Columbia Journal of Gender and law36 37.1

interseCtionAlity sQUAred: intrAstAte 
MiniMUM WAGe PreeMPtion & SCHUETTE’s 
seCond-ClAss CitiZens

ALEXSIS M. JOHNSON

INTRODUCTION

Between 2012 and 2017, more than twenty municipalities passed ordinances providing 
for extended labor protections for their residents like paid sick leave and higher minimum 
wages.1 Often these municipalities and their governing bodies have been more liberal and 
racially diverse than their respective legislatures.2 In some of the states where municipalities 
have succeeded in passing this legislation, the state legislature has very quickly preempted 
those measures with a state law dictating that no city can set a minimum wage higher than 
the federal standard of $7.25 an hour.3 These state laws banning cities from raising the 
working wage constitute intrastate minimum wage preemption. The lawmakers preempting 
these local reform efforts proffer to justifications for the bills rooted in economics and 
federalism.4 However, these preemptive measures raise consequential questions related to 

© 2018 Johnson. This is an open access article distributed under the terms of the Creative Commons Attribution 
License, which permits the user to copy, distribute, and transmit the work provided that the original author and 
source are credited.

*  J.D., Columbia Law School 2018; B.A., Yale University 2012. My deepest gratitude to Professor 
Olatunde Johnson for her insight and guidance on the project that precipitated this Note and for her support 
of my commitment to highlighting intersectional issues. My sincere thanks to the entire staff of the Columbia 
Journal of Gender and Law for their hard work and editorial contributions to this publication.

1  See nat’l P’shiP for women and families, Paid siCK days—state and distriCt statutes (last updated 
Feb. 2018), http://www.nationalpartnership.org/research-library/work-family/psd/paid-sick-days-statutes.pdf 
[perma.cc/QZK4-6ZN8].

2  See infra Part I.B. (discussing recent events in Birmingham, Alabama as a paradigmatic example). 
In Birmingham, Alabama, Black Americans account for seventy-five percent of the city population, yet the 
population of the whole State of Alabama is seventy-five percent white. Max Rivlin-Nadler, Preemption 
Bills: A New Conservative Tool to Block Minimum Wage Increases, new rePubliC (Feb. 29, 2017), https://
newrepublic.com/article/130783/preemption-bills-new-conservative-tool-block-minimum-wage-increases 
[perma.cc/V8HM-CDD7].

3  See infra Part I.A. for discussion of a contemporary example in Birmingham, Alabama.

4  See Press Release, Econ. Pol’y Inst., Progressive Cities Are Raising Their Labor Standards, but 



Columbia Journal of Gender and law 3737.1

the due process of lawmaking and equal protection jurisprudence more generally.5 
This Note applies an intersectional analysis to the ongoing conservative strategy of 

intrastate minimum wage preemption6 to reveal one example of how such preemptive 
measures limit progressive change, and especially burden Black women and women of 
color. Ultimately, this Note identifies two significant phenomena—or “intersections”—
that, together, amount to what this Note will call Intersectionality Squared. The first 
intersection arises directly out of conventional intersectional theory: the intersection of 
multi-faceted identities of the women of color themselves and the social factors causing 
disproportionately high employment of women of color in minimum-wage jobs.7 The 
second phenomenon contributing to Intersectionality Squared is an intersection in the 
less theoretical sense of the word: a temporal intersection of the current political strategy 
of minimum wage preemption and the Supreme Court’s recent decision narrowing the 
political process rationale in equal protection law as an avenue to curb intersectional 
discrimination.8 

This Note examines both of these consequential intersections and reveals how they 
converge into Intersectionality Squared. The ultimate objective herein is the illumination 
of how the intrastate minimum wage preemption strategy goes beyond an issue of 
identity politics and, instead, results in a pattern of legal erasure which further renders 
legally uncognizable the ways in which Black women and women of color experience 
discrimination.9 This Note does not intend to argue that all instances of intrastate preemption 
raise constitutional concerns, nor does this Note intend to imply that all instances of intrastate 
minimum wage preemption necessarily pose a threat of a political process constitutional 

Conservative State Legislatures Are Preempting Them (Aug. 28, 2017), http://www.epi.org/press/progressive-
cities-are-raising-their-labor-standards-but-conservative-state-legislatures-are-preempting-them/ [https://
perma.cc/NN3M-QAMR].

5  See infra Part II.A. (discussing various equal protection claims raised by plaintiffs to challenge a recent 
Alabama law preempting a Birmingham ordinance raising minimum wage).

6  See Rivlin-Nadler, supra note 2 (referring to such preemption as a “conservative tool”).

7  See infra Section II.A. (providing an overview of intersectional theory and applying an intersectional 
analysis to Alabama’s preemption of Birmingham’s efforts to raise the local minimum wage).

8  See Schuette v. Coal. to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equal. 
by Any Means Necessary (BAMN), 134 S. Ct. 1623, 1637–38 (2014) (upholding voter-approved amendment 
to Michigan constitution prohibiting state universities’ use of race-based preferences in admissions and finding 
such amendment did not violate precedent of previous political process cases).

9  See infra Part II (identifying the intersectional harm caused by intrastate minimum wage preemption and 
the daunting legal obstacles for recovering for intersectional disparate impact).



Columbia Journal of Gender and law38 37.1

violation. Rather, this Note argues that where localities enact ordinances or regulations that 
work to the benefit of women of color and the state legislature responds with a political 
restructuring that invalidates or preempts those local ordinances, courts should consider the 
disparate impact on women of color as circumstantial evidence which weighs against the 
constitutional validity of a political restructuring.10

Part I of this Note discusses recent examples of intrastate minimum wage preemption 
and the case Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant 
Rights & Fight for Equality by Any Means Necessary (BAMN), which concerns the future of 
the political process doctrine challenging such measures.11 Part II applies an intersectional 
analysis to an open appeal challenging intrastate minimum wage preemption in Birmingham, 
Alabama to demonstrate how a single-axis equal protection analysis of intrastate minimum 
wage preemption obscures the way in which such preemption more severely burdens 
women of color. Part III identifies the potential doctrinal openings that remain to assert 
intersectional political process doctrine claims and makes recommendations for how the 
Court might more adequately acknowledge intersectional harms moving forward.

I. The Battle over Local Power and the Constitutional Limits of Political 
Restructuring

Cities and localities have played an integral role in recent efforts to raise the minimum 
wage and expand benefits for workers beyond those mandated by federal law.12 The power 
cities have to regulate the health and safety standards of their community, determine 
monetary compensation and benefits for city employees, and set the terms of contracts, 
leases, and agreements with firms and large developers, position city governments to 
effectuate higher working wages and greater labor protections for their constituents.13 

10  See infra Part III (exploring potential post-Schuette doctrinal openings for successful political process 
challenges to intrastate minimum preemption that disparately harm women of color).

11  See also infra Section I.B.2. (discussing the Schuette decision in further detail); see generally infra Part 
III.

12  See Richard Briffault et al., The Troubling Turn in State Preemption: The Assault on Progressive Cities 
and How Cities Can Respond, am. Const. soC’y for l. and Pol’y (Sept. 2017), https://www.acslaw.org/
sites/default/files/ACS_Issue_Brief_-_Preemption_0.pdf [https://perma.cc/U9VU-PNLZ] [hereinafter The 
Troubling Turn in State Preemption].

13  See Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 Colum. l. 
rev. 1, 1 (1990) [hereinafter Briffault, Our Localism: Part I] (“State legislatures . . . have frequently conferred 
significant political, economic and regulatory authority on many local cities . . . . Localism is deeply embedded 
in the American legal and political culture.”). The National League of Cities breaks down the discretionary 



Columbia Journal of Gender and law 3937.1

Indeed, in recent years cities across the United States have leveraged their regulatory power 
and influence to pass progressive legislation regulating issues from bans on employer 
inquiries into an employee’s previous wage history, to campaign finance reform, and even 
single-use plastic bags.14

Within the last five years, however, approximately half of the states in the country have 
passed laws expressly preempting localities from adopting laws that, among other things, 
raise minimum wages, provide leave benefits, or expand workplace anti-discrimination 
protections past requirements set by federal or state law.15 

This Part examines contemporary use of political restructuring in the ongoing partisan 
conflict over local power. Section I.A. provides an overview of the political process rationale 
for invalidating political restructuring that especially burdens minorities and examines the 
seminal cases in the Supreme Court’s political process doctrine. Section I.B. examines the 
Supreme Court plurality opinion in Schuette v. BAMN, which calls into question the future 
of the political process doctrine. Section I.C. then turns to a recent example of intrastate 
minimum wage preemption in Birmingham, Alabama which raises issues that implicate the 
political process doctrine. 

 A. The Political Process Doctrine & Schuette v. BAMN

While the contest continues between states and various localities over the question of 
which governmental body should wield final regulatory authority in a number of areas, the 
remaining legal avenues to challenge intrastate preemption measures that disproportionately 

political power a municipal government might exercise to advocate for more extensive labor protections into 
four discrete categories: structural, functional, fiscal, and personnel. Cities 101—Delegation of Power, nat’l 
leaGue of Cities, http://www.nlc.org/resource/cities-101-delegation-of-power [https://perma.cc/5LEE-39S4].

14  See Kristen De Groot, Philadelphia Bars Employers from Requesting Salary History, PittsburGh Post-
Gazette (Jan. 24, 2017), http://www.post-gazette.com/business/career-workplace/2017/01/24/Philadelphia-s-
mayor-signs-nation-s-first-city-pay-equity-bill/stories/201701240111 [https://perma.cc/3M97-MHHW]; Paul 
Blumenthal, The Future of Campaign Finance Reform Is at the State and Local Level, huffinGton Post (Dec. 
20, 2016), https://www.huffingtonpost.com/entry/campaign-finance-reform_us_5858569ae4b03904470a4d1b 
[https://perma.cc/8DBH-8XMC] (discussing the city of Portland’s passage of campaign finance legislation in 
Oregon); Editorial Board, It’s Been a Year Since California Banned Single-Use Plastic Bags. The World Didn’t 
End, l.a. times (Nov. 18, 2017), http://beta.latimes.com/opinion/editorials/la-ed-plastic-bag-ban-anniversary-
20171118-story.html [https://perma.cc/P8YZ-YVN4].

