Full opinion text
COLE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GIBBONS, J. (pp. 633-46), delivered a separate opinion concurring in part and dissenting in part. OPINION COLE, Circuit Judge. Proposal 2 is a successful voter-initiated amendment to the Michigan Constitution. In relevant part, it prohibits Michigan’s public colleges and universities from granting “preferential treatment to[ ] any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Mich. Const, ai't. I, § 26. Our task is to determine whether Proposal 2 is constitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Fortunately, the slate is not blank. The Supreme Court has twice held that equal protection does not permit the kind of political restructuring that Proposal 2 effected. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). Applying Hunter and Seattle, we find that Proposal 2 unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities. Accordingly, we REVERSE the district court’s grant of summary judgment for the Defendants-Appellees and order the court to enter summary judgment in favor of the Plaintiffs-Appellants. Also, we AFFIRM the district court’s decision granting the Cantrell Plaintiffs’ motion for summary judgment as to Eric Russell, and AFFIRM the district court’s decision denying the University Defendants’ motion to be dismissed as parties. I. BACKGROUND A. Factual Background These appeals are the latest chapter in the battle over the use of race-conscious admissions policies at Michigan’s public colleges and universities. This saga began during the 1960s and 1970s, when African-American and other minority students and citizens first successfully lobbied for the adoption of these policies. The policies remained largely in place until challenges to them in the late 1990s, culminating in the Supreme Court’s decisions in Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), and Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), which held that “universities cannot establish quotas for members of certain racial groups” or treat their applications uniquely. Grutter, 539 U.S. at 334, 123 S.Ct. 2325. But the universities may “consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration,” along with other relevant factors. Id. Following these decisions, Ward Connerly, a former University of California Regent who had championed a proposition in California similar to the one at issue here, and Jennifer Gratz, the lead plaintiff in Gratz, mobilized to place on Michigan’s November 2006 statewide ballot a proposal to amend the Michigan Constitution “to prohibit all sex- and race-based preferences in public education, public employment, and public contracting.” Operation King’s Dream v. Connerly, 501 F.3d 584, 586 (6th Cir.2007). The initiative — officially designated Proposal 06-2 but commonly known as “Proposal 2” — was characterized as a proposal “to amend the State Constitution to ban affirmative action programs.” See Notice of State Proposals for November 7, 2006 General Election, http://www. michigan.gov/documents/sos/ED-138_ State_Prop_ll-06_174276_7.pdf, at 5 (last visited June 24, 2011). Though Proposal 2 “found its way on the ballot through methods that undermine[d] the integrity and fairness of our democratic processes,” Operation King’s Dream, 501 F.3d at 591, once there it garnered enough support among Michigan voters to pass, on November 7, 2006, by a margin of 58% to 42%, see Mich. Dep’t of State, 2006 Official Michigan General Election Results, http:// miboecfr.nieusa.com/election/results/06 GEN/90000002.html (last visited June 24, 2011). Proposal 2 amended the Michigan Constitution by adding the following pertinent provisions to Article I — titled “Affirmative action”: (1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting. (2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (3) For the purposes of this section “state” includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1. Mich. Const, art. I, § 26. It took effect in December 2006 and wrought two significant changes to the admissions policies at Michigan’s public colleges and universities. First, it forced them to modify the policies they had in place for nearly a half-century to remove consideration of “race, sex, col- or, ethnicity, or national origin” in admissions decisions. No other admissions criteria — for example, grades, athletic ability, or family alumni connections — suffered the same fate. Second, Proposal 2 entrenched this prohibition at the state constitutional level, thus preventing the public colleges and universities or their boards from revisiting this issue without repeal or modification of Proposal 2. We review these changes later in greater detail, and there discuss their significance. B. Procedural Background The litigation surrounding Proposal 2 has been lengthy and complicated. On November 8, 2006, the day after Proposal 2’s approval, a collection of interest groups and individuals, including the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (“Coalition Plaintiffs”), filed suit in the United States District Court for the Eastern District of Michigan. They named as defendants then-Governor Jennifer Granholm, the Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University (“University Defendants”) and alleged that the provisions of Proposal 2 affecting public colleges and universities violated the United States Constitution and federal statutory law. About one month later, the Michigan Attorney General (“Attorney General”) filed a motion to intervene as a defendant; the court granted his motion the same day. On December 19, 2006, a group of faculty members and prospective and current students at the University of Michigan (“the Cantrell Plaintiffs”) filed a similar suit in the United States District Court for the Eastern District of Michigan against then Governor Granholm. Eric Russell, then an applicant to the University of Michigan Law School, and Toward A Fair Michigan (“TAFM”), a non-profit corporation formed to ensure implementation of Proposal 2, intervened in the litigation as defendants soon thereafter. The district court consolidated the two cases on January 5, 2007, and the Attorney General was permitted to intervene in the Cantrell lawsuit as part of the consolidation order. Because the Attorney General effectively replaced then-Governor Granholm as the representative of Michigan in this litigation, both Plaintiffs’ groups later stipulated to her dismissal as a party. On December 19, 2006, the district court issued what was, in effect, a preliminary injunction, postponing application of Proposal 2 to the universities’ admissions and financial-aid policies until July 1, 2007, the conclusion of the 2006-2007 admissions and financial-aid cycle. The district court’s order stemmed from a stipulation among the University Defendants, Coalition Plaintiffs, Granholm, and the Attorney General