It’s The “Argument.” I’m Jane Coaston.
If there is anything I love more than one big political fight, it’s 50 smaller ones. Yes, this week we’re talking about state legislatures. Since the Dobbs decision, people have been paying way more attention to state level politics — yay. Indiana just approved a near-total abortion ban. Meanwhile, in Kansas, voters soundly rejected a constitutional Amendment that would allow their legislature to ban abortion. And it’s not just abortion — on everything from guns to voting rights, our biggest political disagreements are about to get real local. For many people, it’s been a long time since where they live in America has mattered this much. Today, I want to understand what the battles playing out at the state level mean for our national politics going forward, especially in red states. To help me think through it, I’m joined by Niki Hemmer, a historian of conservative media —
There has been a decades long project to preserve Republican power at the state and local level, and that is going to affect issues around abortion, but around a whole host of other rights and policies as well.
— and my friend, Zack Beauchamp, who covers the right for Vox.
The ability for legislatures to get away with truly wild things, like, not just radical legislation, but also extreme levels of personal corruption, cumulatively, they have a massive, massive, massive impact on national politics.
Niki, Zack, thank you so much for joining me once again.
Oh, thank you, Jane.
Yeah, thanks so much for having us.
So there are three trends I’m seeing in state level Republican politics that I find concerning and troubling, but I want to get your thoughts on them. And I want to talk about maximalism. I want to talk about the idea of the fear — pent up fear of other places and even one’s neighbors, and the idea of using federalism in bad faith, kind of a federalism for me, but not for thee. And we’re going to talk about these through the lens of a few state laws.
And I think it’s worthwhile starting with abortion — state level abortion laws. If you paid attention to how conservatives talked about the Dobbs decision, a lot of what you heard was, this won’t really change anything. This just returns the issue of abortion to the states, to democracy, where it belonged. Indiana just became the first state in the nation to pass a new law banning abortions. Kansas voters, nearly 60 percent, just rejected a ballot measure that would have allowed the state’s conservative legislature to ban abortion.
And that’s just legislation that’s on the books. There are plenty of other bills that have been introduced. It’s interesting, because the first part of the idea of overturning Roe was to send it back to the states, and democracy will take care of it. But the unspoken and unwritten part of that was, send it back to the states where they will ban abortion, and eventually leading to a federal ban on abortion. So Niki, how concerned are you about how states have been taking that directive on a scale from 1 to 10, because it seems to me to be pretty much what I expected to take place?
My concern level is around a 10, in part because one of the things that we saw even before Roe was overturned was that red states were competing with one another to see how restrictive of a law they could put in place around abortion. And you also see this on things like access to guns and voting rights. There has been this kind of, as you were saying earlier, kind of competitive maximalism that has been taking place in these states to show who is the most pro-life.
And I think we’re starting to see a lot of that at the state level. Now, I’m also concerned that these laws are not staying at the state level.
Zack, what do you think?
So first of all, I share Niki’s concern. But I think almost more importantly in some ways than just like a sort of generalized competition is the splits within the pro-life movement, right? For the past — since 1973, the entire pro-life movement has been united around one objective, which is overturning Roe v. Wade. But now, one thing that you can see are the fissures inside of this movement, right?
And so you have on the one hand the sort of more traditional anti-abortion groups, folks like the National Right to Life. They want to get state level prohibitions on abortion, leading up to some kind of national prohibition. But then you have people in the so-called abortion abolitionist movement, which has cropped up more recently. And it’s just much more radical. Their view, which I actually find more intellectually consistent, is that abortion is murder —
— fetuses are people who then deserve all the protections that people have under US law. That means, most importantly, that women who have abortions should be treated like murderers, or at least punished in some kind of way.
I see these laws as examples of state level maximalism. And voters don’t want it. Legislatures — you think about Louisiana’s scrapped bill that would have defined abortion as homicide. They are like, we can’t defend this, and this won’t work. There’s this idea of, yes, this is intellectually consistent, but it’s unpopular.
But Zack, what does Kansas tell us, if anything, about a majority of voters rejecting an amendment to the state Constitution regarding abortion in a state that Trump won easily — a state that’s, despite what a lot of conservative commentators have said over the last couple of days, is still pretty conservative. What does that say about the voters’ reaction to maximalism?
