The Hunt For Red November: Explaining Republican Successes at the State Level
Justin Phillips is a Professor of Political Science at Columbia University and a fellow at the Applied Statistics Center and the Institute for Social and Economic Research. His research focuses primarily on State- and local-level politics and their responsiveness to public opinion and voter preference, with special emphasis on the effect of institutions, polarization, and special interests on that responsiveness. Prof. Phillips’ published articles are numerous, and have appeared in such publications as the American Journal of Political Science, the American Political Science Review, and the Journal of Politics, among others. He also co-authored The Power of American Governors with Thad Kousser, a book which was awarded the 2014 Virginia Grey Best Book Award, State Politics and Policy Section, by the American Political Science Association. Prof. Phillips holds a B.A. in Economics from Lewis and Clark College, and a Ph.D. in Political Science from the University of California at San Diego.
CPR: There is a narrative, given the state of the Republican primary right now, of a [Republican] Party that is rudderless, that has no direction, that is in disarray and going to blunder its way through to the general election: Do you think that this is a fair narrative, or is it overblown?
JP: Well, I think that it is still a little early to say. It would be a disaster for the Republicans to nominate Ben Carson, or Donald Trump, or even possibly Ted Cruz, but if they do as the Republican party seems to normally do—that is to pick the most electable candidate that they can—then I think the whole narrative changes. And I think that until votes start actually being cast in primaries it is hard to really know. Even after the first primary—Rick Santorum won the Iowa Caucuses in 2012—it can still be hard to know.
I mean that narrative could stick; the GOP could be a party in disarray, a party about to make a terrible, [Republican 1964 Presidential Nominee Barry] Goldwater-type decision, or maybe not, because usually parties do not nominate sure losers. But the Republicans might this time. Truthfully it is just too early to tell; I remain fairly skeptical.
CPR: In stark contrast to that narrative there has obviously been a huge resurgance of the Republican Party at a state level following the sort of Democratic high-water mark of 2008. So what are some of the most important factors to consider in explaining that success?
JP: A lot of it has to do with the timing of Barack Obama’s first midterm election. Republicans did so well in the 2010-midterm elections, and usually the “out” party, whatever party does not control the presidency, picks up lots of seats in midterm elections not only at the national level but also at the state and local level. And we do not usually think about this; usually when we think about these midterm losses for the president’s party we are thinking about Congress. But it is also true throughout all of government.
So Republicans gain control of a whole bunch of state legislatures in 2010, and 2010 is crucially important because redistricting happens right after the 2010 elections. So these new Republican majorities can suddenly use their powers to draw and redraw lines for upcoming races. So they were able to insulate their victories by stacking the deck in their favor, both at the national level—drawing districts for the House [of Representatives]—and particularly at the state level—drawing districts for the state legislatures.
CPR: So if gerrymandering in that way has such a large role in maintaining these majorities. is there any chance that they will be going away to a significant extent until the next census?
JP: Well, gerrymandering clearly plays some role. I think political science is still debating how important a role, though usually those debates are set at a Congressional level, not looking at state legislative districts. So while gerrymandering plays some role in this process it just is not the whole story.
A new census—what does that mean? It does not mean very much if Democrats still do not have the control, still are not drawing these legislative districts. Say the Republicans really do nominate Donald Trump, which I think is kind of a suicide mission for the party. What would probably happen is that Democrats would suddenly regain control of a lot of state legislatures and governorships, because Republicans would probably do very poorly across the board. But a new census by itself just does not mean much unless you already have the majority to take advantage of it and redraw the districts.
I mean really this is just the price you pay when your party controls the presidency. When you think back to the 2006 midterm elections, when Republicans just lost control of all sorts of offices at the state and national level—they lost control of Congress, they lost lots of governorships, they lost lots of state legislatures—so, it is probably going to be very tough for Democrats to recover at the state and local level unless Hillary wins by some landslide in 2016.
CPR: So there is this fear on the left and pipe dream on the right that the number of solidly red state governments is inching very close to about 38, at which point there could be constitutional amendment by calling conventions in three quarters of the states. Do you think that this is at all reasonable or likely?
JP: You know I have not even heard this fear before. I mean there has been one time that this has happened, the repeal of prohibition. I suppose that it is technically possible. I would put it in the category of unlikely, because I think that even with a close presidential election in 2016 I think that Democrats will probably pick up seats in state legislatures, and probably pick up some governorships.
Part of the problem is that there are more gubernatorial elections in off-cycle years than in presidential years. There are still a lot of governors up, but fewer. So ultimately winning back these governor’s mansions is hard as long as there is a Democrat in the White House, because all these governorships come up at a time when Democrats are basically guaranteed not to do well because it is a midterm election. So there is this downside to winning where you get hurt really badly at the midterm.
CPR: Do you think that those losses are basically inevitable as a byproduct of being in power? That no matter what that there is an electoral backlash?
JP: I mean it is practically a law of American politics that the president’s party does badly in midterm elections. In the modern era there have only been two instances where the president’s party has not lost seats in Congress, and virtually no instances where it has not lost seats in state legislatures, though I do not know that figure off the top of my head. So with the president’s party there is usually the “surge and decline,” which is a theory that has been around in American politics for a long time and basically says that the president’s party gains seats in Congress during presidential years and loses them in midterms, and the size of that surge depends in part on how overwhelming that president’s victory was.
