Proposition 209 as Proposition 14 (as Amendment 2): The Unremarked Death of Political Structure Equal Protection

Abstract

Political Structure Equal Protection can be defined as that strand of protections provided by the Equal Protection Clause of the Fourteenth Amendment which protects independently identifiable groups from denial of equal access to the political process. Political Structure Equal Protection is a valid rule of law promulgated by the Supreme Court while interpreting the Equal Protection Clause - a rule established by precedent which has not been repudiated. Yet two recent cases cast doubt on its continued vitality, despite the fact that it has never explicitly been repudiated. This article argues that Political Structure Equal Protection deserves continued vitality, particularly when the protections afforded minorities under conventional "suspect class" equal protection are subject to retrenchment. Part I of this article discusses the evolution of Political Structure Equal Protection. Part II of this article examines the Colorado Supreme Court's application of Political Structure Equal Protection in Evans v. Romer and the U.S. Supreme Court's affirmance on other grounds in Romer v. Evans. Part III examines the opinions in Coalition for Economic Equity v. Wilson and article argues that the Ninth Circuit wrongly ignored Political Structure Equal Protection in Wilson. Finally, this article argues that Romer and Wilson were both Political Structure Equal Protection cases and should have been treated similarly. Regarding the continued vitality of Political Structure Equal Protection, this article argues that such access is a fundamental right, akin to the right to vote, and is subject to strict scrutiny. Alternatively, if the right to equal access to the political process is not a fundamental right, then the right should arise whenever an identifiable group is denied such access.

Keywords: equal protection

JEL Classification: K19, K39