consenting to the injunction. (Amended Order Granting Temporary Injunction and Dismissing Cross-Claim, Dist. Ct. Docket No. 39 (“Coal. I”).) Russell and TAFM, while awaiting approval as intervenors, opposed the Attorney General’s stipulation and sought a stay of the injunction from the district court. When two days had passed without a ruling on their motions, Russell and TAFM filed with us an “Emergency Motion for a Stay Pending Appeal.” We granted their motion. Coal. to Defend Affirmative Action v. Granholm (Coal. II), 473 F.3d 237, 252 (6th Cir.2006), application to vacate stay denied, 549 U.S. 1176, 127 S.Ct. 1146, 166 L.Ed.2d 909 (2007). Meanwhile, we approved the district court’s decision to allow solely Russell and TAFM to intervene in the Proposal 2 litigation. Coal. to Defend Affirmative Action v. Granholm (Coal. III), 501 F.3d 775 (6th Cir.2007). On October 5, 2007, the Cantrell Plaintiffs filed a motion for summary judgment as to intervening defendant Russell, arguing that he should be dismissed from the litigation because he no longer represented an interest distinct from that of the Attorney General. On October 17, 2007, the University Defendants filed a motion asking to be dismissed as parties. On November 30, 2007, the Attorney General filed a motion to dismiss for lack of standing or, in the alternative, a motion for summary judgment on the merits as to all Plaintiffs. Russell and the Cantrell Plaintiffs likewise filed motions for summary judgment the same day. On March 18, 2008, the district court issued two orders addressing these motions. In the first order, the court denied the University Defendants’ request to be dismissed as parties and the Cantrell Plaintiffs’ motion for summary judgment and granted the Attorney General’s motion for summary judgment, rejecting the Plaintiffs’ arguments that Proposal 2 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. IV), 539 F.Supp.2d 924, 950-58 (E.D.Mich.2008). In the second order, the court granted the Cantrell Plaintiffs’ motion for summary judgment, dismissing Russell as an intervenor. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. V), 539 F.Supp.2d 960 (E.D.Mich.2008). The Cantrell Plaintiffs subsequently moved the court to reconsider the first order, but the court denied the motion. Coal. to Defend Affirmative Action v. Regents of the Univ. of Mich. (Coal. VI), 592 F.Supp.2d 948 (E.D.Mich.2008). These appeals followed. The University Defendants appeal the court’s denial of their motion to be dismissed as parties. Russell appeals the court’s grant of the Cantrell Plaintiffs’ motion for summary judgment dismissing him as a party to the action. The Cantrell Plaintiffs appeal the court’s grant of the Attorney General’s motion for summary judgment and its denial of their motion for reconsideration. Similarly, the Coalition Plaintiffs appeal the court’s grant of the Attorney General’s motion for summary judgment. II. ANALYSIS A. Proposal 2’s Constitutionality The Equal Protection Clause provides that no state shall “deny to any person ... the equal protection of the laws.” U.S. Const, amend. XIV. The Plaintiffs argue that Proposal 2 violates this provision in two distinct ways. Both Plaintiffs groups argue that Proposal 2 violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines (the “political process” argument), and the Coalition Plaintiffs contend that Proposal 2 violates the Equal Protection Clause also by impermissibly classifying individuals on the basis of race (the “traditional” argument). We review de novo a district court’s grant of summary judgment and denial of a motion for reconsideration of that decision. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.2009); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1047 (6th Cir.2001). Whether a state’s constitution violates the federal constitution is a question of law, which we also review de novo. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 431 (6th Cir.2008). 1. “Political Process” Equal Protection Analysis The Equal Protection Clause “guarantees racial minorities the right to full participation in the political life of the community. It is beyond dispute ... that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner.” Seattle, 458 U.S. at 467, 102 S.Ct. 3187. But the Equal Protection Clause reaches even further, and prohibits “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Id. (internal quotation marks and citation omitted). “[T]he State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Hunter, 393 U.S. at 393, 89 S.Ct. 557. The Supreme Court’s statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities. In effect, the political process theory hews to the unremarkable belief that, when two competitors are running a race, one may not require the other to run twice as far, or to scale obstacles not present in the first runner’s course. Ensuring the fairness of political processes, in particular, is essential, because an electoral minority is by definition disadvantaged in its attempts to pass legislation; and “discrete and insular minorities” are especially so given the unique hurdles they face. Cf. United States v. Carotene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Ensuring a fair political process is nowhere more important than in education. Education is the bedrock of equal opportunity and “the very foundation of good citizenship.” Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Safeguarding the guarantee “that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” Grutter, 539 U.S. at 331-32, 123 S.Ct. 2325 (quoting Br. for United States as Amicus Curiae 13). “Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders.... [T]o cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Id. at 332, 123 S.Ct. 2325 (citation omitted). Therefore, in the context of education, we must apply the “political process” protection with the utmost rigor given the high stakes. Of course, the Constitution does not protect minorities from political defeat: Politics necessarily produces winners and losers. We must therefore have some way to differentiate between the constitutional and the impermissible. And Hunter and Seattle do just that. They provide the benchmark for when the majority has not only won, but also rigged the game to reproduce its success indefinitely. i. Hunter and Seattle a. Hunter The Supreme Court in Hunter addressed a situation where the citizens of Akron, Ohio overturned a fair housing ordinance enacted by the City Council. 