15  Jay-Anne B. Casuga & Michael Rose, Are State Workplace Preemption Laws on the Rise?, bloomberG 
law (Jul. 19, 2016), https://www.bna.com/state-workplace-preemption-n73014444995/ [https://perma.
cc/3SAL-5LZP].



Columbia Journal of Gender and law40 37.1

affect minorities and other marginalized groups hang in the balance. The facts around the 
preemptive measures in states like Alabama, Missouri, and Wisconsin implicate issues 
that may have previously triggered strict scrutiny under the political process doctrine; 
however, the recent plurality decision in Schuette v. Coalition to Defend Affirmative Action, 
Integration & Immigrant Rights & Fight for Equality by Any Means Necessary (BAMN) 
rendered the future of the doctrine unclear.16 The next two sub-sections provide an overview 
of the theory underlying the political process doctrine and trace the development of the 
doctrine through the new test for detecting impermissible political restructuring announced 
by the Court in Schuette.

1. The Political Process Doctrine

In addition to the conventional equal protection doctrine, which mandates that courts 
evaluate legislation that makes racial and gendered classifications under strict scrutiny,17 
the Supreme Court has also articulated a second strand of equal protection jurisprudence 
known as the political process rationale or the political process doctrine.18 The “simple but 
central principle” embodied by the political process doctrine is that the state may not make 
it more difficult for certain minorities to achieve legislation that is in their interest by 
placing special burdens on minorities within the governmental process.19 Though each 

16  See generally Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623 (2014).

17  The Fourteenth Amendment of the United States Constitution provides that no state shall “deny to any 
person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. Classifications or 
invidious discrimination based on race and gender or that impinge a fundamental right receive some form of 
heightened scrutiny. See, e.g., Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273–74 (1979); Wash. v. Davis, 
426 U.S. 229, 239 (1976). Government actions that burden a fundamental right (like voting, or certain rights to 
liberty in matters such as marriage and procreation) may also trigger heightened review. See, e.g., Harper v. Va. 
Bd. of Elections, 383 U.S. 663, 670 (1966); Shapiro v. Thompson, 394 U.S. 618, 634 (1969).

18  One might locate the origin of the rationale underlying the political process doctrine as far back as the 
oft-cited “Footnote Four” from Justice Stone’s opinion in United States v. Carolene Products Company and 
can trace its development through a number of less well-known cases. See Wash. v. Seattle School District No. 
1, 458 U.S. 457, 486 (1982) (“[W]hen the State’s allocation of power places unusual burdens on the ability 
of racial groups to enact legislation specifically designed to overcome the ‘special condition’ of prejudice, the 
governmental action seriously ‘curtail[s] the operation of those political processes ordinarily to be relied upon 
to protect minorities’” (quoting Carolene Products, 304 U.S. 144, 153 n.4 (1938)); Schuette, 134 S. Ct. 1623, 
1668 (2014) (Sotomayor, J., dissenting) (framing Carolene Products as the origin of the values “at the heart of” 
the political process doctrine). Scholars have also connected the doctrine to John Hart Ely and political process 
theory more generally. See Steve Sanders, Race, Restructurings, and Equal Protection Doctrine through the 
Lens of Schuette v. BAMN, 81 brooK. l. rev. 1393, 139 (2016).

19  See Daniel P. Tokaji & Mark D. Rosenbaum, Promoting Equality by Protecting Local Power: A Neo-



Columbia Journal of Gender and law 4137.1

of the Supreme Court cases that explicitly invoke the political process doctrine involved 
questions of whether a political restructuring amounted to an instance of race-based 
discrimination, the political process rationale has also been invoked by lower courts in 
the interest of discrete minority groups not recognized as protected classes under the 
Fourteenth Amendment.20 Perhaps the most notable difference between the conventional 
equal protection doctrine and the political process doctrine is the absence of an explicit 
intent requirement from the latter.21

The political process doctrine instructs courts to identify and scrutinize state actions, 
decision making structures, and schemes that place “special burdens” on minorities seeking 
to advocate for their interests through the political process.22 Under the political process 
rationale, political restructurings are inherently atypical; at a minimum, they signal the 
intention of the political majority to alter or circumscribe the usual legislative process.23 
As Courts have examined facially neutral political restructurings under more careful 
scrutiny to protect against entrenched or concealed discrimination against minorities.24 The 
Court has previously applied the doctrine to invalidate political restructuring that singles 

Federalist Challenge to State Affirmative Action Bans, 10 stan. l. & Pol’y rev. 129, 136 (1999).

20  The Colorado Supreme Court based its decision in Evans. v. Romer on a political process rationale. 
See Evans v. Romer, 854 P.2d 1270 (Colo. 1993); evan Gerstmann, the Constitutional underClass: Gays, 
lesbians, and the failure of Class 122 (1999). The Supreme Court did not address the issue in affirming 
the Colorado Supreme Court’s decision and ruled instead on substantive due process grounds. See Tokaji 
& Rosenbaum, supra note 19, at 131 (“The pertinence of the Hunter-Seattle principle to Romer is clarified 
by Justice Scalia’s dissent. Just as the Romer majority silently relies on the Hunter-Seattle principle, 
the Romer dissent silently refutes it. In a key passage, Justice Scalia’s blistering dissent asserts: The central 
thesis of the Court’s reasoning is that any group is denied equal protection when, to obtain advantage (or, 
presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of 
political decision making than others. The world has never heard of such a principle . . . .”).

21  See Tokaji & Rosenbaum, supra note 19, at 136 (“It might be tempting to view Hunter and Seattle as 
anomalies, of dubious relevance in light of the Supreme Court’s general insistence that only facially or 
intentionally discriminatory laws violate the Equal Protection Clause. The reality, however, is that the principle 
for which these cases stand has its foundation in the very bedrock of American constitutional law. The 
requirement of equal access to the political process is even more fundamental than equality in the outcomes of 
that process.”).

22  See Seattle, 458 U.S. at 486.

23  See Sanders, supra note 18, at 1398.

24  Id. (“Experience teaches that when a question of public policy is taken outside the usual lawmaking 
process and is committed to a higher, more remote level of decision making, it is not unreasonable to suspect 
that the restructuring might be intended to work constitutionally improper discrimination against some group.”).



Columbia Journal of Gender and law42 37.1

out a disadvantaged or minority group as the only group that must undertake atypical or 
additional steps—like obtaining a city charter amendment, state constitution amendment, 
or ballot initiative—as a precursor to enact legislation in favor of group interests.25 

An application of the political process doctrine may invalidate a political restructuring 
that shifts decision-making power regarding a particular issue from one kind of process 
to another.26 A court may also find that a shift of decision-making power from one level 
or branch of government to another level, like a state charter amendment prohibiting 
localities from passing legislation to curb racial discrimination in real estate, is similarly 
impermissible.27 

2. The Pre-Schuette Political Process Doctrine

Many scholars and courts read the two cases Hunter v. Erickson28 and Washington 
v. Seattle School District29 together to establish the “Hunter/Seattle” political process 
doctrine.30 Yet, Justice Kennedy began his analysis of the doctrine in the plurality opinion 
for Schuette v. Coalition to Defend Affirmative Action by turning back to a case decided two 

25  See Girardeau A. Spann, Proposition 209, 47 duKe l. J. 187, 250 (1998) (summarizing the “fatal 
defects” identified by the Supreme Court in the major political process cases); Fourteenth Amendment—
Equal Protection Clause—Political-Process Doctrine—Schuette v. Coalition to Defend Affirmative Action, 
Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN), 128 harv. l. 
rev. 281, 281 (2014) [hereinafter Equal Protection Clause—Political-Process Doctrine].

26  Recent Legislation, Equal Protection—Political Restructuring—Arkansas Passes Statute Prohibiting 
Local Governments from Creating New Protected Classifications—Intrastate Commerce Improvement Act (Act 
137), Ark. Code Ann. §§ 14-1-401 to -4, 129 harv. l. rev. 600, 600 (2015) [hereinafter Recent Legislation]; 
Alex Reed, Pro-business or Anti-gay?: Disguising LGBT Animus as Economic Legislation, 9 stan. J. C.r. & 
C.l. 153, 169 (2013) [hereinafter Reed, Pro-business or Anti-gay?].

27  See Reed, Pro-business or Anti-gay?, supra note 26, at 168.

28  Hunter v. Erickson, 393 U.S. 385, 389 (1969).

29  Wash. v. Seattle School District No. 1, 458 U.S. 457 (1982).

30  In fact, though the plurality opinion in Schuette does not explicitly refer to the “Hunter/Seattle” doctrine, 
most of the Justices did reference the doctrine in writing their separate concurrences and dissents. See e.g., 
Schuette, 134 S. Ct. at 1649 (Breyer, J., concurring in the judgment) (“[T]he parties do not here suggest that the 
amendment violates the Equal Protection Clause if not under the Hunter-Seattle doctrine.”); id. at 1646 (Scalia, 
J., concurring) (“Taken to the limits of its logic, Hunter-Seattle is the gaping exception that nearly swallows the 
rule of structural state sovereignty, which would seem to permit a State to give certain powers to cities, later 
assign the same powers to counties, and even reclaim them for itself.”).



Columbia Journal of Gender and law 4337.1

years before Hunter—Reitman v. Mulkey.31 Though the challenged political restructuring 
at issue in Mulkey did not make a facial classification as did the challenged enactments in 
Hunter and Seattle, when examined in sequence, the three cases make clear the doctrine’s 
concern with obstacles in the political process stemming from invidious discrimination. 

