2. READ: Lost Children Archive. A novel by by Valeria Luiselli.
4. READ: There Goes the Neighborhood: How Communities Overcome Prejudice and Meet the Challenge of American Immigration. A book by Ali Noorani.
5. READ: What the first 24 hours on U.S. soil looks like for detained immigrants.
6.LOOK: Our 2018 photo essay in the midst of a rally outside the gates of Tornillo, Texas.
This interview with Dan Hopkins, Professor in the Political Science Department at the University of Pennsylvania, was conducted and condensed by franknews.
What were the original assumptions in the Constitution about state-level loyalty versus national government loyalty?
It's a good question. The Constitution is now far enough back in our collective memories that I think it's really valuable to start by having some sense of what the U.S. was like at the time. There were some scholars who argued that the Constitution is well understood as a peace treaty between sovereign states about how they were going to govern their affairs.
In 1776 and even in 1787, when the Constitution was drafted, the U.S. was a collection of 13 quite different colonies. It took the Georgia delegation six weeks to travel to Philadelphia in order to participate in the Constitutional Convention. Different colonies had very different economies and different religious heritages. This was a quite diverse country and, thus, the Constitution was designed to protect substantial levels of state-level autonomy. I think it is really important to recognize that at the time, many of the people thought of themselves as Americans, but also to a certain extent, as New Yorkers or Virginians or Pennsylvanians.
When do you start to see a shift towards politics in the U.S. becoming more nationalized?
To some degree, it's an ongoing process that has unfolded in fits and starts over our 200-plus year history. I do think that the Civil War is a critical turning point. In the run-up to the Civil War, you see many more implications of state-level identities. I'm a Georgian, I'm a Virginian. And obviously, the Civil War pitted state against state.
It's generally been the case that the Republican party has been more likely to invoke federalism. Of course, the exemplary issue is the issue of civil rights in the 1950s and 1960s. Even in more recent times, the Republican party has advocated for there being less of a role in the federal government asserting itself to protect the rights of African-Americans, especially, but not only in the South. I think it's fair to say that if you've heard a state rights argument in the last 50 years, it's more likely to be coming from the Republican party.
There's also an element in which as power shifts, we see changes. When the Republicans control the federal office, sometimes it's Democrats who say, "Hey, it's important to let California write its own laws with respect to clean energy or car emissions standards." At the same time, the extent to which we see Republican states moving to block sanctuary cities, for instance, is surprising.
If you're a principled federalist, then presumably cities shouldn't be punished for diverging.
In general, I see very few principled federalists in American politics. I think that all too often in contemporary American politics, federalism is just the clothing we use to dress up certain arguments instead of being a principled approach to a range of policy problems.
What factors contribute to a nationalized political landscape?
I actually think there's a relationship between the transformation of campaign finance, the transformation of voting, and the transformation of what's getting covered in our newspapers. There's a unifying element to all of this.
Let's look at campaign finance first. In many of the most competitive 2020 Senate races, large majorities of money came from out-of-state donations. What does that do to the candidates, and how does that affect the way constituents perceive elections?
I think that the nationalization of the campaign finance structure is an example of our nationalized set of divisions. What we're trying to do is refract these highly nationalized divisions through our federalist system. And the result often distorts representation in critical ways. One of the key facts about campaign finance has been that as late as 1992, two-thirds of all donations to federal candidates, to members of Congress, were coming from within the state that they represent. 20 years later in 2012, only one-third of all dollars were coming from the states that people represented.
The danger is that the representatives and senators increasingly have one constituency where they get their votes, but a separate constituency from where they get their money.
That is not how our system was designed to work. It was not designed for members of Congress to spend four hours a day raising money from people who are not their constituents.
And simultaneously, there has been a collapse of local media. I wonder how the decline of local news plays into this landscape?
When the internet first became a sizable presence, there was a hope that it might actually lead to a proliferation of local news. With the internet there are very, very low production costs, so, theoretically, I could put up a newsletter about my neighborhood. But in fact, as you said, the rise of the internet and the rise of cable television led to this dramatic concentration of our attention on a very, very small number of nationalized news sources. Partly that's because the news media would target us based on where we lived. The Philadelphia Inquirer targeted a set of people who wanted to know about life in and around Philadelphia.
But more recently we instead see that the business model for many media companies is to compete based on who voters are and who readers are and who consumers are, rather than where they live.
Rather than providing me with information specific to Philadelphia, they will identify me as someone who likes the National Football League or cares about politics.
