Heather Mac Donald on Schuette and the political-process doctrine

by Walter Olson on May 9, 2014

My former Manhattan Institute colleague tackles the recent racial-preferences case (earlier here and here) with the incisiveness and clarity for which she is well known [City Journal]

Schuette has been ridiculed by preference opponents for posing the question of whether the equal protection of the laws — i.e., race neutrality — violates the Fourteenth Amendment’s guarantee of equal protection. But even BAMN did not have the temerity to make so illogical a claim. Rather than arguing that a ban on racial preferences was unconstitutional per se, BAMN was forced to take up an arcane line of Supreme Court precedent that turned its complaint against Proposal 2 essentially into a quasi-voting-rights claim. It was the locus of decision-making, not the content of Proposal 2, that was unconstitutional, BAMN alleged. The proponents of Proposal 2 had denied minorities the ability to participate meaningfully in the political process, the group said, by resolving the question of racial preferences through a state ballot initiative, rather than at the university level.

This odd line of attack derived from the Supreme Court’s little-known “political process” doctrine, stemming in part from a 1982 case, Washington v. Seattle School Dist. No. 1. The Seattle City Council had passed a law requiring school busing to integrate local schools. In response, Washington state voters passed an initiative banning busing as a response to anything other than deliberate school segregation. Hearing a challenge to that initiative, the Supreme Court ruled that by moving the question of busing from a local to a state level, busing opponents had erected barriers to minorities’ right to political participation and had made it harder for them to defend their interests in the political arena, therefore denying them the equal protection of the laws.

The political-process doctrine is a jurisprudential disaster, made up out of thin air and shot through with unsupportable empirical assumptions — such as that higher levels of governmental organization inherently disadvantage minorities. The civil rights movement, after all, embraced the idea that the federal government was a better protector of minority rights than states or localities. Anti-preference voter initiatives failed at different stages in Missouri and Colorado, belying the claim that a voter referendum is stacked against minorities. Moreover, it’s preposterous to assert as a legal matter that a legitimate method of lawmaking suddenly becomes constitutionally infirm if a court deems its subject matter to be “racial.” The political-process doctrine is simply an ad hoc, desperate means of overturning on process grounds laws that a court couldn’t otherwise invalidate on their merits. And its application to the Michigan case produced several unintended consequences for preference supporters.

She also has some interesting speculation as to why the Court plurality might have chosen to keep the political process doctrine “on life support” rather than overrule it forthrightly. Read the whole thing here.