In Reitman v. Mulkey, the governor of California signed the Rumford Fair Housing 
Act (“AB 1240”), which banned racial discrimination among mortgage holders, real estate 
brokers, property owners, and landlords who refuse to rent or sell to tenants or potential 
buyers on the basis of color.32 Opponents of the Act immediately sought a voter-initiative 
and referendum (“California Proposition 14”) which provided that state could not “deny, 
limit or abridge, directly or indirectly, the right of any person, who is willing or desires to 
sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such 
property to such person or persons as he, in his absolute discretion, chooses.”33 The plaintiffs 
were a Black couple who were denied as renters on account of their race and brought 
suit challenging the constitutional amendment repealing the AB 1240 on the basis that it 
was unconstitutional.34 In deciding Mulkey, the Court did not discuss any unique burdens 
the minority litigants faced in participating in the political process.35 Rather, the question 
answered by the Court in Mulkey was whether the state had become so involved with 
private discrimination as to violate equal protection when it repealed the antidiscrimination 
measure.36 Ultimately, the Court found AB 1240 unconstitutional after concluding that it 
would “significantly encourage and involve the state in private discriminations.”37

In Hunter v. Erickson, the Court invalidated a voter-enacted charter amendment in 
Akron, Ohio, which required the electorate approve any fair housing ordinance to be 
approved by the electorate, on the basis that it “place[d] special burdens on racial minorities 
within the governmental process.”38 The City of Akron argued that the challenged voter-
enacted charter amendment, which required any fair housing ordinance to be approved by 

31  Schuette, 134 S. Ct. at 1629 (plurality opinion) (citing to Reitman v. Mulkey, 387 U.S. 369 (1967)).

32  Mulkey, 387 U.S. at 374.

33  Id.

34  Id. at 372.

35  See Equal Protection Clause—Political-Process Doctrine, supra note 25, at 287 n.64.

36  Mulkey, 387 U.S. at 378–89.

37  Id. at 381.

38  Hunter v. Erickson, 393 U.S. 385, 389 (1969).



Columbia Journal of Gender and law44 37.1

the electorate, differed significantly from the constitutional amendment in Mulkey because 
“the city charter declare[d] no right to discriminate in housing, authorizes and encourages no 
housing discrimination, and places no ban on the enactment of fair housing ordinances.”39 
The Court reasoned that despite the facially neutral language of the charter amendment 
with regard to “distinctions among racial and religious groups,” it made “an explicitly 
racial classification treating racial housing matters differently from other racial and housing 
matters,” that caused the impact of the charter amendment to fall disproportionately on 
minorities.40 In reaching this conclusion, the Court recognized that the amendment was 
aimed at minority racial groups, and found no need to explicitly rely on Mulkey.41 

Thirteen years later, in Washington v. Seattle School District No. 1, the Court invalidated 
a voter-initiated constitutional amendment that effectively prohibited desegregating 
busing efforts undertaken without a court order “because it [did] ‘not attemp[t] to allocate 
governmental power on the basis of any general principle.’”42 The Court categorized the 
harm suffered by the plaintiffs as an explicit racial injury on the basis that “desegregation 
of the public schools, like the Akron open housing ordinance, at bottom, inures primarily to 
the benefit of the minority, and is designed for that purpose,” and in previous cases the Court 
had “accepted the proposition that mandatory desegregation strategies present the type of 
racial issue implicated by the Hunter doctrine.”43 The Court held that the initiative removed 
the “authority to address a racial problem—and only a racial problem—from the existing 
decision-making body, in such a way as to burden minority interests.”44 Ultimately, the 
Court described the circumstances that triggered Hunter and the political process doctrine 
as the following: “when the State’s allocation of power places unusual burdens on the 
ability of racial groups to enact legislation specifically designed to overcome the ‘special 
condition’ of prejudice, the governmental action seriously ‘curtail[s] the operation of those 

39  Id.

40  Id. at 389–91.

41  Id. at 389 (“[W]e need not rest on Reitman to decide this case. Here, unlike Reitman, there was an explicitly 
racial classification treating racial housing matters differently from other racial and housing matters.”).

42  Wash. v. Seattle School District No. 1, 458 U.S. 457, 470 (1982) (quoting Hunter, 393 U.S. at 395 
(Harlan, J., concurring)).

43  Id. at 473 (citing to Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970) (three-judge court), summarily 
aff’d, 402 U.S. 935 (1971)).

44  Id. at 474; see also id. at 470 (“[T]he political majority may generally restructure the political process to 
place obstacles in the path of everyone seeking to secure the benefits of governmental action. But a different 
analysis is required when the State allocates governmental power non-neutrally, by explicitly using the racial 
nature of a decision to determine the decision-making process.”).



Columbia Journal of Gender and law 4537.1

political processes ordinarily to be relied upon to protect minorities.’”45  

3. Schuette v. BAMN and the New Test for Impermissible 
Political Restructuring

Writing for a three-justice plurality in Schuette v. Coalition to Defend Affirmative 
Action, the Supreme Court’s most recent reformulation of the political process doctrine, 
Justice Kennedy revisited the Court’s main political process cases to both distill the essence 
of the political process doctrine as the Court had previously applied it and to announce a 
new test for identifying political process violations moving forward.

Schuette arose from challenges to a Michigan state constitutional amendment 
(“Proposal 2”) alleging a political process equal protection violation.46 Proposal 2 prohibited 
public universities from granting race-based “preferences” in the admissions process and 
effectively withdrew power from university officials to implement any admission policy that 
involved those “preferences.”47 The District Court rejected the applicability of the political 
process doctrine, and distinguished the challenge to Proposal 2 from Hunter and Seattle, on 
the basis that those cases involved laws that protected against unequal treatment for racial 
minorities where Proposal 2 involved “advantageous treatment on the basis of race.”48

The Sixth Circuit heard the appeal en banc.49 The Sixth Circuit interpreted Hunter 
and Seattle together as creating the following two prong test for identifying when “an 
enactment deprives minority groups of the equal protection of the laws” 

45  Id. at 486.

46  Schuette, 134 S. Ct. at 1629 (plurality opinion).

47  Proposal 2 passed with fifty-eight percent support and became Article I, § 26 of the Michigan Constitution. 
Id. Section 26 provides in relevant part: 

“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.”  

Mich. Const. Art. I, § 26.

48  Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 539 F. Supp. 2d 924, 953, 957 (E.D. 
Mich. 2008) (emphasis in original).

49  Coal. to Defend Affirmative Action v. Regents of Univ. of Mich., 701 F.3d 466, 489 (6th Cir. 2012) (en 
banc).



Columbia Journal of Gender and law46 37.1

(1) has a racial focus, targeting a policy or program that “inures primarily 
to the benefit of the minority”; and (2) reallocates political power or 
reorders the decision-making process in a way that places special burdens 
on a minority group’s ability to achieve its goals through that process.50

The Sixth Circuit ultimately concluded that Proposal 2 triggered strict scrutiny because 
it impermissibly modified Michigan’s political process by placing special burdens on 
the ability of minority groups to achieve legislation to their benefit.51 The Sixth Circuit 
then stuck down Proposal 2 on the basis of its conclusion that that the defendants had not 
provided a compelling state interest to avoid a violation of the Equal Protection Clause.52  

The Supreme Court reversed the en banc decision of the Sixth Circuit in Schuette.53 
Justice Kennedy wrote the plurality opinion for himself, Chief Justice Roberts, and Justice 
Alito.54 The plurality initially identified that the Sixth Circuit’s principal error was an 
improper extension of Justice Harlan’s concurrence in Seattle.55 The plurality opinion’s 
main thrust, however, was a strong rejection of the doctrine’s purported assumption that 
minority groups hold convergent views and political interests.56 In asserting that the Seattle 
doctrine relies on the same concept, Justice Kennedy cast significant doubt on the accuracy 
and continuing validity of the political process doctrine.57 Indeed, Justice Kennedy noted 
that “a number of problems raised by Seattle, including racial definitions,” were relevant 
in the case, even though some of the Seattle formulation’s “larger consequences” were not 
at issue.58 Justice Kennedy was clear that the Sixth Circuit’s reasoning was invalid for its 

50  Id. at 477 (quoting Seattle, 458 U.S. at 472).

51  Id. at 489.

52  Id.

53  134 S. Ct.

54  Id.

55  Id. at 1631. Justice Scalia’s concurrence in the judgment, joined by Justice Thomas, produced a majority 
in favor of reversing the Sixth Circuit. Id. at 1639. Justice Scalia would have overruled Hunter and Seattle and 
rejected the political process doctrine entirely. Id. at 1643.

56  Id. at 1634–35.

57  See, e.g., id. at 1635 (“Racial division would be validated, not discouraged, were the Seattle formulation, 
and the reasoning of the Court of Appeals in this case, to remain in force.”).

58  Id. at 1635–36.



Columbia Journal of Gender and law 4737.1

reliance on the concept of uniformity of interests within given racial groups.59 

The Schuette plurality ultimately rejected what it called a “broad reading of Seattle” 
that called for the application of strict scrutiny to “any state action with a racial focus 
that makes it more difficult for certain racial minorities than for other groups to achieve 
legislation that is in their interest.”60 Throughout the full length of the opinion, Justice 
Kennedy did not explicitly name Proposal 2 as a political restructuring or offer comment 
on political restructurings as a general matter.61 Justice Kennedy similarly avoided direct 
reference to a “Hunter/Seattle” or “political process” doctrine.”62 Instead the plurality 
reformulated the principle underlying Mulkey, Hunter, and Seattle to announce what some 
have called a “new test” for finding political process equal protection violations.63 Under 
this new test, a political restructuring is impermissible when newly enacted legislation or 
“state action in question . . . ha[s] the serious risk, if not purpose of causing specific injuries 
on account of race.”64 

Though Schuette has been largely characterized as an affirmative-action case, the broad 
language of the plurality’s re-formulation of the political process doctrine carries with it 
far-sweeping implications across a number of regulatory areas that might implicate racial 
tensions or divisions. In the current political climate, the labor context is one such area. 

A. Alabama’s Preemption of Birmingham’s Higher Minimum Wage

Of the many polarized instances of intrastate minimum wage preemption, political 
restructurings that have occurred in states with histories of racial discrimination and ongoing 
racial division have drawn considerable public criticism in the media.65 Birmingham, 

59  Schuette, 134 S. Ct. at 1634–35.

60  Id.; Equal Protection Clause–Political-Process Doctrine, supra note 25, at 283–84.

61  See Sanders, supra note 18, at 1429.

62  Id. at 1432.

63  Schuette, 134 S. Ct. at 1634–35.

64  Id. at 1633; Recent Legislation, supra note 26, at 281.

65  Some reporting on Alabama’s preemptive bill has gone as far as to explicitly connect the measure to 
Alabama’s long history of overt race-based discrimination. See, e.g., Bryce Covert, White Lawmakers are 
Using Alabama’s Racist State Constitution to Keep Black Wages Down, in these times (Oct. 23, 2017), 
http://inthesetimes.com/features/alabama_fight_for_15_dillons_rule_preemption_racism.html [https://perma.
cc/8B7V-7V4T].



