After the US election last year, friends in Britain often assumed that the tide in the US had turned and everything would now improve. Not so fast, I would respond, trying to explain that the hope that a Biden administration would mend America truly missed the mark. The centre of gravity has now shifted to state-level politics and it’s there that the full assault on democracy that characterises contemporary American politics can be seen at its starkest.
While Texas, for good reason, is often seen as the pioneer in this regard, it’s by no means alone in its radical lurch to the right. This year Texas has passed a slew of breathtaking laws that take aim at some of the most fundamental tenets of a mature elective democracy, attacking reproductive rights, freedom of speech, voting rights and gun control. This not a random set of fringe eccentricities but a package of measures intended to hurt, to intimidate and to frighten the opposition, to energise the growing ultra-right presence in mainstream American politics and, of course, to further the political careers and pocketbooks of some very nasty people.
Texas is not novel in its aggressive pursuit of such measures. More than half a dozen other states have also limited teaching on race and prejudice in schools, barring teachers from alluding to critical race theory (hardly something that has ever played much of a role in the school system in any case), and many more are considering such a measure. Rhode Island’s proposed legislation literally bans teachers from advancing the premise that “the United States of America is fundamentally racist or sexist.” (This in a state that led the pack in sensible Covid precautions early in the pandemic.) About the same number have new laws which permit adults to carry guns without a licence, bringing the total number of states with permitless carry to 20.
Nine states have passed measures designed to restrict voter access. According to the Voting Rights Lab, which tracks voting legislation, 17 states have in 2021 introduced bills designed to allow partisan bodies to exert greater control over elections. The Guttmacher Institute reports that abortion restrictions have landed in all but three states. It’s also been a blockbuster year for the anti-trans lobby. Thirty-three states have introduced more than 100 bills designed to limit transgender rights in 2021, the most on this issue ever introduced in a single year. Do the sums and you’ll quickly realise that this is not a trend unique to the southern states, which has frequently been how backward-looking legislation has been identified.
There’s plenty of opposition, to be sure, and the recent women’s marches across the nation, all pointing a finger at a stoutly brazen Texas legislature, are evidence of that. Yet such protests have, thus far, had little effect anywhere. Minds aren’t changing in the US these days. Even the protests of a few corporate entities and well-known individuals, some withdrawing their business from the state, have done nothing to change the landscape in Texas. Indeed, Governor Greg Abbott recently signed yet another new law reducing the window in which physicians may give abortion-inducing medication to patients from ten to seven weeks into a pregnancy. One Republican state representative, Stephanie Klick, herself a nurse, described the measure as “the icing on the cake.”
Protests used to work, as North Carolina discovered in 2016 when it passed a "bathroom bill" restricting anyone using government-run facilities to bathrooms and locker rooms corresponding to the sex on their birth certificates. Business boycotts in particular saw the law repealed in 2017. In 2021, however, there appears to be less appetite among businesses to move against these multiple state laws.
States’ right have long been a rallying cry within American politics. With their visceral appeal to populist individualism, they also invoke the spectre of the Civil War. The popular trope claiming the war was fought over states’ rights conveniently elides the reality of slavery. But after the war, the passing of the 14th Amendment in 1868—the most frequently cited of all the constitutional amendments—laid down the limitations on state power. One of its clauses specifically arrogated to the federal government the ability to punish states unconstitutionally limiting the right to vote.
Yet for some years since, Republican states have been pushing the boundaries of what they can enact before federal interference kicks in, and 2021 seems portentous, not least because of the current make-up of the Supreme Court. On their docket for this coming term, the justices have two key issues on which states have deliberately enacted legislation designed to reach a Supreme Court they understand to favour their perspectives. Dobbs v Jackson Women’s Health Organisation concerns Mississippi’s 2018 law to ban abortions after the 15th week of gestation, a deliberate challenge to existing abortion rights—and especially Roe v Wade, which is the principal target of these many state laws—at the federal level. New York State Rifle & Pistol Association v Corlett will consider a longstanding New York law that requires those seeking a licence to carry a gun in public to demonstrate “proper cause.”
In essence, some states are, if I might push Representative Klick’s metaphor a little further, both having their cake and eating it. On the one hand, politicians are enacting radical and brutal state laws around a series of hot-button issues and, between their assault on voting rights and their redrawing of electoral boundaries, are tamping down effective opposition. On the other hand, secure in the knowledge of the deeply conservative make-up of the current Supreme Court, they’re playing the federal card by pushing through legislation they know is likely to end up in that court and receive a hearing favourable to their fundamentally anti-democratic posture.
It’s an old trick that state politicians have been using for many years, and one that can work very well in their favour. In 1927, Virginia politicians secured the legality of forced sterilisation of the “unfit” by enacting a state law they knew would head to Washington. The Supreme Court’s notorious decision in Buck v Bell gave them what they wanted and in its wake, more than 30 US states legalised compulsory sterilisation and more than 60,000 men and women were forced under the knife as a result.
While it’s a relief that Donald Trump can no longer wreak national and international havoc on a daily basis, Biden’s presidency is no bulwark against the ever-accelerating erosion of democracy the US now faces.
