Preemption, federalism, and local democracy.

• Author: Stahl, Kenneth A.

Introduction 133 I. The Context of the Preemption Battle 136 A. Republican States and Democratic Cities 136 B. Preemption and the Urban/Rural Rivalry 143 II. How the Deepening Rural/Urban Conflict Threatens Our Democracy 147 A. Madisonian Democracy 147 B. The Hardening of Partisan Affiliations 148 C. The Zero-Sum Political Economy of Globalization 150 D. The Cultural Costs of Globalization 156 E. Fight over the Franchise 159 F. Reasons for Optimism 161 III. The Failed Promise of Intrastate Federalism 163 A. Federalism and Madisonian Democracy 163 B. Intrastate Federalism 165 1. Legislative Districting 166 2. Local Government and Home Rule 168 C. Intrastate Federalism's Failure 170 D. Reviving Intrastate Federalism 174 Conclusion 177 INTRODUCTION

Throughout the United States, city residents are coming to the uncomfortable realization that they have no right to local democracy. In just the past few years, state legislatures have blocked local governments from enacting all kinds of legislation, including ordinances dealing with smoking, hydraulic fracturing, the minimum wage, gun control, nutrition, civil rights, immigration, plastic bags, and more. (1) The sheer volume of local enactments being "preempted" by state legislation has reached nearly epidemic proportions. One watchdog organization reported that 2015 was the most popular year for preemption in American history, with twenty-nine states considering comprehensive bills to preempt all manner of local legislation. (2)

Though it is hardly unprecedented for states to preempt local regulations, the breadth and ambition of the recent preemption efforts have rarely been seen in American history. These efforts are the result of a profound political realignment within many states that is reverberating throughout our democratic system, and undermining many assumptions about the nature of our democracy. This Article uses the lens of preemption to examine the broader political trends it exemplifies and gauge the capacity of our democratic institutions to withstand them. Part I explains that preemption has become more prevalent because cities are now overwhelmingly Democratic while state legislatures, dominated by representatives of rural areas, are overwhelmingly Republican. The vertical relationship between cities and states is now an outlet for a partisan conflict between rural and urban areas. Part 11 describes how the nearly perfect alignment of geographic divisions with partisan affiliations has elevated the stakes of political conflict between cities and states, and raised important questions about the future of liberal democracy. The "Madisonian" vision of a democratic society characterized by ever-shifting coalitions has been threatened as heightened partisanship, geographic segregation, and the cultural and economic impacts of globalization have hardened the division between urban Democrats and rural Republicans into a perhaps permanent zero-sum conflict. Preemption is one front in this conflict, as rural Republicans seek to negate the cultural and economic gains they see urban Democrats making at their expense.

Part III looks to federalism as a possible means of mediating the conflict between urban and rural areas. Federalism has long been a tool for accommodating the competing claims of different groups within the framework of the nation-state. Though state constitutions lack the robust federal structure of our national Constitution, conferring upon sub-state groups few of the rights that the national Constitution grants states, most states nevertheless provide some recognition for group rights through a de facto sort of intrastate federalism. The widespread practice of electing legislators from single-member geographic districts provides some representation for groups at the state level, while municipal home rule grants groups some autonomy at the local level. However, intrastate federalism has always been weak because courts are wary of recognizing the rights and interests of sub-state groups. As a result, courts have freely allowed states to dilute the influence of political minorities through gerrymandering, and to quash local autonomy by preempting local legislation despite the supposed protections of home rule. (3) The current rash of preemption follows directly from the weakness of intrastate federalism. Although I conclude that stronger intrastate federalism is necessary in an age of deepening urban/rural conflict, I also doubt that we can count on the judiciary to save us from this predicament. Ultimately, it is up to the citizenry to decide how much it values local democracy.

