Illiberalism and Authoritarianism in the American States

70 Am. U. L. Rev. 829 (2021).

* Bridget and Thomas Black SUNY Distinguished Professor of Law and Research Professor of Political Science, University at Buffalo School of Law, The State University of New York. Thanks to Jessica Bulman-Pozen, Jack Chin, Neal Devins, John Dinan, Lise Gelernter, David Landau, and Rich Schragger for comments on a prior draft, and to Daniel Caves and Kyla Markowitz for valuable research assistance. Special thanks to Nina Cascio of the University at Buffalo Law Library for extraordinary assistance obtaining sources during the pandemic.

Federalism contemplates subnational variation, but in the United States, the nature and significance of that variation has long been contested. In light of the recent turn, globally and nationally, toward authoritarianism, and the concurrent sharp decline in public support not merely for democracy but also for the philosophical liberalism on which democracy rests, it is necessary to discard or to substantially revise prior accounts of the nature of state-to-state variation in the United States. All such accounts implicitly presuppose a common commitment, across the political spectrum, to the core tenets of democratic liberalism, and consequently assume that subnational variations in policy preferences and modes of self-governance reflect nothing more than disagreements within the shared American liberal tradition. That assumption, if it was ever valid, may be no longer. Like other federal states in which subnational “illiberal enclaves” have persisted over time, the United States may be witnessing a replication at the subnational level of what appears to be happening at the national level: a growing chasm along a cleavage between democratic liberalism and illiberal authoritarianism, in which some states remain committed to inherited forms of democratic liberalism while others cling to (or develop, or resurrect) patterns of illiberal authoritarianism.

This Article examines both the “large-C” formal constitutions of the states and their “small-c” informal constitutions and behavior for evidence of such a development. The evidence shows that North Carolina and Wisconsin have advanced the farthest down the road to subnational authoritarianism, with Florida, Texas, Kansas, Arizona, and Alabama not far behind. Disturbing initial signs of democratic backsliding have appeared as well in Georgia, Iowa, Michigan, Ohio, Pennsylvania, and Tennessee. Although subnational authoritarianism in the United States is at this point far less severe than that found elsewhere in the world, the evidence suggests considerable cause for concern.

Introduction

Federalism contemplates subnational variation. By establishing and then dividing power among national and subnational governments, federalism generates the potential for subnational units to adopt disparate policies in a range of domains commensurate with the scope of decentralization. Indeed, according to some theories of federalism, the principal point of federalization is precisely to allow the expression of regionally distinct policy preferences through processes of subnational self-governance.¹

There is no question that the United States displays, to at least some degree and in at least some domains, the kind of subnational variation one would expect in a highly decentralized federal state. Such variation may be found in the habits and customs of state populations, in their policy choices, in the form and substance of legal regimes, and even in the states’ foundational charters—their constitutions. Yet there is longstanding disagreement among American scholars about the nature and significance of this variation. Some claim that state-to-state variations in policy choices reflect profound underlying differences in the cultures and deeply held values of state polities.² Others contend that policy variation in the American states reflects little more than normal variation occurring within a largely bounded domain of deeply shared national values and policy commitments.³ Still others argue that state-to-state differences in policy choices reflect variations not in the values of state polities so much as differences in the prepackaged policy commitments of whichever national political party happens to control the levers of subnational governance in any particular state at any particular moment.⁴

Recent events, however, both globally and nationally, put these subnational variations in a significantly new light. Around the world, liberal democracy—the dominant form of political self-organization since the conclusion of the Second World War—is in decline. In longstanding liberal democracies such as France, Germany, Austria, and Italy, populist parties that reject the core tenets of twentieth-century liberalism have not only appeared but also become influential players in national politics.⁵ In newer but seemingly settled liberal democracies such as Hungary, Poland, and Turkey, authoritarians who openly reject liberal democracy have risen to power.⁶ In the United States, the Republican Party pursues a systematic program of subverting democratic processes through vote suppression and the manipulation of electoral processes in order to maintain itself in power.⁷ An individual with “clear authoritarian tendencies”⁸ occupied the White House from 2016 to 2020, with the full-throated support of his party, from its leadership to its rank and file.⁹ At the same time, a growing body of academic literature has brought into focus a previously overlooked phenomenon in federal states in which subnational “enclaves” sometimes maintain illiberal or overtly authoritarian forms of government in defiant opposition to powerful trends of democratization and liberalization on the national level.¹⁰

