Republicans’ Down Ballot Power Grab

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S1: Just before the election, someone at Slate started a slack channel where folks could dump their campaign related anxiety. They called it spiraling. It’s the place you’d go to complain about the talking heads on CNN or admit that you smoked a cigarette to relieve some tension. And on Saturday, after Joe Biden was declared the president elect and Ed archive this channel because we didn’t think we needed it anymore. Until yesterday, that’s when it began to feel like maybe we should start worrying again about how all this is going to play out and spiraling, it was open for business.

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S2: Today, the incumbent president, his campaign and his cadre of loyal Republicans continued their campaign of baseless claims of voter fraud going on all over the country. Late today, Attorney General Bill Barr did them all one better. He wrote a letter to all U.S. attorneys on letterhead telling federal prosecutors they are allowed to investigate allegations of voter fraud.

S1: Sure, the race has been called. Joe Biden is the clear winner, but the president, he still hasn’t conceded. And the administration has been making these strange defensive moves. A bunch of top officials at the Department of Defense are suddenly out of work. The government bureaucrat in charge of Joe Biden’s transition is refusing to give him a call. The secretary of state, Mike Pompeo, had a press conference this week where he said he was preparing for a second Trump administration.

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S3: There will be a smooth transition to a second Trump administration. It’s hard not to feel at least a little bit of dread because it’s so obvious that Joe Biden won the election.

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S1: I called up Ari Berman from over at Mother Jones to talk me through some of this.

S3: It’s not a particularly close election. This is not Florida 2000. We’re not talking about 537 votes as we’re recording this. The closest state, Georgia, Biden’s up by 12000 votes. So it’s not really close anywhere for every.

S1: One of the strangest things about this moment is watching the Republican Party for the most part. Stand by as the president pretends he doesn’t understand what just happened.

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S3: If Democrats were trying to rig the election, they would have taken out Mitch McConnell along with Donald Trump. I can guarantee you that if they were trying to rig the election, they would have not lost seats in the House of Representatives. And so, I mean, it was really crazy to see Mitch McConnell yesterday on the Senate floor refusing to congratulate Joe Biden in saying that Trump was well within his rights to contest the election.

S4: We have the system in place to consider concerns. And President Trump is one hundred percent within his rights to look into allegations of irregularities and weigh his legal options.

S3: But then he’s he’s holding a ceremony right afterwards with new Republican senators as though he’s basically saying that, OK, well, their votes were valid, but all the votes that were cast for Joe Biden are invalid.

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S1: This is a really good point. While the Republicans are complaining that something’s not quite right with the presidential election, the very same ballots voters used to elect Joe Biden helped the GOP run up their numbers and not just in Congress. At the state level, Republicans beat the odds in a whole bunch of legislature races. Democrats had hoped to flip control in Pennsylvania, Michigan, Minnesota, Texas. None of that happened. We’ve talked a lot about down ballot races in the Senate and the House on the show, but I’ve heard a lot less conversation about state legislatures. Do you think that’s a miss? I do think it’s a mess.

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S3: We are heading into another redistricting cycle in twenty twenty one, 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 of these pivotal swing states go. And so I do think that 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.

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S1: Today on the show, Ari says, before you get too distracted by the moves out of Washington, pay attention to what’s happening in the States because what’s going on there, it could cement Republican power across the country for the next decade. I’m Mary Harris. You’re listening to what next? Stick around. Ari, can you give me, like, the 101 version of why we need to be paying attention to these state House races?

S3: Yeah, so, I mean, state houses are important a lot of different ways. They control voting laws. They control health care. They control environmental laws. They control all sorts of things. But if you’re talking just about political power, state legislatures, with a few exceptions, are the ones that draw districts both for themselves, but also for the House of Representatives. So the districts that these state legislatures are going to draw in twenty, twenty one, which is when the next redistricting cycle happens, that’s going to determine who’s in control of these state legislatures for the next decade. It’s also going to determine what the House of Representatives looks like for the next decade because they’re drawing those districts as well. So 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.

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S1: Can you characterize how the Democrats and Republicans went into this election thinking about the state legislatures? Because my impression is that Democrats were pretty confident in how they do.