393 U.S. at 386, 89 S.Ct. 557. The citizenry did more than merely repeal the ordinance, however. It amended the city charter through a referendum to require the approval of a majority of the electorate before any ordinance regulating real estate “on the basis of race, color, religion, national origin or ancestry” — past or future — could become effective. Id. at 387, 390 n. 6, 89 S.Ct. 557. In other words, only ordinances based on the identified factors required approval of the majority; ordinances based on any other factor required only a vote by the City Council: In essence, the amendment changed thé requirements for the adoption- of one type of local legislation: to "enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Council and of a majority of the voters citywide. To enact an ordinance preventing housing discrimination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council. Seattle, 458 U.S. at 468, 102 S.Ct. 3187 (describing Hunter). The effect was not only to halt operation of the existing fair housing ordinance, but also to erect a barrier to any similar ordinance in the future. Hunter, 393 U.S. at 389, 89 S.Ct. 557. The Court found that the disparity between the process for enacting a future fair housing ordinance and that for enacting any other housing ordinance “place[d] special burdenfs] on racial minorities within the governmental process” by making it “substantially more difficult to secure enactment” only of legislation that would be to their benefit. Id. at 390-91, 89 S.Ct. 557. While the enactment treated “Negro and white, Jew and gentile” in an identical manner, the Court found that “the reality is that the law’s impact falls on the minority.” Id. at 391, 89 S.Ct. 557. That the law had been enacted via a popular referendum did not save it from implementing “a real, substantial, and invidious denial of the equal protection of the laws.” Id. at 392-93, 89 S.Ct. 557. b. Seattle In Seattle, a case identical in many respects to the one we confront here, the Supreme Court applied Hunter to strike down a state statute, also enacted via a referendum, that prohibited racially integrative busing. Seattle, 458 U.S. at 487, 102 S.Ct. 3187. Prior to the referendum, Seattle School District No. 1 (“District”) had implemented a school desegregation plan — making extensive use of mandatory reassignments — to accelerate its program of desegregation. Id. at 460-61, 102 S.Ct. 3187. The District was under no obligation to adopt this plan: Following Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), school boards had been “charged with the affirmative duty to take whatever steps might be necessary” to integrate schools that were unconstitutionally segregated because of racial discrimination, Green v. Cnty. Sch. Bd., 391 U.S. 430, 437-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), but there had been no finding that the de facto segregation in Seattle’s schools was the product of discrimination. Nonetheless, the school board implemented the plan to accelerate its existing program of voluntary busing, which some constituencies saw as insufficiently alleviating racial imbalances. Seattle, 458 U.S. at 460, 102 S.Ct. 3187. In response, Seattle residents drafted a statewide measure, Initiative 350, providing in relevant part that “no school board ... shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence.” Id. at 462, 102 S.Ct. 3187 (alteration in original) (internal quotation mark omitted). Though the initiative was worded as a general ban on all forms of mandatory busing, its myriad exceptions made its real effect to eliminate school reassignments for racial purposes only, except where a court ordered such reassignments to remedy unconstitutional segregation. Id. at 462-63, 102 S.Ct. 3187 (noting that Initiative 350 was phrased so as not to “prevent any court of competent jurisdiction from adjudicating constitutional issues relating to the public schools”). Initiative 350 made it on the Washington ballot and passed by a substantial margin, attracting over 65% of the statewide vote. Id. at 463, 102 S.Ct. 3187. The Court found that Initiative 350, like the Akron city charter amendment, violated the Equal Protection Clause. Id. at 487, 102 S.Ct. 3187. Relying on Hunter and the Court’s summary affirmance of Lee v. Nyquist, 318 F.Supp. 710 (W.D.N.Y.1970) (three-judge panel), aff'd, 402 U.S. 935, 91 S.Ct. 1618, 29 L.Ed.2d 105 (1971), the Court stated that these two cases yielded a “simple but central principle”: While “laws structuring political institutions or allocating political power according to neutral principles” are not subject to challenges under the Fourteenth Amendment, “a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” Seattle, 458 U.S. at 469-70, 102 S.Ct. 3187 (internal quotation marks omitted). Echoing Hunter, the Court explained that this distinct analysis is necessary because such non-neutral allocations of power “place[] special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest.” Id. at 470, 102 S.Ct. 3187 (internal quotation marks, citations, and brackets omitted). The Court dismissed the argument that Initiative 350 was not intended to prevent busing for racially-integrative purposes, and explained why Initiative 350 violated the “simple but central” principle animating Hunter and Nyquist. Seattle, 458 U.S. at 471, 102 S.Ct. 3187. First, as a threshold matter, the Court concluded that desegregation of the public schools, like the fair housing ordinance in Hunter, “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.” Id. at 472, 102 S.Ct. 3187. The Court reasoned that, while “white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom,” desegregation is of primary benefit to minority children because these children “can achieve their full measure of success only if they learn to function in— and are fully accepted by — the larger community. Attending an ethnically diverse school may help accomplish this goal by preparing minority children for citizenship in our pluralistic society.” Id. at 472-73, 102 S.Ct. 3187 (internal quotation marks omitted). Because racial minorities therefore had reason to “consider busing for integration to be ‘legislation that is in their interest,’ ” the “racial focus of Initiative 350 ... suffices to trigger application of the Hunter doctrine.” Id. at 474, 102 S.Ct. 3187 (quoting Hunter, 393 U.S. at 395, 89 S.Ct. 557 (Harlan, J., concurring)). Second, having concluded that Initiative 350 targeted a busing program that “inures primarily to the benefit of the minority,” the Court held that “the practical effect of Initiative 350 is to work a reallocation of power of the kind condemned in Hunter.” Id. As the Court explained, Initiative 350, like the amendment to the city charter in Hunter, did more than repeal the school board’s busing program: The initiative removes the authority to address a racial problem — and only a racial problem — from the existing decisionmaking body, in such a way as to burden minority interests. Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board.... As in Hunter, then, the community’s political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government. Id. By removing authority over busing for racial purposes from the school board and placing this authority at a more remote level of government, Initiative 350 required “those championing school integration to surmount a considerably higher hurdle than persons seeking comparable legislative action,” and disadvantaged “those who would benefit from laws barring de facto desegregation.” Id. at 474-75, 102 S.Ct. 3187 (internal quotation mark omitted). Accordingly, the Court held that Initiative 350, in placing “special burdens on racial minorities,” violated the Equal Protection Clause. Id. at 470, 102 S.Ct. 3187. In sum, Hunter and Seattle require us to apply strict scrutiny to enactments that change the governmental decision-making process for determinations with a racial focus. Seattle, 458 U.S. at 470, 102 S.Ct. 3187; Hunter, 393 U.S. at 391, 89 S.Ct. 557; cf. Carolene Prods., 304 U.S. at 153 n. 4, 58 S.Ct. 778 (arguing that more exacting judicial scrutiny is required when the majority curtails “the operation of those political processes ordinarily to be relied upon to protect minorities”). ii. Application of the Hunter/Seattle Test Hunter and Seattle thus expounded the rule that an enactment deprives minority groups of equal protection of the laws when it: (1) has a racial focus, targeting a goal or program that “inures primarily to the benefit of the minority”; and (2) works a reallocation of political power or reordering of the decisionmaking process that places “special burdens” on a minority group’s ability to achieve its goals through that process. Seattle, 458 U.S. at 470, 102 S.Ct. 3187; Hunter, 393 U.S. at 391, 89 S.Ct. 557. Applying this rule here, we conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities. a. Racial Focus The first prong of the Hunter/Seattle test requires us to determine whether Proposal 2 has a “racial focus.” See Seattle, 458 U.S. at 473, 102 S.Ct. 3187. The Court explained that the question is not whether “members of the racial majority both favored and benefited from” the program or policy at issue, but whether the policy targeted by the law “at bottom inures primarily to the benefit of the minority, and is designed for that purpose.” Id. at 472, 102 S.Ct. 3187. In Seattle, the Court observed that programs—in that context, the busing of children to increase the number of integrated schools—furthering the education of minority children enable them “to function in—and ... [be] fully accepted by—the larger community.” Id. at 473, 102 S.Ct. 3187. Such programs do so, the Court explained, through “preparing minority children for citizenship in our pluralistic society, while ... teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Id. (internal quotation marks and citation omitted); see also Grutter, 539 U.S. at 330-32, 123 S.Ct. 2325 (“[T]he [University of Michigan] Law School’s [race-conscious] admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races.... [T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.” (fourth alteration in original) (internal quotation marks omitted)). The Seattle Court then concluded that Initiative 350 had a racial focus, because “it is enough that minorities may consider busing for integration to be ‘legislation that is in their interest.’ ” Seattle, 458 U.S. at 474, 102 S.Ct. 3187 (quoting Hunter, 393 U.S. at 395, 89 S.Ct. 557 (Harlan, J., concurring)). Proposal 2, like Initiative 350, has a “racial focus,” because the Michigan universities’ affirmative-action programs “inure[ ] primarily to the benefit of the minority, and [are] designed for that purpose,” for the reasons articulated by the Court in Seattle. See id. at 472, 102 S.Ct. 3187. Just as the desegregative busing programs at issue in Seattle were designed to improve racial minorities’ representation at many public schools, see id. at 460, 102 S.Ct. 3187, race-conscious admissions policies increase racial minorities’ representation at institutions of higher education, see, e.g., Grutter, 539 U.S. at 316, 328-33, 123 S.Ct. 2325 (describing the University of Michigan Law School’s minority-student-enrollment aims); Gratz, 539 U.S. at 253-56, 123 S.Ct. 2411 (describing admissions policies at the University of Michigan regarding underrepresented minority groups). Indeed, underrepresented minorities lobbied for the adoption of such policies at Michigan’s universities in the first place for this reason, (see Anderson Report, Dist. Ct. Docket No. 222 Ex. L, at 16-23), and, further, the unrebutted evidence in the record indicates that Proposal 2 will likely negatively impact minority representation at Michigan’s institutions of higher education, (see Connerly Dep., Dist. Ct. Docket No. 222 Ex. A, at 119-21; Spencer Dep., Dist. Ct. Docket No. 203 Ex. D, at 100-01; Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at 78; Zearfoss Dep., Dist. Ct. Docket No. 205 Ex. 3, at 56-57). Ample evidence thus grounds our conclusion that race-conscious admissions policies “inure[ ] primarily to the benefit of the minority.” See Seattle, 458 U.S. at 472, 102 S.Ct. 3187. Yet the Attorney General argues, and we previously suggested, that the now-defunct Michigan admissions policies benefitted women as well, and that saves them. See Coal. II, 473 F.3d at 250-51. Our prior suggestion does not bind us, see Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.2007), and we now reject it. The Supreme Court made it clear that even policies benefitting the majority — let alone another minority — -may have a “racial focus,” so that lens does not clarify anything. See Seattle, 458 U.S. at 472, 102 S.Ct. 3187. In fact, it serves only to blur what is in reality a clear test: The question is not whether the challenged law “burdens minority interests and minority interests alone,” Coal. II, 473 F.3d at 250, but whether the law targets policies that minorities may consider in their interest, Seattle, 458 U.S. at 472, 102 S.Ct. 3187. Even a cursory examination of the cases confirms this understanding. In Hunter, the ordinance likewise burdened non-racial minorities, including Catholics, Hispanics and numerous other groups (which, grouped together, would constitute a majority of the electorate), but the Court held that the law had a racial focus. 393 U.S. at 387, 89 S.Ct. 557. The same was true of the policy at issue in Nyquist, and the Court again agreed that it had a racial focus. 