Davis

dissenting from the denial of rehearing en banc:

The panel’s opinion holds that Proposition 227 on its face does not violate the Equal Protection Clause of the Fourteenth Amendment. In addition to reaching an incorrect legal conclusion, the decision has the effect of drumming out of existence a clearly articulated mode of equal protection analysis. The Supreme Court formulated and applied a “political structure” equal protection analysis in Hunter v. Erickson, 393 U.S. 385 , 89 S.Ct. 557 , 21 L.Ed.2d 616 (1969), and Washington v. *1016 Seattle School District No. 1, 458 U.S. 457 , 102 S.Ct. 3187 , 73 L.Ed.2d 896 (1982), rather than a “conventional” equal protection analysis. While a conventional equal protection analysis looks to a suspect classification and intentional discrimination, or a classification implicating a fundamental right, political structure equal protection analysis concerns a restructuring of the political process with a racial focus. Compare Seattle, 458 U.S. 457 , 102 S.Ct. 3187 , 73 L.Ed.2d 896 (1982), and Hunter, 393 U.S. 385 , 89 S.Ct. 557 , 21 L.Ed.2d 616 (1969), with Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 , 97 S.Ct. 555 , 50…

Order; Dissent by Judge PREGERSON.

ORDER

The panel has voted to deny the petition for panel rehearing. Judge Tashima votes to deny the petition for rehearing en banc and Judges Hug and Sedwick so recommend.

The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing, but a majority of the nonrecused, active judges failed to vote in favor of rehearing en banc. **

The petition for panel rehearing and the petition for rehearing en banc are denied.

Judge Reinhardt was recused.