Reorienting Home Rule: Part 1?The Urban Disadvantage in National and State Lawmaking

• Author: Paul A. Diller
• Position: Professor of Law, Willamette University College of Law.
• Pages: 287-358

Reorienting Home Rule: Part 1–The Urban Disadvantage in National and State Lawmaking Paul A. Diller *† “Legislators represent people, not trees or acres.” Chief Justice Earl Warren, Reynolds v. Sims (1964) TABLE OF CONTENTS Introduction .................................................................................. 288 I. Empirical Premise: A Spatially Divided Electorate ..................... 292 II. Normative Premises: One-Person, One-Vote and Partisan Fairness ........................................................................... 298 A. One-Person, One-Vote ........................................................... 299 B. Partisan Fairness .................................................................... 304 III. The Senate and the National Urban Disadvantage ....................... 308 A. Recent Examples of the Senate’s Malapportionment Effect ....................................................... 312 B. The Relationship Between One-Person, One-Vote and Partisan Fairness .............................................................. 315 C. Counterarguments for Senate Malapportionment .................. 316 1. Minority Protection ......................................................... 317 2. Past Performance ............................................................. 317 3. Campaign Money as Ameliorative .................................. 319 4. Mobility and Voluntary Waiver ...................................... 321 Copyright 2016, by PAUL A. DILLER. * Professor of Law, Willamette University College of Law. For helpful feedback I thank Keith Cunningham-Parmeter, Nestor Davidson, Ryan Emenaker, Tim Johnson, Gene Mazo, Kathleen Morris, David Schleicher, Nick Stephanopoulos, and the participants in workshops at Chapman, Willamette, and the 2015 Law & Society Association meeting in Seattle. My gratitude extends also to Mary Rumsey and Jacqueline Leung for excellent and indispensable research assistance. † Note on citations: All election results come from the secretaries’ of states (or equivalent) offices, sometimes obtained through a gathering website like Ballotpedia. Population figures come from the U.S. Census and, unless stated otherwise, are either 2013 or 2014 estimates, depending on the year in question. 288 LOUISIANA LAW REVIEW [Vol. 77 IV. The Urban Disadvantage in the U.S. House: Partisan Bias ................................................................................. 322 A. Partisan Gerrymandering ....................................................... 326 B. Prohibition on Districts Crossing State Lines ......................... 327 C. Voter Geographical Distribution, or “Unintentional Gerrymandering” ................................................................... 331 D. Note on the President and the Electoral College ................... 334 V. The Urban Disadvantage in the States ......................................... 336 A. Partisan Bias in State Legislatures is Similar to the U.S. House ................................................................... 336 B. Governors, Other Officials Elected Statewide, and Direct Democracy ................................................................... 342 VI. Other Structural Urban Disadvantages ........................................... 345 Conclusion .................................................................................... 349 Appendix ...................................................................................... 351 INTRODUCTION The federal government is dysfunctional, largely because of Congress’s inability to pass laws that solve the problems facing the country. Numerous opinion polls rate Congress at the lowest levels in recent history. 1 A president re-elected by a solid majority in 2012 found himself immediately hobbled by Congress’s obstructionism. American voters, frustrated by federal inaction, seemingly rewarded the same obstructionists in the 2014 midterm elections. The federal government seems stuck in a cycle of despair. Although less dysfunctional than the federal government, in recent years states have swung wildly in ideological directions that sometimes diverge sharply from the median views of the state’s voters. Some states innovate and solve problems of concern to voters, to be sure, but there is also evidence that state governments do not accurately reflect the views of many states’ voters on a consistent basis. By contrast, numerous commentators praise cities, counties, and urban metropolises for taking the lead in tackling problems that the federal 1. E.g. , Rebecca Riffkin, 2014 U.S. Approval of Congress Remains Near All-Time Low , GALLUP (Dec. 15, 2014), http://www.gallup.com/poll/180113/2014-approval-congress-remains-near-time-low.aspx [https://perma.cc/9S2R-7SYT]. 2016] REORIENTING HOME RULE: PART 1 289 government and many states have fumbled: climate change, income inequality, paid sick leave, immigration reform, gay rights, public health, gun control, and others. 