This is Democracy – Episode 151: Voting and State Governments

[0:00:04 Speaker 1] Mhm. Yeah, this is Democracy, a podcast about the people of the United States. A podcast about citizenship about engaging with politics and the world around you. A podcast about educating yourself on today’s

[0:00:19 Speaker 0] important issues

[0:00:20 Speaker 1] and how to have a voice in what happens next. Welcome to our new episode of This is Democracy. Today’s episode focuses on historical and contemporary topic that’s in the news, but often neglected in other contexts. The role of state governments in making larger constitutional and political policies for the United States. What role have our states now? There are 50 of them, of course. What role have they played in the evolution of our constitutional democracy in the ways we vote in the ways we spend our money as a society, in the ways we allocate health care uh and various other policy issues. What role have state governments played? How does our structure of federalism place states and particularly important roles? And how do we understand our current controversies over voting and other issues in light of this history? We’re very fortunate today to be joined by, I think, clearly the foremost scholar of state constitutions and state policy making in a national framework. Robinson Woodward Burns Robinson, thank you for joining us today.

[0:01:30 Speaker 0] Thank you for having me.

[0:01:32 Speaker 1] Robinson is an assistant professor in the department of Political Science at Howard University. I think of him as a historian from a lot of his writing, but he’s also in political science and we won’t hold that against him. Uh He he researches and teaches american constitutionalism, civil rights, Federalism, D. C. Politics and Statehood. And maybe we’ll have a chance to talk a little bit about that. We’ve done prior episodes on that. But maybe that will come up now as well, slavery and abolition. So he covers all the good stuff and he’s got a new book that’s just come out called Hidden Laws. How state constitutions stabilize american politics. I encourage everyone to go out and read that it will probably be assigned to my students in the fall. Uh This book looks at state constitutional reform and how state constitutional reform has addressed national controversies over elections voting civil rights. And um Robinson has a positive story to tell about how at times a state constitutional reforms have actually stabilized our democracy. He’s published on pieces of this already on abolitionism and constitutionalism and various academic journals including the Tulsa Law Review in the Journal of Politics. And he’s published for a larger public audience. Which is how I first came across Robinson’s work publishing in the atlantic uh and the Washington post uh and his piece in the Washington post from what I remember on D. C. Statehood is particularly relevant and worth reading on the various constitutional issues surrounding that. So we’ve got the right person here to talk about the role of the states and how we understand our current controversies. Before we turn to Robinson we have of course mr Zachary series scene setting poem. What’s the title of your poem today? Zachary. When they gather in the hallowed

[0:03:17 Speaker 0] halls.

[0:03:19 Speaker 1] Let’s hear about the hallowed halls. When they gather in the hallowed halls you can scream but it won’t work. You can cry that. They will throw back a laugh. You can grimace and they’ll give you a smirk when they walk among the paintings and the riff raff. You can ask for water but they’ll hand you a Kleenex. You can ask for a tissue but they’ll pass you a glass of water. Tell them about the thieves and they’ll imprison the beatniks when they gather. The shoemaker, the lawyer and the squatter. You can ask for salvation and they’ll pass you a gun. You can ask for an education, but they’ll give you salvation. You can ask for a wheelchair, but they’ll tell you to run when they gather in the hallowed halls and bureaucratic elation. You can ask for their loose change and they’ll hand you empty billfolds. You can ask for their best impression of a goose and they’ll read you scripture, you can ask for their dough, but they’ll give you the roles so charred. They are black. You can ask them why they’re there. Why or if they even care and they’ll ask you an open indignation, Who the hell are you and point to a lesser yes, man to poke. I love the cynicism in this one, Zachary. What is your poem about? Well, I went in a rather cynical direction. It’s really about my frustration with the fact that state government, particularly the state legislature here in texas, is supposed to represent the people in a way that the national government is unable to because it represents so many people. But at the same time, state governments seem to be doing things that go in the exact opposite of the people they represent and what’s in their interests. Certainly, that’s the experience many people have today. Uh, and and Robinson, as we go back a couple of centuries to start the story, um, were state governments more representative in another period? How should we understand the role they’ve played long before our current moment in our federalist structure?

