Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733 (2021).
Abstract
State and federal courts routinely cast state legislatures in the role of democratic hero. Recent events illustrate: Some states have embraced the nondelegation doctrine, striking down governors' pandemic responses based on the theory that those weighty choices belong to the legislature. During the 2020 election, federal judges invoked an "independent state legislature" doctrine to question voting rights measures from state executive actors and courts. Democratic romanticism regarding state legislatures permeates public dialogue too. The legislature is often described as the true majoritarian branch, unlike "unelected bureaucrats," courts, local governments, and governors.
But this rhetoric is not reality. As this Article explains, state legislatures are almost always a state's least majoritarian branch. The combination of our districting scheme, geographic clustering, and extreme gerrymandering means that state legislatures are recurrently controlled by the state's minority party. Indeed, this Article finds that
minority-party rule has afflicted state legislative chambers hundreds of times in the modern era. In contrast, state governors and state courts are overwhelmingly chosen via simple statewide elections, with no electoral college or lifetime appointment.
This reframing destabilizes conventional narratives about state government. It opens a host of broader inquiries about the extent to which state and federal courts should and do rely on majoritarian analysis, the appropriate relationships between the state branches, and the vertical distribution of power between states and local governments. Most immediately, this Article offers a series of course corrections that can bring
prominent doctrines in line with state legislative reality.
