Democrats Have a Much Bigger Problem Than the Senate or the Electoral College

It’s the statehouses, stupid.

Tony Evers
Wisconsin Gov. Tony Evers waits to address the virtual Democratic National Convention at the Wisconsin Center in Milwaukee on Aug. 19. Melina Mara/Pool/Getty Images

Below is an excerpt of a conversation from Slate’s daily morning news podcast, What Next, hosted by Mary Harris. Subscribe to What Next on Apple Podcasts for the full episode.

Republicans are complaining that something’s not quite right with the presidential election, but the very same ballots voters used to elect Joe Biden helped the GOP run up their numbers, not just in Congress but in a whole bunch of state legislature races. Democrats had hoped to take control of Pennsylvania, Michigan, Minnesota, Texas—and it didn’t happen. On Wednesday’s episode of What Next, I spoke with Ari Berman, a senior reporter at Mother Jones, about what’s happening in these states and how it may cement Republican power across the country for the next decade. Our conversation has been edited and condensed for clarity.

Mary Harris: We’ve talked a lot about down-ballot races and the Senate and the House on this show, but I’ve heard a lot less conversation about state legislatures. Do you think that’s a miss?

Ari Berman: I do think it’s a miss. We are heading into another redistricting cycle in 2021, and it’s the state legislatures that were elected in 2020 that are going to draw those maps for the next decade and determine which way all these pivotal swing states go. I think one of the biggest consequences of the 2020 election, which has not gotten much attention, is what happened in all of these different state legislative races.

Can you give me the 101 version of why we need to be paying attention?

Statehouses are important in a lot of different ways. They control voting laws. They control health care. They control environmental laws. But if you’re talking just about political power, state legislatures, with a few exceptions, are the ones that draw districts both for themselves and also for the House of Representatives. So the districts that these state legislatures are going to draw in 2021—which is when the next redistricting cycle happens—are going to determine who’s in control of these legislatures for the next decade. It’s also going to determine what the House of Representatives looks like for the next decade. State legislatures don’t get a whole lot of attention, but when it comes to how political power is distributed in America, they are incredibly, incredibly important.

Can you characterize how Democrats and Republicans went into this election thinking about the state legislatures? My impression is Democrats were pretty confident in how they’d do.

Democrats felt really good about their position with regard to picking up state legislative seats and chambers heading into the 2020 cycle. Republicans dominated the process in 2010, and they won the power to draw four times as many congressional districts as Democrats did. They basically held control of all of these key states, whether it was Wisconsin or Ohio or Pennsylvania or Florida, and they remain in control of all of those states now. Democrats felt like they had a good opportunity to pick up some serious gains. They thought maybe they could flip the Texas House of Representatives, maybe they could flip the Iowa House, maybe they could take back the North Carolina General Assembly, maybe they could win seats in Florida, maybe they could win seats in Pennsylvania. They really thought that they would be in a much better position. And it just didn’t turn out that way.

How would you characterize what happened instead?

Republicans basically held all of their vulnerable chambers and seats. And right now it looks like, with a few exceptions, the post-2020 redistricting cycle is going to look very similar to the post-2010 redistricting cycle, when Republicans dominated the process.

This year was the best opportunity for Democrats, because one of the things I heard all the time was Barack Obama wasn’t on the ballot in 2010, so it was really hard to increase turnout in an off-year election. Well, this year you had Joe Biden on the ticket, you had high Democratic turnout, and they were still unable to flip these state legislative chambers. So you just wonder, when are they going to get a better opportunity? Especially because the elections in 2022 are going to take place under new maps that Republicans are going to draw. You can be sure as hell that Republicans are going to do everything they can to try to entrench their power after 2020, just like they did after 2010. And the technology to do so is going to become even more sophisticated.

If you look back at the 2010 midterm elections, no state haunts the Democrats more than Wisconsin. The statehouse, the Senate, and the governorship all flipped red that year, giving Republicans total control over the 2011 redistricting cycle.

What happened after 2010, when Republicans took over, is they passed one of the most extremely gerrymandered maps in the country, which led to a situation where Republicans in Wisconsin have consistently gotten fewer votes than Democrats statewide, but they’ve retained huge majorities in the Legislature.

You realize just what an insurmountable barrier gerrymandering can be: Nobody I talked to believed that either body of the Legislature was in play, even though Wisconsin has a Democratic governor, even though it has a Democratic lieutenant governor, even though it has a Democratic senator, even though Joe Biden won the state. If you think of Wisconsin as kind of a quintessential swing state, you would believe that the Legislature would also be in play. But it wasn’t. And that was pretty much the case for almost all of the swing states this time around.

I do think it’s a really interesting tale of what happens when districts are gerrymandered like this, because the Democrats really did try to stage a comeback in Wisconsin. They elected a Democratic governor, Tony Evers. But from the beginning, he was fighting with the Legislature. Members were very comfortable finding ways to block his gubernatorial power. And so you can see this hardening of sides.

The first thing Republicans did after Evers was elected governor in 2018 was strip him of his power in key respects. They said that he couldn’t do all of these things that previous governors, whether they were Democrats or Republicans, had the power to do. That really set the tone for what Wisconsin was going to look like. All throughout his administration, they have not cooperated with him. They’ve challenged his ability, for example, to get COVID under control. They refused to postpone the presidential primary in April, leading to those disastrous images of people waiting in line for hours. And unfortunately, I think that’s a playbook Republicans are going to try to use against Joe Biden. If you paid attention to how Wisconsin Republicans treated Tony Evers after he won, you should not be at all surprised by the way that Republicans are treating Joe Biden right now: to try to delegitimize his election, not cooperate with him, and do everything they can to try to hamstring his ability to govern once he’s elected.