[0:05:19 Speaker 0] That’s an excellent question, jeremy, if you look at the framing of the first state constitutions, you see debates not unlike our own today. There were those who favored the broad franchise and popular participation in government, that these debates similar to ones we see now and then. There were those who favored a more restrictive franchise and those who favored perhaps a more elitist form of government. In 17 76 the Continental Congress instructed the new states to draft their own constitutions. And when we saw this happening, there were kind of two models. One emerged from pennsylvania in 17 76 which had an extraordinarily broad franchise and a unicameral legislature or one chamber of state legislature on the assumption that a single legislature would be better able to represent all of the people. Now, in response to this, we also saw at the same time, a constitution drafted in Virginia, which was informed by some more patrician members of the Virginia gentry, also by john Adams, which was a much more complex system. It provided for an upper house to represent the states, landed gentry in south Carolina, William, Henry drayton uh sponsored a proposal to make south Carolina’s upper house hereditary, much like the House of Lords in great Britain. And so there was this early debate about how

to design the legislature and also how wide to make the franchise, how tough restrictions ought to be. That looks a lot like modern debates. And these debates informed the creation of the U. S. Constitution. That pennsylvania constitution I mentioned, also had a closet, was proposed in the constitution that never made it to ratification. That said that people had a right to live with enough property to essentially get by. This would have allowed for something like land redistribution to the poor in pennsylvania. And that clause never makes it, but it does catch the eye of people like john Adams, who are worried that there’s a spirit of democracy brewing in philadelphia, where they’re drafting this constitution. And ultimately, it’s backlash to this much more radical model that informs the framing of the federal constitution, which of course has the upper house, the Senate, which often sort of slows or stymies more progressive or populist change.

[0:07:46 Speaker 1] And and early in the republic, are the states, these laboratories for policy experimentation that progressives will later call them in the early 20th century.

[0:07:58 Speaker 0] Yes, the states have always had this role of serving as laboratories of democracy, as justice louis BRANDEIS called it in the 1932 case before the Supreme Court. But even in the very beginning of the Republic, you see the state’s experimenting with different forms of the franchise, different forms of legislative design. Again, with these questions in mind of who ought to participate in government uh, in the early Republic era, we also see the states essentially experimenting with methods for electing or selecting presidential electors. And ultimately by the 18 twenties, the state’s uniformly agree that the people ought to vote for a state slate of popular electors. And as a result, we see states sort of homogenizing around that kind of platform. After experimenting with other forms of selecting electors. It’s worth mentioning because that method is now coming under question.

[0:08:55 Speaker 1] It’s a really important point you brought up and something I wish I knew more about. Why in 18 20 do they go what we go to what we now take for granted? Which is the notion that the electors are apportioned based on how the people vote, not how the state legislature thinks the electors should be apportioned.

[0:09:13 Speaker 0] Right? So it’s worth noting that the U. S. Constitution is very short. It’s the shortest national constitution at only 7800 words including the amendments. And so the process for the Electoral College is actually a fairly under specified. We know that the states select electors who then vote for president. But the Constitution doesn’t specify how states elect electors. And the reason was that at the federal convention the framers wanted to essentially let the states do what they have long done as colonies, which was determined the process for elections. And so states under the Constitution set the time place and manner for elections, including the manner of selecting electors. Now. For the first 20 or 30 years, states tried many different paths for selecting electors, including letting the state legislatures pick those electors. And the problem was that parties would often deadlock in the state legislature and refused to send a slate of electors at all. And so in order to solve that basically the state legislatures bound their own hands by agreeing to give a state of electors give the states electors whoever won the most votes the popular vote in that state. And that sort of solved that problem of selection once one state did it and agreed to give all of their electors to the same candidate, that state got outsized influence in the electoral college and other states would scramble to imitate pennsylvania was the first to do this. And so it spread from that.

[0:10:42 Speaker 1] So is this the pattern for the 19th century that the Constitution is fairly conservative uh and limiting in its democratic elements? It’s much more of a Republican document, obviously, than a democracy document. Uh And is it is it the pattern that the states are widening the nature of our democracy, obviously still with bounded limits around race and gender, But nonetheless, is that the pattern? Or is that does it vary more than that?