That has led to the fragmentation of our media environment. One of the real losers in this has been people's attention to state and local politics. State and local politics have never been on the top of people's priority lists. It used to be that if I were reading the Philadelphia Inquirer, as a by-product of learning what the Eagle's score was, I also learn a little bit about who my mayor was or who my governor was. And nowadays, since I can go right to ESPN or I can go right to Fox News, I can skip over all that state and local information.
In a world where state and local politicians want to be well-known, they're much more likely to attach themselves to a lightning rod federal issue than they are to actually dive into the challenging, complex issues that face their local community.
Which really allows issues to be manipulated. When we focused on immigration, something I found interesting was how much immigration was used as a campaign tool in Ohio or Maine. It’s easy to make a border terrifying when you don’t live near one. Do you feel like campaigning has changed based on the ability to take issues that don't have anything to do with your constituents, but are made to look like they have everything to do with constituents?
Yeah, absolutely. One of the real challenges with a nationalized political environment is that it encourages attention to issues that are evocative and emotionally charged and often have to do with specific groups of people, but ultimately do not have clear policy effects. I think one prominent example of this is not long after President Trump was elected he attacked football players who refused to stand for the National Anthem. I think it's a very instructive case because he wasn't proposing any policy. This was purely about symbols.
I worry that in the nationalized political environment, it's very hard to put together a political coalition that speaks to auto workers and nurses in the suburbs of Detroit, and retirees in Maricopa County. This is a very diverse country. One of the easier ways to knit together a political coalition is to reach for these divisive, identity-oriented issues, even if that's not actually what's going to motivate the policies that you're proposing.
I do think that there's been a real connection between the way in which our politics has nationalized and the way in which our politics has become more identity oriented.
It's these kinds of identity charged issues that can have an intuitive meaning to people in places from Montana to North Carolina.
Has your work clarified your opinion about how national politics should work? What do you advocate for moving forward in terms of policy and campaigning?
I certainly think that voters do better when they have the information that they need, and I think that we are missing an opportunity to really use our federalist system, because there are so many different kinds of issues that face the different communities in our country.
If we are trying to force all of those issues onto a single divide between Democrats and Republicans, we're going to miss a lot of critical issues.
I think some of the disaffection with contemporary politics stems from the fact that many of us deal with problems in our day-to-day lives that are not represented by the Republican-Democrat divide.
I do want to be wary of nostalgia — or suggesting that some earlier period of history was markedly better. Yes. I worry a lot that today's voters just don't know much about state and local politics, but state and local politics wasn't always vibrant and democratic in previous generations, right? As a social scientist, I think part of my job is to lay out trends. I do think that nationalization is something that we should forecast as being a major part of our politics moving forward.
I also think that there are some policy changes on the edges that I would advocate for that I think would help reinforce the connections between places and voters, and to make better use of our current federalist system. For instance, I think campaign finance matching, so that every dollar you get locally is amplified, is a great idea. I think that could encourage politicians to lay down roots in the specific communities they represent and to spend less time trying to raise money from Manhattan or Dallas.
I think we should also do everything in our regulatory capacity to help promote, protect, and foster high-quality, non-partisan coverage of states and localities.
As a country that is hemorrhaging reporters who cover states and localities I do think that given how many important decisions are made at the state and local level, as a society, we have a real stake in the quality of local news media. There are fewer statehouse reporters, there are fewer city hall reporters, and there are fewer people who are tracking state and local politics to hold our politicians accountable. I think that has been underappreciated, and one of the real dangers in contemporary American democracy.
interviews
The Constitution on Your Right to Vote
by Joshua Douglas
October 13, 2020
This interview with Joshua Douglas, professor of law at the J. David Rosenberg College of Law at the University of Kentucky, was conducted and condensed by franknews.
Joshua | I'm the author of a book titled Vote for US: How to Take Back Our Elections and Change the Future of Voting. I've written extensively in law review articles and in the popular press about the constitutional right to vote. I focus, in particular, on state constitutions and what they say on voting rights, election law procedure, and a slew of other topics.
frank | You write a lot about how voting issues get a lot of attention on a federal level and less so on a state level. Why do you think that is and do you think it is important that we shift our focus to state courts?
Well, that may be changing a bit. Voting rights advocates have not had a lot of success at the federal court level, so, increasingly, they are bringing more claims in state court. Generally, however, we tend to think of federal courts as the protectors of civil rights. I don't know if that's a remnant of the Warren Court expanding civil rights protections in the sixties, but I do think that it's true that the state courts' role in the election process has been overlooked, at least in the past.