Columbia Journal of Gender and law48 37.1

Alabama,66 St. Louis, Missouri,67 and Detroit, Michigan68 are three examples of cities that 
worked to increase the minimum wage for their locality and were preempted by a majority 
non-minority state legislature. In each of the three cities, the minority population in the 
cities is disproportionate compared the minority population of the states as a whole.69 
The unemployment rate of Black residents as compared to white residents is significantly 
higher.70 Recent events in Birmingham, Alabama exemplify how the current political 
strategy of intrastate preemption of progressive measures raises a number of equality 
concerns.71

Minimum wage workers in Alabama currently receive pay of $7.25 per hour, the 
national floor set by federal law.72 In August 2015, the Mayor of Birmingham and the 
Birmingham City Council unanimously passed Ordinance 15–124, which provided for an 
incremental increase in the minimum wage for Birmingham employees, starting with $8.50 

66  See Rivlin-Nadler, supra note 2.

67  In 2016, the Missouri state legislature retroactively preempted the St. Louis measure raising the minimum 
wage. See Marni von Wilpert, City Governments Are Raising Standards for Working People—and State 
Legislators Are Lowering Them Back Down, eConomiC PoliCy institute (Aug. 26, 2017), http://www.epi.org/
publication/city-governments-are-raising-standards-for-working-people-and-state-legislators-are-lowering-
them-back-down/ [https://perma.cc/6FL2-X8HB]; Nicole Dupuis et. al, City Rights in an Era of Preemption: A 
State-by-State Analysis 2018 Update 7, nat’l leaGue of Cities, https://www.nlc.org/sites/default/files/2017-03/
NLC-SML%20Preemption%20Report%202017-pages.pdf [https://perma.cc/75L3-TGG2].

68  See Emily Lawler, Gov. Rick Snyder Signs ‘Death Star’ Bill Prohibiting Local Wage, Benefits Ordinances, 
miChiGan live (Jun. 30, 2015), http://www.mlive.com/lansing-news/index.ssf/2015/06/gov_rick_snyder_
signs_death_st.html [https://perma.cc/8TQY-HLB4]. At the time of drafting, labor equality groups in Michigan 
were in the midst of continued efforts to raise the minimum wage via a petition to include ballot referendum 
on the topic in November 2018. Kathleen Gray, Michigan OKs $12 Minimum Wage Proposal Aimed at 2018 
Ballot, detroit free Press (Sept. 19, 2017), https://www.freep.com/story/news/politics/2017/09/19/michigan-
minimum-wage-12-dollars-per-hour/680950001/ [https://perma.cc/C5TM-Y95M].

69  See Covert, supra note 65.

70  Id.

71  At the time of drafting, the NAACP challenging to Alabama’s preemption of Birmingham’s ordinance 
raising the minimum wage was the only ongoing litigation. It remains to be seen whether interest groups in 
other cities across the country will bring similar cases. Given the uncertainly around the political process 
doctrine, it is possible that some groups may wait to bring claims until the outcome of the NAACP challenge 
is made final.

72  While many states have enacted legislation to raise the state minimum wage above the federal floor, 
Alabama is one of five states that have declined to do so. See State Minimum Wages–2017 Minimum Wage 
by State, nat’l ConferenCe of state leGislatures, (Jan. 5, 2017), http://www.ncsl.org/research/labor-and-
employment/state-minimum-wage-chart.aspx [https://perma.cc/KTT6-8CMP].



Columbia Journal of Gender and law 4937.1

per hour in July 2016 and increasing to $10.10 per hour in July 2017.73 

In response to the Birmingham ordinance, the Alabama state legislature enacted 
the Alabama Uniform Minimum Wage and Right to Work Act (“Act 2016–18”), which 
effectively nullified Birmingham’s minimum wage ordinance and preempted municipalities 
in the state from raising the minimum wage above $7.25 an hour or requiring that 
employers provide any paid or unpaid leave, or vacation pay that is not required by federal 
or state law.74 Act 2016–18 closely imitates the Living Wage Mandate Preemption Act, 
model legislation circulated by The American Legislative Exchange Council (“ALEC”), 
an organization with a membership that includes many of the nation’s largest companies, 
a quarter of state legislators, one-fifth of the United States Congress, and seven sitting 
governors.75 ALEC justifies their model preemption legislation and advocacy for intrastate 
preemption of local labor protections on the basis that states require consistent labor laws 
and state legislatures are best positioned to achieve that consistency.76 However, despite the 
assertion that states should regulate labor, ALEC has simultaneously advocated for cities 
and counties to enact “right-to-work” ordinances at the local level.77

Of particular significance to the pending litigation challenging the constitutionality 
of Alabama’s Act 2016–18 are the racial demographics of the municipality the legislation 

73  See Amended Complaint at 29, Lewis v. Bentley, No. 2:16-CV-690-RDP, 2017 BL 29541 (N.D. Ala. Jun. 
30, 2016).

74  Id. Section 6(a) of Act 2016–18 explicitly states that the purpose of the Act is to provide the Legislature 
complete control over regulation and policy pertaining to wages, leave, or other employment benefits provided 
by an employer to an employee, class of employees, or independent contractor.

75  See Living Wage Mandate Preemption Act, ameriCan leGislative exChanGe CounCil, https://www.
alec.org/model-policy/living-wage-mandate-preemption-act/ [https://perma.cc/XPD7-QUZM]; Henry 
Grabar, The Shackling of the American City, slate (Sept. 9, 2016), http://www.slate.com/articles/business/
metropolis/2016/09/how_alec_acce_and_pre_emptions_laws_are_gutting_the_powers_of_american_cities.
html [https://perma.cc/BHV4-WD54]. ALEC distributed copies of their model legislation and a map of the 
United States highlighted targets for future preemptive measures at their annual meeting in 2016. Id.

76  See Lauren E. Phillips, Impeding Innovation: State Preemption of Progressive Local Regulations, 117 
Colum. l. rev. 2225, 2227 (2017) (noting “fundamental contradiction in conservative organizations and 
individuals pushing for state preemption of local regulations” in light of the fact that those “very groups have 
emphasized local control in certain areas to overcome progressive policies”).

77  See Progressive Cities Are Raising Their Labor Standards, but Conservative State Legislatures Are 
Preempting Them, supra note 4. The right-to-work ordinances would have the effect of weakening collective 
bargaining power at the local level. Id.



Columbia Journal of Gender and law50 37.1

targets and the lawmakers responsible for passing the preemptive measure.78 In Birmingham, 
Alabama, Black Americans account for seventy-five percent of the city population, yet the 
population of the whole State of Alabama is seventy-five percent white.79 Act 2016–18 
passed with the exclusive support of fifty-three white legislators—no Black legislator voted 
in favor of the bill.80 The Alabama legislature also passed Act 2016–18 with uncharacteristic 
speed—the bill passed within one week after the first reading and was signed by Governor 
Robert Bentley within two hours.81 Yet, notwithstanding the various procedural anomalies 
in the passing of Act 2016–18, Alabama’s preemption of the Birmingham ordinance 
unfolded in very similar fashion to several other examples of intrastate preemption of 
higher local minimum wages in the past few years.82 These procedural anomalies and racial 
disparities, coupled with a shift in decision-making power regarding labor protections from 
the local level to the state level effectuated by Act 2016–18 implicate the political process 
doctrine.83 The facts around Alabama’s Act 2016–18 and the NAACP’s legal challenge of 
Act 2016–18 also highlight a deficiency in the doctrine with regard to intersectional harms.

II. Schuette’s Second Class Citizens

Some recent scholarship has highlighted a turn to the political process and local 
government to vindicate the interest of minority groups that lack representation at the state 
level.84 Yet, as Part I discussed, some instances of preemptive measures effectively inhibit 

78  See Covert, supra note 65.

79  Rivlen-Nadler, supra note 2.

80  See Covert, supra note 65.

81  The Alabama Senate fast-tracked the bill and passed it within 36 hours of receiving on a 23–12 roll 
call; all in favor were white, only six black senators opposed. See Lauren Walsh, Birmingham Minimum Wage 
Ordinance Voided After Gov. Bentley Signs Bill into Law, abC 30/40 news (Feb. 25, 2016), http://abc3340.
com/news/local/birmingham-minimum-wage-ordinance-voided-after-gov-bentley-signs-bill-into-law [https://
perma.cc/8T4Z-MD9P].

82  State legislatures passed the same kind of local legislation to preempt labor protections in St. Louis, 
Missouri and Milwaukee, Wisconsin, two cities with similarly high concentrations of Black and minority 
minimum wage workers as compared with the rest of the state, and  majority white state legislature. See eCon. 
Pol’y inst., supra note 4.

83  See infra Section II.A.I. (discussing the NAACP’s political process challenge to Act 2016–18).

84  Olatunde C.A. Johnson, The Local Turn: Innovation and Diffusion in Civil Rights Law, 79 l. & ContemP. 
Probs. 115–44 (2016); see generally david rolf, the fiGht for $15: the riGht waGe for a worKinG 
ameriCa 61 (2016) (describing the contemporary trend of “using local politics to lift worker standards” and 
the underlying justification that cities “are the arenas where progressive initiatives have the best prospects for 



Columbia Journal of Gender and law 5137.1

a minority group’s ability to engage equally with the political process for their own benefit. 
Some of the progressive advances achieved at the local level might more directly address 
systemic deficiencies associated with discrete minority groups than others.85 When intrastate 
preemption disparately harms people of color, the negative impact of such preemption 
poses a threat more concrete and severe than “impeding innovation and experimentation.”86 
Indeed, the cost of intrastate minimum wage preemption that disparately harms women of 
color not only poses dire financial consequences for many low-income women and their 
families, but also further alienates women of color from being represented in a political 
process from which their interests are already excluded.87 Though some interpret Schuette’s 
new political restructuring test as a nail in the coffin of the political process doctrine,88 the 
broad and ambiguous nature of the new test arguably creates an opening for the Court to 
incorporate consideration of intersectional harms into the doctrine. 

Having established the jurisprudential history of the local political process doctrine 
and reviewed contemporary context that calls for resolution around the uncertainty of the 
doctrine’s future, this Part identifies the intersectional harm caused by intrastate minimum 
wage preemption and the erasure of the unique burdens of women of color in equality 
law. Section II.A. explores the NAACP’s current challenge to Alabama’s preemptive bill 
on the basis that Act 2016–18 discriminates along the single axis of race. II.A. then goes 
on to discuss how analysis of the effects of the bill along the axis of gender, in addition to 

enduring success”).

