Texas and California are both in the news for different terrible reasons, but how we got to this point in the nation’s two most populous states is remarkably similar. Both states are effectively one-party states: one red, one blue. But in both states, the Democrats are getting clobbered, and it’s mostly their own fault.
The Republican-dominated Texas legislature passed S.B. 8 recently, the law that criminalizes all abortions more than six weeks after the start of someone’s last menstrual period, before many people even realize they’re pregnant.
Democratic-controlled California is on the verge of expelling a Democratic governor and replacing him with Republican radio host Larry Elder, who, like his idol Donald Trump, is bigoted, misogynistic, denies the reality of COVID-19 and climate change, and is using his career as a right-wing media troll to muscle his way into power.
We shouldn’t have been surprised to see the Texas law pass, but the Supreme Court’s action on Sept. 1—or rather, its lack of action—marks a low point in American jurisprudence.
This is the Supreme Court the Republicans have been trying to get since Ronald Reagan won the presidency in 1980. Roe v. Wade has effectively been overturned in Texas, and not even by a proactive decision in a case, but in a dead-of-night refusal to block a state law that violates that landmark ruling.
It bears noting here that, aside from its landmark status affecting abortion nationwide, 1973’s Roe v. Wade case specifically overturned a Texas law that prohibited abortion, declaring that Americans have a constitutional right to an abortion up until the fetus could survive outside the womb—a point that comes well after the six-week post-menstruation period mandated by S.B. 8.
Texas’ law is particularly insidious because it tries to dodge the inevitable lawsuits to overturn it by turning enforcement over to vigilantes: Any private citizen can now sue any individual helping someone in Texas obtain a now-illegal abortion, and be awarded $10,000 plus attorney’s fees. It’s the wink-and-nod invitation for anti-abortion Texans to drive every single person involved in the procedure, from the doctor to the cab driver, into bankruptcy. (Despite the law being crafted to avoid lawsuits against the state, the U.S. Department of Justice has sued Texas over the law, as have numerous private organizations including the ACLU and Planned Parenthood Federation of Texas.)
Texas has also passed the nation’s most restrictive voter laws, and on Sept. 1, the same day the Supreme Court let Texas effectively outlaw abortion, Gov. Greg Abbott signed a bill whose provisions include allowing partisan poll watchers unfettered access to ballot counting. That same day, he also signed a law making it legal for anyone to carry firearms without a license or training.
This culture of vigilantism is likely the future of Republican political action nationwide. Many other states are starting to draft copycat bills modeled on the Texas abortion statute (starting with South Dakota, apparently). The party’s most fervent supporters are little more than White supremacist gangs with military-style weaponry. The Jan. 6 insurrection seems less like an outlier and more like a foretelling of electoral conduct to come.
Similarly, mob rule appears to be dominating the recall election against California Gov. Gavin Newsom. On the right, there has been grumbling about mask mandates, how he handled the pandemic lockdown, or a maskless fancy dinner with lobbyists and family members during the lockdown, but the most salient issue seems to be simply that Newsom is a Democrat.
And also, that the governor would appoint a replacement if the 88-year-old U.S. Senator Dianne Feinstein, rumored to be experiencing cognitive decline, does not complete her term. So the balance of power in Washington, D.C., is very much on the ballot Tuesday. We’re one heartbeat away from giving U.S. Sen. Mitch McConnell veto power over Biden’s entire agenda, including stealing yet another Supreme Court seat from the Democrats if Justice Stephen Breyer, who is 83, retires or dies.
But under California’s admittedly bizarre recall laws, which would expel Newsom if a majority of ballots cast vote “yes,” his replacement would be chosen based on who gets the most votes in a 46-way race.
In other words, Elder, the top candidate on the recall ballot, can “win” the governor’s mansion with less than 3% of the vote, so long as the other 45 win no more than 2.17% each.
How did it come to this?
The simple answer is that Democrats once again dropped the ball in the states.
This isn’t a new phenomenon. The Democratic Party seems only able to rise up from its instinctive defensive crouch to form a circular firing squad. Meanwhile, Republicans have been seeding their activists into school boards and town councils since the 1970s, building up a deep bench of political talent that can more easily rise to levels of state and national power.
Nick Rathod, who served as an Obama White House liaison to the states and later helped set up the Consumer Finance Protection Bureau with U.S. Sen. Elizabeth Warren, says the Democratic Party has been more focused on winning the White House and Congressional seats than building up local party infrastructure and a farm team of future political talent. But Republicans have identified state capitals as where the power really lies.
“They just have this focus on power and understanding of how power works in this country that we don’t,” Rathod says of the GOP.
In California, Democrats didn’t take the recall election seriously until it was almost too late. Polling has ranged from Newsom having a slight lead that is still within the margin of error to a dead heat race.