The hypothesis I wish to explore here is whether subnational variation in the United States can now best be explained as reflecting a deeply fraught realignment of state polities along a cleavage—a chasm, really—dividing those that continue to support established, long-dominant forms of liberal democracy from those that simply do not—from those that favor illiberal and authoritarian arrangements. Indeed, this possibility raises antecedent questions of whether Americans ever truly embraced liberalism, and if they did, how deeply such commitments actually ran, and how any such commitments are distributed.

Part I of this Article discusses subnational variation in federal theory and reviews the major accounts of subnational variation in the United States. I argue that we must now view all of these accounts as subject to revision on the ground that they share an unstated premise that no longer holds—that all subnational variation within the United States occurs, by definition, within the bounds of a universally shared American commitment to liberal democracy. Part II describes the current crisis of liberal democracy around the world.

Part III turns to the history and scope of liberalism and illiberalism in the United States, reviewing a variety of different kinds of evidence suggesting that the American commitment to liberalism has been thin and fragile and that American politics has been intertwined since the Founding with a strong counter-tradition of illiberalism. As is typically the case, however, illiberalism in America is not distributed haphazardly, but tends to be concentrated, either in a political party or in a region. Part III reviews the evidence showing that, in the United States, illiberalism and authoritarianism are concentrated in the Republican Party.

Part IV examines the regional concentration of illiberalism in the United States. It begins with a brief overview of the phenomenon in federal states of authoritarian “enclaves”—persistent pockets of illiberal and authoritarian rule in states otherwise committed to liberal democracy at the national level. It then closely examines the constitutional regimes of the American states for evidence of subnational authoritarianism, either formally, embedded directly in state constitutions; or informally, in the form of patterns or norms of official behavior. I find the evidence to be inconclusive, but suggestive and deeply troubling. The Article concludes with some observations on the relationship between federalism, subnational illiberalism, and authoritarianism.

I. Substantial Variation in the United States

A. Federal Theory

Federalism is a form of governmental organization in which official power is divided between national and subnational governments;¹¹ in Daniel Elazar’s famous phrase, a federal system is one in which each level of government enjoys a combination of “self-rule and shared rule.”¹² The main consequence of this division of authority is the opportunity it creates for public policies to vary within a federal system, and in particular among the subnational units comprising the federation.

In some theories of federalism, the opportunity that federalism offers for geographically defined subnational populations to adopt the public policies they prefer furnishes the principal justification for the adoption of a federal form of organization.¹³ This justification for federalism is often associated with multinational states, in which a guarantee of some measure of autonomy to an ethnically, linguistically, or religiously distinct subnational unit may be a critical term of the “federal bargain” that makes formation of the state possible in the first instance.¹⁴ However, although the kind of subnational variation associated with ethnonationalism is a sufficient condition for the creation of a federal state, it is not a necessary one. Subnational policy variation may be equally desirable for other reasons: to maximize overall social utility;¹⁵ to allow Brandeisian policy experimentation;¹⁶ or to establish a system of intergovernmental competition and policy contestation for the purpose of protecting liberty—a rationale generally taken to provide the principal justification for federalism in the United States.¹⁷

The degree to which U.S. federalism in practice provides the benefits that federalism is in theory capable of delivering is deeply contested. Most obviously, public policy varies from state to state to some degree, and in some domains, often highly salient ones. Some states, for example, punish certain crimes by death while others have abandoned the death penalty.¹⁸ Some permit physician-assisted suicide while others condemn it as murder.¹⁹ Some have legalized the recreational use of marijuana while others prohibit it.²⁰ States tax their citizens at different rates, and offer dramatically different levels of public services.²¹

Yet at the same time, policy choices in the American states often exhibit an enormous amount of convergence and uniformity. Huge swaths of private law, including tort law, contract law, and property law, are fundamentally similar from state to state, and even across common law countries around the world.²² Powerful forces beyond the control of individual jurisdictions, such as markets and jurisdictional competition, lead frequently to “uniformity in the rules of different legal systems.”²³ The apparatus of federal states typically includes not only mechanisms that facilitate conflict and diversity, but also mechanisms designed to facilitate coordination and legal uniformity.²⁴

