitutionally prohibited from supporting private discrimination,(fn31) so the United States Supreme Court's deference with respect to the determination that the amendment would encourage private discrimination provided the basis for the Court's affirmance of the California Supreme Court's striking down Proposition 14 as a violation of Fourteenth Amendment guarantees.(fn32)


The Reitman Court did not even attempt to perform "the 'impossible task' of formulating an infallible test for determining whether the State 'in any of its manifestations' has become significantly involved in private discriminations."(fn33) Instead...

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