Scholarship

This Article explores the role of standing doctrine in the future of state-court election litigation. Building on existing state practices and state constitutional principles, we defend a presumptively broad approach to state-court standing in election law cases, which we term simply election standing. We find that most state courts already relax standing to some extent in election cases—an approach that reflects both the flexible power of state courts and state constitutions’ commitment to democracy. State courts may be the best (and only) fora able to resolve pressing election-related disputes, and in turn to foster certainty, finality, and confidence in election outcomes.

Election law is a dynamic and rapidly expanding field that generates enormous public interest. It is also of great practical importance to lawyers and law students, with increasing litigation and many controversial Supreme Court decisions, including Bush v. Gore, Citizens United v. FEC, and Shelby County v. Holder. This Nutshell provides a succinct and thorough description of the law governing elections, the right to vote, and the political process in the United States.

This Article finds state shadow dockets are more expansive and less transparent than their federal counterpart. In this way, state supreme courts have access to more ways to shape and influence case outcomes with less public scrutiny. I refer to this broader, less transparent form of shadow docket activity as invisible adjudication. This Article develops the concept of invisible adjudication and provides a framework to analyze its various manifestations. Its analysis of the phenomenon highlights the institutional implications for supreme courts.

This year, states have stepped into the spotlight. The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization has focused attention on the state role in defining individual rights, while democracy cases like Moore v. Harper have underscored the important state role in elections. In addition, many high-profile issues are being brought directly to voters through state ballot measures. As state institutions take center stage, state-focused scholarship has never been more timely or important.

This Essay explores the people’s right to amend state constitutions, particularly in states that recognize the constitutional initiative. Together with other democratic rights that appear in state constitutions but not the federal charter, the right to amend recognizes popular sovereignty as an active commitment. After describing the right to amend and canvassing current threats, the Essay considers practical and theoretical implications. It argues that democratic proportionality review can help courts distinguish valid regulation of the initiative process from subversion of it. And it explores the distinctive constitutional architecture to which popular amendment contributes.

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.

This Essay focuses on the states as one vital site for increased democratic engagement. Reforms to protect U.S. democracy should incorporate smaller-scale steps at the state-level to forge pro-democratic and anti-backsliding initiatives. Reformers should also aim to increase participation and dialogue at subnational levels of government. Strengthening state democracy cannot solve everything, but it might slow or even reverse democratic decline—and neglecting states could accelerate the decline beyond repair.

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 Article urges legal scholars and reformers to turn their gaze to state-level institutions. State institutions, the Article shows, offer democratic opportunity that federal institutions do not. By design, they more readily give popular majorities a chance to rule on equal terms. Utilizing these opportunities can help stave off democratic decline in the short term and build a healthier democracy in the long term.

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.