85  For example, North Carolina’s HB 2 directly excluded members of the LGBTQ community from the 
protection of local antidiscrimination law, whereas state preemption of a local plastic bag bans has been more 
commonly understood as divorced from paradigmatic minority interest. See 2016 N.C. Sess. Laws 3 §§ 1–3, 
repealed by 2017 N.C. Sess. Laws 4 § 1. In addition to preempting more inclusive antidiscrimination policies 
at the local level, the North Carolina law required that “[p]ublic agencies . . . require multiple occupancy 
bathrooms or changing facilities . . . be designated for and only used by individuals based on their biological 
sex” and specifically defined “biological sex” as “[t]he physical condition of being male or female, which his 
stated on the person’s birth certificate.” 2016 N.C. Sess. Laws 3 §§ 1–3, repealed by 2017 N.C. Sess. Laws 4 
§ 1.

86  See Phillips, supra note 76, at 2262.

87  See Olena Hankivsky & Renee Cormier, Intersectionality and Public Policy: Some Lessons from 
Existing Models, 64 Pol. res. q. 217, 220 (2011) (“[E]ven when the importance of diversity is noted and 
recommendations are made to include an intersectionality approach in policy, some decision makers continue 
to espouse one-dimensional approaches, such as gender mainstreaming or gender-based analysis, which a 
number of scholars and activists have argued elsewhere cannot be adapted to address multiple inequalities.”).

88  See, e.g., Thomas D. Kimball, Schuette v. BAMN: The Short-Lived Return of the Ghost of Federalism 
Past, 61 loy. l. rev. 365, 377 (2015).



Columbia Journal of Gender and law52 37.1

race, reveal women of color as the group most disparately impacted by recent intrastate 
minimum wage preemption. Section II.B. contextualizes Schuette as one case of many that 
have narrowed antidiscrimination laws to exclude intersectional harm and then examines 
how the new test introduced in Schuette, which seems to require an inquiry into the 
discriminatory harm along the single axis of race, might continue the erasure of the multi-
dimensional discrimination experienced by women of color.

A. An Intersectional Analysis of the Effects of Intrastate Minimum Wage  
Preemption

Intersectional theory asserts a notion of human identity as inherently multi-
dimensional.89 While a conventional contemporary understanding of identity acknowledges 
on some level that various identifiers such as race, class, sex, national origin, and sexual 
orientation can individually affect how a person moves through the world and experiences 
society,90 intersectional theory specifically highlights how those identifiers simultaneously 
inform and impact an individual’s experience.91 Though the concept of intersectionality 
now pervades public discourse regarding a number of socio-political topics ranging from 
feminism to gender theory,92 intersectional theory has roots in a specifically legal context. 
Professor Kimberlé Crenshaw first introduced the concept as an analytical framework 
to bring to the forefront the particular way the conventional doctrine under Title VII 
failed to account for and theoretically erased the way Black women uniquely experience 

89  riChard delGado & Jean stefanCiC, CritiCal raCe theory: an introduCtion 10 (2d ed. 2012).

90  The ongoing debate around whether “identity politics” works to unite or divide the American electorate 
itself evidences a broad awareness of the many available identifiers employed by people in describing 
themselves and identifying their social and political allegiances. Compare Eric Schinkler, Debunking the Myth 
that “Identity Politics” is Bad for the Democratic Party, vox (Apr. 21, 2018), https://www.vox.com/the-big-
idea/2018/4/16/17242748/identity-politics-racial-justice-democratic-party-lilla-traub-trump [https://perma.
cc/P7DF-XS2B] with Walter Benn Michaels et al., What is the Left Without Identity Politics?, the nation 
(Dec. 16. 2016) https://www.thenation.com/article/what-is-the-left-without-identity-politics/ [https://perma.
cc/D6EW-DLQ4] (including a debate between four contributors on the question: “Is the left too focused on 
‘identity politics’—and what the hell does that term even mean?”).

91  See delGado & stefanCiC, supra note 89, at 57.

92  See, e.g., Eleanor Robertson, Intersectional-what? Feminism’s Problem with Jargon is That Any Idiot 
Can Pick It Up and Have a Go, the Guardian (Sept. 30, 2017), https://www.theguardian.com/world/2017/
sep/30/intersectional-feminism-jargon [https://perma.cc/P6AW-2FFN] (“Like much of the work done by 
feminists and queer theorists around the same time, there is a certain ambiguity to intersectionality, if only 
because many of the people interpreting it come from this poststructuralist milieu.”).



Columbia Journal of Gender and law 5337.1

workplace discrimination.93 Professor Crenshaw posited that by examining discrimination 
claims in the context of “otherwise-privileged members of [a] group,” like Black men or 
white women, the “single-axis framework utilized in the antidiscrimination law context 
erases Black women in the conceptualization, identification, and remediation of race 
and sex discrimination.”94 Through engaging in a multidimensional analysis of the way 
gender, class, and race-based discrimination impact and exert force on women of color 
as individuals at the intersection of those various forms of discrimination, intersectional 
theory attempts to correct the erasure perpetuated by “single-issue analyses” of harm 
caused by discrimination as it is experienced by women of color.95 

In the context of intrastate minimum wage preemption, rather than examining how 
state action like Alabama’s Act 2016–18 might unfairly burden a class of individuals as 
they are defined by one axis of their identities, like race or gender,96 an application of an 
intersectional analysis encourages identification of groups that may be burdened by that 
same measure as it impacts multiple axes of their identities (i.e., race and gender). After first 
acknowledging the interconnected nature of race and gender for those with intersectional 
identities, it then becomes clear how the harm threatened by some instances of minimum 
wage preemption that especially burden women of color may be reasonably described as 
both race-based and gender-based.  

1. Lewis v. Bentley as a “Single-Axis” Equal Protection 
Challenge to Act 2016–18

Given the recent proliferation of these kind of preemptive measures, there are relatively 
few examples of litigation challenging these measures.97 Lewis v. Bentley, a case currently 
on appeal in the Eleventh Circuit, however, provides one such example.98 In April 2017, the 

93  See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique 
of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 8 uni. Chi. l. forum 139, 140 
(1989) (identifying that “dominant conceptions of discrimination condition us to think about subordination as 
disadvantage occurring along a single axis”).

94  Id.

95  See id. at 139.

96  See infra Section II.A.1 (discussing an example of a single-axis political process challenge to Alabama’s 
Act 2016–18).

97  See supra note 68.

98  See Lewis v. Bentley, No. 17-11009 (11th Cir. Mar. 3, 2017).



Columbia Journal of Gender and law54 37.1

NAACP filed a lawsuit challenging HB 174, the house bill eventually signed into law as 
Act 2016–18, as a violation under the Voting Rights Act, the conventional Equal Protection 
Doctrine, and the political process doctrine.99 Though the complaint identifies Marnika 
Lewis, a 23-year-old Black woman, as a named plaintiff,100 the complaint largely frames 
the legal claims of the Birmingham citizens harmed by the law preempting Birmingham’s 
minimum wage ordinance along the single axis of race-based discrimination.101 

Among other things, the complaint identified Act 2016–18 as inextricably linked 
to Alabama’s 1901 Constitution, which concentrated power at the State level for the 
express purpose of denying predominantly Black communities local control over their 
communities.102 The complaint posits that Alabama’s preemption of the Birmingham 
ordinance “deliberately burdened the ability of Plaintiffs to effectuate meaningful change 
aimed at eliminating the vestiges of de jure race discrimination.”103 The complaint identifies 
significant disparities in unemployment rates among racial groups, significant disparities 
in levels of income and wealth, home ownership, educational attainment, and in poverty 
rates as vestiges of de jure discrimination.104 The complaint goes on to argue that due to 
the dearth of Black state-wide elected officials and racialized political gerrymandering, 
Black communities have no effective representation at the state level and thus no political 
recourse to address these vestiges of de jure discrimination at the state-wide level.105 The 
District Court judge granted the defendant’s motion to dismiss and the NAACP appealed 
to the Eleventh Circuit.106

An amicus brief submitted by the Partnership for Working Families and the Southern 

99  Id.

100 See Complaint at 4–5, Lewis v. Bentley, (No. 16-00690) 2016 WL 1720457 (Apr. 28, 2016). The second 
named plaintiff, Antoin Adams, is a 23-year-old Black man. Id.

101 Id. at 3 (arguing that “[t]he enactment of HB 174 (a sweeping statute nullifying Birmingham’s minimum 
wage ordinance and pre-empting any local regulation of matters touching upon private sector employment) is 
the most recent chapter in a long history of the Alabama State Legislature discriminating against predominantly 
African-American communities”).

102 Id. at 3–4, 14.

103 Id. at 15–16.

104 Id.

105 Id. at 16.

106 Lewis v. Bentley, 2017 WL 432464 (N.D.Ala. Feb. 1, 2017).



Columbia Journal of Gender and law 5537.1

Poverty Law Center in support of the NAACP’s position does acknowledge the even steeper 
wage discrepancies between Black women and white men in Alabama. 107 However, the 
main thrust of the amicus argument closely parallels the NAACP’s framing of the invalidity 
of Act as race discrimination, separate from any kind of gender-based discrimination.108 

Demographic data on the racial makeup of Birmingham and the communities therein 
shows that most of the people relying on low-wage jobs are people of color.109 This 
demographic data supports the NAACP’s claim that Act 2016–28 effectuates a disparate 
impact on low-income communities of color and specifically highlights a significant 
negative impact on Black Americans.110 Empirical data also shows that racial minorities 
make up a larger portion of the population of the cities that are the recent sites of these 
preemption measures.111 Though the state representative who introduced Act 2016–18 
lives in an area of Alabama that is ninety-seven percent white and one of the wealthiest 
communities in the country, Birmingham is seventy-three percent Black and thirty percent 
of its residents live in poverty.112

However, as the next section discusses, a closer look of how intrastate minimum wage 
preemption impacts sub-groups within larger racial minority groups demonstrates how these 
kinds of preemptive measures arguably amount to race- and gender-based discrimination. 
Indeed, the empirical data suggests that intrastate minimum wage preemption has the most 
significantly negative impact on women of color. 

