Introduction
Recent judicial opinions and popular discourse have cast state legislatures in the hero’s role. In several high-profile rulings leading up to the 2020 election, the U.S. Supreme Court depicted state legislatures as the heart of American democracy.
In striking down governors’ pandemic-related actions, state courts have insisted that to protect the will of the people, they must protect legislative power.
Entire doctrines hinge on this democratic romanticism: Based on the understanding that state legislatures are “the people’s representatives,”
courts go on to mandate that only state legislatures handle the most important questions facing the polity.
State legislatures and their allies echo these sentiments in public dialogue, touting their status as the true voice of the people.
But this rhetoric is not reality. As this Article explains, state legislatures are typically a state’s least majoritarian branch. Often they are outright countermajoritarian institutions. Across the nation, the vast majority of states in recent memory have had legislatures controlled by either a clear or probable minority party.
Even where state legislatures do cross the majority threshold, they are beset by the distortions and accountability drawbacks of winner-take-all, single-member districts, including a “winner’s bonus” that can turn a majority into a supermajority and the potential for incumbent entrenchment.
Meanwhile, the other branches of state government, now overwhelmingly selected via statewide elections, do not face any of these problems.
Political scientists and scholars of political geography appreciate these dynamics. They have documented how developments in geographic and partisan sorting, as well as strategic gerrymandering, have created a disconnect between popular support and electoral victories in state legislatures.
This Article bolsters their findings with original analysis underscoring that state legislative minority rule is commonplace in the modern era.
Yet doctrines of administrative, constitutional, and local government law have not caught up. State courts routinely wax poetic about legislative majoritarianism and accountability while casting a comparatively skeptical eye at governors, state agencies, and local governments—ignoring that those entities may be far more responsive than legislatures to the people of the state. Federal courts engage in these paeans to state legislatures too.
To be clear, this Article does not argue, as others have, that we should jettison a discourse centered on democracy.
Building on prior work,
I argue that democracy, with majoritarianism as one pillar alongside political equality and popular sovereignty, is a commitment of state constitutions. In certain circumstances, state constitutional interpreters should use it when deciding how to allocate power between branches. Neither majoritarianism nor democracy itself will always be dispositive, of course. Crucially, majority rule is only valuable in conjunction with political equality, and majority preferences must sometimes yield to the protections for individual rights inscribed in the state and federal constitutions. Reasonable minds may also differ on precise definitions of democracy, an “exemplary ‘essentially contested concept.’”
But the minority-party rule afoot in state legislatures today does not implicate these important cautions or raise boundary questions regarding the meaning of democracy.
This Article’s argument that state legislatures can rarely claim majoritarian primacy requires a working definition of majoritarianism and majority rule. To be sure, theoretical and practical complications, from Arrow’s theorem
to lack of voter information,
pose conceptual challenges. But a productive measure of majority rule might include several dimensions. Most ambitiously, it might seek government whose policy decisions track public preferences—at least to some reasonable degree
—and not, as many studies show, the preferences of big donors or the most affluent.
It might also seek government officials whose policies or partisan affiliation match the will of all those who wish to vote—and work to dismantle the obstacles that still impede people from voting.
But most minimally under majority rule, the candidate or party that receives the most votes should win.
That is the threshold that this Article adopts.
The fact that there is continued work to do to improve American democracy and the need to temper “fairy tales” about it
are not excuses for minority rule.
Shining a spotlight on the comparative democratic character of the state branches, including how they differ from their national counterparts, is deeply destabilizing to conventional narratives about state government. It highlights that state legislatures may not be the “voice of the people” in a meaningful sense, while other parts of state government might come closer. Governors are elected without anything like the “outmoded,” “antimajoritarian” electoral college.
Other state executives, often elected themselves or directed by the governor,
may be far from the “unaccountable bureaucrat” label they often receive. Elected state judges may be more prone to the “majoritarian difficulty” than its opposite,
and even local governments may correspond better than legislatures to statewide majorities.
All of this raises difficult questions about the democratic legitimacy of many state legislatures; increases the urgency of considering alternatives to our current system of winner-take-all, single-member districts; and raises serious constitutional questions about an array of current practices. In a longer-term research agenda, I hope to open a more far-reaching conversation about these foundational issues. But the heavy lift of structural change does not mean we should do nothing. A number of prominent state judicial doctrines provide a useful place to begin.
Consider, for example, the nondelegation doctrine, lately on the rise in state supreme courts.
The doctrine prohibits state legislatures from delegating too much policymaking authority to state agencies or localities. State courts invoking the doctrine have leaned heavily on the state legislature’s democratic character, contrasting it with the questionable democratic legitimacy of “unelected bureaucrats.” Insert a minority-rule legislature into that equation, though, and an agency official responsible to an elected governor, and the analysis falls apart. One might seek to ground a nondelegation doctrine in other reasoning—for example, in originalism or a libertarian theory of lawmaking—but those alternatives are weaker and hard to square with the democratic commitments of state constitutions. Indeed, when state legislatures are minoritarian, a robust version of a legislature-preferring doctrine like the nondelegation doctrine is difficult to defend at all. A similar critique applies to several other doctrines that leverage supposed legislative majoritarianism, including the “major questions doctrine,” the intrastate preemption doctrine, and the “independent state legislature doctrine” in election law.