As a case study of the preemption phenomenon and the broader political context it embodies, this Article examines one recent preemption effort that has drawn substantial media attention and become a matter of national controversy--North Carolina's "bathroom bill." The North Carolina legislature convened a special session of the state legislature specifically to preempt an ordinance enacted by the city of Charlotte, scheduled to go into effect within a few days, that would have provided certain anti-discrimination protections to gays, lesbians, and transgender individuals, including the freedom to use the bathroom of one's identified gender. (4) The legislature ultimately passed House Bill 2 ("HB2"), a sweeping piece of legislation that not only preempted the Charlotte ordinance, but prohibited all North Carolina municipalities from enacting any law dealing with wages and hours, employment discrimination, public accommodations, or municipal contracts. (5) Under pressure from business interests including the National Collegiate Athletic Association, the state recently repealed part of HB2 but left in place the prohibition on local anti-discrimination ordinances. (6)

The bathroom bill presents an interesting example of the political trends examined here. North Carolina is a state poised between a largely

agrarian past and an increasingly urban future, and today is evenly balanced between Republicans and Democrats. (7) As its cities grow and its population of left-leaning Democrats expands, however, rural Republicans have tightened their grip on the state legislature and increasingly embarked on an anti-urban legislative agenda. (8) The bathroom bill is one illustration of the conflict between an emerging urban Democratic alliance that sees diversity as vital to a globally networked future, and an aging rural power structure that is fighting tooth and nail to preserve traditional morality and prevent the state's seemingly inevitable urbanization. As such, North Carolina highlights many of the points of political division that will likely dominate the near future.

1. THE CONTEXT OF THE PREEMPTION BATTLE

   1. Republican States and Democratic Cities

      The driving cause behind the recent preemption trend is a striking political phenomenon: cities across the nation are becoming more Democratic, while state legislatures are becoming more Republican. (9) Twenty-six of the nation's thirty largest cities have Democratic mayors. (10) Even in solidly Republican states like Texas, major cities such as Dallas, Houston, San Antonio, El Paso, and Austin are all led by Democrats." While city voters have been an important Democratic constituency for the past century, demographic trends have pushed cities to support the Democratic Party more overwhelmingly than ever before. Immigrants and young professionals in the finance and services industries have flocked to cities in recent years, causing them to become more populous, younger, ethnically diverse, and consequently, more liberal. (12) Charlotte, for example, has doubled its population in the last twenty-five years and is now among the twenty most populous municipalities in the country. (13) Young professionals, who are drawn to the nation's largest financial sector outside of New York, have bolstered its growth. (14) In addition, the Hispanic population of Charlotte has grown by almost fifteen percent since 2010 and helped make Mecklenburg County a majority-minority county. (15) Thus, the city and county have transformed from a Republican stronghold to a heavily Democratic region. (16)

      A similar pattern is evident in North Carolina's other major urban areas, including Greensboro, Fayetteville, and the Raleigh-Durham-Chapel Hill Research Triangle, which are also experiencing rapid growth fueled by immigrants and young professionals. (17) Overall, the growing populations and the changing demographics and political compositions of these cities have remade North Carolina from a predominantly rural, largely white, and conservative state to an urbanized, diverse state that is evenly divided between conservative Republicans and liberal Democrats. (18) While North Carolina may be an extreme example, a similar pattern is occurring throughout the south, as cities are becoming younger and more diverse, changing the political and demographic profiles of states in the process. (19)

      Nevertheless, in North Carolina and many other states, Republicans dominate at the state level. Republicans control both houses of the legislature in thirty-two states, and have veto-proof majorities in seventeen, including North Carolina. Democrats control both houses in only thirteen states, and have veto-proof majorities in just five. (20) Many factors have contributed to Republican dominance at the state level, but two are of particular importance. First, rural voters have overwhelmingly sided with the Republicans. As recently as the 1990s, half of all rural residents were represented by a Democratic congresspcrson. (21) Today, that number is under twenty-five percent. (22) Unlike any previous era in American history, there is now a nearly precise correlation between an area's population density (that is, how urban it is) and its political affiliation. (23) Standing alone, the polarization of urban and rural voters would not explain Republican dominance at the...