S3: Democrats felt really good about their position with regards to picking up state legislative seats and picking up chambers heading into the 2012 cycle. I mean, Republicans dominate in 2010 and they won the power to draw four times as many congressional districts as Democrats did. And 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. And I think 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 legislature, 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 with regards to state legislative races. And it just didn’t turn out that way.

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S1: Yeah. How would you characterize what happened?

S3: Instead, Republicans basically held all of their vulnerable chambers and seats. And right now it looks like the with a few exceptions, the post 2020 redistricting cycle is going to look very similar to the 2010 redistricting cycle when Republicans dominated the process. And so this was probably one of the best opportunities Democrats had. You mean this year? This year in general? Yeah. I mean, this was this was the best year for them, because one of the things I heard all the time in 2020 was Barack Obama wasn’t on the ballot in 2010. And 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, what 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. And you can 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.

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S1: If you look back at the 2010 midterm elections, no state haunts the Democrats more than Wisconsin. The state House, the Senate and the governorship all flipped red that year, giving Republicans total control over the 2011 redistricting cycle.

S3: What happened after 2010 when Republicans took over, is they passed among 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. So in twenty eighteen, for example, Republican candidates for the state legislature only got 46 percent of the statewide vote, but they got 64 percent of seats, which is pretty remarkable to be able to do. And even in twenty twenty, Joe Biden was able to carry Wisconsin by twenty thousand votes, which was a relatively slim margin, but almost nothing changed in the state legislature. I think one race flipped in the state House and one race flipped in the state Senate. So there was almost no change on the state level, even though Biden was able to flip the state. And you realize just what an insurmountable barrier gerrymandering can be, because I think Democrats in Wisconsin were hopeful they might be able to pick up a few seats here. Are there? But nobody I talked to believe that either body of the legislature was in play, even though Wisconsin has a Democratic governor, even though they have a Democratic lieutenant governor, even though they have a Democratic senator, even though Joe Biden won won the state. So, I mean, 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 a.

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S1: All of the swing states this time around, hmm, I want to go back to what happened after 2010 because 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 and they elected a Democratic governor, Tony Evers. But from the beginning, he was fighting with the legislature. They were very comfortable finding ways to block his gubernatorial power. And so you can see this hardening of sides.

S3: You can the first thing that Republicans did after Tony Evers was elected governor in 2018 was they stripped 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. And that really set the tone for what Wisconsin was going to look like. And all throughout his administration, they have not cooperated with him. They’ve challenged his ability, for example, to get covered under control. They refused to postpone the presidential primary in a really important state Supreme Court election in April, leading to those disastrous images of people waiting in line for hours at the peak of covid holding signs that said, this is ridiculous. And unfortunately, I think that’s a playbook that Republicans are going to try to use against Joe Biden. And if you paid attention to how Wisconsin Republicans treated Tony Evers after he he won, you should not be at all surprised by the way that Republicans are treating Joe Biden right now, which is to try to delegitimize his election, not cooperate him and do everything you can to try to hamstring his ability to govern once he’s elected.

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S1: Wisconsin Republicans might have control of both legislative houses, but their efforts are going to be met with resistance from the state’s Democratic governor, Tony Evers. He’s got veto power. Ari does not expect either side to go down easy.

S3: 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 maps, which then either leads to compromise or if they can’t compromise, it then goes to the courts. What Republicans in Wisconsin are definitely going to try to do is they’re going to try to strip the Democratic governor of his ability to veto those maps they’ve already hinted at there. They might do that. And so that’s going to be a really big legal fight. In Wisconsin, conservatives have a four to three majority on the state Supreme Court. So if it goes to state court, they have an advantage here. But 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 it starts getting into early 2021, once we get the census data, they’re going to draw new districts. And in particularly in states where there’s divided government like Wisconsin, there’s going to be a huge fight over what those districts look like.

S1: What worries are most are states like Texas, where Republicans have control of both state houses and the governorship. That’s where they could do real damage by fundamentally changing who counts in a district. I mean, last time we spoke, you were talking 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. I wonder if you want to talk about her and how meeting with her helped you think about what’s about to happen in Texas?

