Toscano is a former minority leader in the Virginia House of Delegates. He is the author of “ Fighting Political Gridlock: How States Shape Our Nation and Our Lives.”
The 2020 election again showed that we are in the fight of our lives. Donald Trump was dispatched, but not without efforts to overturn a democratic result while undermining the legitimacy of elections themselves. Democrats won the presidency, but actually lost seats in state legislatures. Some new officeholders openly embraced the “stop the steal” narrative. A recent NPR/Ipsos poll reports that 64% of Americans believe U.S. democracy is "in crisis and at risk of failing."And the public remains focused on a federal system that appears dysfunctional and mired in partisan gridlock.
But as the public’s gaze remains fixed on Washington, major decisions affecting control of the nation and the quality of our lives are being made in each of the 50 states. Democracy is up for grabs. Voting rights are under attack in many states, and hyperpartisan redistricting continues to manufacture majorities by shaping state legislatures and congressional delegations. But state policies influence us in so many other ways.
Here are five:
Education as contested terrain
A democratic society cannot survive without an informed and educated citizenry. Wonder why some topics are taught in schools and others are not? Why some schools are modern, and others are physically deteriorating? Why some children score better on tests than others? The answers are found in state policy.
Exploring the history of racial discrimination, paying teachers more than the national average, and reinvesting in the buildings within which learning occurs are uniquely state functions. Less than 8 percent of K-12 school funding comes from the federal government; most is provided by the states. The choices of state lawmakers affect our children’s performance much more than decisions made by policymakers in D.C.
Lately, disputes over the teaching of slavery and discrimination have reemerged as statehouse flashpoints. Five state legislatures recently considered denying education funding to school divisions that included materials from The New York Times’ “1619 Project” about the role of slavery in their curricula. Nine state legislatures and state school boards in four others have banned critical race theory from schools altogether. The first official act of Virginia’s new governor was to sign an executive order to prevent CRT from being taught in schools, even as there is no evidence of it.
In addition, state legislatures are now considering laws to compel the removal of controversial books from schools and libraries. To complicate matters, some states are considering making school board elections partisan contests, a change that will further polarize our schools.
While we should be mindful about exposing our youngsters to inappropriate materials, access to information and critical inquiry are essential to democracy. And efforts to rewrite American history, whether it involves eliminating examples of our idealism and compassion or whitewashing the darker sides of our ignorance and heartlessness, only undermines the public’s ability to understand our past and build a better future. Strong democracies embrace the truth. Enhancing democracy begins in our schools, and the states will be key in supporting curricula that protect democratic values.
The pandemic and our health
The pandemic created huge challenges for democracy, most of which were affected by state policy. When Trump was asked about federal responses to the virus early in the crisis, he said, “I would leave it to the governors.” State executives responded by using legal authority not available to the president to impose a wide array of mandates and policies designed to combat the virus.
For almost a year, these executive orders went generally unchallenged. But as the pandemic continued and became politicized, many legislatures became uneasy with this exercise of power and moved to end it, even in places where the virus surged. Legislatures began to push back, arguing that emergencies are, by definition, temporary, and one person should not be permitted to control too much of our daily lives.
The spread of the delta and omicron variants further intensified debates over mask and vaccination mandates. Despite low vaccination rates and soaring infections, many states, mostly in the South and under the control of Republican legislatures or governors, fought mask and inoculation requirements. Many of these states initially reported the highest Covid infection rates.
This continued into 2022.
In early March, data showed that of the 10 states with the highest Covid deaths per 100,000 population, only two had a Democratic governor and all of them were controlled by Republican legislatures. Couple this with generally underfunded state public infrastructure, and you have a recipe for different health outcomes depending on the state in which you live.
Criminal justice
Public legitimacy is a key underpinning of a democracy. And if people do not believe the system is just, its legitimacy is undermined. The murder of George Floyd sent shock waves through our nation and compelled the U.S. to reexamine the relationship between criminal justice and democracy.