[0:11:08 Speaker 0] I’d say that the constitution is small, c conservative in that it really doesn’t specify or advance federal voting rights. There is no positive affirmation of the right to vote in the constitution, although some amendments, like the 15th part of the 14th, as well as the 23rd and the 26th and the 24th forbid certain forms of disenfranchisement. And of course the 19th, um there is no affirmative protection of the right to vote constitutionally in the federal constitution. All states constitutionally protect the right to vote, with the exception of Arizona, that does it statutorily. And so if you want to look for these broader, positive affirmations of rights, you’ll find them in the state constitutions and you’ll also find more progressive forms of rights like, say, rights to certain forms of welfare or labor protections, which are found under the state constitutions, rights to education or to a healthier clean environment are found under some state constitutions, as well as very broad equal protection rights. Often as justice, William Brennan said in 1977 these state rights exceed the minimum or the federal floor for rights and include the sorts of rights that the very brief federal constitution was never updated to include. Yeah,

[0:12:25 Speaker 1] How does the addition of states, particularly during the period of westward expansion, affect the relationship between state governments and the federal government?

[0:12:34 Speaker 0] That’s a great question. We see something like diffusion. So, as the country incorporates Western territory, we’ll see early states pioneer, new forms of constitution drafting and other states will copy that. So in 18 oh two Ohio draft a constitution which becomes the model for many of the other states carved out of the Northwest Territory, the Old Northwest. Uh, and so you see, for example, the anti slavery clause in Ohio’s constitution spread throughout the Old Northwest and eventually become the model for southern constitutions, reentering the Union after the Civil War. It’s this language from the southern constitutions, which later becomes the model for the 13th amendment. Mhm.

[0:13:23 Speaker 1] Is there a clear break though or difference or division whatever now? And we want to use uh for differentiating the southern states,

the old confederacy from the rest of the country. Uh Does regionalism still define the differences among state constitutions?

[0:13:39 Speaker 0] It absolutely does. If you look at the rates of constitutional replacement on a state entirely replaces its constitution, they are much higher for the South. So southern constitutions have gone through waves of rewriting. They did this occasionally in the Jacksonian era, when new legislators would come in and draft much more populist constitutions that extended the vote to all white men, regardless of their levels of property ownership or wealth. You saw this again during the Civil War, when confederate states frame their own constitutions and then through reconstruction, Southern states drafted constitutions repeatedly in ways that entrenched rights that were often lacking at the federal level. In 18 67. In 18 68 southern states at federal behest had a second wave of constitutional conventions which entrenched broad rights to uh education and labor protections, and these also included strong protections against discrimination and protections for the right to vote. These constitutions were often written by black men who had formerly been enslaved, and so we’re much more progressive than the fairly limited federal amendments essentially. They elaborated or buttressed the federal amendments, the 13th, 14th and 15th amendments of the 18 sixties and 18 70. And so you see throughout southern constitutionalism again, with the rise of Jim Crow, a new wave of state constitutions and then more constitutions in the 20th century. Southern constitutionalism has really been a story of replacement of wholesale replacement. Much more so than say in places like massachusetts, which has kept the same constitution since 17 80.

[0:15:24 Speaker 1] And and are the southern constitutions also defined by race around those issues? They

[0:15:30 Speaker 0] are, there was a wave of Jim Crow constitutions Mississippi wrote the first one in 18 90. It was called the Mississippi plan, which pioneered facially race neutral clauses, which could circumvent the prohibition on overt racial discrimination under the 14th and 15th amendments, but that in practice disenfranchised black voters and also allowed other forms of racial segregation. By 19 oh two, Virginia drafts the last Jim Crow constitution and these documents really survive until the 19 sixties, in which in the period of which the Supreme Court forces the states to reapportion their legislatures. And we see the states simply rewriting a lot of state constitutions in this era and starting to scrap many of their Jim Crow constitutions. Not all of them do Alabama still has its Jim Crow constitution of 19 oh one, which clocks in at 389,000 words. It’s the longest

[0:16:24 Speaker 1] constitutional. Well, well, reaffirming the point that shorter is better. Right Robinson?

