Schuette, Electoral Process Guarantees and the New Neutrality

Posted: 24 Nov 2015

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

Date Written: November 23, 2015

Abstract

In Schuette v. Coalition to Defend Affirmative Action, the United States Supreme Court addressed the breadth of electoral process guarantees, which have stood as a bulwark against attempts to impose extra electoral burdens on discrete minorities. While the Schuette holding is clear — federal constitutional guarantees are not necessarily violated by the voters’ amending their state constitution to preclude the state from affording racial preferences — the plurality opinion raises more questions than it answers both with respect to the particular constitutional doctrine before the Court and with respect to equal protection jurisprudence more generally. The plurality has now not only left open what electoral process guarantees mean and whether they have any force, but has also muddled equal protection jurisprudence. The article concludes that the Schuette plurality not only undermined the electoral process jurisprudence that it was claiming to follow, but misapplied settled equal protection principles, which will create chaos in the lower courts unless corrected or clarified.

Keywords: electoral process guarantees, equal protection, race, neutrality

JEL Classification: K10

Suggested Citation

Strasser, Mark, Schuette, Electoral Process Guarantees and the New Neutrality (November 23, 2015). 94 Nebraska Law Review 60-100 (2015), Available at SSRN: https://ssrn.com/abstract=2694793

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
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