Good Will Hunting: How the Supreme Court's Hunter Doctrine Can Still Shield Minorities from Political-Process Discrimination
Murray, Kerrel, Stanford Law Review
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
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. …