Republican governors in several states have also had success in undermining President Biden’s efforts to require masks for schoolchildren and others in an effort to limit the spread of the coronavirus.
Democrats may control the elected levers of power in Washington — after a remarkable three-year run in which they took back the House, reclaimed the Senate and evicted Donald Trump from the White House — but the battle over the future direction of the country remains wide open. By focusing on state and judicial power, Republicans are enjoying something of a provincial policy renaissance. Democrats, meantime, face new pressures to wield their power more aggressively by breaking long-standing precedent.
“We are really on this precipice, this knife’s edge, and each party goes, ‘If I just push a little bit harder I can control politics for the next 20 years,’ ” said conservative activist Grover Norquist, the president of Americans for Tax Reform. “And it’s true.”
The success has rewarded a long-running Republican strategy of looking beyond the top-line national ballot trend to focus on state and local elections and judicial appointments. The decision of a new conservative majority on the Supreme Court to allow the Texas abortion law to take effect is one of the biggest events in conservative jurisprudence since the 1973 Roe v. Wade decision, which enshrined a women’s right to have an abortion.
Ralph Reed, a Republican evangelical organizer who heads the Faith and Freedom Coalition, described the court’s decision as a vindication of conservative activists who made judicial appointments a preeminent voting issue when they supported Trump in 2016. “Evangelicals supporting Trump despite their initial reservations was a critical moment in that progress,” Reed said. “Those three justices — plus the even more critical shift of the political gravity in the Republican Party and country in a pro-life direction — are one of the most significant achievements of any social reform movement in the last half century.”
The party in power in Washington, which has been focused on passing the biggest new spending program since the 1960s, now finds itself playing defense, amid divisions about what to do next and growing fears that Republicans will be able to preserve their structural electoral and judicial advantages for years to come.
“The situation we’re in right now is dire. I think we have to be really honest about that,” said Florida state Rep. Michele Rayner-Goolsby (D), a candidate for Congress. In her state, Republicans are set to once again dominate the decennial redrawing of district lines, allowing them to govern with majorities greater than the popular vote. “This is a redistricting year, and once again,” she said, “Democrats have no control over what the maps look like.”
Democrats have responded by promising to take the issues of voting and abortion to voters in 2022, when the party out of power in Washington historically enjoys a substantial advantage. They have also been elevating the discussion of more extreme alternatives to reclaiming their political power, like eliminating the filibuster in the Senate that requires 60 senators to pass most bills, adding congressional representation for the District of Columbia and even expanding the Supreme Court to weaken the conservative majority.
Last week, Tina Smith (Minn.) became the third Senate Democrat to embrace the once-radical notion of expansion in response to the Supreme Court majority allowing the Texas law to take effect. Sens. Alex Padilla (D-Calif.) and Edward J. Markey (D-Mass.) have also supported the move.
The court is a particular sore spot for Democrats because two of the Supreme Court votes supporting the Texas abortion law came from Republicans’ aggressive tactics: refusing to hold hearings for one seat until Trump succeeded Obama and moving quickly to fill a second seat just before Trump left office.
“I think we have to deal with reality. Republicans have been gaming the system. They have been politicizing the courts. They have been using these old rules of the Senate to stymie the people,” Smith said in an interview. “It just becomes less and less tenable.”
Brian Fallon, the head of Demand Justice, a liberal group fighting to shift the court makeup, said Democrats in Washington have been slow to come to grips with the threat posed by Republicans and are only now embracing the necessary response.
“Republicans are increasingly willing to play hardball when it comes to wresting control of the court and using the state legislatures,” he said. “They are willing to disenfranchise people and they are willing to use the courts to do things that would never be possible at the ballot box.”
Marc Elias, a top Democratic election lawyer who has spearheaded much of his party’s recent litigation strategy, has taken to describing proposed Democratic election reform legislation being considered by the Senate as a last line of defense against a transformation in American governance. The legislation, which Senate Majority Leader Charles E. Schumer expects to debate this fall, does not currently appear to have a path to passage with the filibuster in place.
