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.

The full text of this Article can be found by clicking the PDF link to the left.


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. 1 See infra section I.B. In striking down governors’ pandemic-related actions, state courts have insisted that to protect the will of the people, they must protect legislative power. 2 See infra section I.B. Entire doctrines hinge on this democratic romanticism: Based on the understanding that state legis­la­tures are “the people’s representatives,” 3 Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 30 (2020) (Gorsuch, J., concurring). courts go on to mandate that only state legislatures handle the most important questions facing the pol­ity. 4 See infra Parts I, III (describing the nondelegation doctrine, major questions doc­trine, intrastate preemption, and independent state legislature doctrine). State legislatures and their allies echo these sentiments in public dia­logue, touting their status as the true voice of the people. 5 See infra Part III.

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. 6 See infra section II.C; Miriam Seifter, Countermajoritarian Legislatures: Appendix, (describing methodology) [hereinafter Appendix]. 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. 7 See, e.g., Douglas J. Amy, Real Choices/New Voices: How Proportional Representation Elections Could Revitalize American Democracy 49–50 (2d ed. 2002); Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes & Nathaniel Persily, The Law of Democracy: Legal Structure of the Political Process 1267 (5th ed. 2016). Meanwhile, the other branches of state gov­ernment, now overwhelmingly selected via statewide elections, do not face any of these problems. 8 See infra section II.D. On the need for comparative institutional analysis, see gen­erally Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 4–7 (1994) (explaining comparative institutional analysis).

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. 9 See, e.g., Jonathan Rodden, Why Cities Lose: The Deep Roots of the Urban-Rural Political Divide 175–96 (2019); infra section II.B. This Article bolsters their findings with original analysis underscoring that state legislative minority rule is commonplace in the modern era. 10 See infra section II.C; Appendix. 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. 11 See, e.g., Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J., concurring) (positing that state “[l]egislators can be held accountable . . . for the rules they write or fail to write; typically, judges cannot”); id. at 30 (describing the state legislature as “the people’s representatives”).

To be clear, this Article does not argue, as others have, that we should jettison a discourse centered on democracy. 12 See Edward L. Rubin, Getting Past Democracy, 149 U. Pa. L. Rev. 711, 714 (2001). Building on prior work, 13 Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859 (2021). 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.’” 14 Id. at 864 (quoting W.B. Gallie, Essentially Contested Concepts, 56 Proc. Aristotelian Soc’y 167, 183–87 (1956)). 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. 15 See id. at 862.

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 16 Arrow’s Nobel Prize winning work indicated that a system of aggregating prefer­ences could not simultaneously satisfy basic conditions of both fairness and accuracy. See generally Kenneth J. Arrow, Social Choice and Individual Values (2d. ed. 1963) (detailing Arrow’s theorem); Kenneth J. Arrow, A Difficulty in the Concept of Social Welfare, 58 J. Pol. Econ. 328 (1950). For an exploration of why Arrow’s work and the broader body of social choice theory “pose no significant challenges to the general legitimacy and meaningfulness of democratic decision making,” see Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 Colum. L. Rev. 2121, 2127 (1990). to lack of voter information, 17 See, e.g., Christopher S. Elmendorf & David Schleicher, Informing Consent: Voter Ignorance, Political Parties, and Election Law, 2013 U. Ill. L. Rev. 363, 370–84 (reviewing the extensive literature on voter ignorance). 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 18 Nicholas Stephanopolous, for example, advocates an “alignment approach to elec­tion law,” in which voter and official preferences are “congruent” as to both partisan affiliation and policy. On policy, alignment occurs where “if most voters hold a certain ideology or issue position, their representative tends to do so as well (or at least to vote accord­ingly).” Nicholas O. Stephanopoulos, Elections and Alignment, 114 Colum. L. Rev. 283, 287 (2014). —and not, as many studies show, the preferences of big donors or the most affluent. 19 See Kate Andrias, Separations of Wealth: Inequality and the Erosion of Checks and Balances, 18 U. Pa. J. Const. L. 419, 424 (2015) (“[P]artisanship is an incomplete explana­tion for government’s function. The concentration of economic and political power in the hands of the wealthy elite is also a critical factor.”); Martin Gilens & Benjamin I. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persps. on Pols. 564, 572–73 (2014) (explaining that the legislature is more likely to adopt policy changes that are favored by the wealthiest Americans). On the relative affluence of elected officials, see generally Nicholas Carnes, White-Collar Government: The Hidden Role of Class in Economic Policy Making (2013); Ganesh Sitaraman, The Puzzling Absence of Economic Power in Constitutional Theory, 101 Cornell L. Rev. 1445, 1460 (2016) (“Less than 2% of members of Congress themselves had working-class jobs before entering public life, and only 20% were raised in working-class households.”). 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. 20 See generally Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (rev. ed. 2009) (documenting the many obstacles to suffrage that marginalized groups have experienced in the United States). But most minimally under majority rule, the candidate or party that receives the most votes should win. 21 See, e.g., Stephanopoulos, supra note 18, at 287 (advocating partisan alignment, under which “if a majority of voters wish to be represented by a candidate from a certain party, this in fact is who represents them”). That is the threshold that this Article adopts. 22 For further discussion of this definition, see infra section II.A. The fact that there is continued work to do to improve American democracy and the need to temper “fairy tales” about it 23 See Christopher H. Achen & Larry M. Bartels, Democracy for Realists: Why Elections Do Not Produce Responsive Government 7 (rev. ed. 2017). are not excuses for minority rule. 24 Cf. Steven Levitsky & Daniel Ziblatt, Opinion, End Minority Rule, N.Y. Times (Oct. 23, 2020), (on file with the Columbia Law Review) (“Democracy requires more than majority rule. But without majority rule, there is no democracy.”).