2. Intrastate Minimum Wage Preemption Causes 
Multidimensional Harm

Notwithstanding the substantial racial wage gap identified by petitioners in Lewis v. 
Bentley, when one examines the impact Act 2016–18 has on multiple axes of identity, 
empirical data suggests that Black women and women of color are especially burdened 

107 Brief for The Partnership for Working Families & The Southern Poverty Law Center as Amici Curiae 
Supporting Appellants at 2–3, Lewis v. Bentley, No. 17-11009 (11th Cir. Mar. 3, 2017).

108 Id. at 10–11.

109 Id. at 9.

110 See id. at 9 fig.3 (reflecting higher wages for white employees in the Alabama food and service 
accommodation sector as comparted the hourly wage for Black workers).

111 Complaint at 2, supra note 100.

112 See Wilpert, supra note 67.



Columbia Journal of Gender and law56 37.1

by intrastate preemption of higher minimum wage. Gender alone seems to correlate 
with employment in the low-wage workforce in a significant way.113 Due to employment 
discrimination and the gendered allocation of caregiving responsibilities, among myriad 
other factors, women are over-represented in low-wage jobs and are at greater risk of 
poverty than men throughout their lives.114 Women make up two-thirds of minimum 
wage workers and workers in tipped occupations, and the majority of women in the low-
wage workforce contribute the sole source of income to their households.115 A significant 
number of women working for minimum wage also support children under the age of 
eighteen.116 To the extent intrastate minimum wage preemption lowers the income of low-
wage workers in states like Alabama and Missouri, the statistics outlined above suggest 
that those measures have a disproportionate impact on women.117 Yet, just as looking at the 
relationship between race and participation in the low-wage work force cannot accurately 
depict the reality, neither does a single-axis analysis focusing on gender.

A multidimensional examination of the way race and gender identity correlate with 
employment in the low-wage workforce distill women of color as the most dependent on 
minimum wage jobs and the group that stands to lose the most when states preempt localities 
from enacting a minimum wage above the low floor set by the federal government.118 Among 

113 See rolf, supra note 84, at 26, 73, 174–75 (observing gendered disparities in populations employed 
in part-time work and domestic work in addition to minimum-wage work and a gendered disparity in access 
“formal job protection” more generally).

114 See Policy & Economic Security, national women’s law Center, https://nwlc.org/issue/poverty-
economic-security/ [https://perma.cc/WCW8-9SRU].

115 See Kayla Patrick, Low-Wage Workers Are Women: Three Truths and a Few Misconceptions, national 
women’s law Center, https://nwlc.org/blog/low-wage-workers-are-women-three-truths-and-a-few-
misconceptions [https://perma.cc/48MB-Z7BM].

116 Id.

117 rolf, supra note 84, at 175 (“[T]he decline in the minimum wage’s relative value has contributed to 
the increased inequality in wages over the past few decades, particularly among low-wage women, whose pay 
tends to be more closely tied to the minimum wage than low-wage men’s pay.”).

118 See Center for Intersectionality and African American Policy Forum, Did You Know? The Plight of 
Black Girls and Women in America, https://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/54
22de0ee4b080d53cf82554/1411571214756/Did-You-Know_Plight-of-Black-Women.pdf [https://perma.cc/
S894-HTRR] (“Single black women have the lowest net worth among all racial and gender groups, only $100 
compared to $7,900 for single Black men, $41,500 for single white women, and $43,800 for single white 
men.”).



Columbia Journal of Gender and law 5737.1

female minimum wage workers, women of color are disproportionately overrepresented.119 
African-American women accounted for just under 13% and Latina women, just under 
14% of all employed women in 2012, but more than 15% of women who made minimum 
wage were African-American and more than 18% were Latina.120 Black women participate 
in the labor force at higher rates than white women and also raise children as single mothers 
at higher rates than white women.121 In the specific context of Alabama, studies published 
before Alabama’s adoption of Act 2016–18, measured the racial wage gap in terms of race 
alone.122 The results evidenced that Black workers in Alabama make 74 cents on the dollar 
as compared to white workers.123 Yet when two studies looked at the racial wage gap with 
the added lens of gender, the studies found that Black women make even less, between 57 
and 60 cents on the dollar as compared to white men.124

Overrepresentation in the minimum wage workforce does seem to correlate with 
race—Black men and Latinos are slightly overrepresented in the low-wage workforce.125 
However, that men of color are not over-represented in the lowest-wage workforce and 
comprise a much smaller portion of low-wage workforces than do Black women and Latinas 
suggest that the intersection of race and gender uniquely position women of color in the 

119 See Katherine Gallagher Robbins & Julie Vogtman, Higher State Minimum Wages Promote Fair 
Pay for Women, nat’l women’s law Center (Sept. 2013), https://www.nwlc.org/sites/default/files/pdfs/
minimumwageandwagegap.pdf [https://perma.cc/GT6A-YTS2].

120 Id.

121 See Kayla Patrick, Black Women Lead Families but Still Lag behind in Jobs and Wealth, nat’l women’s 
law Center, https://nwlc.org/blog/black-women-lead-families-but-still-lag-behind-in-jobs-and-wealth/ 
[https://perma.cc/6RG8-7R2T].

122 See Jeff Rickert & Howard Wial, The State of Working Alabama, worKinG for am. inst. (2003), https://
www.doleta.gov/usworkforce/communityaudits/docs/Files%20for%20CA%20Website/AL-Statewide/AL-
Statewide-Product-Final%20WAI%20Report.pdf [https://perma.cc/PP2H-FGW7].

123 Id.

124 See Julie Anderson et al., The Status of Women in the South, inst. for women’s PoliCy researCh (2016), 
https://iwpr.org/wp-content/uploads/wpallimport/files/iwpr-export/publications/R462%20Status%20of%20
Women%20in%20the%20South.pdf [https://perma.cc/MPP4-PGBD]; Alabama Women and the Wage Gap, 
nat’l P’shiP for women & families (2015), http://www.nationalpartnership.org/research-library/workplace-
fairness/fair-pay/4-2017-al-wage-gap.pdf [https://perma.cc/XC7J-7EAE].

125 See Low-Wage Jobs Are Women’s Jobs: The Overrepresentation of Women in Low-Wage Work, nat’l 
women’s law Ctr., https://nwlc.org/resources/low-wage-jobs-are-womens-jobs-the-overrepresentation-of-
women-in-low-wage-work/ [https://perma.cc/CVX7-6FGA].



Columbia Journal of Gender and law58 37.1

American economic hierarchy.126 Identifying the ways in which the multiple axes of a low-
wage worker’s identity might contribute to the obstacles and discrimination they face in 
earning a living helps to shine a light on the consequential impact those identifiers have in 
the context of labor regulation—a topic that is often only addressed in using the seemingly 
neutral lens of class or economics.127 Furthermore, accounting for and acknowledging the 
intersectional identities of women of color in evaluating the effects of the current onslaught 
of minimum wage preemption more fully reveals the starkness of the disparate burden such 
legislative enactments effectuate.128 

Unfortunately, as the next section discusses, a second kind of “intersection”—that 
of the trajectory of the Supreme Court’s recent political process jurisprudence and the 
increasingly pervasive political strategy of intrastate preemption—threatens to render this 
disproportionate burden wholly beyond the reach of antidiscrimination and equality law. 

B. Equal Protection Jurisprudence and Minimum Wage Preemption as a 
Second Intersection of Consequence for Women of Color 

The Supreme Court’s decision in Schuette to call into question the political process 
doctrine warrants additional concern when considered in the context of both the recent 
anticlassification trajectory of the Fourteenth Amendment129 and in light of the federalism 
debate around the proper balance between state and local power.130 Much discussion of 
the potential impermissibility of intrastate minimum wage preemption has arisen in the 
context of whether such preemption might contravene a particulate state’s constitutional 

126 Id.

127 rolf, supra note 84, at 195 (describing the public debate around minimum wage over the last hundred 
years as one concerned with the effect of increases on businesses and “economic growth”).

128 Id. at 175 (“The overrepresentation of women and people of color in low-wage industries means they 
benefit disproportionately from minimum-wage increases (and also explains much of the gender and race 
pay gap).”). Rolf’s observation regarding the relationship between race and gender and benefits derived from 
minimum-wage increases suggests that any preemption or decrease in the minimum wage disproportionately 
harms women and people of color.

129 See, e.g., Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional 
Struggles Over Brown, 117 harv. l. rev. 1470, 1473 (2005) (“Scholars debate what our constitutional 
understanding of equality ought to be, but most would agree that American equal protection law has expressed 
anticlassification, rather than antisubordination, commitments as it has developed over the past half-century.”).

130 See infra Section I.A.1.



Columbia Journal of Gender and law 5937.1

provisions regarding the proper delegation of decision-making power to localities.131 
However, the current trend of intrastate preemption also raises federal constitutional and 
statutory concerns in the equal protection context. There are two related theories that 
might support equal protection challenges to state statutes that preempt local laws: that 
these preemptive measures amount to impermissible intentional discrimination and that 
the measures constitute impermissible political restructuring under the political process 
doctrine.132

1. Conventional Equal Protection Doctrine as Unamenable to 
Intersectional Discrimination

Over a number of decades, the Supreme Court has embraced an anticlassification, rather 
than antisubordination view of the underlying purposes of the Fourteenth Amendment and, 
in doing so, significantly narrowed the breadth and strength of possible antidiscrimination 
remedial efforts.133 Under conventional equal protection jurisprudence, a court reviews 
challenges to statutes and legal enactments that intentionally discriminated against a 
protected class, like race or gender, under heightened scrutiny.134 Under heightened 
scrutiny the State must provide a justification for the legislation that furthers an important 
government interest.135 It is well-settled that the Equal Protection Clause dictates that to 
receive heightened scrutiny, it is not enough for plaintiffs to show that the challenged 
action creates a “disparate impact” on a suspect class. 136 Rather, the challenged action 

131 Some state constitutions and statutes contain “home rule” provisions that delegate presumptive power 
to local governments on a number of matters understood to require the discretion of those with close ties 
and connections to a particular city. See Paul A. Diller, The City and the Private Right of Action, 64 stan. l. 
rev. 1109, 1110 (2012); see also Briffault et al., The Troubling Turn in State Preemption, supra note 12, at 4 
(discussing potential legal challenges to intrastate preemption in states with home rule provisions).

