States Testing the Legal Limits: The Effect of Electoral Competition on the Constitutionality of State Statutes

When the U.S. Supreme Court decides to exercise judicial review on a law passed by a democratically elected institution, it can have a profound and critical impact on public policy. Furthermore, recent research shows that the Court more frequently declares state statutes unconstitutional than federal statutes. However, only a limited number of studies have extensively explored this political phenomenon. One aspect of a state that has not been considered in connection with the Supreme Court’s use of judicial review over state legislation is the electoral environment in which the laws are produced. We argue that because electoral competition affects the legislative output from a state, it could also influence the likelihood that a state has a statute invalidated by the U.S. Supreme Court. When examining all states between 1971 and 2010, we find evidence in support of our theoretical expectation. Specifically, we find that an increase in electoral competition corresponds to an increased likelihood that a state has a statute invalidated by the Supreme Court. This finding contributes to our understanding of the Supreme Court’s use of judicial review, and it also suggests that electoral pressure can incentivize states to craft unconstitutional public policy.