Jurisprudence

Where Progressives Are Making Progress

In the sea of outrage toward red states’ legislation, don’t overlook what’s happening in blue states.

Democratic states in the Northeast of the United States.
Photo illustration by Slate. Image by DESKCUBE/iStock/Getty Images Plus.

It’s been a tough few weeks for progressives. Red state legislatures have fallen over themselves of late, passing shocking new laws suppressing the basic right to vote, the right of children to be safe in their own schools, and, most recently, the right to be an autonomous woman. These oppressive laws appear all the more insurmountable because of the Republican judicial confirmation juggernaut President Donald Trump and Senate Majority Leader Mitch McConnell are using to remake the federal courts, including the Supreme Court, for the express purpose of paving the way for a medieval and backward-looking social movement. The response from many of their opponents is shock and dismay, which makes perfect sense given these courts’ willingness to blow through any well-established constitutional precedents standing in their way. There’s an attendant feeling of powerlessness when one considers the possible options for stopping this effort to slide our national Overton window harder to the right than most of us ever imagined.

When people feel powerlessness, it tends to manifest into a breathless search for a white knight who will make everything better. That’s part of why you can now wallpaper the Grand Canyon with all of the articles cataloguing the desperation of Democratic voters for an “electable” presidential candidate, next to the fundraising ads of the now 22 candidates auditioning for that role. Though Robert Mueller didn’t save us and won’t anytime soon, for a long time he might’ve been the knight everyone was waiting for. And many have cheered state attorneys general and public interest lawyers in their efforts to block some of the administration’s and red states’ worst practices in court. Those lawsuits have mostly served to hold the line against the degradation of our democracy and constitutional values. At their very best, they stop the rightward drift of the Overton window. More often, they simply slow the slide.

It’s easy to lose heart. But progressives horrified by the events of recent weeks have a better option than shaking a fist at cable news or mourning battles lost. Yes, donate to groups like the Yellowhammer Fund; and yes, keep registering new voters; and yes, keep protesting. But just as conservatives have taken advantage of their political clout in states where the GOP has consolidated control, progressive voters should also focus on throwing their weight around where it has the most gravity: the states and cities in which Democrats hold unified control of government. Simply gaping and sputtering at the ways in which the Overton window has been moved rightward yet again overlooks tools of democracy that still exist, that still have force, and that—if deployed early and often—might rebalance the scales. There are pockets of extraordinary forward movement in blue states. The time to scale them up is now.

There are plenty of places where this is already happening. Georgia’s efforts to end reproductive freedom have not prevented New York from expanding it with the passage of the Reproductive Health Act, which codifies the protections of Roe into state law. Tennessee’s efforts to curtail voter registration have not stopped 18 states and the District of Columbia from enacting and/or implementing automatic voter registration laws since 2016. The continued resistance Mississippi, Texas, Oklahoma, and 11 other red states have demonstrated to expanding Medicaid health care coverage for the poor has not stopped Washington from becoming the first state to offer a public health care option through its state insurance exchange. Florida lawmakers have decided to arm teachers, but Connecticut has continued to enact gun control laws to preserve one of the nation’s lowest firearm death rates.

Equally important, these progressive gains will mostly avoid Supreme Court review. The Constitution sets a floor for individual rights below which states cannot descend (hard as some might try), but it also grants states wide latitude to act as “laboratories of democracy,” by expanding civil liberties and enacting progressive social programs. If the Supreme Court decides to lower the floor for individual rights, that may create a race to the bottom among red states. But the Supreme Court generally can’t stop blue states from increasing protections for reproductive freedom and voting rights; it can’t stop them from developing a more effective social safety net, or promoting sound environmental practices, or enacting criminal justice reform, or investing in public education.

After sweeping gains in the 2018 elections, Democrats currently hold unified control of governments in 14 states. Progressives should take a page out of the conservative playbook to leverage the capitols where they have consolidated control into countervailing state legislative gains that shift the national conversation on climate change and voting rights, on the minimum wage and on access to health care. Presidential candidates like Elizabeth Warren and freshman Democrats in Congress have been roaring engines of progressive policy ideas. While those ideas won’t find their way into the U.S. Code today, they can find traction in state capitols and city halls where the political will to enact those ideas exists—as long as voters push their states and local lawmakers to do so.

Right now, there are important bills falling short of the finish line in blue states. In Vermont, Illinois, Maine, Massachusetts, and California, there are critical bills that would expand protections for women’s reproductive freedom either pending in the legislature or awaiting a governor’s signature. In Maryland, new House of Delegates Speaker (and first woman to hold the position) Adrienne Jones is reviving efforts to amend the state constitution to protect abortion rights. In Rhode Island, legislation to codify abortion rights into state law lost a key committee vote last week, but paths to passage may remain open. On voting rights, Republicans seek to overturn the will of a supermajority of Florida voters who wish to enfranchise 1.4 million ex-offenders, but bills to expand ballot access and/or restore the right to vote to people in the criminal justice system are pending before state legislatures in California, Connecticut, Delaware Nevada, and New York. There’s police and prosecutorial reform legislation, including a pending California bill that could reduce police killings by making clear that officers should use deadly force only when necessary and a Nevada bill reducing some criminal penalties and increasing access to diversion programs for drug crimes. Even as the Trump administration has been rolling back environmental regulations, cities across the country have been leading the charge on reducing greenhouse gases and increasing sustainable energy use. If you’re a blue state voter and there’s an issue you care about, there’s almost certainly an opportunity to support pending legislation or to move your lawmakers to act on the issue. It does require becoming active at the state level, and knowing what other blue states are experimenting with.

It’s not enough to say that people will vote in November of 2020. Voters need to start making their power felt in state capitols and city halls right now. Local newspapers are still consequential movers of public opinion—progressives should be writing letters to the editor in all of them, weekly. Canvassing, door knocking, phone banking, and fundraising is not something that should be left to the fall of 2020. Remember how voters jamming their representatives’ phone lines derailed congressional attempts to repeal the Affordable Care Act? Every outrage should be met with an equal and opposite, lawful and impactful countermove. At the state and local levels, where the stakes are high but engagement is too low, every call, letter, and tweet can make a difference. Moreover, the state legislators, city councilors, mayors, and school board members who demonstrate leadership can go on to become the next candidates for Congress and the White House.

This is not the moment to grieve lost norms. Stunned powerlessness only helps those who seek to push the boundaries of what is allowed and what is newly possible. Instead, this is the time to understand that taking back constitutional democracy is boring and process-oriented and time-consuming. Energy spent calling, writing, and visiting state and local legislators to fight for progressive priorities is of far greater utility than energy spent wringing one’s hands about how this or that action is intolerable. Beyond that, making change at the local level is far easier than fretting about federal elections over a year away. Organized, focused, and active citizens can still push the Overton window back in the right direction. It requires neither violence nor superpowers. It does require the tedious work and creative use of all of the powers still left on the table.