Potent forces of conformity and isomorphism frequently channel state policies into the same narrow paths even at the foundational level of constitutional law.²⁵ Every state, for example, maintains a presidential form of government even though the parliamentary model is the dominant one throughout the world.²⁶ All but one state has a bicameral legislature.²⁷ Thirty-two state constitutions contain due process clauses identical, word-for-word, to each other and to the Due Process Clause of the Fifth Amendment to the U.S. Constitution, and thirty-seven contain language identical to the Speedy Trial Clause of the federal Sixth Amendment.²⁸ Modes of cooperative federalism, moreover, facilitated by the extraconstitutional discipline imposed by national political parties,²⁹ can produce policy uniformity across states by subordinating regional preferences to national ones.³⁰ Subnational autonomy, in other words, need not produce differentiation; it can just as easily yield policy convergence, depending upon the circumstances.

The seemingly haphazard and largely unpredictable nature and dimensions of policy variation among the American states thus pose difficult interpretational questions. What produces state-to-state policy variation? In what policy domains, and in what circumstances? How do we explain it?³¹

B. Three Accounts of Subnational Variation in the United States

American federalism scholarship has produced, roughly speaking, three major schools of thought about how best to interpret and explain policy variations among the American states. I shall call these the traditional, the normal variation, and the partisan accounts.

1. The traditional account

The traditional account, the oldest of the three, holds that variations in policy choices made at the state level generally reflect underlying differences in the basic values held by state polities.³² Some versions rest on an even stronger, ontological claim to the effect that state-to-state differences in values themselves reflect, in Hegelian fashion, even more profound underlying differences in the fundamental human character—in Hegel’s terminology, the “[s]pirit”³³—of state demoi.³⁴

As I have elsewhere argued, the traditional account traces its origins to antebellum efforts by Southern elites to build support for secession by supplementing political, economic, and legal justifications with what we would today call an “ethnonational” one, which claimed that deep-seated cultural and even ethnic differences distinguished Northern and Southern American populations.³⁵ Later, early in the twentieth century, the traditional account was elevated to academic respectability by the influential historian of the American West, Frederick Jackson Turner.³⁶ Turner argued that the American colonies had been settled in the seventeenth century by three distinct sub-populations—New England by “restrain[ed], . . . intellectual[]” Calvinists; Virginia by “the American version of the English country gentry”; and South Carolina by “a West Indian planting society” that was “self-centered, haughty, and fiery-tempered.”³⁷ These three original populations, according to Turner, subsequently migrated west in clear, identifiable patterns, carrying with them—and retaining—their distinct cultures and values,³⁸ distinctions which, in turn, Turner argued, fully explained then-observable differences in political preferences and behavior.³⁹

Although Turner’s account received a thorough academic pummeling after his death,⁴⁰ it nevertheless continued to gain adherents among both political scientists⁴¹ and historians.⁴² The traditional account eventually made the leap to law in the early 1980s primarily through the work of political scientist Daniel Elazar, who invoked it to argue that differences among state constitutions are best explained by the internal migration patterns of distinct American sub-groups holding distinct values and inhabiting different political cultures.⁴³

Within the legal academy today, Professor Ernest Young has mounted by far the most sophisticated defense of the traditional account. In a working paper that will eventually form the core of a book-length treatment,⁴⁴ Young approaches the issue from the premise that the central purpose of federalism is to permit the state and national governments mutually to check one another. Moreover, Young argues that the capacity of states to exercise this checking function in a meaningful way depends heavily on whether Americans “identify” sufficiently strongly with, or are adequately “loyal” to, their states.⁴⁵

It is not strictly necessary, Young explains, for this loyalty to be rooted in antecedently distinctive state identities or characters; it is possible, he concedes, that subnational autonomy, enjoyed over long periods of collective self-governance, can by itself generate a political community that commands the loyalty of its members.⁴⁶ But, he continues, an antecedently distinctive state identity, although not necessary, is nevertheless sufficient to support the kind of subnational loyalty on which the proper operation of federalism depends, and as an empirical matter, he claims, such identities exist.⁴⁷ Thus, he argues, differences of geography, demographics, religion, forms of economic organization, and political culture⁴⁸ contribute to the construction of a subnational network of “meaningful”—and meaningfully distinct—“communities of value.”⁴⁹