I mean, look, there’s a cliche in American political punditry, that abortion is very complicated in the public’s eyes, and that —
— nobody knows what the public thinks. I’m like, there’s a way in which that’s true, but there’s a way in which the simpler explanation, which is that polls have told us a very consistent story over the course of the past 40 years. And that story is voters want limited access to abortion. They want it to be legal. They only want it to be illegal under a certain set of circumstances. Right? That’s just what the polling says. It’s what it has said.
It’s one of the most remarkably consistent issue polling things I’ve ever seen when looking at American polling, and it’s one that Kansas shows us holds true, right, when it comes to the actual ballot box. We haven’t gotten a chance to see American voters in states, even in conservative states, getting to weigh in directly on outright abortion bans. Now, we’re seeing what happens.
We’re seeing that even in red states like Kansas, pro-life people who want bans, full bans — right, maybe with exceptions for rape and incest and health of the mother, maybe, right, those positions are just unpopular — they are. And so in order to implement them, even in red states, you need to have some kind of situation where the legislators are insulated to a degree from public input.
And the question is, like, how is that insulation accomplished? And there are a variety of different mechanisms. And I think in some states, they’ll be more effective than others for doing so. But that is what you need, right, given how unpopular these policies are proving themselves to be.
Yeah, I don’t think you’re going to see a whole lot more Republican led state level referenda on the issue of abortion, right? I think they probably are learning their lesson from Kansas. But as Zack was pointing out, there are so many other ways to avoid public feedback when it comes to legislating at the state and local level.
Zack, you mentioned the idea of insulation, but I’m curious as to whether you both think — Niki, we’ll start with you — are we losing the accountability relationship between voters and state representatives, particularly in these states where either the Republican Party is so dominant it can only be pulled for the right, or in states where the Republican Party is dominated by the far right. Even if you vote for the Democrat, the Republicans do not respond with becoming less maximalist.
Oh, absolutely, and this has been an issue across the board for quite some time. It’s something that we talked about with voting rights and with gerrymandering at the state level. Places like North Carolina that have done quite a lot to make sure that Republicans stay in power, even if that is not the will of the people — going so far, in fact, as to strip the powers of the governor when a Democrat won that office.
Now, I don’t think that it’s absolute. I don’t think that those legislators have completely walled themselves off from public feedback. And Kansas is a really good example of that. Remember, Kansas, in the twenty teens, had an extremely conservative government that basically took away almost every state service. And Kansans finally rose up, and they were like, this is not how we want to live. And that’s part of the reason why you have a Democratic governor there now.
So there is still space. Like, if you push people far enough, they can break through some of those limits on popular will and popular expression at the voting booth.
Yeah, what I would add to that is there’s an interaction between formal restructuring of the rules and the changing fundamental character of state politics in the United States. Right, it used to be the case — and this was, by the way, the way the system was designed — that state politics would be responsive to hyper local concerns. Right, if you were voting for governor in Maryland, you’re voting for governor in Maryland because you’re concerned about, I don’t know know, the state of the Chesapeake Bay watershed.
Or if you live in that area — right, like, something that really matters to you on a basic level.
And those things still matter to a degree. But what has happened in most places, and virtually everywhere to some degree, is that local politics have become nationalized. So you end up voting for governor based in significant part on your national political ideologies. The abortion debate is a good example of this. Abortion is one of the fundamental issues that sorts you into a red versus blue camp in the first place.
And you end up getting this situation where people are thinking based on their view of the national political environment as to who they want to vote for.
Zack, you’re stealing my argument. This is something I think about all the time, that the nationalization of local politics ruins everything. And state politics becomes an incubator, and state politicians become national figures, which isn’t new, but so many of these states then act on the idea that something is happening in Sacramento, ergo, you must pass a law so that doesn’t happen in Georgia, when the chances of that happening were minimal to say the least.
Or, like, some of it is formal. Take the example that Niki was just using, right, the spread of gerrymandering — right, and then you can also see that with voting rights restrictions, voter I.D. laws. A lot of those were written not by local legislatures in one state or another, but written by national groups that would then proliferate — send little versions of that legislation to different states, who would adapt it with various tweaks and pass it into law.
And so you end up having this sort of undermining of democracy as a national movement, a way to advantage Republicans across the board, but playing out in local legislatures as if each is like one little mini Congress voting on an issue of national priority to the Republican Party on their own, rather than dealing primarily with what their local voters are concerned about.