132 See Briffault et al., The Troubling Turn in State Preemption, supra note 12, at 13.

133 See Dale Larson, Antidiscrimination Law in the Workplace: Moving Beyond the Impasse, 9 u. md. 
l.J. raCe reliG. Gender & Class 303, 306–10 (2009) (describing a broadening chasm between available 
antidiscrimination law remedies and the reality of how discrimination occurs in the workplace from World War 
II to present).

134 Id. at 13–14 (providing an overview of the burden-shifting litigation framework under a conventional 
equal protection claim).

135 Id.

136 See Wash. v. Davis, 426 U.S. 229, 239 (1976) (remarking that “our cases have not embraced the 
proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose 
is unconstitutional solely because it has a racially disproportionate impact”).



Columbia Journal of Gender and law60 37.1

must either include a facial classification or must be motivated by discriminatory intent.137 
In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Supreme 
Court recognized that a facially neutral law that is motivated by discrimination violates 
the Equal Protection Clause of the Fourteenth Amendment.138 However, the multi-factor 
balancing test announced by the Court in Arlington Heights maintains a requirement of 
some demonstration of discriminatory intent.139 Given the clarity of the jurisprudence 
with regard to facial discrimination, it seems unlikely that states will draft preemption 
legislation based on facial classifications that would implicate heightened scrutiny.140 
Similarly, the intent requirement under the conventional equal protection doctrine sets 
such a high evidentiary bar for plaintiffs141 that it allows for racial discrimination to adapt 
to and thus evade legal accountability.142 This typically limits inquiry into discrimination 
to a single-axis of identity,143 and antidiscrimination law has developed in such a way that 
it largely fails to provide accessible or effective avenues of legal recourse for race and 
gender-based discrimination as it is specifically experienced by women of color.144 Before 

137 Id.

138 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).

139 In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Supreme Court applied 
a fact-intensive, multi-factored intent test to analyze a facially neutral law. Id. at 265–66. The Court identified 
the following factors as relevant to establishing the existence of a discriminatory purpose: 1) the historical 
background of the decision, particularly if it reveals a series of official actions taken for invidious purposes; 2) 
the specific sequence of events leading up to the challenged decision; 3) departures from the normal procedural 
sequence; 4) substantive departures, particularly if the factors usually considered important by the decision 
maker strongly favor a decision contrary to the one reached; and 5) the legislative or administrative history 
underlying the decision, especially where there are contemporary statements by members of the decision-
making body, minutes of its meetings, or reports. Id. at 267–68.

140 See Briffault et al., The Troubling Turn in State Preemption, supra note 12, at 14 n.70; Reed, Pro-
Business or Anti-Gay?, supra note 26, at 160.

141 See, e.g., Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious 
Racism, 39 stan. l. rev. 317 (1987) (explaining and critiquing the intent requirement in equal protection law).

142 See Elise Boddie, Adaptive Discrimination, 94 n.C. l. rev. 1235, 1239 (2016) (arguing that racial 
discrimination “adapts to the legal and social environment by mutating to evade prohibitions against intentional 
discrimination”).

143 See Crenshaw, Demarginalizing the Intersection of Race and Sex, supra note 93.

144 See Kimberlé Crenshaw, Why Intersectionality Can’t Wait, washinGton Post (Sept. 24, 2015), https://
www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/ [https://perma.
cc/33JA-2PAB] (highlighting the continued erasure of Black women and women of color in the ongoing fight 
for racial justice); Lauren Sudeall Lucas, Here’s Why Equal Protection May Not Protect Everyone Equally, 
washinGton Post (Sept. 23, 2015), https://www.washingtonpost.com/news/in-theory/wp/2015/09/23/



Columbia Journal of Gender and law 6137.1

Schuette, the political process rationale and doctrine may have presented a creative avenue 
to challenge laws with disproportionate effects on women of color. The next subsection 
discusses the specific obstacles the Schuette plurality creates for political process claims 
seeking to remediate intersectional harms. 

2. The Intersectional Problem with Schuette and the Political 
Process

How the Supreme Court further articulates the new test for impermissible political 
restructuring in the context of the trend of intrastate minimum wage preemption constitutes 
a second consequential “intersection” that threatens to push the unique burdens experienced 
by women of color further beyond the realm of legal remedy. Given the anticlassification 
turn of antidiscrimination law, the future of the political process doctrine takes on additional 
significance. As Justice Sotomayor made clear in her dissent from the plurality decision 
in Schuette: “without checks, democratically approved legislation can oppress minority 
groups.”145

Indeed, prior to Schuette, a court might apply the political process doctrine to identify 
laws that shift decision-making power away from localities that have majority minority 
populations to a white-dominated state legislature, as a law that violated the equal protection 
clause on the basis that it substantially burdened a minority group.146 However, if the 
Schuette plurality truly “rewrote” and effectively overturned the rationale that political 
restructuring can violate the Equal Protection Clause of the Fourteenth Amendment when 
it makes it more difficult for minorities to enact legislation that addresses racial issues,147 
Justice Sotomayor’s concerns about “majority rule without constitutional limits” become 
even more dire for women of color.148 Given how “racial issues” like minimum wage might 
more accurately be described as intersectional issues, such an interpretation of the Schuette 
test will push the unique burdens experienced by women of color beyond the realm of legal 
remedy and effectively codify their status as second-class citizens.

heres-why-equal-protection-may-not-protect-everyone-equally/ [https://perma.cc/UL6N-ZQGZ] (providing 
examples of how the continued “categorical” natural of equality law erases women with multiple, intersecting 
minority identities).

145 Schuette, 134 S. Ct. at 1651 (Sotomayor, J., dissenting).

146 See Recent Legislation, supra note 26, at 600. 

147 See Equal Protection Clause–Political-Process Doctrine, supra note 25, at 290.

148 Schuette, 134 S. Ct. at 1654 (Sotomayor, J., dissenting).



Columbia Journal of Gender and law62 37.1

III. Schuette’s Test as an Opportunity to Correct Intersectional Erasure

Though some commentators have interpreted the Schuette plurality as the end of the 
political process doctrine,149 the intersection of the current events involving intrastate 
minimum wage preemption and the Court’s reconsideration of the political process 
doctrine might also provide a doctrinal opening to move equality law in the direction 
of increased inclusivity of intersectional harm. The new test’s ambiguity around how to 
identify impermissible political restructuring arguably creates an opening for the Court to 
acknowledge and incorporate a multidimensional account of discrimination into its equality 
jurisprudence. As opportunities to clarify the new test laid out by the plurality opinion 
in Schuette present themselves, the Court should consider how challenged legislative 
enactments might impact those with intersectional identities. 

Section III.A. identifies a number of ambiguities in the Supreme Court’s articulation 
of the new test for identifying impermissible political restructuring and examines possible 
interpretations of the test in future political process cases. Section III.B. argues that the 
Court, in further developing the new trajectory of the political process doctrine, should 
acknowledge and consider a disparate impact on women of color as weighing against the 
constitutional validity of a challenged political restructuring. 

A. Potential Doctrinal Openings under the Schuette Test 

The Schuette plurality held that a political restructuring may violate the Fourteenth 
Amendment when newly enacted legislation or “state action in question . . . ha[s] the serious 
risk, if not purpose of causing specific injuries on account of race.”150 As a threshold matter, 
the new test announced in Schuette brings with it a number of potentially consequential 
ambiguities.151 The fractured nature of the Court’s decision also highlights significant 

149 See Recent Legislation, supra note 26, at 606 (“Given (1) this cabining [of Seattle], (2) the minimal 
amount of political process case law, and (3) the absence of a majority in Schuette, the current scope of the 
political process doctrine is unclear.”); Lewis v. Bentley, No. 2:16-CV-690-RDP, 2017 WL 432464, at *13 
(N.D. Ala. Feb. 1, 2017) (questioning the “so-called” political process doctrine).

150 Schuette, 134 S. Ct. at 1633; Recent Legislation, supra note 26, at 281.

151 Equal Protection Clause—Political-Process Doctrine, supra note 25, at 290 (noting that without 
further direction from the Court, the “on account of race” standard appears to require a similar kind of racial 
interrogation the plurality suggested should be avoided in these cases); see Sanders, supra note 18, at 1434 
(“Schuette’s lack of majority opinion, the plurality’s failure to expressly confront the Hunter / Seattle doctrine 
on which the Sixth Circuit had relied, and the unwillingness of any of the Justices to candidly confront what 
role voters’ racial attitudes might have played in the adoption of Proposal 2 all make the case an uneasy fit with 



Columbia Journal of Gender and law 6337.1

substantive disagreements between the justices over the future of the doctrine.152 The 
phrases “serious risk” and “on account of race” leave much room for further interpretation 
by the Court.153 Furthermore, on its face, the plain language of the Schuette test seems to 
be in tension with previously well-settled law regarding the insufficiency of a disparate 
impact alone in supporting a finding of an equal protection violation.154 This tension, in 
addition to the changes in the Court’s composition since the Schuette decision,155 renders 
the future trajectory of the political process doctrine under the new test an uncertain one. 

One possible elaboration of the new test might simply import the conventional equal 
protection rule regarding disparate impact into the new one. Like Washington v. Davis, 
under this interpretation a demonstration that a political restructuring did or would result 
in a disparate impact on women of color would not suffice to make out a political process 
violation.156 Further developing the Schuette test in this fashion would ease the current 
tension between the Schuette test and conventional equal protection jurisprudence, and make 
the recognition of intersectional harm more difficult in the context of intrastate minimum 
wage preemption. The argument stands that the Court could, and should, reasonably think 
about disparate impact on women of color, or intersectional disparate impact, as inherently 
different from the single-axis impact at issue for the Court in a Washington v. Davis and 

the precedents that came before it.”).

152 Justice Kennedy authored a plurality opinion joined by Chief Justice Roberts and Justice Alito. Schuette, 
134 S. Ct. at 1623. Justice Kagan took no part in the decision. Id. at 1638. Justice Breyer wrote a concurrence 
for himself and Justice Scalia wrote a concurrence for himself and Justice Thomas. Id. at 1639. Justice Scalia 
would have overruled Hunter and Seattle and rejected the political process doctrine entirely. Id. at 1643. Finally, 
Justice Sotomayor wrote a dissent joined by Justice Ginsburg.