The problem of mischaracterizing legislatures runs beyond individual doctrines and cases. The discourse surrounding legislative majoritarianism can have harmful effects. Democracy myths, whether perpetuated in good faith or not, sell well.
They often end arguments.
In a democracy, who really wants to argue that we should not choose the democratic branch over maligned alternatives? It’s hard to defend even sensible public health measures when they are framed as a choice between legislative democracy and the tyranny of unelected bureaucrats. It’s hard to argue that localities should make decisions for themselves when those choices are framed as harming the interests of “the people” statewide. It’s hard to criticize state legislatures for making voting harder if questioning the legislature means you are against democracy. These compelling democracy narratives can also mask other agendas. They divert the terms of debate, inside courts and outside of them, from the values that are really at issue.
Rethinking legislative majoritarianism is fruitful even in states (like California or Alabama) with a solid statewide partisan majority, where all three branches are controlled by the same party.
There, legislatures are majoritarian in the sense that they are led by the majority party; all of the branches are. But the distinctive value legislatures offer to state governance in those states is not the popular voice with which they are typically associated. Rather, in these “trifecta” states, it is state legislatures’ inclusion of partisan-minority voices,
and the possibilities they create for at least some interparty deliberation, that set them apart.
In this sense, prevalent doctrines seem to get the value of state legislative branches backwards.
As this last insight reinforces, majoritarianism is not the only value that matters in state government. Far from it. When state legislatures are simply less majoritarian than their sibling branches or prone to greater mediation of the popular will, this Article does not suggest they are normatively problematic. It does argue, however, that a number of prominent doctrines need substantial retooling. By clearing away the rhetoric of legislative majoritarianism, it is easier to see the values that state legislative bodies do and do not offer. Scholarship and doctrine should focus on those values, not democracy myths.
Grounding doctrines and discourse in reality is a worthwhile project for its own sake, but the stakes of state government are now particularly high. The pandemic has brought to light just how much of American governance, from public health to policing to election administration to the social safety net, is either driven or delivered by states.
Even if future presidents take a more active leadership role in the next crisis, rather than asking states to do so, the capacity for functional and democratic state government will be vital to the nation. That will often involve the resolution of disputes between state legislatures and other actors. Anchoring the relevant doctrines in reality is an enduring, important task.
Finally, reconsidering legislative majoritarianism in the states is also useful for the light it refracts on the role of democracy in our federal system. Many of the arguments this Article makes about the limits of legislative representation can be (and have been) made about Congress, where minority rule is baked into the Senate and can seep in through the gerrymandering of the House.
At the national level, though, Congress is not anomalous; the Electoral College and the appointment and life tenure of judges limit majoritarianism across the board. A federal nondelegation doctrine that praises Congress as the voice of the people may be empirically questionable, but it is not absurd. That the national government has tripled down on minoritarianism, though, only underscores the importance of honoring majority rule where it exists—and of leveraging the majoritarian structure of state government to temper its absence at the national level.
Part I of this Article begins with a step back. It identifies majoritarian analysis as a staple of state and federal constitutional law and pauses to consider its key maneuvers. Courts and commentators conducting this form of analysis express majority rule as a constitutional value, assess the majoritarianism of the branches or institutions at issue, and then allocate authority accordingly. Part I then provides several examples of majoritarian analysis in practice, both old and new. Of particular concern, in a series of recent cases, state courts and other actors have submerged important policy debates beneath democratic rhetoric—sometimes while pursuing decidedly countermajoritarian ends.
Part II describes why legislatures have come to be many states’ least majoritarian branch. It synthesizes literature from election law, political science, and political geography to describe obstacles to majority control in districted elections, and presents data revealing that minority-party rule and highly skewed election outcomes are common in modern state legislatures. It then underscores state legislatures’ least-majoritarian status by comparisons to the statewide elections for state courts and state executive officials—selection methods that states chose partly as a response to the perceived representative deficiencies of state legislatures.
Finally, Part III returns to the doctrines flagged in Part I and explains how recognition of countermajoritarian state legislatures should inform four doctrines: the nondelegation doctrine, the major questions doctrine, intrastate preemption, and the independent state legislature doctrine. Each of these doctrines is substantially weakened without the crutch of legislative majoritarianism. The doctrines must be reframed and modified accordingly. Reflecting on these doctrines also generates broader insights about the relationship between the entities they involve: state legislatures and governors, administrators, local governments, and the federal courts.
One further point before proceeding: This Article’s claim is not that state legislative majoritarianism is impossible; rather, it is that it is contingent—on geographic, legal, and political variables. Those contingencies, while stable in recent decades, may eventually shift. Changes in geographic settlement, electoral or districting rules, or partisan alignments could push legislatures toward a different future. A reader in that future may find this Article’s commentary no longer apt. The Article’s contention is simply that, in the meantime, we can and should take account of legislative realities.