Public Law & Legal Theory
What good are theories if they cannot be tested? Election law has wrestled with this question over the last generation. Two new theories have emerged during this period that reject conventional rights-and-interests balancing. In its place, the responsiveness theory asserts that legislators’ positions should be sensitive to changes in the views of their constituents. Similarly, the alignment theory claims that voters’ and legislators’ preferences should be congruent. Unfortunately, both of these theories share a common flaw: They provide no way for anyone to tell whether electoral policies improve or worsen responsiveness or alignment. They operate at too normative a level to be useful to practically minded courts or policymakers. They are caught in clouds of abstraction. This Article is an attempt to pull the theories down from the clouds. In the last few years, data has become available, for the first time, on voters’ and legislators’ preferences at the state legislative level. We use this data to calculate responsiveness and alignment for both individual legislators and whole legislative chambers, across the country and over the last two decades. We also pair these calculations with a new database of state electoral policies that covers the areas of (1) franchise access, (2) party regulation, (3) campaign finance, (4) redistricting, and (5) governmental structure. This pairing enables us to estimate the policies’ actual effects on responsiveness and alignment. Our results mean that laws’ representational impact now is a matter of empirics, not conjecture. Courts that wish to decide cases in accordance with the responsiveness or alignment theories may do so by consulting our findings. Policymakers who aim to enact beneficial reforms may do the same. And academics no longer have an excuse for debating the theories from a purely normative perspective. Now that the “is” has been intertwined with the “ought,” the “is” no longer may be ignored.
Nicholas Stephanopoulos, Eric McGhee & Steven Rogers, "The Realities of Electoral Reform" (University of Chicago Public Law & Legal Theory Working Paper No. 518, 2015).