Wisconsin Republicans may have control of both legislative houses, but their efforts are going to be met with Evers and his veto power.

This is going to be a major fight because you have states like Wisconsin and Pennsylvania that have Republican state legislatures and Democratic governors, and traditionally, Democratic governors are able to veto redistricting mafias. That leads to compromise, or it goes to the courts. What Republicans in Wisconsin are definitely going to try to do is strip the governor of his ability to veto those maps they’ve already hinted at there. Conservatives have a 4–3 majority on the state Supreme Court, so if it goes to state court, they have an advantage here.

Redistricting is the next huge fight that’s going to happen. And it hasn’t really gotten a whole lot of attention because obviously we’re not in 2021 yet. But once we get the census data, they’re going to draw new districts.

You once talked about a state senator in Texas named Carol Alvarado. She’s in Houston, and she was worried about this election and what was coming down the pike in terms of gerrymandering. Do you want to talk about her and how meeting with her helped you think about what’s about to happen in Texas?

She was worried, but she was also pretty confident Democrats were going to take back the state House and have a seat at the table when it came to redistricting—but now they won’t. So it looks like there’s going to be more extreme gerrymandering in Texas in 2021 than there was even in 2011. And Republicans could do something potentially that they weren’t able to do in the last cycle: draw districts based on eligible voters, not total population, meaning they could try to exclude people like children or immigrants who are not eligible voters. Those immigrant communities are heavily concentrated in Democratic areas and places like Carol Alvarado’s district in the eastern part of Houston, which is a heavily Latino area.

Trump sort of opened the door to this, right? 

There was an attempt by the Trump administration to add a question about citizenship to the U.S. census, which failed, but then Trump issued an executive order basically saying that he was authorizing the Census Bureau to estimate citizenship data through other means, through what they call administrative records, government records. So now the Census Bureau is in the process of basically estimating the level of citizens and noncitizens in the country. Then that data could be given to states like Texas, which could be able to potentially draw districts that exclude nonvoters from counting. Now, this is going to go to the Supreme Court. There’s no question about it. I’m not totally convinced it won’t be sympathetic to states like Texas.

And states like Texas are changing demographically in a way Wisconsin is not: huge numbers of immigrants, noncitizens, lots of people becoming citizens every single day who are helping push the state blue eventually. I think in the states that are changing demographically, Republicans are probably going to be the most aggressive in trying to use this citizenship data to exclude nonvoters or noneligible voters from counting.

Alvarado is a woman of color. Did she worry these redistricting efforts would mean she could lose her seat, because there would just be less Latino representation?

She did. If you look at her district, so many people, whether they’re children or immigrants, are not eligible to vote. So her district could be submerged in a different district. She could be drawn out of a district and put in a district with another Democrat, or she could be drawn out of her district and put in a district with another Republican. But it would be hard for her to maintain her status if she were to lose so many constituents. So this is a real threat to Latino representation in a place like Texas. And I’m sure Texas Democrats are very, very nervous right now.

Is there a way to connect the dots between Trump’s refusal to concede and what’s happening at the state level? Are these actors kind of speaking to each other with how they’re behaving?

I do think they are. You’re seeing Republicans at the state legislative level raise a lot of the same false claims about irregularities that Trump is saying. It’s not getting as much attention because these people are not Donald Trump, but in Wisconsin and Pennsylvania and Michigan, Republicans are all calling on the election to be investigated, which is funny because they remain in control of all of these states at the state legislative level. So, again, if there were such irregularities there, how are they still in power? But you can imagine a situation next year where they start passing policies to make it more difficult to vote based on these totally baseless accusations of election irregularities. They could say we need to make it harder to vote by mail because Democrats use that more than Republicans did, or we need to cut back on early voting because that led to record turnout. New barriers to registering voters, things like that. I’m not saying they will do that, but I could very well see Trump’s rhetoric giving them an opening to say we need to tighten the election process to try to root out these “irregularities,” even if these irregularities don’t actually exist.

The Democrats seem to lack the organizational knowhow, the infrastructure to compete with Republicans in these states they see as battlegrounds. Is my perception right here or am I just being cynical?

I don’t know if that’s totally true when it comes to state legislative races, because Democrats raised more money than Republicans did with state legislative races. They had really high-profile figures like Eric Holder working on these races. I don’t think it was for lack of effort or for lack of organization. I just think these were really, really difficult places to win seats. And I think Democrats have a red America problem. It’s very, very clear they’re not competing as strongly as they should be in states that are red or haven’t flipped yet from red to purple. And a lot of the seats that needed pickup were in the redder parts of purple states. It was about the more conservative suburban areas, the rural areas? That’s where the Democratic Party really underperformed. Donald Trump ran up huge margins there. That was enough for Republicans to be able to hold control of all of these state legislative chambers.

You made a pretty good case that Democrats are stuck here—it’s hard to win back seats when your districts have been gerrymandered. Is there a path to change here, or are we really in the mud?

There’s been some progress. There are going to be states like Michigan that now have independent redistricting commissions, so there will be more states that draw districts in a bipartisan way or an independent way, which is going to be one positive going forward. I think Democrats are still going to try to pick up governor’s races, for example, where they’re statewide and don’t have to worry about gerrymandering, and they’re going to try to use that as a check. They’re going to keep putting attention on state courts, on state supreme courts, because those courts are going to oversee the redistricting process in many places. But I do think it’s going to be a lot more difficult for them to pick up state legislative seats in 2022, once these districts have been gerrymandered again. This is not going to be a two-year strategy for Democrats. They’re going to have to have a long-term strategy. They’re going to have to have a strategy for the next decade in terms of trying to win back some of these seats. That’s going to require a lot of patience and a lot of organizing and a lot of thinking about what to do here, because at the state legislative level, there’s not a quick, easy fix.

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