2. The normal variation account

The normal variation account—the position I have long taken in my own work—arose in part as a reaction against what its proponents saw as the implausibility of the traditional account. On this view, the traditional account approaches with undue credulity what are largely folkloric beliefs about American identity that are fundamentally implausible in a society long knitted together by dense networks of transportation, communications, and internal migration.⁵⁰ Moreover, these folkloric beliefs are, in the end, self-discrediting as excessively “essentialist”⁵¹ and “deterministic”⁵² in their adoption of an account in which “first causes are made to lie in real estate, not state of mind.”⁵³

The normal variation account, in contrast, begins from the premise that contemporary Americans share what Malcom Feeley and Edward Rubin call “a unified political identity” that is overwhelmingly national rather than subnational.⁵⁴ Consequently, observable state-to-state variations result not from significant underlying differences in culture and values, but merely from normal disagreement within a shared—and consequently bounded—domain of political beliefs and commitments. Such disagreements, that is to say, are intrafamilial, rather than cross-cultural, and their range is for the most part correspondingly narrow.

On this account, the conditions, practices, and beliefs of early American settlers are irrelevant, for even if early Americans were at first distinctive, the population has long since been thoroughly mixed through liberal internal migration, the passage of time, and, since at least the mid-twentieth century, the growing homogeneity of channels of information and cultural transmission.⁵⁵ Even more fundamentally, American identity has from the beginning been founded not on the kind of ethnic, linguistic, or cultural distinctiveness found in modern multinational federations like Spain or Switzerland, but on a commitment to a certain set of ideas. American nationalism was born in the revolutionary struggle against Britain, a struggle in which “Americans sought independence to vindicate rights they held not on account of their status as a distinct people but on account of being English.”⁵⁶ These rights, moreover, were understood to be held not merely by British subjects, but universally, by all mankind.⁵⁷ Thus, as Hans Kohn has argued, American nationalism “was not founded on the common attributes of nationhood—language, cultural tradition, historical territory or common descent—but on an idea . . . . To become an American has always meant to identify oneself with the idea.”⁵⁸

Moreover, the most salient aspect of American identity—the one that counts for nearly any significant purpose—is political rather than cultural. It is beyond doubt that the American population displays a good deal of variety in culture and folkways; Professor Young may be correct in observing a difference between “clean-living Utah and gambling-mecca Nevada.”⁵⁹ But it is erroneous to assume that these kinds of differences translate predictably and systematically into distinctions in the political and legal regimes by which state polities govern themselves. If I blindfolded you and gave you a plate of North Carolina barbecue and a plate of Texas barbecue, you might be able to tell them apart, just as, blindfolded, you could likely distinguish the speech of a New Englander from that of a Southerner. But I am quite confident that if I showed you the text of two state constitutions—the fundamental law of those states—you would not be able to tell them apart.⁶⁰

Finally, according to this account, the primary locus of Americans’ identity—their “loyalty,” as the traditional account would have it—is not fixed, much less attached permanently or even predominantly to their states, but rather is fluid and changeable, and consequently attaches itself to the state or to the nation opportunistically, as circumstances change. All humans belong to many overlapping groups and communities simultaneously, and the dominant aspect of their identity at any given moment moves continually as one group or the other becomes more salient to the achievement of their immediate objectives.⁶¹ In a federation, all citizens belong simultaneously to at least two political communities, state and national, and it is to be expected that their allegiance will vary between the two levels of government depending upon which level appears more likely to satisfy their most immediate, pressing political demands.⁶²

In sum, according to the normal variation account, state-to-state variations are much more persuasively explained by normal variation and geographical clumping among a population that shares a common ideological and political tradition, and disagreement occurs within this shared tradition, not across its boundaries.⁶³ Although federalism may, in some circumstances, serve as a vehicle for accommodating significant differences among subnational populations, under American conditions it does not; it serves instead as a vehicle for protecting liberty by offering alternative fora for political contestation among people of fundamentally similar views.⁶⁴

3. The partisan account

If the normal variation account offers a thinner conception of state identity than the traditional one, an even thinner version is offered by the partisan account. In this conception, advanced most thoroughly and rigorously by Jessica Bulman-Pozen, state-to-state variation in policy choices is best explained by the accident of whichever national political party happens to control the governing apparatus of any given state.