So again if Hillary were to face Donald Trump, I would imagine that would be a great year to be a Democrat no matter where you are running, because
there would be this huge surge in the number of Democrats elected to office, which might be followed bya big decline. At this point Democrats have lost just about as much as they could conceivably lose, at least in the House of Representatives and possibly also in the State legislatures.
But this bad couple of cycles was also compounded by changes in campaign finance, which has allowed groups to come in and throw a few million dollars at a State legislative race to try to tip the balance in one direction. So a lot of money supporting Republican candidates in state legislative elections in a year that was already favorable to Republicans has kind of exacerbated the surge and decline effect and accentuated Republican gains. And my understanding is that Republicans have done a much better job the last few cycles at investing money in state elections, a much better job than Democrats.
So there is a huge confluence of factors to drop Democratic representation at a state level to its nadir. That Obama had such a polarizing presidency, creating a whole movement, the Tea Party movement, which really activated the Republican base; that Obama’s base is just not very prone to voting in midterm elections in general if you think about his core constituencies, that there was this change in monetary resources; it is basically a perfect storm of events that put the Democrats in this terrible position. But then after redistricting the question becomes how do try to make back some of these losses?
CPR: So moving away from the legislative and gubernatorial side and towards the judiciary—I know that you have been working recently with Prof. Jeffery Lax on the politics of the judiciary—what kind of a role do elected judgeships play in this story? Are they a tool for implementing policy that is overlooked by a lot of people?
JP: Well a lot of states have elected judges, judicial decisions have policy implications at the state and local level, but judges tend to be less affected by these partisan swings—though not unaffected. There are some places where judges run with party labels, or have retention elections, where candidates do not actually face an actual opposition person, and others where they do not. So it is less clear-cut. But there are definitely places where Democratic judges were thrown out in midterm elections, and probably not because of anything that they have done in particular just because this brand that they are associated with is damaged and their constituents didn’t turn out to vote. I am not sure exactly what you mean.
CPR: I was thinking along the lines of say, during the Warren Court era, where there is a sense that if a problem can get to the federal judiciary it has a very good chance of decided in a liberal fashion, but now, with a lot of years of Republican nominations, a pretty evenly split federal bench, I think that there is talk among Democrats of advancing their agenda by State level judicial decisions as opposed to national level ones. Is that affected by these swings?
JP: This idea that when we have a conservative Supreme Court we turn to the state courts to advance liberal judicial goals is, well, in theory it is a great idea. But absent the same sex marriage issue, where there was a lot of liberal state court decisions that really advanced that agenda, it turns out state courts have seemingly been reticent—at least in the data that I have seen—to take on these issues.
For a while there was a lot of research into state constitutionalism, a lot of articles on the so-called poverty of state constitutionalism, saying that state courts have failed to play an active role in creating new rights or creating really broad interpretations of existing rights that would make liberals happy. It just hasn’t happened. For a number of reasons, first of which is that state constitutions are really bizarre documents, I don’t know if you’ve ever read one…
CPR: I have not.
JP: Well they are huge. Where with the federal constitution you can put it in the back of an Intro to American textbook, and we have this whole lore about the federal constitution—we read the Federalist Papers, we spend a lot of time interpreting it, we ask, “What was the intent of this document” and so on. Then you take a state constitution and it is as long as War and Peace in some cases, and no one ever reads them. They don’t form coherent wholes. We don’t know about the authors of these documents. They get amended all the time, just willy-nilly. So the result is that state judges just are not comfortable saying, “The essence of our constitution is this.” Or “This particular clause in our state bill of rights should be interpreted much more broadly to mean that.”
There is just a reticence to do that, and a lot of states just accept whatever the federal, Supreme Court definition of a right, say freedom of speech, means, and the states just say, “Sure we’ll adopt that” as opposed to saying, “Okay, let’s read our state bill of rights, and ask what the language here is, what the intellectual history of that language is, maybe turn to some outside sources and find out about what the people who wrote this language were thinking.” There just is not that kind of interesting intellectual inquiry going on. A lot of state courts just do not want to do that.
CPR: So you think that turning to the state courts is just not a reasonable strategy?
JP: Well, it works in some places, but... I don’t want to say that it is not a strategy that should be pursued, but it just has never been a strategy that has lived up to its full potential. In the late 1970s Justice Brennan wrote an article called “State Constitutions and the Protection of Individual Rights” [90 Harv. L. Rev. 489 (1977)] which basically said that the Supreme Court was getting too conservative and that we should turn to the states and let state courts be in the vanguard of expanding individual rights. That never really happened. But that does not mean that it can’t ever happen, or that it won’t happen. And I think that same sex marriage is a case where it did. Massachusetts said that it read its own constitution as providing this guarantee of protection, and the greatness of that strategy is that the Supreme Court does not get involved in state constitutions, so if the Massachusetts Supreme Court says that its constitution guarantees a right of same sex marriage, that that is how they interpret it, there is no avenue for appeal. Maybe we just need smarter people to become judges on state courts and do these sorts of things, but whatever the reason it just so happens that things don’t generally seem to work that way.