Identifying a failed democracy is a bit like classifying a film as pornography. One might argue endlessly about the defining characteristics of each, but as the late Supreme Court justice Potter Stewart put it, “I know it when I see it.”
It’s no surprise, then, that despite years of ignoring the many undemocratic tendencies of the United States, international governance rankings are finally coming around. Since 2016, the Economist Intelligence Unit has classified the United States as a “flawed democracy,” a mark that seems unlikely to disappear given the events of January 6, 2021. Yet what the drama of the Capitol riot concealed is an arguably deeper democratic rot, one rooted in the mundane actions of state legislatures.
Since the 2010 midterm elections, which saw the GOP flip 660 state legislative seats, Republican lawmakers across the country have deployed an array of tactics to undermine core democratic protections — from partisan gerrymandering to attacks on voting rights. And despite pushback through a handful of state ballot initiatives, this anti-democratic political program is continuing unabated through the 2020 redistricting cycle.
Congress has expansive authority to counteract these measures and strengthen democracy in the states, as well as a legislative vehicle to make it happen. But reversing these dangerous trends will require swift action.
A “Flawed Democracy”
Midterm elections in the United States are typically a low-turnout affair. The limited public attention that exists tends to focus on national races.
But the 2010 midterms could hardly have been more consequential at the local level. Republican donors poured money into state races, and the GOP won big, bringing a record number of state governments under unified party control just in time for redistricting of Congress and state legislatures (see figure below). The results for majoritarian rule have been nothing short of disastrous. Legislative turnover is now at the lowest level since the 1920s. In states like Wisconsin, Republicans’ state legislative maps have tilted the playing field to effectively guarantee the party a seats advantage in every election.
These state-level actions have enormous ramifications for the control of Congress after 2022, too. While Democrats have retained control of the House in the last two elections, thanks to gerrymandered maps, they must win more than a majority of votes to hold on to an increasingly narrow advantage in seats.
Already, Republican-controlled legislatures are gearing up to redraw key congressional districts in places like Atlanta, Houston, and northeast Ohio. This could mean that even if the national House vote totals are the same in 2022, control of the chamber could shift to Republicans.
There has been some pushback against these state-level machinations. Courts in Pennsylvania and North Carolina have invalidated gerrymandered maps, and successful ballot initiatives in states like Utah and Michigan have established nonpartisan redistricting commissions. Yet with the Roberts Court’s insistence that partisan gerrymandering might as well be nonjusticiable at the federal level, the problem continues to fester.
As the figure below shows, 57 percent of the 428 seats that will be redistricted this year are located in states with a Republican legislature. Of seats in these states, 78 percent will be redistricted by a legislature-dominated process, rather than a nonpartisan or bipartisan redistricting commission. And while most of these legislature-dominated processes allow governors to veto redistricting plans, 56 percent of the congressional seats apportioned in this way are in states where Republicans control both the legislature and the governor’s office.
Two things are adding to the pressure this year: the Trump administration’s political mismanagement of the 2020 Census and the COVID-19 pandemic, which has delayed the delivery of population data used for redistricting until September. This compresses the timeline for drawing new legislative boundaries, especially in the twenty-six states that have either legislative elections this year or a mandate to complete redistricting by the end of 2021. While some states could alter their laws to circumvent these deadlines, it seems equally likely that the rushed process will only further limit public scrutiny of a process infamous for occurring within the inner-sanctum atmosphere of locked map rooms.
Gerrymandering is only one of the tactics Republicans have used with increasing regularity and precision to generate state-level political monopolies. Since 2010, twenty-five states have enacted voter restrictions, including ID requirements, limits on early voting, and additional registration restrictions. Following the massive spike in turnout in the 2020 general election, legislators in thirty-three states have introduced, prefiled, or carried over 165 bills aimed at limiting voter rights.
The suite of counter-majoritarian tactics doesn’t end there: state legislators have drawn up bills to criminalize protest, preempt a variety of laws passed in progressive-leaning cities (often with large numbers of people of color), and block popularly elected governors from using authority granted to them in state constitutions.
So, what can be done?
Democratizing the States
However insidious, the GOP’s counter-majoritarian moves are difficult to mobilize around. Lodged in the relatively obscure workings of state government, increasingly regarded as an accepted fact of GOP control, gerrymandering and the like can appear ineradicable.
But there are ways to strip the GOP of their anti-democratic tools. And it will depend upon expanding and nationalizing the scope of conflict, enlarging the number of persons involved, and shifting the venue that makes the rules.
The logic here is simple. When states restrict the right to vote, stack the deck to entrench the governing party, or leverage government authority to insulate elected officials from popular pressure, they systematically raise the costs of reversing these actions through the state-level franchise itself. It is often more effective to act on the states rather than through them. In the 1960s, for example, voters around the country sued severely malapportioned state legislatures in the federal courts, giving urban voters political power they had been denied for decades.
What might this look like today? Congress could use its immense (but rarely used) constitutional authority over the structure of government in the states. Article IV of the Constitution guarantees each state a “republican form of government” and gives Congress the power to restrain states from creating institutions that sever the link between voters and their representatives, including but not limited dictatorship and aristocracy. The reason for this is clear: states are not isolated “laboratories” of policy, but part of an infrastructure of government. Because states construct the national polity through actions such as election administration and redistricting, undemocratic practices even in one state weaken the legitimacy of the entire government.
While the Guarantee Clause is widely seen as judicially unenforceable, Congress has previously leaned on the clause to require defeated Confederate states — as a condition for readmission to the Union — to adopt universal male suffrage, convene new constitutional conventions, and ratify the Fourteenth Amendment. At other times, Congress has used the Guarantee Clause, in combination with other constitutional provisions that allow it to regulate democratic processes, to pass legislation aimed at reducing barriers to voting.
While there are some legal guardrails on Congress’s power under the Guarantee Clause — it cannot direct states to move the location of their capitals, for example — the chief barriers to its use are a matter of politics, not law. In 2019, House Democrats passed the sweeping “For the People Act” (H.R. 1), which included, among other things, a requirement for states to adopt automatic voter registration, the creation of nonpartisan redistricting commissions, the elimination of parole and probation disenfranchisement nationwide, and statehood for Washington, DC. The bill died in a Republican-controlled Senate. And as long as the Senate filibuster remains, the recently reintroduced legislation — despite having broad public approval — will likely be killed again.
Deconstructing the filibuster, which can be done with a simple Senate majority, is a necessary condition for passing H.R. 1. Democrats’ willingness to jettison the former is thus an index of their commitment to passing the latter.
If Democrats wish to ensure fairer maps and elections in 2021, they will have to act quickly. Statutory deadlines for redistricting are quickly approaching, and Republicans are poised to use lies about voter fraud to justify additional voting restrictions in the states.
Expanding the franchise and quashing partisan gerrymandering are by no means a quick fix. Democracy fails in the states not only when counter-majoritarian parties develop political monopolies, but also when majorities cannot act collectively to demand their rights. Deepening democracy in the states will require a sweeping program of economic and political transformation.
It is the kind of accomplishment that will take place through a generational struggle rather than a single signing ceremony. But ending partisan gerrymandering and guaranteeing voting rights would be a good start.