153 Schuette, 134 S. Ct. at 1633.

154 Wash. v. Davis, 426 U.S. 229, 239 (1976) (holding that “a law or other official act, without regard to 
whether it reflects a racially discriminatory purpose, [is not] unconstitutional solely because it has a racially 
disproportionate impact”); see also supra note 136 and accompanying text.

155 The Senate confirmed Justice Neil Gorsuch in April 2017 to fill the seat on the Supreme Court left vacant 
by the death of Justice Antonin Scalia. See Simon van Zuylen-Wood, Little Scalia: Watching Neil Gorsuch, 
a Mild-mannered Good Boy from Denver, Become the Second-most-polarizing Man in Washington, n.y. 
maGazine (May 28, 2018), http://nymag.com/daily/intelligencer/2018/05/how-gorsuch-became-the-second-
most-polarizing-man-in-d-c.html [https://perma.cc/36H3-PJXS] (detailing Justice Gorsuch’s similarities to 
Justice Scalia and describing Justice Gorsuch as “the third-most-“Scalian” of the [Trump’s] nominees, based 
on everything from his originalist jurisprudence to his penchant for dashing off solo opinions”).

156 See Wash. v. Davis, 426 U.S. at 239.



Columbia Journal of Gender and law64 37.1

Massachusetts v. Feeney.157 That a challenged piece of legislation simultaneously harms 
two, overlapping protected classes might provide a stronger indicator, especially under the 
Schuette test’s concern with “risk” of racial harm, to find that a departure from the norms 
of the political process cannot be sustained under the Constitution. However, the Court has 
not found this particular argument persuasive.

Some aspects of the Schuette decision suggest, however, that even though directly 
importing the conventional equal protection standard may present the most streamlined 
path of further developing the Schuette test, the Court intended to leave the political 
process rationale in place, as a discrete, albeit newly refined, doctrine. One such aspect 
is the Court’s use of the language: “serious risk, if not purpose of injury on account of 
race.”158 On its face the Schuette test explicitly accounts for capturing intentionally 
discriminatory political restructuring with the “purpose” element of the test. Extending the 
test to capture political restructuring which threatens a “serious risk” of harm in addition 
to that with a “purpose” to harm then suggests a broader class of impermissible political 
restructuring than would a pure intent standard.159 Indeed, if the Court wanted to maintain 
a consistent, pure intent standard, it could have expressly overruled the political process 
cases in Schuette, leaving in place the Arlington Heights precedent as the solitary doctrinal 
tool to identify and capture intentional discrimination.160

Another possible future interpretation of the Schuette test might track the structure 
of the Arlington Heights multi-factor inquiry into circumstantial evidence.161 Under 
this iteration of the Schuette test, the presence of a number of factors that constitute 
circumstantial evidence might be sufficient, absent discriminatory intent, for the Court to 
find a “serious risk” or “purpose of causing specific injuries on account of race.” The Court 
might draw from the previous political process cases to identify factors like a state history 
of explicit discrimination and ongoing division in the political process162, the singling out 

157 In Wash. v. Davis, based on a disparate impact on black applicants, plaintiffs brought a single-axis race-
based challenge to the Washington D.C. Police Department’s use of a formal test in their hiring practices. 436 
U.S. 229 (1976). Feeney involved a single-axis gender-based challenge to a state law giving a hiring preference 
to Veterans over non-Veterans. Feeney, 442 U.S.

158 Schuette, 134 S. Ct. at 1633.

159 Id.

160 See supra note 139 for discussion of the Arlington Heights factors.

161 Id.

162 The discriminatory history behind Alabama’s state constitution might weigh against a political 



Columbia Journal of Gender and law 6537.1

of municipalities with atypically large minority populations as compared to the rest of 
the state, procedural anomalies in enacting preemptive legislation,163 and a single-axis 
or intersectional disparate impact on protected classes as factors weighing against the 
permissibility of an instance of political restructuring. 

B. A Disparate Impact on Women of Color Should Warrant Significant 
Concern under the New Schuette Test 

As discussed above, when states enact preemptive legislation in response to local 
efforts to raise minimum wage, like Act 2016–18, those measures disproportionately harm 
and burden Black women and women of color.164 The reality of gendered allocation of 
caregiving responsibilities and higher rates of poverty and single income households for 
women of color165 further transform this disparate burden on women of color into a harm 
against their entire communities. If the Court refuses to recognize laws such as these that 
have a disproportionate effect on women of color as indicative of impermissible racial 
discrimination, it will perpetuate the theoretical erasure of the lived experiences of women 
of color, and in doing so, further perpetuate gendered and race-based subordination.166 

If the Court does further interpret the Schuette test as including a pure intent standard 
that implicates Washington v. Davis, the future of the NAACP’s challenge to Act 2016–18 
seems inevitably bleak. Similarly, for arguments challenging intrastate minimum wage 
preemption based on an intersectional disparate impact an interpretation of Schuette that 
imports the Court’s conventional equal protection approach to disparate impact would be a 
likely insurmountable obstacle to success. The various ambiguities in the new test discussed 
above do offer an alternative trajectory for the Court, and the relative unlikelihood that 
the Court will vindicate intersectional interests on its own accord makes it all the more 

restructuring in the presence of other circumstantial evidence under this kind of test. See supra note 101 and 
accompanying text.

163 See supra notes 81–83 and accompanying text discussing the uncharacteristic speed with which Act 
2016–18 passed through the Alabama state legislature.

164 See infra Section II (discussing the racial and intersectional wage gap in Alabama).

165 See supra notes 122, 126 and accompanying text.

166 Professors Angela Harris and Zeus Leonardo emphasized the insufficiency of equality reforms that 
fail to explicitly acknowledge what they call “race-gender subordination” point in the educational context: 
“[To] speak to the multiplicity of subordination cannot be accomplished absent a clear attempt to explain and 
alleviate the challenges experienced by Black women and other marginalized groups.”). Angela Harris & Zeus 
Leonardo, Intersectionality, Race-Gender Subordination, and Education, 42 rev. res. in eduC. 1, 18 (2018).



Columbia Journal of Gender and law66 37.1

necessary to make the Court’s opportunity to do so known here. In so far as the Court 
begins to more clearly articulate the Schuette test in future cases, the Court should consider 
the high stakes of constructing the standard with regard to only one axis of identity—the 
erasure of disproportionate harms caused to and burdens shouldered by women of color. 

Yet the Court might conscientiously articulate the standards required by the Schuette 
test, and also avoid the further erasure of intersection identities. With regard to the 
evidentiary burden and relevant standards under the Schuette test for detecting impermissible 
political restructuring, the Court should take into account intersectional harms enacted on 
intersectional subsets of a minority community when it considers whether a law causes a 
“serious risk of injury on account of race.”167 More specifically, when political restructuring 
is challenged as a violation of the political process, the Court should find that a disparate 
impact on women of color is a factor weighing in toward the “serious risk of causing harm 
of account of race,” if not probative of discriminatory intent.168 An application of these 
inclusive standards might provide an avenue for local communities to seek redress where 
citizens work to enact legislation that addresses obstacles that disproportionately affect 
women of color.169 Given the racial polarization of cities and rural areas in many states,170 the 
demographic concentration of people of color in these areas,171 and the reality that women 
make up the vast majority of low-wage workers and are disproportionately burdened with 
caretaking responsibilities,172 an interpretation of Schuette test which does not recognize 
and redress intersectional harm will render some of America’s most politically powerless 
citizens without any legal avenues of self-governance and self-determination.

Whether the Supreme Court, in light of the addition of a new conservative justice 
in the time since the Schuette decision, will reach the same conclusions regarding the 
ambiguities in the Schuette test as has this Note, is both debatable and unlikely. That said, 
given the multiple justifications available to the Court for incorporating a recognition 
of intersectional harm into the Schuette test, a future finding that a disparate impact on 

167 Schuette, 134 S. Ct. at 1633.

168 Id.

169 See infra Section II (identifying the intersectional harm caused by intrastate minimum wage preemption).

170 See David A. Graham, Red State, Blue City, the atlantiC (Mar. 2017), https://www.theatlantic.com/
magazine/archive/2017/03/red-state-blue-city/513857/ [https://perma.cc/4XT9-A6FY].

171 See Complaint at 2, Lewis v. Bentley, (No. 16-00690) 2016 WL 1720457 (Apr. 28, 2016).

172 See Katherine Gallagher Robbins & Julie Vogtman, Higher State Minimum Wages Promote Fair Pay for 
Women, supra note 119 (noting disparate rates in single-parent responsibilities for Black women).



Columbia Journal of Gender and law 6737.1

women of color creates a serious risk of harm on account of race is not entirely beyond 
the realm of possibility. In so far as the Court has a goal of protecting the equal rights and 
opportunities of even the most marginalized Americans to participate meaningfully in the 
political process to vindicate their interests, the Court should affirmatively incorporate 
intersectional harm into its political process analysis in future cases.

CONCLUSION

As a result of the many ambiguities stemming from the plurality opinion in Schuette 
v. BAMN, open questions about the future of the political process doctrine abound. Indeed, 
excavating the various possible iteration of the new standards under Schuette test provides 
little more comfort for progressively-minded advocates than the murky predictions of 
a magic eight ball. What remains certain, however, is that a reality in which the Court 
continues to ignore intersectional harm is a reality without true equality and freedom for 
all Americans. 

If the NAACP’s appeal challenging Act 2016–18 in the Eleventh Circuit provides any 
indication, the Court may need to consider intrastate minimum wage preemption in the 
context of the political process doctrine in the near future. Though much of the discussion 
of intrastate minimum wage preemption identifies one-dimensional concerns related to 
economics, federalism, and even racial discrimination, any single-axis or one-dimensional 
account of intrastate minimum wage preemption obscures a fundamental aspect of the 
impact of the phenomenon. An intersectional analysis of intrastate minimum wage 
preemption reveals that such preemptive measures can especially burden Black women 
and women of color when they limit progressive change. As the Court considers whether 
measures like those taken by the majority-white state legislature of Alabama single out a 
majority-minority municipality and strip it of political decision-making power over issues 
of particular importance to minority communities, the Court should apply an intersectional 
analysis in order to fully recognize the many forms racial and gendered discrimination 
prohibited by the Equal Protection Clause of the Fourteenth Amendment can and do take.