In Bulman-Pozen’s account, politics in the United States has become so thoroughly nationalized that, if not in design then in actual current practice, the structural apparatus of federalism now serves primarily as a forum not for competition among state and national polities or their governments, but as a forum for competition by the major national political parties.⁶⁵ In this account, federalism’s main structural function today is to provide an important opportunity for the political party out of power at the national level to maintain its national competitiveness by taking control of as many state governments as it can and, in those venues, to pursue and refine its national policy agenda until it regains power at the national level.⁶⁶ In this model, possessing the levers of governance in a state is not a means by which a culturally distinct subnational polity devises and implements policies best suited to its own values and preferences.⁶⁷ Quite to the contrary, in this model, “[s]tate governance is . . . itself a means of participating in national partisan politics.”⁶⁸ Federalism, that is to say, has become a mechanism serving the foundational democratic principle of alternation in power.

Bulman-Pozen does not deny that distinctive state identities of the kind associated with the traditional account are sufficient to support a well-functioning federal system in which state power is capable of providing an effective check on national power.⁶⁹ Rather, she argues, national party affiliation is itself a sufficiently meaningful form of collective identity to support a well-functioning federal system in which states can fulfill the checking function with which federalism charges them.⁷⁰ In this case, however, the nature and grounds of subnational checking are identical to those that characterize the kind of mutual checking performed in the national political arena when the major parties compete for national office.

In this model, then, state-to-state variation in public policies is best understood as driven by the adventitious control of the levers of state government by national political parties as they pursue their aspirations for national office.⁷¹ State policies differ not because states “represent something essentially different from the nation, but rather because they represent competing Democratic and Republican visions of the national will.”⁷²

C. Why All Three Accounts May Be Wrong

Although these three accounts of subnational variation in the United States differ dramatically from one another, all three may well be wrong, and for reasons different from any their proponents might have imagined. Despite their diversity, all three accounts rest implicitly on the same basic premise: that variation in subnational policy preferences, no matter how wide it may seem, occurs by definition within a domain bounded by the limits of a profound, collective, nationwide American commitment to liberal democracy. I will describe these commitments in greater detail in the next part, but in brief, the commitments to which I refer include popular sovereignty, the rule of law, the political equality of citizens, a free civil society, and a conception of human beings as clothed with certain dignitary rights which governments and popular majorities must respect. The possibility I wish to raise is that (1) a collective American commitment to these principles, if it ever existed, may be fast eroding; if so, (2) this erosion is not occurring uniformly throughout the states; and (3) variations in policy preferences among the states consequently may now be realigning along a highly consequential cleavage between liberalism and illiberalism, and between democracy and some form of populist authoritarianism.

None of the three accounts of subnational variation described in the previous part can survive an ideological realignment of such tectonic scale. When a traditionalist like Young refers to state “communities of value [that] . . . remain quite distinctive in key ways,”⁷³ he is not, I assume, suggesting the possibility that what might be distinctive in some states is the polity’s full-throated embrace of National Socialism, say, or Stalinist communism. The picture of the United States that traditionalists tend to paint is a Norman Rockwell-esque one of charming local quirks, none of which threaten the basic unity of the nation. It is a conception of the nation in which positions on the issues that most strongly divide Americans—abortion, for example, or gay marriage—range from liberal progressivism to libertarianism, but all of which fall firmly within the bounds of democratic liberalism.

The normal variation account is even more vulnerable to the type of developments I have described, for it expressly presumes as axiomatic the existence of a deeply shared set of American political commitments, and those commitments are clearly liberal.