[0:16:30 Speaker 0] That’s that’s what they say. Certainly, the Alabama constitution is not a

[0:16:34 Speaker 1] model. Um, I’d love to hear more about the constitutional rewriting in the 19 sixties and seventies. It’s part of the history of the civil rights movement that we often don’t pay enough attention to. Right. We talk about the changes in federal law. What role do the changes in state laws play for the civil rights movement?

[0:16:54 Speaker 0] Yeah, so you see a few things happening and one is that the federal government is nudging the states to reapportion their legislatures. But there’s actually a much older and longer fight about things like the poll tax happening at the state level. So I’ll talk about both of this. If you look at the state legislatures in the south, they over represent rural districts. They look kind of like the way the U. S. Senate does now. There’s a heavy bias towards rural, especially white conservative voters in the state legislatures in the 19 sixties. And so Tennessee, for example, refuses to reapportion its legislature despite a constant state constitutional mandate to do so. And in Alabama, you see something similar and so in a pair of cases baker versus carr and Reynolds for sins between 1962 and 1964 the Supreme Court looks at the state level protections requirements for regular reapportionment and requires states to enforce them. And even outside the South. You do see some of this male apportionment going on. So this is where you get the one person, one vote doctrine. The idea that state legislative district should be apportioned roughly equally to population and states have to reapportion. What happens is you get new legislative districts and new legislators who pass new sorts of bills and bring in new sort of progressive goals in the late 19 sixties as well as uh, we start to see the emergence of majority black districts or majority minority districts, not just at the congressional level, but also at the state legislative level. So that’s one thing. The second story that I want to mention is the story of poll tax repeal. Uh, and that actually happens a little bit earlier reapportionment that fights really a fight through the 19 sixties. But if you look at the repeal of the poll tax, the idea that you have to pay a tax before voting, it’s actually the states that repeal the poll tax through the 19 thirties and forties, especially as New deal legislators see more and more white constituents in the south during the Great Depression, losing the ability to vote because they simply can’t afford the poll tax. So poll tax repeal actually begins at the state level. It’s in 1964 that the federal constitution forbids in 1966 that the Supreme Court does it. But by that point, only four out of the states, uh for out of the 50 states still have the poll tax. So it’s through state constitutional and statutory reform that you actually get poll tax repeal during the new Deal era.

[0:19:24 Speaker 1] But nonetheless, uh, after the voting rights act of 1965 the role of the federal government in providing through the Justice Department right oversight for elections and particularly the process of preclearance. That’s pretty important. Right for the protection of voting rights in many of these states. Is that is that correct?

[0:19:42 Speaker 0] Absolutely. You see sort of uh two things happening with the Voting Rights Act. There are some sections which uphold what the states have already done. Section 10, for example, forbidding the poll tax is sort of an affirmation of of what the states have already done. And then there’s section for being five which are much more aggressive interventions against Southern states. And that’s the preclearance part that you’re just mentioning.

[0:20:04 Speaker 1] And so does how do you see uh, the Shelby decision? This is the decision of Shelby versus holder in 2000 and

[0:20:13 Speaker 0] 13

[0:20:13 Speaker 1] if I’m not mistaken right written the majority opinion for 54 decision written by Chief Justice roberts, which basically says as I understand it, among other things, that the states that under the voting rights act of 65 had been subjected to Justice Department preclearance before changing any of their voting procedures or districts. Now, no longer needed federal oversight. Is that a turning point?

[0:20:36 Speaker 0] Yeah, that’s that’s remarkably important. So, uh what happens is they’re there to provision that the Justice Department in helping draft uh the 1965 voting Rights Act there to provision that the Justice Department helps put in. And one Section four B, which points out that parts of the country that had less than for example, 50% turnout in 1964 are subject to preclearance. And Section five says that under this preclearance formula, these states can’t change their election laws without authorization from the Department of Justice or from a federal court. And that was a pretty powerful intervention, one that was essentially geared towards preventing voting restrictions at the state level. Now, ultimately, what happens is you get a suit which claims that from Shelby county Alabama officials claiming that the preclearance formula and requirements are violations of the rights of the state to engage in time, place and manner regulation of the vote. And also that these formulas, which are based on the 1964 1964 turnout figures are outdated. Congress had failed to update the provisions and so the claim was that it no longer really held water. And so in a pretty narrow and contentious 54 decision, the Supreme Court strikes it down and this is not exactly the genesis of modern voting rights restrictions. There was a previous case that supported voter I. D. Laws in 2008. There’s a contentious 2019 case that allows racially targeted gerrymandering under the guise of partisan gerrymandering. But Shelby County versus holder striking down the core of the voting rights act is I think the sort of genesis of many of the more modern, many of the balder or more direct modern attempts to restrict the vote.