Our nation’s high incarceration rates are largely due to state policies. Most offenders are incarcerated in state facilities becauscre they broke state laws and were sentenced in state courts; the numbers of state criminal cases far exceed those in federal courts. State pardon and parole policies dictate when the incarcerated can be released, even if they are model prisoners.
These policies are traceable to the “law and order” attitude of the late 2000s, and a reexamination is now underway, led by a coalition of liberals and conservatives concerned both about monetary costs of the system and the social impacts of housing so many prisoners, especially those from minority communities. Some states are reforming their criminal justice system, especially in the treatment of juveniles. Finding the proper balance between punishment for wrongdoing, the costs of incarceration, fairness in sentencing, and the effectiveness of rehabilitation is always a challenge. The major decisions on these issues will be made not in Congress, but in statehouses.
State preemption of local control
Wonder why your city council cannot require the payment of a living wage or impose a mask mandate? The answer is found in state policy doctrines called the Dillon Rule and “preemption.”
The Dillon Rule is a concept applied in more than one-half of our states and prohibits localities from acting unless the state has provided the authority to do so. Hence, many localities are forced to request legislation that will provide them explicit approval to make change; legislators call this “enabling legislation.” Requiring localities to seek state permission often limits their ability to innovate and respond to uniquely local challenges. Even in states where constitutions grant localities more flexibility to act (called “home rule” jurisdictions), legislatures can still “preempt” changes from occurring.
In other words, states rule.
Conservative lawmakers have historically used these tools to prevent liberal localities from enacting policies with which they disagree, thereby exerting control over populations that they may not directly represent.
The pandemic only exacerbated the conflicts between state and local governments. As school began in fall 2021, 12 states and the District of Columbia required everyone to wear masks, eight states prohibited any such requirement, and another 29 states left the decision with local school districts. But governors and legislatures then began to intervene.
By early 2021, 17 states had enacted legislation to bar localities from imposing mask mandates in schools. In Texas, Gov. Gregg Abbott sued to prevent the state’s four most populous counties and various school divisions from imposing mask requirements, and issued executive orders to bar private businesses from compelling employees or customers to be vaccinated.
As Florida became the state with the highest number of new Covid-19 cases, Gov. Ron DeSantis issued an executive order that required schools to allow parents to determine whether their children wear masks in school, and the state then imposed a $3.57 million fine on Leon County because it required its employees to be vaccinated. Even as Covid abates, the conflicts between state and local control will continue, and many issues of life and liberty will be determined based on their resolution.
States as laboratories of democracy
Increasingly, states are willing to tackle issues that the federal government either will not or cannot address. And these policies often become models for other states or federal approaches.
Almost two decades ago, Massachusetts embarked on an experiment to provide health insurance for all its citizens. In 2006, it embraced the concept called the “individual mandate.” Everyone in the state was required to have health insurance, with subsidies provided to those who could not afford to pay. Four years later, this served as the model for the Affordable Care Act.
Today, states are innovating in other areas. Eleven states have now joined the Regional Greenhouse Gas Initiative, a state consortium seeking to reduce emissions through market-based practices. And the burgeoning movement to legalize marijuana has been led by the states through the use of a specific tool permitted in some state constitutions called “initiative petition.” Twenty-four states have some variation of this direct democracy, where citizens collect enough signatures to place a policy or constitutional change directly before the voters or the legislature. Initially, cannabis legalization was not the result of legislative action, but instead through citizen ballot initiatives. Today, eighteen states have legalized recreational use of the drug.
Policies to protect democracy and enhance economic opportunity don’t just happen. They are created by elected officials who understand the issues and by an engaged citizenry who participate, prod and push for change, not just in national elections but in statewide contests as well. Decisions being made right now in statehouses across the nation will influence not only electoral results in 2022 but, more importantly, the direction of the nation, the strength of our democracy and the quality of our lives in the years ahead.