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S3: Yes, it’s interesting, actually. She was worried, but she was also pretty confident that Democrats were going to take back the state House and have a seat at the table when it came to redistricting and that now they they won’t have that seat at the table. And so what looks like is coming down the pike is there’s going to be more extreme gerrymandering in Texas in 2021 than there was even in 2011. And they could do something potentially that they weren’t able to do in the last cycle, which is they could actually 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 from counting those children. 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. So that’s why gerrymandering could be even worse in 2021 than it was in 2011, because there could be new tools that Republicans could be able to use to try to reduce Democratic representation and try to entrench their power even more than they did the last cycle, because Trump sort of opened the door to this, right? Yeah, Trump opened the door to this. So there was an attempt by the Trump administration to add a question about citizenship to the U.S. Census that failed. But then Trump issued an executive order based on. He’s saying that he was authorizing the Census Bureau to essentially estimate the citizenship data through other means, through what they call administrative records, government records. And so now the Census Bureau is in the process of basically estimating the level of citizens and non-citizens in the country. And then that data could be given to states like Texas and Texas, 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. If a state like Texas tries to do this, this is going to go to the Supreme Court. There was an effort for Texas to try to do this last time, but Texas took the position. They didn’t want to actually do it. But now they could change their mind and decide that they want to do it. And we will see what a six to three Supreme Court rules the doctrine of one person, one vote has always been interpreted that you count all people, that everyone counts when it comes to the purposes of drawing districts, both congressional districts and state legislative districts. But I’m not totally convinced that the current court we have won’t be sympathetic to states like Texas. If they try to draw data, they try to draw new districts based on excluding certain people from counting.

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S1: Well, it’s interesting because you’re sort of you’re painting a picture of this layer cake situation where if you’re looking at a state like Wisconsin where there’s going to be a big fight, the Republicans may not be as emboldened to do some of the more extreme things that the Trump administration has opened up for them to do, like getting rid of the idea that everyone counts. But in a place like Texas where you have complete one party control, you have this ability to not just have control of the gerrymandering, which is its own issue, but then you layer on top of it the way you deal with the census data. And so then you have a real hardening of positions that that that’s absolutely correct.

S3: Also, in states like Texas, those states are changing demographically in a way that Wisconsin is not. And so Wisconsin is a state that’s pretty flat demographically. But in Texas, you have huge numbers of immigrants, lots of non-citizens, lots of people that are becoming citizens every single day that is helping push the state blue eventually. And if you can exclude them from counting, that has a big impact. And so I think in the states that are changing demographically, they’re probably going to be the most aggressive in trying to use this citizenship data to exclude nonvoters or not eligible voters from counting.

S1: Yeah, that state senator, you talked to Carol Alvarado. She’s a woman of color. Did she worry that these redistricting efforts would mean she could lose her seat because there would just be less Latino representation?

S3: She did, because if you look at her district, so many people in her district, whether they’re children or immigrants, are not eligible to vote. So if you looked at her district and you said that districts have to be roughly equal in terms of their population, she’s going to lose a lot of people. And 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 was to lose so many constituents. And 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, not just because they’re not going to have any say in the redistricting process, but because Republicans now have a whole nother tool they can use to try to reduce Democratic representation.

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S5: Back with more what next after a short break.

S1: Is there a way to connect the dots between Trump’s refusal to concede and what’s happening at the state level, like are these are these actions somehow working hand in glove? Like are these actors kind of speaking to each other with how they’re behaving right now?

S3: I do think they are. I think because 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 nonetheless, you can imagine a situation that next year when Republicans come back in control of the Wisconsin legislature or the Pennsylvania legislature or the Michigan legislature, they could start passing policies to make it more difficult to vote based on these totally baseless accusations of election irregularities. And 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. We need to institute new barriers to registering voters, things like that. I mean, I’m not saying they will do that, but I could very well see that Trump’s rhetoric is 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. So while Washington is a little bit paralyzed potentially by divided government, these state legislatures won’t be some of them won’t be obviously in Wisconsin and Pennsylvania and some of the other states, there’s going to be divided government. But in Texas and Florida and Ohio and Georgia and New Hampshire and other places, there’s going to be one party control. And I fully expect them to try to maximize their power and to try to maximize their power in ways that increases their ability to try to win elections in the future.