The partisan account is somewhat more difficult to dismiss, though in the end I think it, too, stumbles. As we shall see, state-level drift in the United States away from liberal democracy and toward authoritarianism are closely associated with political control of states by the Republican Party.⁷⁴ Thus, to the extent that the Republican Party’s policy commitments have become increasingly authoritarian—a proposition demonstrated below in Section III.C—it could be Republican policy commitments rather than distinctive popular attitudes and sentiments that are driving democratic liberalism over a cliff in some states. I do not think this, however, an adequate account of what is going on. The partisan account, it seems to me, takes as its observational and descriptive baseline a permanent alternation in power at the national level of two major political parties each committed to some variety of democratic liberalism. It does not contemplate conditions in which one party embraces democratic liberalism and the other supports authoritarianism—conditions in which the illiberal party, should it gain power, is highly unlikely to relinquish it, or even to tolerate the continued existence of ideological dissent.⁷⁵ Its explanatory power thus seems to me limited mainly to situations other than the one now emerging in the United States.

Consequently, with none of the existing models adequate to describe the situation that may now be developing, it is necessary to propose, albeit tentatively and with due caution, a new account of subnational variation. The next Part begins that task.

II. The Crisis of Liberal Democracy

A. Liberalism and Illiberalism

1. Liberalism

There is no single accepted definition of “liberalism”; its meaning has evolved considerably since its earliest appearance in the ancient world, and has from time to time been deeply contested even by its own adherents.⁷⁶ Although contemporary liberalism is typically thought to have deep roots in the thinking of Enlightenment political philosophers such as John Locke,⁷⁷ according to some accounts, liberalism did not fully acquire its contemporary signification and associations until the period immediately following the Second World War,⁷⁸ or even later, following the fall of the Berlin Wall in 1989⁷⁹—periods during which the astonishingly rapid spread of liberal democracy made it seem like the culmination of some kind of “natural human evolution.”⁸⁰

Nevertheless, contemporary writers seem to agree on several core features of liberal thought. First and foremost, perhaps, is popular sovereignty—the doctrine that the people of a society are entitled to rule themselves,⁸¹ and that in consequence, as Thomas Jefferson put it, governments “deriv[e] their just powers from the consent of the governed.”⁸² Adherence to the principle of popular sovereignty in turn tends strongly to pull along with it certain other commitments that are either (1) conceptually antecedent to popular sovereignty and upon which it relies; or (2) widely considered essential to the success and maintenance of meaningful popular self-rule. In the first category, for example, typically lies a commitment to the fundamental political equality of citizens,⁸³ the axiomatic point of departure for both Locke and Thomas Hobbes.⁸⁴ Similarly, most contemporary accounts of liberalism require a “lively civil society,”⁸⁵ in which citizens enjoy the freedom necessary to develop their own ideas about the nature of the good life and how the polity ought best to pursue it.

In the second category, commentators agree that an essential attribute of liberalism is the rule of law,⁸⁶ a condition that must be satisfied if popular sovereignty is to issue in meaningful self-rule. The concept of the rule of law is often said to include constitutionalism, a specific kind of rule of law in which a constitution is understood to contain a polity’s fundamental law, binding on all citizens, including government officials.⁸⁷ This category also is typically said to include basic human rights, such as the rights of free speech and free association, that are thought necessary to the effectuation of popular self-rule.⁸⁸

From this point, consensus tends to diminish. Some varieties of liberalism include among their requirements features such as limited government, or dispersion of official power,⁸⁹ while others view such arrangements as contingently desirable but not necessary for a system of social organization to count as liberal.⁹⁰ More progressive conceptions of liberalism might include a wider array of dignitary rights, such as due process and strong protections for those accused of crime, as well as strong rights of political participation and a robust commitment to majoritarianism as a form of political organization.⁹¹ More conservative versions of liberalism, in contrast, might include free markets as a foundational condition.⁹²

For present purposes, when I speak of liberalism, I refer to the characteristics that command the greatest degree of consensus: popular sovereignty, the equality of citizens, a free civil society, the rule of law, and some package of basic human rights necessary to operationalize these other commitments.

