The Power of States to Undermine Democracy

Focusing on D.C. isn’t enough. State and county legislators are taking aggressive action to erase the LGBTQ+ community, ban books, undermine public education, and limit voting rights.

I have always believed in the power of our federal constitution and the fundamental rights it protects. I came of age when the U.S. was starting to move toward the more perfect union imagined at its founding. Both the federal government and Supreme Court were flexing the power of the equal protection and liberty clauses of the federal constitution to order school desegregation, require equal access to public accommodations, prohibit discrimination in the workplace, and to provide women (some) bodily autonomy.

Recent events, however, have made me increasingly aware of the power of state legislatures to undermine these rights and stall forward momentum, or, in some cases, to turn back the clock decades. From book bans and educational gag orders to abortion bans and anti-LGBTQ+ legislation, state legislators are asserting unchecked power to enact legislation contrary to what voters want and, in some cases, what the constitution requires.

On the SideBar podcast, Mitchel Winick, dean of Monterey College of Law, and I have dedicated several episodes to highlight the importance of state legislatures and the power they wield. We started the podcast to educate people about basic constitutional rights and to bring attention to the varied ways in which they are influenced and undermined. With the media laser focused on Congress during the midterm elections, we decided to turn our attention to the states.

In our first episode, It’s the Statehouses, Stupid!, David Pepper, author of “Laboratories of Autocracy,” spoke about the dangers of gerrymandering. Gerrymandering is the practice of redrawing electoral district lines to benefit a particular political party or disenfranchise a group of voters. On the state level, gerrymandering has led to significant partisan bias in maps and allowed one political party to capture supermajorities in the state legislature. According to the Brennan Center for Justice, for example, in 2018, Democrats in Wisconsin won every statewide office and a majority of the statewide vote, but thanks to gerrymandering, won only 36 of the 99 seats in the state assembly. Once a party has captured a supermajority, there is little to no accountability, and legislators are able to impose an agenda that often runs counter to the majority of voters.

Our second guest, Rutgers Law School professor David Noll, J.D., provided examples of the dangers of supermajorities to pass legislation that undermines fundamental rights. In “Vigilante Federalism,” Noll discussed how states are deputizing private citizens to surveil and police the most intimate aspects of other people’s lives. These laws create a private right of action that allows individuals to file a civil lawsuit against the groups that the laws target. Texas’ SB8, for example, authorizes any person to file a lawsuit against an abortion provider or a person who aids another in obtaining an abortion. Some states have passed bills allowing librarians to be held civilly liable for allowing certain books to remain on the shelves or for parents to sue school districts for what is taught in the classroom. These laws have an immediate and chilling effect on conduct. Although Texas passed SB8 when abortion was still a constitutionally protected right, abortions fell 60% in the month after the law was passed.

Book Bans and Religious Freedom

Suzanne Nossel, CEO of PEN America, joined SideBar to discuss the growing number of states that have passed laws banning books. In the episode “Book Bans and Democracy: Can They Coexist?,” we explored what was driving the rapid expansion of book bans across the country. PEN America maintains an index of state bills and found that more than 30 states have passed one or more laws prohibiting access to books in public schools and libraries. The Missouri House of Representatives proposed eliminating funding for all of its public libraries rather than allow certain books to remain on the shelves. These laws have passed even though the First Amendment places limits on a state’s authority to limit access to books.

Similarly, states have imposed educational gag orders on teachers and professors. The majority of these bills target discussions of race, racism, gender, and American history, banning a series of “prohibited” or “divisive” concepts for teachers in K-12 schools, public universities, and workplace settings. For example, Florida’s so-called “Don’t Say Gay” bill prohibits the discussion of LGBTQ+ issues in K-12 classrooms. A Texas bill requires educators to only teach the “positive side” of American history, which would seemingly preclude teaching about slavery, Jim Crow, or Japanese internment.

The book bans and educational gag orders are closely tied to the political power of Christian evangelicals and the Supreme Court’s evolving freedom of religion jurisprudence. In the SideBar episode “Is Conservative Christian Now a Protected Class?,” USC Gould School of Law professor Nomi Stolzenberg provided a historical overview of how the Supreme Court has taken us from no prayer in school to prayer on the high school football field and the Ten Commandments in every public classroom.   

In the episode “Who’s Writing All These Crazy State Laws?,” University of Wisconsin-Madison law professor Joel Rogers described how we reached this point. He chronicles the origins of the American Legislative Exchange Council, or ALEC, an organization that recognized the power of state legislatures and set out to influence them. The council, largely funded by business interests and conservative organizations, writes and distributes draft bills to state legislators to push through at the local level. Newt Gingrich describes ALEC as “the most effective organization” for conservative interests.

The ALEC is not the only national organization fueling state laws. Moms for Liberty, an organization that advocates for book bans and educational organizations under the guise of “parents’ rights,” also receives significant funding from conservative organizations. Although it claims to be a grassroots organization fueled by small donors and T-shirt sales, investigative reporting suggests the opposite is true.

Reclaiming Democracy

In the second part of our conversation with David Pepper, he walked us through steps we can take to counter these efforts. In “Reclaiming Democracy,” he urged everyone to get involved at the local level: show up at city council and school board meetings; support local, independent journalism; volunteer for a candidate you support; donate money; and participate in all elections—not just those focused on federal office.

We have seen the power of voter engagement. Kansas and Kentucky voters successfully rejected state constitutional amendments that would have banned abortion. Wisconsin voters elected Judge Janet Protasiewicz, who ran an unapologetic pro-choice campaign, to the Wisconsin Supreme Court.

Residents of Llano County, Texas, pushed back on the local commission’s decision to close its public libraries after a federal judge ordered it to return banned books to the shelves. More than 100 residents of Central Texas showed up at a commission meeting to voice their frustration with an attempt by local officials to lock library doors.

State legislators are also taking a stand against extreme views and undemocratic processes. Machaela Cavanaugh, a Nebraska state senator, filibustered every bill that became before the legislature to prevent anti-trans legislation from reaching the floor. The “Tennessee Three” brought attention to the Tennessee legislatures’ unwillingness to even debate gun control measures.

In today’s social media world, a single voice can make a difference. A 100-year-old widow of a World War II veteran went viral when she spoke out against Florida’s book bans.

These are just a few examples. Every day, there are individuals working tirelessly to stem the undermining of our democracy. It is up to all of us to hold state and local policymakers accountable, and we can’t do it sitting on the sidelines.