[0:22:38 Speaker 1] How do we understand the makeup the political makeup of state legislatures today? I think we’ve seen a rise in the amount of states that are controlled by one party uh and have legislative supermajorities. How do we understand that?

[0:22:51 Speaker 0] Yeah that’s a great question. So one thing to think about it, we often talk about gerrymandering of congressional districts uh strategically drawing congressional districts to benefit one party over another. We don’t actually think about gerrymandering of state boundaries so much in part because we tend to think of state boundaries as historically fixed. But it’s worth noting that the actual drawing of state boundaries, the creation of states was done in the late 19th century, especially with the incorporation of the Great Plains states in ways that benefited one party intentionally. So if you look at two acts, the enabling act of 18 89 and the admissions act of 18 90 that created six new states out of the upper midwest. And there was, there was a pretty unprecedented measure. It happened all within 12 months. It was sponsored by the Republican Party in hopes of admitting six Republican leaning rural Western states. And it worked, Republicans got 12 senators out of the act in just a few months. They did unprecedented things like they split the Dakota territory into two separate states, North and South Dakota, something that had never been done before. And as a result, you get sort of two things. One is the Senate, which is heavily biased at the federal level towards these rural voters and increasingly towards uh, we see Republican dominance in the Senate because the Republican Party over the last 20 years has really dominated the rural vote. But also we see uh many more states which have a preponderance of rural voters and of conservative voters, such that the Republican Party can really, as it captures the rural vote, run up the score by capturing more and more state legislatures throughout not only the deep South, where it’s been a dominant for some decades, but also uh in the Great Plains and in the rural west, but

[0:24:46 Speaker 1] historically, Robinson before the mid 20th century, was it common to have one party controlling all the elements of state government as we see today? Quite

[0:24:56 Speaker 0] often, not so much, you would see occasional wave elections, what we sometimes call critical elections, in which one party does sometimes sweep both chambers of the state legislatures, or sweep many of the state legislatures. The jeffersonian republicans were the first to do it in 18, 1800 in the subsequent elections after that. But new deal democrats did in the 19 thirties. Uh, what we see now is unusual in that we’re really seeing a kind of sclerosis or a settling in, in which the Republican Party’s dominance in rural states seems to be pretty durable. There seem to be fewer voters who are persuadable flipping from one party to another from one election to another. And so that sort of cyclical realignment of state legislatures with the big national elections that seems to be happening less. We seem to be settling into more of a sort of stable urban, rural divide in our politics. Right?

[0:25:58 Speaker 1] And it seems to me that there are three kinds of states then. Right? So they’re the states that are very urbanized and uh these are the states like massachusetts and others that are going to go in the Democratic column pretty consistently. Then you have the states that are very rural, like the Dakotas, and then you have the states that are rural but becoming urban like texas and Georgia. Right? And so you have three different kinds of states, um but they’re pretty predictable, right? Uh that seems to be where we’re stuck. Do you see it that way as well?

[0:26:26 Speaker 0] I think that’s a that’s a fair way of breaking it down. And if you look at modern voter disenfranchisement measures, our voting

restrictions, they really are in the categories of rural states in which you see a strong sort of GOP control of the legislature’s state legislatures passing these bills. Not because there’s a real threat of the Republican Party losing these states, but rather to entrench control of these states. So if you look at, say, the 14 states which have so far in 2021 passed voter restrictions, some of those states fall into that category. And here we’re sort of looking at again, the Great Plains states. Um So Montana Idaho Wyoming have all passed bills like this, even though they’re solidly red states are relatively red. But then there are also states like florida Arizona, which have passed voter restriction bills, and then texas, which of course just considered such a bill. And those are states which are essentially trying to preempt the sorts of swings that come with urbanization, as well as sort of racial plural ization. Uh and so they’re trying to preempt uh swings in and voter turnout and increases in first voter turnout. That might flip the states to democrats.