“We will eventually lose the ability of the majority will to govern,” Elias said about the prospect that Democrats fail to respond to the new state election laws. “We are already at a place where Republicans rely on tactics to allow the minority to rule over the majority.”
Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have both said they oppose doing away with the filibuster, probably forcing a showdown with others in the Democratic caucus later this year. Democrats could change the rule with the support of all 50 and a tiebreaking vote from Vice President Harris.
The imperfect American commitment to majority rule has come into stark relief in recent decades as the nation’s politics have polarized along geographic and educational lines. Democrats have won the popular vote in seven of the last nine presidential contests.
In that same period, Republican presidents have appointed six of the nine justices who now sit on the Supreme Court, thanks to two Republican victors in the electoral college who received fewer total popular votes than their opponents.
The 50 Republican senators, who tend to hail from smaller states than Democrats, received 63 million votes in their most recent elections, while the 50 Democratic senators were the preference of 87 million voters, according to a calculation by Michael Ettlinger, the director of the Carsey School of Public Policy at the University of New Hampshire.
The disparity between popular vote and governing power has also shown up in state and federal legislative bodies. Republicans have won the national popular vote in eight of the last 15 congressional campaigns. But they have controlled House after 10 of those elections because they won more districts despite getting fewer total votes nationally in both 1996 and 2012.
“The bias against Democrats is some mix of where people live and partisan gerrymandering,” said Carl Klarner, a former political science professor who maintains data on state legislative vote totals. “But the translation of votes to seats is so obscenely against Democrats in some states that partisan gerrymandering must be a healthy portion of it.”
In Florida, for instance, where statewide elections rarely are decided by more than a few points — Biden lost to Trump by a little more than three — Republicans now control 65 percent of the seats in the State House.
Republicans in Michigan, meanwhile, have regularly won fewer votes in legislative elections over the last decade while nonetheless maintaining their governing majority because of district lines. Similarly, Democrats running for the North Carolina state legislature in 2018 won 51 percent of votes but received only 45 percent of the seats.
“This is a really tough way, the assault on abortion rights and voting rights, to have a wake up call that state legislatures are important,” said Jessica Post, the president of the Democratic Legislative Campaign Committee. “Just because there is a Democratic majority in Washington, we can’t hang a ‘Mission Accomplished’ banner across the country.”
Even before the Supreme Court decision not to intervene in the Texas law this week, the first months of Biden’s term had proved remarkably successful for abortion opponents. States enacted 90 new abortion restrictions in first six months of 2021, more than in any single year since Roe v. Wade was decided, according to the Guttmacher Institute.
Democrats are hopeful that the Texas abortion law and the Republican push on voting restrictions will spark a backlash at the ballot box in the coming months.
“I actually think this could be a huge issue for Democrats in the midterm elections,” said Rep. Diana DeGette (D-Colo.), the co-chair of the Pro-Choice Caucus. “You are going to immediately start having stories of women who were raped and women who didn’t know they were pregnant who have to carry the baby to term or leave the state. And this is going to create a firestorm.”
That view has been echoed on the ground in Texas, a state Democrats have struggled to win in recent elections but where the abortion ban has prompted a broad rethinking of campaign strategy.
“No one ever believed that this would happen. This was something you would think would happen in an HBO series,” said Gilberto Hinojosa, chair of the Texas Democratic Party. “And it has happened for real. I think this is one of those things for Republicans: Be careful what you wish for.”
Abortion opponents plan to keep fighting, with a bill now before the Texas legislature that would expand the state’s abortion procedure ban to include medication-based abortions.
“Texas is the people speaking out and rebelling against 50 years of judicial tyranny,” said Mallory Quigley, a spokeswoman for the Susan B. Anthony List, which supports antiabortion candidates. “Far from a vulnerability, this is encouraging and empowering to especially the pro-life grass roots.
Lori Rozsa in Miami and Richard Webner Austin contributed to this report.