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S5: I feel like I keep telling the same story here over the last week, which is the Democrats seem to lack the organizational know.

S1: How will infrastructure to compete with Republicans in these states that they see as battlegrounds? Is my perception right here or I’m I just being cynical?

S3: Well, I don’t know if that’s totally true when it comes to state legislative races, because, again, the Democrats raised more money than Republicans did with state legislative races. They had really high profile figures like Eric Holder working on these races. So 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 that 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 you need to pick up were in the redder parts of purple states. So it wasn’t about whether you can win Madison or Milwaukee or whether you can win Houston or Philadelphia. It was can you win the more suburban areas, the more conservative suburban areas? Can you win the more suburban areas? Can you win the more rural areas? And that’s where the Democratic Party really underperformed. They really underperformed in those more rural those more red areas. Donald Trump ran up huge margins there. And that was enough for Republicans to be able to hold control of all of these state legislative chambers.

S1: I guess I see it a little bit differently, which is I agree there was a huge investment in state legislatures, but I wonder if it was the right kind of investment. Like, I don’t know if in Wisconsin, Eric Holder is like the right surrogate, you know, to talk about whatever’s happening in the state legislature races. Like, I just wonder if there’s been enough groundwork to do the work Democrats need to do.

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S3: Well, one of the things that Eric Holder’s group did was they targeted three state Supreme Court seats in Wisconsin to try to pick up so that the state Supreme Court would be able to have a say in terms of redistricting. And they won two out of three of those races and they lost the other one very narrowly. So that was relatively successful that they were able to pick up two of three seats on the state Supreme Court. Now, do you want Eric Holder necessarily sent into every swing district in Wisconsin? No, but the whole point was that Democrats needed a strategy here in terms of what races to try to win and and how to raise the money and get the organization to do that. And in fact, the Wisconsin Democratic Party was pretty well organized in 2020. I mean, and people credit that organization with Joe Biden winning the race. I just think it’s a totally different map to try to win back the state legislature in Wisconsin than it is for Joe Biden to win the state. That’s the argument I’m making, that it’s a much more formidable, much redder map to be able to win the state legislature than it is to win statewide in Wisconsin.

S1: Yeah, kind of sounds like the end of The Karate Kid. We’re trying to, like, win the fight, but you’ve just, like, broken your leg.

S3: Yeah, it’s like there’s only when you chop down on all those wood blocks, there’s only so far you can get on the wood. That’s kind of how it feels.

S1: You made a pretty good case that the Democrats are stuck here like it’s hard to win back seats when your districts have been gerrymandered. But is there a path to change here or are we really just stuck in the mud?

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S3: Well, there’s been some progress, there is going to be states, for example, like Michigan, that were under Republican control, that now have independent redistricting commissions. So there’s going to 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 governors races, for example, where they’re statewide and they 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 so that the Democrats aren’t out of options. But I do think that it’s going to be probably a lot more difficult for them to pick up state legislative seats in 2022 once these districts have been gerrymandered than it was in 2020 when we were reaching the end of a cycle of gerrymandering. And some of these gerrymandering weren’t potentially thought of as quite as effective as they will be going forward. So it’s going to take a while. 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. And 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 least at the state legislative level, there’s not a quick, easy fix.

S5: Ari Berman, thank you so much for joining me. Thanks so much, Mary. Ari Berman is a senior reporter at Mother Jones. And that is the show What Next is produced by Mary Wilson, Jason de Leon, Elena Schwartz and Daniel Hewett. We are led everyday by Alicia Montgomery and Allison Benedikt. We are getting a whole load of help from Frannie Kelley right now. Today is Jason DeLeon’s last day with the show. He has been with us from the beginning. I cannot thank him enough. I’m so excited to see what he does. A slow burn. All right. I’m Mary Harris. I will catch you all back here tomorrow.