[0:27:44 Speaker 1] And and so that perfectly Robinson brings us to the present. And and this history is so important because most people, including experts talking about voting questions today, don’t know this history, and uh, I think it sheds important light on where we are today. What do you think are the most important historical lessons from this long 200 plus years you’ve studied for those who care about voting rights today. What is your advice to them for pursuing voting rights expansion, expanding the franchise, protecting access to it, uh in this environment where state legislatures are doing what state legislatures have always done in your eyes, right, Which is to actually act in ways that support the interests of the parties in those particular states. What are the historical lessons for us?

[0:28:34 Speaker 0] Yeah, so they’re they’re, I think two things going on there. Two sorts of voter restriction bills and one has a lot of precedent and that is the sort of bill that makes it harder for people to vote. So if we think about some presidents from, say, the Jacksonian era, we would see that Jackson Ian’s when they took state legislatures, draft statutes or constitutional measures that would knock out voting restrictions that required a person to pay a tax or to own enough property to vote. And if wigs would then somehow take the state legislature, they would roll back those expansions that would restrict the vote by trying to limit the votes, say to their more upper middle class constituency that fight back and forth, was a perennial part of, of politics. And it’s sort of what we’re seeing now, of course, now with much clearer racial overtones, it’s worth noting that the Supreme Court clarified that north Carolina had attempted. I’m sorry that federal courts had noted that north Carolina had attempted gerrymandering, racial gerrymandering, quote, with surgical precision. So this is this is something we’ve seen for a long time. Of course, through the jim Crow era, this attempt to disenfranchise on the basis of race was a mainstay of Southern politics. And it will be a perennial problem again, without strong federal checks on the states, without a strong federal intervention to make sure states enforce the constitutional guarantees of the right to vote. We’ll see some states again, uh, those states which are solidly Republican or more competitive, engaging in the sorts of voting restrictions we see now restrictions that make it harder to vote at the polling booth, say those states that require voting. I’d voter IDs something Supreme Court as a for instance, 2000 and eight, as well as states, uh, making it harder to vote by mail. We do know from 2020 that if you allow people to vote by mail, more people will vote. And it’s possible that more that higher turnout benefits democrats, although that’s not uniformly the case. So we see that kind of law happening, voter restrictions, the sorts of laws that make it harder to get access to the ballot. There’s a second kind of bill and we haven’t seen too much of this, but it’s something that gives me a lot of pause or considerable pause. And that would be uh measures by the state legislatures to reallocate presidential electors regardless of who wins the state’s popular vote. There were bills proposed in Wisconsin and Georgia along these lines, and it may be that the federal constitution would actually allow state legislatures to pick their out slates of electors. This was how president trump after losing the presidential election, both in the popular vote and the Electoral College attempted to remain in office by urging state legislatures to pick their own slates of electors. And I’m concerned, I think that in 2020 this could happen again. Republicans of course, have won the popular vote only once since 1988. It’s unlikely it will happen again in 2020 based on the 2024 based on that trend. And should they lose the electoral College again, if this sort of fringe theory of state legislative authority were invoked to reallocate presidential electors, I think that would be a lot more worrying. That’s a lot less likely. But that would present a much more significant and unprecedented crisis for american democracy.

[0:32:03 Speaker 1] Right, right. And what are the things that could be done uh beyond obviously passing federal legislation to reverse the trends in the states? Because one of the enlightening parts of your research is that uh, states have gone in different directions at different moments. Right? You make the point that in certain moments states were ahead of the federal government in expanding the franchise right there, as you said, um, reduced poll taxes before the federal government forced them to reduce poll taxes. So what are the lessons again for those who are concerned about moving toward opening up voting opportunities? What are the lessons for activity beyond the obvious federal legislation?