2. Illiberalism

There are at least as many varieties of illiberalism as liberalism,⁹³ and probably many more. It is useful to remember, in this regard, that liberalism itself arose largely as a reaction against various systems of political thought rooted mainly in theology or religiously informed traditionalism—the European ancien régimes.⁹⁴ In those systems, the people did not rule themselves, but were ruled by God and His appointed earthly agents—kings, nobles, and clergy—according to laws of divine rather than human origin.⁹⁵ All people were born into rigidly assigned and unalterable stations established either by divine decree or through the sheer weight of inherited tradition; the order of things, in this system of belief, was “absolutely rigid and static,” and “inconsistent with any belief in progress, or, indeed, in any sort of significant change in the universe as a whole.”⁹⁶ Attempts to deviate from social assignments of station were understood by leaders as serious challenges to their authority and to the stability of the entire system.⁹⁷ In Europe, the Church was long seen as the exemplar of illiberalism, and was a chief and continuing source of opposition to liberal thought through the early twentieth century.⁹⁸

For present purposes, I understand illiberalism as a system of social organization characterized by any of the following clusters of beliefs, which are defined mainly in opposition to the commitments of liberalism. I have weighted these descriptions heavily toward populist versions of illiberalism because they appear to be the most prevalent among nations now undergoing democratic backsliding.⁹⁹

Individuals are not equal, and consequently there is no general right to popular self-rule or rule by a majority of citizens.¹⁰⁰ Instead, only the “right” people, whether a majority or a minority, are entitled to rule, to vote if the system so provides, and to make laws for the governance of society.¹⁰¹
Civil society is not free, but is controlled strictly by higher laws of religious or traditional origin that establish customary and presumptively unalterable ways of life.¹⁰²
Leadership is best vested in a strong individual who rules in the name of, and for the benefit of, the people, rightly understood.¹⁰³ Leaders establish law for others, but themselves are constrained only by the obligation to promote the interests of the society as the leaders may, in their wisdom and insight—itself derived from a profound, organic bond with the people—understand those interests.¹⁰⁴
The exercise of governmental power is not a contingent delegation but an entitlement held by those properly destined to wield it.¹⁰⁵ Its exercise thus ought to be neither restrained, impeded, nor questioned.¹⁰⁶
Democracy is unnecessary to societal well-being, and may in fact be inimical to it to the extent that it acts as an impediment to the leader’s pursuit of the good of society, properly understood.¹⁰⁷

Some flavor for the nature of modern illiberalism may be gleaned from some well-known assertions of modern autocrats. For example, Óscar Benavides, a military dictator of Peru in the early twentieth century, is reputed to have remarked: “For my friend, everything; for my enemies, the law.”¹⁰⁸ Recep Erdoğan, the present ruler of Turkey, has said: “Democracy is like a streetcar: You ride it until you arrive at your destination, then you step off.”¹⁰⁹ Hungary’s autocratic ruler Viktor Órban, recently asserted: “we have to abandon liberal methods and principles of organizing a society, as well as the liberal way to look at the world.”¹¹⁰ “Checks and balances,” he remarked a few months later, “is a U.S. invention that for some reason of intellectual mediocrity Europe decided to adopt and use in European politics.”¹¹¹ To these well-known capsule summaries of illiberalism we might perhaps add another, a recent assertion of U.S. President Donald J. Trump: “When somebody is the president of the United States, the authority is total.”¹¹²

3. Forms of government

Liberalism and illiberalism are at bottom political philosophies, and their contrasting commitments thus raise the question of whether each requires any particular institutional arrangement or form of government for its successful implementation. Specifically, a lively debate has arisen among political theorists over whether democracy is the only form of government fully compatible with liberalism, and conversely, whether authoritarianism is intrinsically illiberal.¹¹³

As an empirical matter, as Kim Scheppele has observed, “democracy, constitutionalism, and liberalism [have] marched arm in arm through history.”¹¹⁴ But it is unclear whether that connection is intrinsic or contingent. Some theorists contend that liberalism and democracy are distinct phenomena, and that the existence of one neither requires nor implies the existence of the other.¹¹⁵ Fareed Zakaria, for example, has described certain contemporary states as “illiberal democrac[ies]” in which elections are more or less free and fair, and thus count as “democratic,” but in which “what happens after the elections” flouts liberal principles, sometimes egregiously.¹¹⁶ Yascha Mounk similarly sees liberalism and democracy as two distinct phenomena, and argues that they are in many places “[d]econsolidating,” producing either “[d]emocracy without [r]ights” or “[r]ights without [d]emocracy.”¹¹⁷

