No, it’s not money. It’s states.
Many political problems, whether enduring ones such as the Electoral College, the structure of the U.S. Senate, gerrymandering and voter suppression, or more recent ones such as state pre-emption of municipal functions, are rooted in our federal system. Too often, states are the chief culprit.
Consider all the ways states serve to frustrate the will of the people. First, the Electoral College, which votes state by state, has already installed five presidents whom the voters had rejected nationwide. The many additional near misses make frequent future recurrences a statistical certainty.
The U.S. Senate is even more counter-majoritarian. As of 2023, a majority of the U.S. population is clustered in states that together get only 18 of the 100 senators. The minority get the other 82.
Among the constitutional framers, the Senate question evoked two fundamentally opposing conceptions of states. For the anti-Federalists, especially those from smaller states, it wasn’t enough to recognize individual states as “sovereigns” in their own right. To justify their preferred Senate structure, they had to believe that every state, regardless of population size, should enjoy equal sovereignty, and thus an equal say in matters of national governance.
Many of the more illustrious Federalists, especially those from larger states, found that view infuriating. Alexander Hamilton and James Wilson rightly described the states as “artificial beings” and “imaginary beings;” like corporations, they exist only on paper. Indeed, the states’ boundary lines add an additional layer of artificiality, unrelated to geographic size or to any demographics of the populations they enclose.
These framers could not understand why their states’ rights colleagues cared more about the equality of those artificial creations than about the equality of the flesh-and-blood human beings the states were supposed to serve. Thus, like fellow Federalist James Madison, they were bitterly opposed to this grossly undemocratic Senate configuration. Ultimately, however, they accepted the proffered compromise (equally populated House districts, plus states as Senate districts), but only as an unavoidable concession to get the required nine state ratifications.
Then there is the constitutional amendment process. Constitutions — and the individual rights and government institutions they protect — require some measure of stability. Therefore, it should take more than a simple majority to amend them. But the U.S. Constitution, described in one study as possibly the hardest in the world to amend, takes this admonition to an extreme. It requires a two-thirds vote in both chambers of Congress, followed by ratification by three-quarters of the state legislatures (or a constitutional convention process that has never been used).
Winning a two-thirds vote in the already counter-majoritarian Senate is hard enough, but ratification by the states can be harder still. Only recently, states that represented just 22 percent of the U.S. population were able to block the Equal Rights Amendment, against the wishes of states representing the other 78 percent.
(Fred Schilling/Supreme Court)
Gaming the System
If the Constitution endows the states with inherently undemocratic powers, state legislatures have used those powers to pursue additional anti-democratic policies.
Voter suppression tops the list. It is endemic and it is ugly.
The Constitution gives state legislatures sweeping powers to shape the rules for electing members of Congress. Since the end of the Civil War, when the 15th Amendment granted freed slaves and their descendants the right to vote, state legislatures have used these powers to enact ever more creative laws targeting African American voters.
The 1965 Voting Rights Act took aim at those practices, succeeding dramatically in increasing African American voter turnout. But in 2013, the Supreme Court cut out the heart of that act. Many Republican-controlled state legislatures gleefully responded with a rash of new laws carefully crafted to depress the turnout of populations that vote heavily Democratic — particularly African American, Hispanic and Native American communities, as well as college students. A federal court of appeals chillingly described one such set of laws as having targeted African American voters with “surgical precision.”
I discuss nine of these strategies more fully elsewhere and will merely list them here: making voter registration harder; selectively purging voter rolls; requiring photo IDs; requiring written documents that prove U.S. citizenship; severely curtailing early voting; closing and strategically locating Election Day polling places; limiting ballot drop boxes; restricting third-party collection of absentee ballots; and disenfranchising citizens who have been convicted of specified crimes.
Almost all these state voter suppression laws have something else in common. They rest on the claim that they are necessary to prevent widespread voter fraud, which study after study, and court decision after court decision, conclusively show simply does not exist in America.
Yet another gift from state legislatures has been brazenly gerrymandered redistricting maps, for both U.S. House elections and their own state legislative elections. Gerrymandering has been with us for more than two centuries, but modern American state legislatures have turned it into a high-tech art form. Supreme Court Justice Elena Kagan put it well: “County-level voting data has given way to precinct-level or city-block-level data; and increasingly, mapmakers avail themselves of data sets providing wide-ranging information about even individual voters. Just as important, … today’s mapmakers can generate thousands of possibilities at the touch of a key—and then choose the one giving their party maximum advantage.”
We are currently in the midst of a partisan redistricting war, with Texas redrawing its congressional lines to elect five more Republicans to Congress and other states, both red and blue, lining up to follow suit.
More Problems Within States
In recent years, voters in many states have passed statewide initiatives on such subjects as Medicaid expansion, campaign finance, tax rates, minimum wage, and recreational marijuana, only for their state legislatures to swiftly override them. Legislatures also routinely construct obstacles to getting voter initiatives on the ballot in the first place.
When voters in states such as Wisconsin, Michigan and North Carolina have elected a Democratic governor or attorney general, Republican state legislatures have convened lame-duck sessions to pass laws that strip those officials’ powers and hand them to legislative committees controlled by Republicans.
Together, these outsized state roles and cynical state actions have taken a huge toll on America’s two most sacred democratic norms — political equality and majority rule.
In a forthcoming article, I will offer a radical solution. Stay tuned.
Stephen Legomsky, a law professor emeritus at Washington University, is a former member of the Obama administration and the author of Reimagining the American Union.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
