In 2014, 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. The ways in which the plurality modified equal protection jurisprudence, and that it did so sub silentio, will doubtless convince some that the Court is no longer committed to the fair and equal treatment of the laws. Part II of this article discusses several cases in which the Court developed the electoral process guarantees jurisprudence, concluding that the jurisprudence was reasonably clear in paradigmatic cases where extra electoral burdens were placed on racial minorities who sought the benefits or protections that other groups might seek. Part III discusses Schuette, focusing on some of the ways that the plurality mischaracterized the then-existing jurisprudence. The Article concludes that the Schuette plurality not only undermined the electoral process jurisprudence that it claimed to follow, but misapplied settled equal protection principles, which will create chaos in the lower courts unless corrected or clarified.
Schuette, Electoral Process Guarantees, and the New Neutrality,
94 Neb. L. Rev. 60
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