The old ‘state rights’ and the new state power

During the Democratic primary debate in Miami, Senator Kamala Harris (D-Calif.) accused former Vice President Joe Biden of working with segregationists in the U.S. Senate in the 1970s to oppose court-mandated busing. “There was a little girl in California who was part of the second class to integrate her public school,” Harris said; “and that little girl was me.” What Harris was objecting to was that in the name of congressional comity Biden bowed to the “states’ rights” ideology that senators like Strom Thurmond and Herman Talmadge used as a screen to defend segregation. This is what I call the “old states’ rights.”

On the same day that Harris criticized Biden’s defense of local control of school busing, the Supreme Court refused to intervene against the political gerrymandering of electoral districts by state legislatures in North Carolina and Maryland. Writing for a 5-4 majority, Chief Justice Roberts declared that “Partisan gerrymandering claims present political questions beyond the reach of the federal courts.” This was not the old states’ rights ideology speaking; it was national; it was partisan; and it placed the federal government on the side of states’ power to curtail democracy.

What is the difference? Since the New Deal, the Great Society, Social Security, Medicare, Medicaid, and the Civil Rights and Voting Rights Acts, the federal government has whittled away the power of the states over “their” citizens. As a result, the old states’ rights have been dying, which is the argument that Biden made in defending his civil rights record. But since the 1970s, Republicans have been fighting back. In a recent opinion piece, Glenn Altschuler and I argued that the Republicans’ current political strength has come not from their electoral appeal, but from what we called a “long game,” going back to future Justice Lewis Powell’s call to market conservatives to initiate “long-range planning and implementation, consistency of action over an indefinite period of years.”  

Most of that “long game” has been played nationally, but a crucial part was to leverage the weight of rural and small-town electorates to gain control of state legislatures in red states, which have been important tools in shaping the electoral map in their party’s favor. This has not been a return to the old states’ rights, but part of a new pattern of federal/state interaction that scholars call “executive federalism.”

As Professor Jessica Bulman-Pozen of Columbia Law School writes, “From healthcare to marijuana to climate change, negotiations among federal and state executive branch actors increasingly set national policy in the United States. In an age of partisan polarization, congressional gridlock, and state initiative, executive federalism has come to America.”

The shift to executive federalism has led to widespread use of model legislation written in Washington by such lobbies as the Tenth Amendment Center. Many of the bills put forward in state legislatures come from the corporate-funded American Legislative Exchange Council (ALEC). Under the guise of a non-profit group, ALEC designs off-the-shelf policy proposals and lobbies for them before Congress and in the state legislatures. Following these models, states can do real damage to the rule of law: For example, following the diffusion of the “Black lives matter” movement, legislators in at least 18 states have put forward bills — according to my own unpublished research more than 50 bills — restricting the right to protest, some quite draconian.

The greatest danger to democracy is electoral. Rather than arising spontaneously from the grassroots, many of the campaigns that have elected Republicans to state legislatures since 2010 midterms were piloted from Washington lobbying offices. Many states’ redistricting practices are modeled by tech specialists, like the recently-deceased gerrymandering guru, Tom Hofeller, whose memo supporting the census citizenship question was recently revealed to be aimed at reducing the number of Democratic voters showing up at the polls. Unlike the old states’ rights, the new state power is vertical in nature.

The Democrats — who have long been more a collection of loosely-allied interest groups than a unified ideological party — need their own “long game.” Much of that game must be played at the state level. Although Democrats have often played the same gerrymandering game as their opponents where they are in power, it is past time to devote resources to reversing the imbalance of power between voters and state representatives. It should be the case that voters choose their representatives, not the reverse.

Some positive signs can be seen in the five states that passed laws or referenda in  2018 limiting partisan election redistricting. But as the North Carolina and Maryland Supreme Court decisions show, now that it has proven useless to argue individual cases of electoral chicanery in the courts, a national movement to demand fair and equal voting rights should be a crucial part of the 2020 election campaign.

A move in this direction is led by former Obama Attorney General, Eric Holder, in the form of the National Democratic Redistricting Committee. But a movement piloted from Washington is not enough, however well intended; its strength must come from the base. Troops for such a movement may be already on the scene; as Lara Putnam and Theda Skocpol write in a widely circulated “Democracy” article, since the women’s march of Jan. 21, 2017, “tens of thousands of … women, mostly mothers and grandmothers ranging in age from their 30s to 70s … are fueling an American political transformation.” Capturing that base will be good for both the Democrats and for American democracy.