Re-Orienting Home Rule: Part I -- The Urban Disadvantage in National and State Lawmaking

Abstract

Many scholars -- most famously, Robert Dahl -- have convincingly argued that the lawmaking process in the United States is not majoritarian and is in fact counter-majoritarian. This Article builds on that literature by explaining how American legislative countermajoritarianism operates in a distinctly anti-urban way. The most obvious contributor to an urban disadvantage in lawmaking at the federal level is the Senate, whose egregious malapportionment disadvantages urban priorities by enlarging the influence of small- and rural-state policy preferences. As a result, although a majority of the nation may favor stricter gun control, for instance, the Senate's makeup stifles that preference at the national level.

A subtler, but still substantial, contributor to the urban disadvantage in lawmaking is the widespread use of single-member, winner-take-all-districts to constitute the federal House of Representatives and almost all state legislative chambers. Drawing on recent political science, this Article explains how district-based elections systematically devalue the views of urban residents, even in the absence of intentional, politically motivated gerrymandering. Because left-leaning voters reside in dense, urban areas, their favored candidates waste comparatively more votes in winning their districts than do victorious candidates with different or opposing views in suburban, exurban, and rural districts. Hence, so long as there is a partisan divide that correlates with population density, the urban-favored political party wins fewer seats in the state or national legislature than its opponent does with the same overall vote share.

Add in the lack of structural protections for big cities and metropolitan areas akin to that which states enjoy in the federal order, and the net result is federal and many state governments that treat urban policy preferences with indifference, if not outright hostility. For this reason, the urban-centered majority that elected a president in 2008 and 2012 was largely stymied by a Congress structurally designed to skew away from that majority’s preferences. Similarly, many state legislatures have shown disdain for urban priorities by aggressively preempting local enactments. The most prominent recent example is North Carolina's House Bill 2, which preempted Charlotte's ordinance protecting persons from discrimination on the basis of sexual orientation and gender identity.

This article lays out the urban disadvantage while a forthcoming part II will explore how the state constitutional doctrine of home rule might be re-oriented to ameliorate the problem.

Note: this article went to print before the November 2016 elections. For an analysis of how those results mesh with this article's thesis, see the author's blog post.

Keywords: one-person, one-vote, gerrymandering, districting, majoritarianism, urban policy, preemption