[0:32:43 Speaker 0] Right, so you’re right to point out that when we see a confluence of federal legislation and state constitutional reform, we get the broadest uh franchise reforms at the statement at federal level. And so you can think here about Reconstruction, in which the federal government required the states hold new constitutional conventions, which protected the right to vote, to an extent that even the federal constitution didn’t do. You saw something similar in the 19 sixties, sometimes called the Second Reconstruction. For that reason, it doesn’t look like we’re in such an era right now. If you look at the Senate again, because the Senate over represents rural districts, once in which the GOP so dramatically outperforms democrats, it’s unlikely democrats are going to get the wide Senate majorities anytime soon needed for significant democracy reform. And so we see joe Manchin, for example, of West Virginia, the pivot vote in the Senate for democrats refusing his support for democracy reform measures like HR one or H. R four. So

we’re probably going to see federal inaction, at least for this Congress and maybe for future ones. And so the question then, is, what will the states do? And my guess is that red states are going to remain. Red republicans are going to use their control of non competitive state legislatures to really entrench that. And also to try to keep competitive states like Georgia off the board. Democrats won Georgia in the presidential elections and its senate elections in 2020 and a big surprise. And you can bet that Georgia’s republican state government is not going to allow that to happen again through voter restrictions. The good news for democrats and those who favor broader franchise, uh, measures, is that at least at the level of the electoral college, democrats still have fairly good shots at states like michigan Wisconsin and pennsylvania. These are states in which the governors, state legislators and state elections officials held the line in 2020 against President trump’s attempt to overturn the vote in those states. And so I think that’s where democrats really need to be sort of focusing their efforts as well as uh, those who favor broad franchise, need to focus their efforts. These states which have split governments and have sort of demonstrated that they’ve got officials who are unwilling to sort of about a partisan pressure one way or another, those are the states in which advocates of franchise expansion, I think ought to be focusing on

[0:35:15 Speaker 1] they need to win in those legislatures. You’re making an argument for, uh, not just legal change, but for a change in political representation, electing new leaders who are more representative of those who, who want to see the voting franchise expand,

[0:35:30 Speaker 0] right? It would be the case that if we saw, say, republicans get bicameral control in michigan Wisconsin and pennsylvania, it would be more likely that democrats would struggle to have the kind of turn out that they need to win elections. And it would be more likely that we’d see voting restriction, voter measures of voter restriction that those committed to democracy would want to avoid. Right? So, so Robinson,

[0:35:55 Speaker 1] as we look forward, is it, is it fair to say that this is a fatal flaw in our system? Not a, not a flaw that brings the system down. Our systems has functioned as you point out with remarkable stability for more than two centuries with this flaw. But it does seem to me it’s uh, you’re not giving us an easy pathway out of it, that the federalist system allows states a lot of room to increase or decrease the representation of citizens within our society. Is that how you see it?

[0:36:26 Speaker 0] I think that’s right. We have a very stable, low risk, low reward system. So because our election law, for example, is diffused, our election regulations are diffused across 50 different states. You get a patchwork system. And this means that you don’t have federal authority to sweepingly expand the vote or to overturn state level votes. This is why President trump after losing the election, had to frantically call election officials in Georgia and Arizona and michigan and Wisconsin trying to get them individually to overturn the vote. President trump did in 2017 attempt to form an election integrity commission, which would have uh it’s sort of stronger form given more federal oversight over elections. In ways that could have allowed President trump more authority to sort of push to overturn the state level loss effectively, though, by having this diffused authority to uh administrate elections, there are many more veto points that one would have to overturn to overturn an entire election. So it’s a very slow and inefficient process, One with a lot of sort of very difficult points. Um One of the outcomes of this, although it allows stability, although it discourages presidents, for example, from swinging elections in their favor. One of the disadvantages of this system is that your right to vote is contingent on your address. The right to vote seems like it should be a universal thing that you should have a right to vote standardized regardless of where you live. But whether you can vote and how you can vote really depends on where you live in the United States. And that is a disadvantage.

