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

Authors: Laurence H. Tribe, Joshua I. Civin, Mark D. Rosenbaum, David B. Sapp, Karin A. Demasi, Nicole M. Peles, Erwin Chemerinsky, Sherrilyn Ifill, Damon T. Hewitt, Steven R. Shapiro, Dennis D. Parker, Melvin Butch Hollowell, Jr., Kary L. Moss, Michael J. Steinberg, Mark P. Fancher, Jerome R. Watson, Daniel P. Tokaji
Date Published: September 13, 2013

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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.

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