2 Those lauding local governments have offered many reasons for their leadership in these areas. Some commentators have cited the smaller scale of local government and its knack for “practical” problem-solving. 3 Others have highlighted the relative lack of veto points in the legislative processes of local government, which enables cities to overcome the inertia prevalent at the federal level. 4 The concentrated, left-leaning political preferences of urban voters, which can facilitate policy consensus on issues that might cause gridlock at other levels of government, undoubtedly play an important role. 5 Big cities as progressive islands in the statewide and national sea is thus a common theme in the local government literature. Inevitably, cities’ views on issues—as translated into policy—collide with the authority of state and federal actors representing a different electorate. How to resolve these disputes normatively and doctrinally receives much attention from local government scholars. 6 Most scholars accept the status quo that 2. See generally BENJAMIN R. BARBER, IF MAYORS RULED THE WORLD: DYSFUNCTIONAL NATIONS AND RISING CITIES (2013); BRUCE KATZ & JENNIFER BRADLEY, THE METROPOLITAN REVOLUTION: HOW CITIES AND METROS ARE FIXING OUR BROKEN POLITICS AND FRAGILE ECONOMY (2013); see also Thomas L. Friedman, I Want to Be a Mayor , N.Y. TIMES (July 27, 2013), http://www.nytimes .com/2013/07/28/opinion/sunday/friedman-i-want-to-be-a-mayor.html [https://perma .cc/3LTT-4PA8]. 3. E.g. , BARBER, supra note 2, at 11 (discussing the “pragmatic, problem-solving character” of cities). 4. See, e.g. , Paul A. Diller, Why Do Cities Innovate in Public Health? Implications of Scale and Structure , 91 WASH. U. L. REV. 1219, 1265–69 (2014) (arguing that cities’ streamlined legislative structures makes them better able to advance regulation of certain industries); CLAYTON P. GILLETTE, LOCAL REDISTRIBUTION AND LOCAL DEMOCRACY: INTEREST GROUPS AND THE COURTS 181 (2011) (observing that cities, with unicameral legislatures, are less likely to “privilege the status quo” than governments with bicameral legislatures). 5. Diller, supra note 4, at 1262–65 (discussing big cities’ left-leaning political preferences); see also Jonathan A. Rodden, The Long Shadow of the Industrial Revolution: Political Geography and the Representation of the Left 60 (Mar. 25, 2011) (unpublished manuscript) (on file with the Louisiana Law Review ), http://web.stanford.edu/~jrodden/wp/shadow.pdf [https://perma.cc/9FXY-P6RT] (“[A] relatively tight correlation between population density and left voting is quite ubiquitous in industrialized societies.”). 6. See, e.g. , Kenneth Stahl, Preemption Federalism, and Local Democracy , FORDHAM URB. L.J. (forthcoming 2016), http://papers.ssrn.com/sol3/papers.cfm ?abstract_id=2837905 [https://perma.cc/M7CS-WSDD]; Paul Diller, Intrastate Preemption , 87 B.U. L. REV. 1113 (2007). 290 LOUISIANA LAW REVIEW [Vol. 77 preemption by higher-level authorities, whether state or federal, is ultimately constitutional and, impliedly, democratically legitimate. 7 Even those who argue that local ordinances should trump state law do so only in limited contexts, largely accepting the legitimacy of state and federal action. 8 This Article takes a different tack: it impugns the democratic legitimacy of the federal and state lawmaking processes from the perspective of large and densely populated urban areas. More specifically, this Article explains why the federal and state governments fail to represent the median voter, and how this failure systematically disadvantages the views of big-city residents. At the federal level, the anti-urban dynamic is most pronounced in Congress. Hence, the urban-centered majority that succeeded in electing a president in 2008 and 2012 has been stymied by a Congress that underweights urban votes. For example, despite more than 90% of the U.S. population supporting increased gun regulation after the Newtown school shooting—with support at its highest in urban areas—Congress failed to produce any meaningful legislative response. Although less obvious, many state legislatures shortchange the views of urban residents in favor of more rural and exurban voters. Thus, although a majority of a state’s voters might prefer to expand Medicaid under the Affordable Care Act, for instance, a state legislature’s anti-urban skew helps block any such expansion if the pro-expansion majority is concentrated in urban areas. As this Article will demonstrate in detail, the urban disadvantage at the national and state levels is the result of a combination of spatial, demographic, and legal forces. A significant ideological cleavage in partisan views exists between residents of large, dense, urban areas and those of outlying exurban and rural areas. This cleavage holds on a number of issues—gun control versus firearm “rights,” mass transit versus private automobiles, and fighting climate change versus promoting extractive industries. The...