318 F.Supp. at 716-17. Likewise, as explained above, the race-conscious admissions policies stymied by Proposal 2 are in the interest of racial minorities and inure primarily to their benefit, so the polices have a racial focus as well. This conclusion is not impacted by the fact that increased representation of racial minorities in higher education also benefits students of other groups and our nation as a whole. Cf. Grutter, 539 U.S. at 327-33, 123 S.Ct. 2325 (describing the varied benefits supporting Michigan’s compelling interest in increasing racial diversity at public institutions of higher education). Similar benefits accrued to children at integrated public schools under Seattle’s desegregative busing plan, which the Supreme Court explicitly recognized: “[I]t should be ... clear that white as well as Negro children benefit from exposure to ethnic and racial diversity in the classroom • • • [by] teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Seattle, 458 U.S. at 472-73, 102 S.Ct. 3187. Nonetheless, the Seattle Court found that the wider benefits of the busing plan did not serve to distinguish Hunter, “for we may fairly assume that members of the racial majority both favored and benefited from Akron’s fair housing ordinance.” Id. at 472, 102 S.Ct. 3187. By the same token, race-conscious admissions policies’ wider benefits do not undermine the conclusion that their primary beneficiaries are racial minorities. We therefore find that the race-conscious admissions policies now barred by Proposal 2 inure primarily to the benefit of racial minorities and that Proposal 2, insofar as it prohibits consideration of applicants’ race in admissions decisions, has a “racial focus.” b. Reordering the Political Process to Place Special Burdens on Racial Minorities The second prong of the Hunter/Seattle test asks us to determine whether Proposal 2 works a reallocation of political power or reordering of the political process that places “special burdens” on racial minorities. See Seattle, 458 U.S. at 470, 102 S.Ct. 3187; Hunter, 393 U.S. at 391, 89 S.Ct. 557. 1. Does Proposal 2 Reorder a “Political” Process? The first issue within this prong is whether the Michigan admissions committees are “political,” as that term is used in the Hunter/Seattle test. We begin by examining the word itself. “Political” has two possible meanings relevant to our discussion: “of or relating to government,” Merriam-Webster, Webster’s Third New International Dictionary: Unabridged 1755 (1993) (first definition), or “of, relating to, or involved in party politics,” id. (third definition). Examining the Court’s language, we conclude that the “political” requirement seeks to ensure that the process at issue relates to government. The political processes relevant in Hunter and Seattle were the Akron public-housing structure and the Washington public schools’ student-assignment system, respectively. See Seattle, 458 U.S. at 474, 102 S.Ct. 3187; Hunter, 393 U.S. at 390, 393, 89 S.Ct. 557. Clarifying the “political” nature of the latter, the Court referred to the “political process” interchangeably as a “decisionmaking process” and a “governmental process,” and explained that the political power allocation in question is of “governmental power.” Seattle, 458 U.S. at 470, 102 S.Ct. 3187. The Court elsewhere identified the relevant characteristics that made the school boards “political”: They were “creatures of the State” and had to “give effect to policies announced by the state legislature.” Id. at 476, 102 S.Ct. 3187. In other words, the boards were “political” because they were governmental entities, not necessarily electoral or partisan ones. Id. Even more explicitly, the Court found that Initiative 350’s flaw was “us[ing] the racial nature of an issue to define the govern mental decisionmaking structure.” Id. at 470, 102 S.Ct. 3187 (emphasis added); see also id. at 474, 102 S.Ct. 3187 (“As in Hunter, then, the community’s political mechanisms are modified to place effective decisionmaking authority over a racial issue at a different level of government.” (emphasis added)). Indeed, the Court noted that the political “reallocation of power of the kind condemned in Hunter ” is the removal of “authority ... from the existing decisionmaking body.” Id. (emphasis added); see also id. at 477, 102 S.Ct. 3187 (“[I]t is irrelevant that the State might have vested all decisionmaking authority in itself, so long as the political structure it in fact erected imposes comparative burdens on minority interests.... ” (emphasis added)). Thus, a process is “political” under Hunter and Seattle if it involves governmental decisionmaking. The dissent disagrees. It defines a “political process” narrowly, as one “through which the people exercise their right to govern themselves,” Op. at 640, or one that is “electoral,” id. at 645-46 & n. 6, and suggests that a process is political only if it involves direct elections. In so doing, the dissent misapprehends the “political” nexus required in the Hunter/Seattle test. The electoral nature of a state system is relevant not to the political nature of a process, but to the reordering at issue. The Court’s point in requiring that there be reordering of a “political process” was merely to ensure that the process was state-directed (“governmental”) and mattered (“decisionmaking”), the same way Title VII cases require the alleged discriminatory act to relate to a company agent with relevant authority. No link to the electoral process is required to find a given process “political.” The dissent latches on to a lone mention of an “electorate” in Seattle to argue that the Hunter/Seattle political process must be an electoral, or voting-centered, political process. The statement at issue, however, was simply the Court’s quotation of the language setting forth the school board’s authority under Washington law. See Seattle, 458 U.S. at 478, 102 S.Ct. 3187 (quoting Wash. Rev.Code § 28A.58.758(1)). And that quotation sits in a section explaining the structure of Washington’s educational system generally and the power of the school boards specifically. See id. To argue that the key insight to the entire Hunter/Seattle test lies in this solitary quotation is unsupportable, especially given the abundance of language to the contrary in those cases. Moreover, there is no language in this section of Seattle suggesting that the Court was defining what it meant by a “political process.” A process thus is “political” if it involves governmental decisionmaking. Nothing more is required. This point is hammered home by the Court’s affirmance of, and subsequent reliance (in Seattle) on, Nyquist. In Nyquist, the Court agreed with the three-judge panel that an enactment to New York’s laws unconstitutionally reordered the political process when the enactment “prohibit[ed] state education officials and appointed school boards” from performing various education-related functions “for the purpose of achieving racial equality in attendance.” 