Our Work

We argue for "democratic proportionality review" as a state-centered approach to adjudication. Such review tailors proportionality’s decisional framework to state constitutions committed to popular, majoritarian self-government, and it recognizes state courts themselves as democratically embedded actors, not countermajoritarian interlopers.

North Carolina spent much of the year in the national legal spotlight due to Moore v. Harper, the prominent U.S. Supreme Court case that could limit the authority of state courts and state constitutions over federal elections through the controversial “independent state legislature theory.”

Should state courts apply prevailing federal methodologies? Or, alternatively, does the state context call for different approaches? This Special Issue explores these questions, as well as different ways of thinking about interpretation and the role of state courts more broadly.

This episode takes a dive into state courts and state constitutions. To get the lay of the land and identify the challenges ahead, they welcome four guests: Miriam Seifter of the University of Wisconsin-Madison, Jessica Bulman-Pozen of Columbia Law School, Daniel Nichanian of Bolts, and Alicia Bannon of the Brennan Center.

When it comes to current efforts to strip or distort the people’s ability to choose their government, state courts have both the authority and the duty to act.

Among the threats to American democracy, the most serious may also be the most banal: that future elections will be compromised by quiet changes to the law. State legislators across the country have passed bills that give them power to reject the will of voters. This essay describes why state courts are well situated to counter the new election subversion.

Although states sit at the heart of the American democratic system, academic and popular discourse often overlook state-level public law. The lion’s share of attention, instead, goes to the federal government. In this Special Issue, the states take center stage. The essays in this collection explore issues relating to subnational democracy, government, and institutions. These essays were first presented at a conference entitled “Public Law in the States,” which took place in June 2021. The conference was the inaugural academic convening of the new State Democracy Research Initiative at the University of Wisconsin Law School. Like this Special Issue, the Initiative aims to contribute to the vitality of democracy at the state level through research and learning focused on the states.

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. This Article argues that a vital response has been neglected: state constitutions.

Around the country, officials in “purple” states are waging high-stakes battles in which they alter government institutions for partisan advantage. Commentators to date have largely viewed these developments in political terms, as evidence of eroding democracy. This Essay urges another lens: the recent power plays raise significant, justiciable questions of state constitutional law. Indeed, state courts have begun to decide these cases, despite apparent misgivings and dissenting opinions regarding the conflicts’ political nature.