Brief of Chase Cantrel et al. in Schuette v. Coalition to Defend Affirmative Action, No. 12-682

The political restructuring doctrine is a necessary bulwark of equal protection jurisprudence: it ensures that the debate over whether to adopt constitutionally permissible race-conscious programs does not lead to racial balkanization if one side attempts to racially gerrymander the political process to rig the outcome in its favor. It also reflects a clear and narrow rule: when race is the predominant factor explaining a state’s decision to establish a distinct political process, the governmental action creates a racial classification subject to strict scrutiny. Although courts may be called upon to determine whether race is the predominant factor behind the governmental action and whether the action creates a distinct political process, those determinations are guided by tests that are amenable to commonsensical and objective application.

Accordingly, the Court should affirm the Sixth Circuit’s conclusion that Proposal 2 was a distortion of the political process related to constitutionally permissible race-conscious policies and therefore a racial classification that is subject to, and fails, strict scrutiny, especially in light of Petitioner’s failure even to articulate a compelling state interest.