[0:38:04 Speaker 1] And that brings me to the last question I wanted to ask you, which is where we can bring. D. C. N. Is one of the solutions going back to the story you recounted so well, of both the late 19th and early 20th century when more states are brought in bringing new states and again to to rebalance things. D. C. Puerto rico others perhaps

[0:38:24 Speaker 0] I think that’s an important step. If we look at the Senate, we know that it over represents rural districts in rural areas and this has become more of an issue because the Republican party is again over performing in that those areas in a way that prior parties haven’t. So it’s really sort of come to a head now in the past. The answer to this was to simply add more states but that’s not really as much of an option now. So democrats look to Puerto rico which leans mildly Democratic and to the district of Columbia which leans heavily Democratic and would grant to new seats. Those seats mean a lot when the Senate is split 50 50. Uh I should also say teaching in D. C. And being from D. C. I think there are good reasons to allow D. C. Statehood. Besides the fact that benefits democrats there are 712,000 D. C. Residents who don’t have that fundamental american right to vote and that really shouldn’t matter based on the balance of the Senate or what say joe Manchin thinks about us. Hopefully we’ll get that right to vote regardless of the partisan calculations. It’s

[0:39:30 Speaker 1] a powerful argument Zachary. What what do you think of this? I mean you’re someone uh and I know many of the young people you spend time with are very concerned about voting. Very active to try to get people their voting rights. Um Does this does this discussion of the complexities of state governance? Does it does it give you more energy does it discourage you? How does what’s your reaction to this? I think in some ways it is discouraging, because I think that the way that that these issues are discussed among young people and and the way that they’re taught to us in school is too often that that’s just the way it is and that’s the way that it has to be. And so I think too often we shy away from institutional change. And I think the point here is that the only way

[0:40:12 Speaker 0] to

[0:40:12 Speaker 1] really to really change the face of american government is to change the institutions. And the problem is we’re not we’re not we’re not told that that’s possible. Yeah. Yeah. So maybe Robinson, that’s what we should close on. What is your advice as an expert who has devoted so much time as a as a scholar thinking about these issues. What’s the one institutional change that you think might be hard but still realistic that our listeners who care about expanding the democratic franchise that they should get behind, What would you recommend?

[0:40:42 Speaker 0] That’s an excellent question. We are in a moment which is fairly rare in which we see one party controlling both houses of Congress as well as the White House and in our era of very narrow congressional majorities. That’s that’s pretty unusual. And this is a party of the Democratic party that is at least rhetorically committed itself to expanding the right to vote. So what that would look like is pressuring holdout senators like joe Manchin like christian cinema or in the case of D. C. Statehood, Angus King of Maine and Mark kelly of Arizona and simply emailing those offices are calling them, urging them to admit DCs estate to pass HR wander HR four. It is odd and that they’re really four people necessary to pass these bills along with filibuster reform uh to get significant democracy expansion or reform in the United States. And so while it seems difficult, these people have been especially mansion have been staunch in their opposition to D. C. Statehood to HR one in four. Again, remember there’s only one mind or one or two people whose minds need to be changed in the Senate. And that is something that can actually be done through directly lobbying or calling those offices. And so that’s where I would start.

[0:42:00 Speaker 1] I think it’s a terrific point. Um And I think we’re going to see over the next month quite a lot of that activity and quite a lot of maneuvering within the Senate. You know, does HR one HR four come forward in the Senate as a single bill is in separate pieces. Um And I think this is a place where the public voice can matter. People can try to put pressure arguing for whatever they think is appropriate. And uh and that’s that’s really important. Robinson thank you so much for sharing your insights with us today. I want to remind viewers that if if you want more of this tour de force of state constitutions and state governance something, we don’t study enough. Even historians like myself, we don’t study this enough. His book is Hidden Laws, how state constitutions stabilize american politics. And we’ve learned when Robinson says stability, he doesn’t necessarily mean goodness. It can stabilize us in in a low threshold equilibrium. Which is I think what you’re discussing, thank you Robinson for joining us today.

[0:42:59 Speaker 0] Thank you very much

[0:43:00 Speaker 1] and thank you Zachary for your poem as always. And thank you most of all to our listeners. Thank you for joining us for this episode of This is Democracy. Mhm. This podcast is produced by the Liberal Arts I. T. S. Development Studio and the College of Liberal Arts at the University of Texas at Austin. The music in this episode was written and recorded by Harris Komotini. Stay tuned for a new episode every week you can find this is Democracy on Apple podcasts, Spotify and stitcher. See you next time