How do state courts shape the meaning of the constitutional right to vote? What is up for debate in terms of an individual's right to vote?
The interesting thing is that many of the plaintiffs are now bringing cases about voting rights to the state courts under state constitutions, not under the U.S. Constitution.
The right is listed in the negative. There are four constitutional amendments, the 15th, the 19th, the 24th, and the 26th, that say that the states can't deny the right to vote on the basis of a particular characteristic, but there is no actual affirmative grant of the right to vote. Instead, the Supreme Court has found protection implicitly within the Equal Protection Clause. However, almost every single state constitution does affirmatively grant the right to vote. It says things like, "every citizen of the state shall be a qualified voter" or "all citizens shall be entitled to vote."
So, over the past several years, state courts have been using the more explicit and broader grant of the right to vote in state constitutions as grounds to strike down state laws. States are saying that though the federal constitution does not explicitly grant the right to vote, our state constitution does. We see this in the Missouri Supreme Court ruling on a voter ID case, as well as the Pennsylvania Supreme Court ruling on a redistricting case. This is also seen in a case currently in the Supreme Court, originally out of Pennsylvania, extending the absentee balloting receipt deadline. State courts are looking at their state constitution and saying, "Hey, there's actually explicit language here that protects the right to vote here that is not present in the U.S. Constitution."
If we understand that the electoral system is a state's issue, do we have to accept that sometimes it's harder to vote in Texas or Georgia than it is in California or New York?
I mean, that always has been the case. That is in large part because of the U.S. Constitution’s Elections Clause, Article One, Section Four, which says that the times, place, and manner of the election is up to state legislatures.
Now, that clause also says that Congress may alter or amend those regulations.
For example, the Voting Rights Act of 1965 imposes nationwide rules that ban literacy tests and forbids discrimination on the basis of race in voting. Congress enacted rules again in 1993 through the National Voter Registration Act, which implemented a federal law and is the reason why every DMV in the country has to offer voting registration opportunities. HR1, a bill proposed by the Democrats that would impose national voting rules.
But, historically, we have not seen many rules come out of Congress. Combine that with the federal courts being unwilling to affirmatively impose certain rules, and, in my view, being less protective of the right to vote under the federal equal protection clause, and it leads to a patchwork system of state rules and how to vote.
Do you have pressing concerns in your state, Kentucky, right now?
I actually think we are doing pretty well in Kentucky. There was a bipartisan agreement between the Democratic Governor and the Republican Secretary of State in administering this election that set in place fairly extensive voting rules. Basically, anyone can vote via absentee ballot. An excuse is still required, but COVID-19 concerns qualify as an excuse — the Republican Secretary of State made it very clear that it's the voter's subjective understanding of their own concerns.
There is also going to be three weeks of early voting, including three Saturdays, in addition to the traditional polling place voting on November 3rd. I am a little bit concerned about long lines at the polls. We're going to have a lot fewer polling stations than normally, and most neighborhood precincts are not going to be open due to COVID. There is a lack of poll workers and a lack of places that are set up to have adequate ventilation and adequate social distancing.
For example, Jefferson County, which includes Louisville and is the largest county, is going to have 20 in-person polling places. Lexington, which is the second-largest county, is going to have eight polling places. I am concerned about things like the lines and transportation, but all that said, I think the Kentucky plan is pretty darn good and could be a model for the nation.
What other states are you watching?
Wisconsin looks like it's going to be a mess, especially with the decision that just came down out of the seventh circuit — federal judges blocked a lower court’s order that extended the deadline for returning absentee ballots. Texas is very concerning because of its restrictive voting rules, including an executive order that only allows for one ballot drop off location per county. The 5th Circuit Court of Appeals just upheld that rule. That means in places like Harris County, which includes Houston, there is one spot to drop off your ballot. That is crazy.
There are also five states, Texas, Louisiana, Mississippi, Tennessee, and Indiana, that don't accept COVID as an excuse to vote absentee. That is particularly concerning because it is going to force people who may have genuine concerns about the virus to vote in person.
In a state like Texas, where they have shut down so many of the ballot drop off locations, is there anything to do at this point, or is it too little, too late?
In Texas, the courts have rejected the challenges to the law, unfortunately. Even the Texas Supreme Court, so the state court route hasn't really worked.
The only other thing to do is voter education — to try to get people to fill out and mail their ballots early so that we are not overwhelming the postal service.
We have a month of voting. It is important that we take advantage of that by making a plan and voting early.