Direct democracy measures at the state level have been disproportionately successful when they restrict minority rights. The use of direct democracy for such purposes contravenes the structure, history, and philosophical underpinnings of our Constitution. Moreover, it poses structural and practical problems in civil rights litigation under the Supreme Court’s intent-based Equal Protection jurisprudence. This Note argues that to ensure that voter might does not define minority rights at the state level, the Supreme Court should adopt a categorical rule under Washington v. Davis and Village of Arlington Heights that obviates plaintiffs’ need to show an intent to discriminate when the policymaking body is the entire voting population of a state.

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