Bob Brown/Richmond Times-Dispatch via AP
Delegate Luke Torian, the House Appropriations Committee chairman, during a vote in the Virginia House of Delegates in Richmond, August 9, 2021
High-profile partisan jockeying has supplanted federal lawmaking. Decisions on contentious issues of the day like abortion, guns, and more have been left to state lawmakers, who are happy to pull at the threads of a fraying republic. In Missouri, the Republican legislature has gone so far as to attempt to invalidate federal gun laws that “exceed the powers granted to the federal government,” with a measure to render them null and void.
Republican Party leaders have spent four decades consolidating national political power through the states, and have 23 trifectas (where they control the state legislature and the governorship) and dozens of legislative chambers to show for it. Democratic Party leaders, meanwhile, are in free fall, ignoring state races, bickering, and wringing their hands. David Toscano, author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, served in the Virginia legislature from 2006 to 2020, including seven years as the former Democratic leader of the House of Delegates. He says that voters should stop treating politics as performance art, strive for civility in political discourse, and pay as much, if not more, attention to state lawmakers who purport to be legislating for the collective good.
This interview has been condensed and edited for clarity.
Gabrielle Gurley: There’s nothing new about the tensions between states and the federal government. But we’re seeing Republican states step up resistance to federal directives and laws on guns, public health during a global pandemic, and Roe v. Wade. Is the United States headed toward a modern nullification crisis?
David Toscano: You’ve seen certain elements of nullification regarding gun safety bills. When Virginia passed some of its gun safety legislation, there were localities that started calling themselves “sanctuary jurisdictions” and saying that they were going to uphold the Second Amendment and not comply with the state law. With federal laws on gun rights, some states might say, well, no, we’re just not going to support that law.
One place where nullification might occur is in the unlikely event that Congress passed some significant portion of the John Lewis Act voting legislation. If Congress passes a law under its constitutional authority over federal elections, states must follow it under the supremacy clause of the Constitution. If such a law were to pass, however, some Republican states would likely continue efforts to restrict voting rights. Some would undoubtedly sue to try to block the federal law. Others could refuse to implement the law, a new form of nullification.
The biggest worry really is the Mississippi abortion case. You’ll have [some] Northern, East Coast, and West Coast states allowing abortion to occur under the Roe v. Wade qualifications. Then you’ll have also the Southern states where abortion will be prohibited essentially. Whether you call that nullification—I guess I wouldn’t quite refer to it that way. But it is clear that we’ll have two countries regarding abortion rights.
Gurley: The pandemic has also undermined federalism.
Toscano: Early on, the states were pitted against each other. There wasn’t any federal coordination—that’s really not the way federalism should work. But that’s all the states had. So, you had crazy things like the wife of Maryland Gov. Larry Hogan [Yumi Hogan], who is of Korean descent, using her ties in Korea to get access to test kits.
You have to have the federal government involved in coordinating something as big as that and they just weren’t doing it. If we’re not prepared for the next pandemic, you’ll have the same thing occurring; some states are much more adept to get access to the equipment, vaccines, and the testing, and other states aren’t.
Gurley: Another tool for control, preemption, is used in red states with blue major cities. How will that affect the relationship between states and their major municipalities?
Toscano: Florida Gov. Ron DeSantis went after Leon County, which embraced a vaccine mandate. The state sued them saying that they were outside of their authority, the locality couldn’t do what the state wouldn’t permit them to do. The state got a big judgment, almost $4 million, against the county for doing this. But you see it all across the country, where the locality tries to adopt a minimum wage that might be higher than the state’s minimum wage and the state comes in behind it and says, you can’t do that. The state has plenary power over these localities. It ends up resolving itself in court disputes, where federal courts or most likely a state court intervenes to make a decision about what localities can do.
That’s how people control the country, they control it through the states. Republicans recognized that after Obama won, and they put their money into state legislative races.
Gurley: The Republican Party been very deliberate in the execution of its REDMAP strategy to acquire national political power through controlling state governments. That is shaping up to mean fundamental rights like voting are going to be left to the whims of state lawmakers.
