When the Sixth Circuit struck down Michigan’s anti-affirmative-action Proposal 2 in 2012, its reasoning may have left some observers hunting for their Fourteenth Amendment treatises. Rather than applying conventional equal protection doctrine, the court rested its decision on an obscure branch of equal protection jurisprudence known as the Hunter doctrine, which originated over forty years ago. The doctrine, only used twice by the Supreme Court to invalidate a law since its creation, purports to protect the political-process rights of minorities by letting courts invalidate laws that work nonneutrally to make it more difficult for them to “achieve legislation that is in their interest.” The Sixth Circuit’s decision created a clean circuit split with the Ninth Circuit, which had upheld an identically worded California initiative fifteen years earlier.
The doctrine’s purpose certainly seems laudable, but commentators and courts agree that it is unclear how it actually works. Although the Supreme Court had avoided using the doctrine since 1982, the circuit split forced it to confront the doctrine’s scope and applicability, which it did by granting certiorari in March 2013.
This Note makes three contributions to the Hunter doctrine discussion. First, of course, none of the existing literature addresses the recently created circuit split. Furthermore, the circuit split presents a unique opportunity to investigate how the doctrine works because the laws in question were identical—the only difference was the result. Second, although many pieces have discussed direct democracy’s unique issues, to my knowledge none of the Hunter literature focuses on the import of the fact that the laws invalidated by the Supreme Court under this doctrine were products of direct democracy. In the Note, I draw from the literature on the problems with direct democracy and suggest that those problems have particular significance in the context of the Hunter doctrine. Third, none of the pieces investigating the doctrine offer my normative suggestion for cabining it. First, I focus on the bounds of the “nonneutrality” requirement announced by the Court and on direct democracy’s peculiar qualities. I then argue that the doctrine is appropriately limited to situations where the confluence of those factors creates political-process burdens for minorities. Limiting the doctrine in this way helps it survive criticisms that it grants judges too much leeway to implement their own policy preferences. Ultimately, I apply the limited doctrine to a hypothetical factual scenario to show that it retains utility as a shield for minorities by providing a way to protect political-process rights when classic equal protection doctrine fails.