In Texas, the dynamic is the opposite, but the Democrats have been outplayed by neglecting building local power centers in favor of targeting high-profile races, such as former Congressman Beto O’Rourke’s unsuccessful effort to dislodge U.S. Sen. Ted Cruz in 2018. O’Rourke won the large cities and the Rio Grande valley, but lost the state by 2.6%.
But even that narrow loss is likely to be further out of reach, given new voting restrictions and Republican-led gerrymandering in this year’s redrawing of the electoral maps. Texas is gaining two Congressional seats because of the state’s population growth, and the legislature controls the redistricting process.
Rathod points to Harris County, Texas, where Houston is located, as an example of how Democrats have been able to build a solid foundation, led in part by O’Rourke’s electoral operation. “The best example there was the election in 2018, where 19 African American women were elected as judges,” Rathod says. Stacey Abrams’ activism and coalition-building also led to key Democratic victories in Georgia in 2020.
But these victories have been the exceptions to the general rule of Republicans out-organizing Democrats at the local level across the country.
In 2014, Rathod started working on a part of a solution, founding SiX: State Innovation Exchange, a policy resource and strategy organization working with state Democratic parties to pass legislation. It’s similar to what the larger conservative American Legislative Exchange Council (ALEC) has been doing for Republicans, such as writing model legislation for multiple state governments to enact.
“ALEC has been working since the 1980s to basically write legislation in partnership with corporations to advance a corporate agenda,” Rathod says. “Democrats just haven’t had any counter to it.” (Rathod left SiX in 2018 to found Uprising Strategies, a strategic communications firm.)
Corporate support also provides the Republican Party another major advantage: large corporations provide funding to both the party and a network of policy organizations such as the State Policy Network, which runs conservative think tanks and policy shops at the state level. “Once a bill drops, they’ll get op-eds into newspapers, providing the intellectual support behind those efforts,” Rathod says.
In addition to ALEC, the GOP also relies on groups like the Heritage Foundation, Americans for Prosperity, the Franklin Center, and national media allies at Fox News and Sinclair Broadcasting to disseminate its messaging across platforms.
“We don’t have a similar sort of aligned operation on our side,” Rathod says. Instead, the left side of the political spectrum is populated by dozens of three-person outfits, which often compete with one another for funding and influence.
Not for lack of trying: the Center for American Progress is supposed to be a counter to the Heritage Foundation, the American Constitution Society a counter to the Federalist Society, and so on. But none stack up against the Republicans’ well-funded network of organizations that reaches into all levels of society.
That network paid off for Republicans in the 2010 midterm elections, the infamous “shellacking” delivered to the Obama administration. In that election, not only did the House of Representatives flip to the Republicans, who netted 63 seats, but Republicans won big at the state level: they gained six governorships, flipped 20 legislative chambers, and won total control in 12 new states.
Then, as now, the states embarked on redrawing the district maps, which led to some of the most blatantly partisan maps in history.
Now in 2021, Republicans are gearing up for another heavy-handed redrawing of district boundaries, much as they did after the 2010 Census. And unless they deliberately draw districts that are obviously based on race, there’s little to stop them from locking in their power for the next decade.
The Supreme Court’s current majority doesn’t seem willing to stop them, either.
“We’ll almost be back to square one,” Rathod says.
Seen in this light, the Democrats’ win in 2020 looks exceedingly narrow. Biden’s coattails proved to be quite short, because not a single state legislative body flipped to the Democrats in 2020. And despite garnering 81 million total votes, his Electoral College win was secured by just 42,844 votes in three states, compared to Trump’s 77,744-vote, three-state margin in 2016.
That doesn’t mean all is lost in 2022. But Rathod says the Democrats need to rethink how they’re handling their state and local elections. That means reviving Howard Dean’s 50-state strategy, and focusing on dynamic new state-level leaders to develop that next generation of talent.
The second task, Rathod says, is to apply the lessons from the Obama administration. The fight over the Affordable Care Act proved a case in point: Democratic outreach to Republicans only resulted in a watered-down bill that Republicans didn’t support anyway, and the delays gave Republicans time to organize, host town halls, and coordinate their messaging around “death panels” to undermine the act.
“The lesson is, don’t trust them, they’re not sincere in coming to the table,” Rathod says. “There’s no such thing as bipartisanship anymore.”
When it comes to voting, small margins are a luxury Democrats can’t afford. Gov. Newsom must be feeling that acutely just days before the recall election. “Vote in numbers too big to manipulate” was not just a mantra for 2020, but will have to be for every election going forward until the right to vote is guaranteed for everyone. We’re just not there yet, and can’t let down our guard.
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