Columbia Law Review, Forthcoming
63 Pages Posted: 10 Feb 2021 Last revised: 12 Feb 2021
Date Written: February 3, 2021
State and federal courts routinely cast state legislatures in the role of democratic hero. In the past year alone, some states have warmed to the nondelegation doctrine, striking down governors’ pandemic responses on the idea that the legislature must make such weighty choices. 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 cast 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 districting itself, geographic clustering, and extreme gerrymandering mean that state legislatures are recurrently controlled by the state’s minority party. Indeed, the 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 and 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, the Article offers a series of course corrections that can bring prominent doctrines in line with state legislative reality.
Keywords: state constitutional law, separation of powers, democracy, majority rule
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