Well, I think that this is the challenge of the argument of federalism. The argument of federalism is we want to empower local and state governments because those are the governments closest to the people. The way that that would work, though, is that you have to empower people to be able to vote. And instead, what we saw was a series of restrictions on who could vote.
And even though this has often been talked about in terms of voter integrity, we’ve seen enough of the behind the scenes machinations to know that, oh, we’re going to put voter I.D. laws in place to empower Republican leaning voters to vote — so military I.D.s. But we’re not going to allow, say, student I.D.s to be used.
This idea that federalism is about empowering people at the grassroots level — it’s about empowering some people at the grassroots level, around certain issues.
And that is the frustrating thing, because it’s not a bad argument — this idea of the states as the laboratories of democracy, being able to try out different policies and different programs and see how they work in the state, that’s great. But they’ve become these laboratories of illiberalism in recent years — and not just in recent years. And that’s something that we have to reckon with when we’re having that federalism conversation.
Right. I want to talk about Democrats here, because I think that we often in media talk about the Republican Party as being the main drivers of our politics, and Democrats as being the responders — or pouncing. So let’s talk about what Democrats should be learning from this. Last month, in July, California passed a bill to let people sue anyone who distributes banned assault weapons or so-called ghost guns. It’s explicitly modeled after the Texas SB8 law that lets private citizens sue anyone that aids or abets in an illegal abortion.
One, is this at all effective, and two, is this a good response, which I feel like — the two are intertwined questions, Zack.
Yeah, look, Jane, as you know, I’m much more hawkish on gun policy than you are. But I look at this bill and I just think this is an elaborate trolling attempt. As a matter of, like, annoying the Supreme Court or putting John Roberts in an awkward position, like, sure, fine, I guess that’s what California’s legislature is doing. As a matter of, like, substantively curbing gun violence in the United States, it just doesn’t make any sense to me.
The reason that the Texas bill is so disturbing is that abortions are very common, and lots of people know people in their lives who have abortions. You can see people who are going into abortion clinics. Selling ghost guns is not like that — right — it’s like a really hard thing to track.
And it’s just like, there’s going to be a vanishingly small number of suits under this California statute, because what private citizen is going to have the wherewithal to identify sellers of ghost guns and then file a lawsuit against them?
And the broader point here is not just like this specific piece of legislation is an elaborate performance, though it is. It’s just that this piece of legislation shows that while Republicans push the envelope when it comes to this kind of procedural radicalism embodied by the Texas bill, Democrats don’t really — they follow. They don’t do a similar kind of thing.
Is that a question for me —
Yes, that’s a question for you.
Or Niki —
That is a question for you.
All right, all right. Yeah, so look, should they? No, I think probably not. I think the only area in which I am really comfortable with Democratic legislatures trying to push the envelope is on democracy itself, when you can justify what you’re doing as necessary, or at least helpful — conducive to people being able to vote. I think that’s good. You should not figure out ways to try to persecute conservatives as a hated class.
If that’s what this legislation would be, it certainly would be the criticisms I have of some of the red state legislation in this area. I think Democrats need to figure out more effective ways — it’s hard at the state level — but that really — the more I’m talking, like literally speaking out loud in response to this question, Jane, that I hadn’t really thought through before you asked me, the more I think it’s a very difficult situation, because the things to be done are mostly on the federal level.
I also have to say, if I can jump in on the California law —
— that law annoys me to no end, because isn’t the point of governing to create and to model the kind of society you want to exist in the United States? And I can’t imagine that good governance looks like citizens suing other citizens in order to enforce laws, and enforce relationships that the state itself can’t figure out how to govern, or to regulate. Like, it’s just — it’s chaotic. It’s the use of civil courts to try to do an end run around legislation. So what are the Democrats doing?
I mean, I get that they’re trolling, but it seems like if you want to build up support for your party and your ideas, you do things like what Zack was talking about.
What is the relationship in your view, Niki, between state governments and state politicians reacting to national events, or outside influence — so-called? Because as Zack brought up, a lot of legislation with regard to voting, or critical race theory, or L.G.B.T. kids, is not unique to one particular state. It gets shopped and worked around to a bunch of different states. But then you see how the nationalization of politics is influencing state governments and state politicians.
But clearly, state politicians and state governments are influential on national events. Like, a lot of this is coming from these states themselves.
Absolutely. And there is a real interplay in the way that you’ve described — I mean, take something like the critical race theory bans. A lot of those were passed after late 2020, when Donald Trump had issued an executive order preventing some forms of diversity training in the federal government. And you start to see the state level governments beginning to work through some of those same ideas.