318 F.Supp. at 712 (emphasis added). The fact that the school boards at issue were not elected did not affect the Court’s decision. The Hunter/'Seattle test therefore requires simply that the process at issue involve governmental decisionmaking. Yet even using the dissent’s erroneous definition of “political” as “electoral,” the admissions committees here still qualify as “political.” For in addition to possessing the same character as the school boards in Seattle and Nyquist and the Akron housing institutions in Hunter, they fall squarely within Michigan’s electoral system. The Michigan Constitution, the foundation of Michigan’s government, establishes three public universities — the University of Michigan, Michigan State University, and Wayne State University — and grants the governing board of each university control of its respective institution. Mich. Const, art. VIII, § 5; see also id. art. VIII, § 6 (allowing the establishment of other institutions of higher learning, such as Michigan’s other public colleges and universities, and according their governing boards similar control). At each institution, these boards and their members have slightly differing names — “Board of Trustees,” “Board of Governors,” “Board of Regents,” and so on — but the same role: to run, with plenary authority, their respective institution. Id. art. VIII, §§ 5-6; Glass v. Dudley Paper Co., 365 Mich. 227, 112 N.W.2d 489, 490 (1961). Michigan law has confirmed this absolute authority again and again. See, e.g., Glass, 112 N.W.2d at 490; Attorney Gen. ex rel. Cook v. Burhans, 304 Mich. 108, 7 N.W.2d 370, 371 (1942); Bd. of Regents of Univ. of Mich. v. Auditor Gen., 167 Mich. 444, 132 N.W. 1037, 1040 (1911); 1979-80 Mich. Op. Atty. Gen. 578, 1980 WL 114008, at *1-2 (Mich.A.G. Jan. 31,1980). Eight elected individuals populate each of these boards, and they hold office for eight years. Mich. Const, art. VIII, § 5; see also id. art. VIII, § 6. The boards govern the universities, including enacting the regulations that direct the university’s government and determining when to retain or remove the president or faculty. See Mich. Comp. Laws §§ 390.3-.6 (University of Michigan). The meetings at which the board takes such action are generally public. See id. § 390.20. Meanwhile, the bylaws, over which the boards have complete authority, detail the admissions procedures. See Univ. of Mich., Bylaws of the Bd. of Regents § 8.01, available at http://www.regents.umich.edu/bylaws (last visited June 24, 2011). Nothing prevents the boards from altering this framework for admissions decisions if they are so inclined. See Mich. Const, art. VIII, § 5; Mich. Comp. Laws §§ 390.3-.6; Univ. of Mich., Bylaws of the Bd. of Regents § 8.01, available at http://www.regents. umich.edu/bylaws (last visited June 24, 2011). Attempting to argue to the contrary, the dissent claims that the admissions committees are not connected to Michigan’s electoral political system because the governing boards of the universities “have fully delegated the responsibility for establishing admissions standards.” Op. at 639 (emphasis added). The dissent rests this argument on “the testimony of the law school deans in this case.” Id. at 641. But the dissent’s argument fails for two reasons. First, the testimony the dissent references does not support the dissent’s claim of “full delegation” or the idea that the boards could not theoretically change the policies; it merely describes the current admissions structures. There is one exception to this observation, however: former-Dean Wu’s personal opinion that modification of the admissions structure might “precipitate a constitutional crisis.” (Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at 191-92). But this opinion is inadmissible as both speculation and a legal conclusion (notably, with no basis in Michigan law). See Torres v. Cnty. of Oakland, 758 F.2d 147, 149-51 (6th Cir.1985). Second, and much more to the point, the structure of Michigan’s colleges and universities is a question of law, for it is set by constitution, statutes and regulations. See United States v. Dedman, 527 F.3d 577, 584-85 (6th Cir.2008). And we would be remiss to rely on witness testimony to decide such questions, see Fed.R.Evid. 701; Torres v. Cnty. of Oakland, 758 F.2d 147, 149-51 (6th Cir.1985); cf. Becht v. Owens Corning Fiberglas Corp., 196 F.3d 650, 654 (6th Cir.1999), particularly where as here a clear statutory structure is weighed against unfounded supposition. Still, the dissent protests: “As they currently stand, the faculty admissions committees are islands unto themselves, vested with the full and unreviewed authority to set admissions policy for their respective university programs.” Op. at 641. The current boards’ policies, however, are besides the point. The key question is whether the boards’ current policies — in the form of bylaws and regulations — could be altered, for example if the people of Michigan elected different boards dedicated to changing the universities’ admissions policies. Michigan law provides a resounding “yes,” see Mich. Const, art. VIII, §§ 5-6; cf. Mich. State Univ., Bd. of Trs. Bylaws, art. 5 (stipulating that “[t]he delegation of any authority by the Board to any committee shall not operate to relieve the Board or any member thereof of any responsibility imposed by law or the State Constitution”), and the dissent points us to no law indicating otherwise. Moreover, because the dissent does not question the boards’ electoral nature, the dissent’s argument implies another untenable proposition: that delegation of admittedly electoral power to an unelected body renders the power ultimately exercised non-electoral. As an initial matter, the appointed boards in Nyquist soundly rebuff this argument. Yet the argument cannot hold water even aside from Nyquist. Let us begin by dissecting the dissent’s contention in a more familiar electoral framework: the federal system. In parallel to Michigan’s university structure, the members of the National Security Council (“NSC”) are likewise unelected individuals receiving delegated electoral political power, though from the President of the United States. Do we consider the power they wield to be electoral? Of course. That they are a step removed from the electoral process does not mean that they are not exercising electoral political power. See Carter v. Carter Coal Co., 298 U.S. 238, 296, 56 S.Ct. 855, 80 L.Ed. 1160 (1936) (“And the Constitution itself is in every real sense a law — the lawmakers being the people themselves, in whom under our system all political power and sovereignty primarily resides.... It is by that law, and not otherwise, that the legislative, executive, and judiciary agencies which it created exercise such political authority as they have been permitted to possess.” (emphasis added)); see also Mistretta v. United States, 488 U.S. 361, 393, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (referring to the United States Sentencing Commission’s work as of a “significantly political nature”); cf. Walsh v. Heilmann, 472 F.3d 504, 506 (7th Cir.2006) (“Many units of government delegate important decisions to middle management, and when they do this they may insist that the holders of the delegated power be reliable implementers of the elected officials’ platforms.” (emphasis added)). If American voters do not like what the NSC does, they may exact an electoral price