State constitutions promise what the federal Constitution does not: affirmative guarantees of democratic participation, among a broad array of positive rights. But state courts tasked with enforcing those rights routinely fail to properly engage with their constitutions, defaulting instead to the federal judiciary’s clause-isolation and tiered scrutiny. The result is a methodological mismatch that allows state legislatures, many of them elected by a plurality or minority of their state’s voters, to erode democratic rights unchecked. This Note argues that the Michigan Supreme Court charted an independent path in Mothering Justice v. Attorney General, where it struck down an unaccountable legislature’s gutting of two voter-initiated laws by reasoning holistically about Michigan’s constitutional commitment to democracy. Drawing on the work of Professors Bulman-Pozen and Seifter—who identified the democracy principle as a synthesis of state constitutional commitments to popular sovereignty, majority rule, and political equality; proposed democratic proportionality review, which asks whether the burdens a law places on democratic participation are proportionate to and justified by the government’s legitimate objective, as an alternative to federal methods; and coined the term “methodological lockstepping” to describe the problem—this Note uses Mothering Justice as a prototype of the judicial application of a new framework.
Upon the foundation that Mothering Justice laid, this Note constructs a three-part doctrinal test: (1) assess the strength of the state constitution’s commitment to the democracy principle; (2) balance the burden on a democratic right against the legislature’s justification for imposing it; and (3) craft a “remedy-plus” that resolves the immediate dispute while establishing prospective safeguards against recurrence. Applied to voter identification laws and partisan gerrymandering, the test reveals at once its range and its aim: to equip state courts with a structured, state-grounded framework for curbing legislatures that have themselves sought to limit the sovereignty and power of the very people who elect them and whose rights their constitutions enshrine.