At the same time, I mean, state legislatures in particular have been these kind of incubators for some pretty wild ideas for decades — in part, I think increasingly so, because there’s less media coverage of what’s happening at the state level, right, that statehouses don’t necessarily have as many reporters who are on the state and local beat that we used to see even just 20 or 30 years ago. And that has allowed, I think, an extra level of maximalism and experimentation to be happening in some of those statehouses.
We were talking a little bit about federalism and about how these states are responding to both outside influence and to increasingly polarized parties. You know, we talk about red states and blue states, but states don’t stay red or blue forever. And states aren’t actually red or blue.
I think if you’ve ever been to Austin, Texas or Indianapolis, Indiana, you can see that there are a lot of states where no matter how much the blue cities in those states are deemed to be anathema by Republicans, because they are aren’t representative of true Republicans, which is a thing that bothers me to no end — the idea that how you vote defines what state you live in.
But I’m curious about if you are just a liberal living in a red state, or a conservative in a blue state, what is this increasing polarization of state Republican parties and of state government doing to you and doing to our country?
I think it inculcates a lot of fear and uncertainty, to be honest. I mean, I’ve just moved to Nashville, Tennessee, which is a blue city in a very red state — and moved a couple of months after the Dobbs decision. And I moved with a lot of — I wouldn’t necessarily say trepidation, but I was making many more preparations as I was preparing to move, because there are certain rights that I won’t have access to in the new place that I live.
And for me, there are rights that I can access by leaving the state. But if you’re concerned about your rights to marry somebody of the same sex, to have sex with somebody of the same sex, like, those aren’t things that you can necessarily just outsource.
And there’s this sense that even if I can leave the state to access my rights, I don’t have full citizenship in this state. And that sucks.
And that’s a feeling that you carry with you not just when you’re going to the voting booth or when you’re talking about it on a podcast, but it’s something that you carry with you throughout your day. And it makes I think it makes people feel less — less. It makes people feel less. And that’s not something that’s good for our polity, and it’s just not something that’s good for us as people.
Zack, what do you think?
So Jane, I’m thinking about your comment about how there aren’t really red states and blue states. And I’m thinking about how that interplays with what Niki was just saying about the amount of control that the state government exercises over blue enclaves, right, there’s some tension there between those two comments. Let’s go back to gun policy.
One of the more striking features of gun legislation in red states recently has been local preemption doctrines that basically prevent blue localities and cities from enacting stricter gun laws than are passed at the state legislative level, right?
And so what you end up getting is not federalism in the sense of distributed power to the local level. You end up getting federalism in terms of distributed power to the state government, with localities having their decision making capacities reduced because the state government doesn’t like what they’re doing.
So while there is significant heterogeneity inside of the state itself and its political demographics, the structure of governing systems makes it hard for that heterogeneity to express itself through local self-determination in bluer areas like Austin or Nashville, contributing not only to the sense of insecurity that Niki was describing, but also in a very literal sense a diminishment of the quality of Democratic representation for people who live in states who have opposing governments from their own partisan preferences.
I think it’s also worth pointing out that that power of the state government doesn’t just reach into localities, but it reaches out to other states. And that’s the thing that I’ve been turning around in my mind quite a lot since the Dobbs decision, was the way that states want to police a whole raft of other rights and freedoms in order to restrict access to abortion.
Right — restricting the right to travel, restricting the right to mail medicines into the state, or to do telehealth, or to have certain information circulate within the state about reproductive rights and about self managed abortions and things like that, that there are ways in which the whole system becomes corrupted because all of these other rights have to be reined in as well in order to restrict abortion.
And this is something that we’ve seen many times in U.S. history around issues of slavery, right, these efforts to force other states who haven’t passed laws against abortion to help enforce the restrictive laws that the states pass. And we haven’t seen entirely how that’s going to play out. But these illiberal experiments in certain states don’t stay contained within those state borders. They reach out into other states and become, if not national issues, something more than simply state issues.
So to put it at, like, this — a level of way, step back abstraction, right, there’s this big debate among political scientists who study comparative authoritarianism around the world, as to whether something like Hungary’s system could come to the United States, which is basically something where they hold elections. They don’t rig the ballot box, but the rules of the elections are so unfair in terms of media control and gerrymandering that it’s nearly impossible for the government to lose. Political scientists call this competitive authoritarianism.