Toscano: Ironically, Virginia passed a law that says that the Commonwealth of Virginia can preclear decisions that get made at the local level. Now that’s preemption by Virginia against the localities that might want to change a polling place or might want to change hours against state law. North Carolina, for example, got a Democratic governor and a pretty hefty Republican majority in the Senate and in the House. They passed a redistricting plan and the congressional delegation has very few Democrats, so it’s almost all Republican and that’s just the way they drew the lines. The Democratic governor doesn’t have the ability to veto that bill. That’s how people control the country, they control it through the states. Republicans recognized that after Obama won, and they put their money into state legislative races. And last year, even when Biden won, Democrats lost seats in state legislatures. Republicans are going to seat their majorities in states for another ten years.
Gurley: The GOP has seized on election administration as a way to assert political control, something most voters weren’t aware of or really cared about before 2016.
Toscano: Republicans have done it for a long time. Take Fulton County, Georgia: During the pandemic, they put in temporary rules that allowed mobile voting sites, which increased turnout. As soon as Georgia got two U.S. Senate seats, the Republican legislature got rid of the mobile voting sites. But there are much more insidious things happening. You’re getting Republican legislatures going after Democratic officials like Katie Hobbs in Arizona, because she criticized the partisan audit, and Brad Raffensperger in Georgia after he refused to find 11,000 votes for Trump. Raffensperger has supported a lot of voter suppression measures over the years, but he wouldn’t go down the road with Trump on this election integrity baloney and he’s paying the price for it now.
Gurley: Do you see any move to drastically curb voting rights in Virginia under Glenn Youngkin?
Toscano: It’s going be very interesting to see who the new governor appoints to be the secretary of administration and who he appoints to [administer] the boards of elections, because that’s an executive function, not something that the legislature has to pass. We do not have a secretary of state in Virginia. It’s going to be very difficult for him to do anything more than just talk about election integrity.
Virginia is probably one of the cleanest states in the country in terms of elections. Both Republicans and Democrats have celebrated the efficiency of elections here for years. Even if Youngkin could get something through the Republican House [The GOP has a 52-48 majority], he has to face a state Senate that’s controlled by Democrats. If they were to flip the state Senate in two years [then] they would have a trifecta. But right now, he’s going to have to be very careful with what he does. Because there’s not a lot he can do that would satisfy the rabid Trump base other than to talk.
Gurley: How rabid is the Trump base in Virginia?
Toscano: There’s a lot of strong Trump people in Virginia, but compared to other places, Virginia is somewhat unique. Republicans in Virginia tend to be more sort of mainstream, traditional conservative Republicans. Remember, Trump had one of the lowest approval ratings in Virginia, lower than in any other state south of the Mason-Dixon Line. Trump was not liked in Virginia, and that’s one of the reasons why Democrats made such progress while he was in office.
Gurley: What lessons are Virginia Democrats taking away from the 2021 contests?
Toscano: There probably will be a contest for Democratic Party state chair, as you might expect when you lose all three statewide offices. But it’s been relatively mild in terms of criticism. People just realize that they just have to do a better job organizing, especially at the grassroots, to get people to the polls. How they’re going to raise the money necessary to do that is the major question right now.
Gurley: What does the bench look like for state offices in Virginia?
Toscano: Jennifer McClellan has been mentioned, she’s been in the Senate for a number of years. She ran in the 2021 primary [She placed third], and Jennifer Carroll Foy [She placed second and may run for Congress] is another one who is mentioned quite frequently. Who knows what happens with Rep. Abigail Spanberger? She was drawn out of her district and might decide she might run for a higher state office.
Gurley: Why does critical race theory, which was a flashpoint in the governor’s race, continue to be divisive in Virginia and elsewhere?
Toscano: Critical race theory was just a stalking horse for other things because it’s not taught in American schools. What is more disturbing is what’s happening with the 1619 Project of The New York Times. That’s much more troubling to me because it’s a way that people could confront the history. You cannot explain what this country is like today without talking about slavery. You can’t explain the South without talking about Reconstruction.
What’s layered on top of the political polarization is where economic growth is actually occurring: on the Northeast Coast and West Coast—both are perceived as liberal—and the states in the middle, Texas, Arizona, and Colorado. It’s not North-South anymore, it’s an economically advantaged group of states versus disadvantaged states. That inequality only grows if we don’t have a good federalist system that helps spread things around and create opportunities in places that don’t have any. [The new infrastructure bill means] certain [regions] of states will compete against others in the same state—plus the money is going to be administered through state governments. That’s why people need to pay attention.
This post has updated to correct the 2021 Democratic gubernatorial primary results.