against the person from whom the NSC receives its power: the President. The same is true of the admissions committees here, which wield the electoral power- bestowed on them — through the boards — ultimately by the Michigan Constitution. See Part II. A.l.ii.b.2, infra. In sum, we find apt the Court’s rejoinder to claims similar to those the Attorney General and the dissent make: “[T]hat a State may distribute legislative power as it desires ... furnish[es] no justification for a legislative structure which otherwise would violate the Fourteenth Amendment.” Seattle, 458 U.S. at 476, 102 S.Ct. 3187 (quoting Hunter, 393 U.S. at 392, 89 S.Ct. 557) (first alteration added). Michigan, like “Washington[,] ... has chosen to make use of a more complex governmental structure” than direct administration by the legislature, or even the university boards, of admissions decisions in university and college affairs. See id. at 476-77, 102 S.Ct. 3187. However, as we have explained, the fact that the admissions committees received the political power they exercise through delegation rather than direct election is irrelevant to the nature of that power and thus the applicability of the Hunter/Seattle test. Therefore, the admissions committees are “political” because they are governmental decisionmaking bodies. And even if they had to be tied to the electoral system, they are, because the individuals delegated with principal responsibility for admissions policies at Michigan’s public colleges and universities are appointed by the institutions’ governing boards — which are either elected by the citizens of Michigan or appointed by elected officials — and the boards are free to reassign this responsibility as they see fit. Thus, there is little doubt that Proposal 2 affects a “political process” under Hunter and Seattle. 2. Does Proposal 2 Effect a “Reordering” of the Political Process so as to Place Special Burdens on Racial Minorities? The next issue is whether Proposal 2 reordered the political process to place special burdens on racial minorities. We find that Proposal 2 burdens racial minorities for the reasons articulated in Part II.A.l.ii.a, supra. As to whether there was a reordering, the Court has found that both implicit and explicit reordering violates the Fourteenth Amendment. See Seattle, 458 U.S. at 474, 102 S.Ct. 3187; Hunter, 393 U.S. at 387, 390, 89 S.Ct. 557. In Hunter, the express language of the charter amendment required any ordinance regulating real estate “on the basis of race, color, religion, national origin or ancestry” to be approved by a majority of the electorate and the City Council, as opposed to solely the City Council for other real-estate ordinances. 393 U.S. at 387, 390, 89 S.Ct. 557. In Seattle, however, the reordering was implicit: On its face, Initiative 350 simply prohibited school boards from using mandatory busing, but its practical effect was that “[tjhose favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate” through overturning Initiative 350. 458 U.S. at 474, 102 S.Ct. 3187. Nonetheless, “authority over all other student assignment decisions ... remains vested in the local school board.” Id. The Seattle Court then clarified what sort of reordering contravenes the “political process” theory: “The evil condemned by the Hunter Court was not the particular political obstacle of mandatory referenda imposed by the Akron charter amendment; it was, rather, the comparative structural burden placed on the achievement of minority interests.” Id. at 474 n. 17, 102 S.Ct. 3187 (emphasis added). Thus, any “comparative structural burden,” be it local or state-wide or national, satisfies the reallocation prong of the Hunter/Seattle test. Id. We face here an enactment even more troubling than those at issue in Hunter and Seattle, as the hurdle Proposal 2 creates is of the highest possible order. An interested Michigan citizen may use any number of avenues to change the admissions policies on an issue unrelated to race. He may lobby the admissions committees directly, through written or in-person communication if the latter is available, or petition higher administrative authorities at the university: the dean of admissions, the president or dean of the university, or the university’s board. See Part II. A.l.ii.b.l, supra; see also, e.g., Univ. Defs. Admis., Dist. Ct. Docket No. 172 Ex. I, at 11,14-15,17-20; Wu Dep., Dist. Ct. Docket No. 203 Ex. F, at 190; Zearfoss Dep., Dist. Ct. Docket No. 205 Ex. 3, at 209-10. And there is no question that the admissions committees are very much accountable to the universities’ boards, which retain ultimate — and politically accountable — responsibility over admissions policies. See Mich. Const, art. VIII, §§ 5-6. The individual seeking this non-race-related change may also seek to affect the election — through voting, campaigning, or otherwise — of any one of the eight board members whom the individual believes will champion his cause and revise the review of admissions determinations accordingly. These elections, though state-wide in scope, would likely be much more manageable than those surrounding constitutional amendments, which can be expensive, lengthy, and complex, (see Wilfore Deck, Dist. Ct. Docket No. 203 Ex. C ¶¶ 10, 29-30). Only as a last resort would the effort and expense of campaigning for an amendment to the Michigan Constitution be required — the only option that remains open for proponents of race-based admissions criteria. Meanwhile, a Michigan citizen seeking that Michigan universities adopt race-based admissions policies must now begin by convincing the Michigan electorate to amend the Michigan Constitution. Placing a proposed constitutional amendment abrogating Proposal 2 on the ballot would require either the support of two-thirds of both the Michigan House of Representatives and Senate, see Mich. Const, art. XII, § 1, or the signatures of a number of voters equivalent to at least ten percent of the number of votes cast for all candidates for governor in the preceding general election, see id. art. XII, § 2. A majority of the voting electorate would then have to approve the amendment. See id. art. XII, §§ 1-2. Only after traversing this difficult and costly process, (see Wilfore Deck, Dist. Ct. Docket No. 203 Ex. C ¶¶ 10, 29-30), would the now-exhausted Michigan citizen reach the starting point of his opponent who sought a non-race-related admissions policy change. By amending Michigan’s Constitution to prohibit university admissions units from utilizing race-conscious admissions policies, proponents of Proposal 2 thus removed the authority to institute racially-focused policies from Michigan’s universities and lodged it at the most remote level of Michigan’s government, the state constitution. In other words, as with the unconstitutional enactment in Hunter, proponents of race-conscious admissions policies now have to obtain the approval of the Michigan electorate and (if they are successful) the admissions units or other university powers, whereas proponents of other admissions policies need only the support of the latter. See Seattle, 458 U.S. at 468, 474, 102 S.Ct. 3187 (describing Hunter). The stark contrast between the avenues for political change available to different admissions proponents following Proposal 2 illustrates why the amendment cannot be construed as a mere repeal of an existing race-related policy. Had those favoring abolition of race-conscious admissions successfully lobbied the universities’ admissions units, just as underrepresented minorities did to have these policies adopted in the first place, there would be no equal protection problem. As the Supreme Court has made clear, “ ‘the simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification.’ ” Seattle, 458 U.S. at 483, 102 S.Ct. 3187 (quoting Crawford v. Bd. of Educ., 458 U.S. 527, 539, 102 S.Ct. 3211, 73 L.Ed.2d 948 (1982)); accord Hunter, 393 U.S. at 390 n. 5, 89 S.Ct. 557. Crawford brings this distinction into focus, because the Court-approved political action in that case (amendment of the California constitution) occurred at the same level of government as the original enactment (a prior amendment of the California constitution), thus leaving the rules of the political game unchanged. 458 U.S. at 532, 540, 102 S.Ct. 3211. As illustrated above, however, Proposal 2 “works something more than the ‘mere repeal’ of a desegregation law by the political entity that created it.” Seattle, 458 U.S. at 483, 102 S.Ct. 3187. Rather, like Initiative 350 did for any future attempt to implement race-based busing (and the Akron city charter amendment did for any future attempt to enact a fair housing ordinance), “by lodging decisionmaking authority over the question at a new and remote level of government,” Proposal 2 “burdens all future attempts” to implement race-conscious admissions policies. Id. By the same token, precisely because Proposal 2 places special burdens on a political program of particular importance to racial minorities, it is not a sufficient response to point out that these minorities remain free to repeal it. The “simple but central principle” of Hunter and Seattle is that the Equal Protection Clause prohibits requiring racial minorities to surmount more formidable obstacles to achieve their political objectives than other groups face. See id. at 469-70, 102 S.Ct. 3187. As the Supreme Court has recognized, such special procedural barriers to minority interests discriminate against racial minorities just as surely as — and more insidiously than — substantive legal barriers challenged under the traditional equal protection rubric. See id. at 467, 102 S.Ct. 3187 (“[T]he Fourteenth Amendment also reaches a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” (internal quotation marks and citation omitted)). Because less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to go down a more arduous road than others without violating the Fourteenth Amendment. We thus conclude that Proposal 2 reorders the political process in Michigan to place special burdens on minority interests. iii. Proposed Permutations of the Hunter/Seattle Test a. Is Prohibiting “Preferential Treatment” Different From Prohibiting “Discrimination”? The Attorney General asserts that Hunter and Seattle are inapplicable to Proposal 2 because the cases govern only enactments that burden racial minorities’ ability to obtain protection from discrimination through the political process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential treatment. In support of this distinction, the Attorney General points to our preliminary injunction ruling, and decisions of the Ninth Circuit and the district court. See Coal. II, 473 F.3d at 251; Coal. for Econ. Equity, 122 F.3d at 708; Coal. IV, 539 F.Supp.2d at 956-57. None of these decisions is binding on us. See Tenke Corp., 511 F.3d at 542 (“[Cjonclusions of law made by a court granting [a] preliminary injunction are not binding at trial on the merits.” (internal quotation mark omitted)); Cross Mountain Coal. v. Ward, 93 F.3d 211, 217 (6th Cir.1996) (“[T]he decisions of other circuits are entitled to our respect, [but] they are not binding upon us.”). And we do not find them persuasive. We turn first to the distinction at issue and its true meaning. Differentiation between “discrimination” and “preference” in this context finds its origin in the Ninth Circuit. See Coal. for Econ. Equity, 122 F.3d at 707-09. The Coalition for Economic Equity court began by stating that “[e]ven a state law that does restructure the political process can only deny equal protection if it burden’s an individual’s right to equal treatment.” Id. at 707 (emphasis added). The court then continued: “It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment; it is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment.” Id. at 708. In so positing, the Ninth Circuit added another element to the Hunter/Seattle test. That element, stripped of the controversial and obfuscating distinction between “discrimination” and “preference,” boils down to a belief that an enactment violates the Equal Protection Clause under Hunter and Seattle only if it undermines state action that is constitutionally mandated (“discrimination”), as opposed to constitutionally permissible (“preference”). Put differently: An enactment is unconstitutional if it transgresses a constitutionally-mandated action, i.e., an enactment is unconstitutional under the “political process” framework only if the enactment is already unconstitutional under the “traditional” rubric. But this reasoning defies logic. Using this rationale, the political process theory would be superfluous, for an aggrieved citizen could sue to enjoin the unconstitutional law under the traditional equal protection analysis. For that very reason, the Court created the “political process” theory in the context of cases addressing state action that is constitutionally permissible (or “preferential” to use the Attorney General and Ninth Circuit’s terminology). The facts of those very cases thus prohibit this distinction. The Court in Hunter rejected the argument that the Akron amendment’s effect was moot because the amendment was invalid under the 1968 Civil Rights Act, see Hunter, 393 U.S. at 388-89, 89 S.Ct. 557, or that traditional equal protection resolved the case, id. at 389, 89 S.Ct. 557. Seattle even more clearly involved constitutionally-permissible state action, as Initiative 350 responded to a voluntary school board effort to reduce the impact of de facto segregation. 458 U.S. at 460-61, 102 S.Ct. 3187. The school board was under no obligation to undertake this effort because there had been no finding that the segregation was motivated by racial discrimination — a fact that the Seattle dissent repeate