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. 25 E.g., Michael J. Klarman, Foreword: The Degradation of American Democracy—and the Court, 134 Harv. L. Rev. 1, 240 (2020). Other state executives, often elected themselves or directed by the governor, 26 See Miriam Seifter, Gubernatorial Administration, 131 Harv. L. Rev. 483, 499–512 (2017) [hereinafter Seifter, Gubernatorial Administration] (explaining the modern-day ca­pabilities of governors to remake and direct the state executive branch). 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, 27 Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 693 (1995). and even local governments may correspond better than legislatures to statewide majorities. 28 See infra section III.C.

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. 29 For discussion of the nondelegation doctrine, see infra sections I.B.1, III.B. 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. 30 Cf. Jamal Greene, Selling Originalism, 97 Geo. L.J. 657, 708–14 (2009) (claiming that originalism’s simplistic, populist, and nativist features “place it at a competitive advantage in the methodologies market”); Ken I. Kersch, The Talking Cure: How Constitutional Argument Drives Constitutional Development, 94 B.U. L. Rev. 1083, 1088 (2014) (“Political entrepreneurs and leaders, moreover, can use political and constitutional ideas discursively in popular, movement, group, and party politics as a vehicle for constitu­tional renovation and transformation.”). They often end arguments. 31 See, e.g., Rubin, supra note 12, at 715 (stating that democracy “is the temple at which all modern political leaders worship”). 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. 32 See Nat’l Conf. of State Legislatures, State Partisan Composition (Sept. 14, 2021), []. 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, 33 On the value of minority power within institutions, see Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1867–72 (2019); Heather K. Gerken, Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 37–44 (2010). and the possibilities they create for at least some interparty deliberation, that set them apart. 34 On the extent of minority-party influence in state legislatures, see generally Jennifer Hayes Clark, Minority Parties in U.S. Legislatures: Conditions of Influence (2017). 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. 35 This Article is therefore calling for greater “institutional realism,” in Richard Pildes’s terminology. See Richard Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 Sup. Ct. Rev. 1, 2. For further discussion of the norma­tive desirability of such realism, see infra Part III.

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. 36 See, e.g., Michael Wines, As Washington Stews, State Legislatures Increasingly Shape American Politics, N.Y. Times (Aug. 29, 2021),​29/​us/state-legislatures-voting-gridlock.html (on file with the Columbia Law Review). 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. 37 See, e.g., Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) 25–79 (rev. ed. 2008) [hereinafter Levinson, Undemocratic Constitution]. 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.