And one of the big arguments that gets made for why this could not happen in the United States is that state governments are a check on that. The counterargument to that is that actually, historically, in some of the examples that Nikki was just citing, U.S. states have become laboratories of autocracy. And you can end up getting a situation where there’s a kind of authoritarian regime that emerges in local enclaves, but has implications for democracy on the national level, and maybe could be pushed so far as to make the national political system uncompetitive.
I’m not going to try to resolve this argument between these two camps of experts right now, but rather just to point out that the fact that this is the big argument, or one of the big arguments, in terms of the big picture future of American democracy, illustrates just how significant and how powerful state governments are in the U.S. designed constitutional system. They are either the bulwark against authoritarianism or the driver of pushing the United States towards authoritarianism. Nobody thinks the federal system is neutral in this regard, and that speaks to how significant the stakes are of these internal political battles inside red states and blue states as to what the rules are going to be for things like interstate abortion travel, mailing abortion pills, the distribution of guns across state lines. And I think in my view, most significantly, what the rules of elections are going to be.
Right, that something that takes place within a state does not stay within that state. But we’ve seen, in general, people do sort themselves into states or areas that more reflect either what they want to do with their lives as a family, or as people, or with a place where you felt as if you could flourish as you are. I know that’s why I live in Washington D.C. and no longer live in Ohio.
The way that we are sorting ourselves, though, I think might be deleterious to our governance system. So should I move back to Ohio? Like, how do people who want to stand for safe and fair elections, who want to stand up in these states and ensure that these states are at least reflecting the complexity of the people that live within them — what should people like us do, or like me? I’m not moving back to Ohio. I just want to be clear here.
Yeah, look — I mean, it’s an interesting question. This Op-Ed comes up perennially — right, it’s like, go West, young Democrats —
— making the argument that Democrats, especially like millennials and Generation Z folks who — potentially more affordable — can move to new places and live in these communities, set the rules, and reconfigure the structure of American politics. But there’s something incredibly demanding about asking people to move to be political entrepreneurs, right, and politics doesn’t take up the mental space for a lot of people that that kind of political ask would require.
You’re asking people to move away from everyday conveniences they love, and from the people and the rooted places that they love. And so while I really — like, I appreciate the idea in spirit, if you’re a committed Democrat, of being, like, I think the party would be healthier if we had more people living in rural areas, and agree to it, like, good luck getting people to do that in the abstract unless you have a lot of seed capital, and I don’t know, some tech billionaire who wants to donate $1 billion to building, like, little mini Brooklyns dotted across — I don’t know, like, Kansas.
Which — it’s funny, because the argument is always that, oh, you bring your blue state politics with you. But it’s not the politics. It’s the culture. It’s the idea that you would — of course, if you moved to rural Texas and you were gay, you would not stop being gay because you lived in rural Texas now.
Yeah, and you’re not just losing amenities and communities. But for some people, you’re losing safety, right? You can’t ask people to risk their lives and their futures in order to be political entrepreneurs. And I think that part of what has to happen isn’t just encouraging people to move to different places, but to understand that they are part of those places in a way, that what happens in a small community in Iowa is not divorced from your life and your rights and your world if you’re living in West Harlem, that the national body politic is connected.
And even if you’re not about to lose access to voting rights in Manhattan, New York, you should still care about the ability of people in Manhattan, Kansas to access their voting rights, because that’s how you keep a healthy democracy. And so helping people to understand that these are not just regional issues or red state issues, but that what happens in other places has consequences for your life, and you should care about people in other places, is a pretty basic political idea, but one that we should be emphasizing a lot more.
I think that that’s an amazing place for us to end. You should care about other people. Zack, Niki, thank you both so much.
Nicole Hemmer is a historian and an associate professor at Vanderbilt University. Her new book is “Partisans: The Conservative Revolutionaries Who Remade American Politics in the 1990s.” Zack Beauchamp is senior correspondent at Vox. “The Argument” is a production of New York Times Opinion. It’s produced by Phoebe Lett and Vishakha Darbha; edited by Alison Bruzek and Anabel Bacon, with original music by Isaac Jones and Pat McCusker; mixing by Pat McCusker.
Fact checking by Kate Sinclair, Michelle Harris and Mary Marge Locker. Audience strategy by Shannon Busta, with editorial support from Kristina Samulewski.