Others insist that any kind of meaningful liberalism is impossible without democracy. Gábor Halmai, for example, argues “not only [that] democracy presupposes liberalism, but [that] there is no liberalism without democracy.”¹¹⁸ Jan-Werner Müller claims that “illiberal governments are inherently undemocratic: ‘if opposition parties have been hindered in making their case to the electorate, and journalists do not dare to report on the government’s failures, the ballot boxes have already been stuffed.’”¹¹⁹ Similarly, according to Larry Diamond, “all the political systems that protect liberty are democracies.”¹²⁰

Whatever their positions, however, no political theorists seem to deny that liberalism and democracy most commonly travel together, as do illiberalism and authoritarianism; nor has any theorist to my knowledge gone so far as to deny that liberal democracy and illiberal authoritarianism remain the modal—and polar—arrangements. Thus, at the very least, it is reasonable to assume that where we find authoritarianism, we are overwhelmingly likely, if perhaps not certain, to find illiberalism, and I shall proceed on that assumption throughout the balance of this Article.

B. The Recent Turn to Authoritarianism

For most of human history, democracy was exceedingly rare. Following the American and French revolutions, it began to attract a following around the world, and over the course of the nineteenth century, possession of the franchise gradually became more common and widespread.¹²¹ This democratizing trend reversed during the 1930s, when illiberal and authoritarian forms of government enjoyed a robust efflorescence,¹²² but reversed again following the Second World War.¹²³ The defeat of powerful fascist states by an alliance of liberal democracies badly discredited illiberal regimes, initiating a so-called “second wave” of democratic expansion.¹²⁴ A third wave of new democracies appeared after 1989, when it seemed to much of the world as though liberal democracy had, after a vigorous struggle with communism, proved itself the more successful form of government.¹²⁵ By the late 1990s, “most of the countries on Earth were democracies . . . and a third of all states were fairly liberal.”¹²⁶

Today, however, there has been a precipitous turn globally away from liberal democracy and toward authoritarian forms of governance. In Hungary, Poland, Turkey, Venezuela, and many other places, young but seemingly stable democracies have turned to authoritarian leaders who have dismantled liberal institutions.¹²⁷ Pro-democratic uprisings in the Arab world and Eastern Europe sputtered and resulted mainly in the further consolidation of illiberal autocracy.¹²⁸ Even more troubling is the new phenomenon of “democratic backsliding,” in which longstanding, stable democracies have suffered slow, incremental degradation of previously reliable democratic institutions.¹²⁹ According to the Bertelsmann Foundation’s “Transformation Index,” the number of “highly defective democracies” around the world doubled between 2006 and 2010.¹³⁰ In 2016, The Economist’s “Democracy Index” downgraded the United States to a “flawed democracy.”¹³¹ Thirty-five percent of the world’s population now lives in “autocratizing nations.”¹³²

Most worrisome of all, however, is that democratic decline, far from being something imposed on an unwilling public, appears not only to bear the public’s approval where it has occurred, but to be responsive to a significant shift in public opinion.¹³³ Unlike its twentieth-century predecessors, today’s authoritarian takeover typically is initiated not by a military coup or naked electoral fraud on a massive scale, but following an open democratic process in which an illiberal party wins power under reasonably fair rules of democratic competition before entrenching itself in power through anti-democratic means.¹³⁴ The modern movement to authoritarianism, in other words, is in many cases majoritarian and largely populist in nature.¹³⁵

So common has this form of incremental democratic backsliding become that comparativists have been able to identify a typical series of moves that authoritarian leaders gradually make to consolidate power by undermining liberal democratic institutions—an “authoritarian’s playbook,” as it were.¹³⁶ Ginsburg and Huq, for example, list “five specific mechanisms by which democratic erosion unfolds”¹³⁷:

[1] the use of constitutional amendments to alter basic governance arrangements; [2] the elimination of checks that operate between different branches; [3] the centralization and politicization of executive power as exercised through the bureaucracy; [4] the contraction or distortion of a shared public sphere in which liberal rights of speech and association can be exercised; and [5] the elimination or suppression of effective partisan political competition and the related prospect of rotation out of elected office.¹³⁸

Similarly, András Jakab’s “handbook for dictators” lists the following conventionally pursued tactics:

(1) [E]mploy populist rhetoric against institutions of rule of law and old elites . . .

(2) [Dismantle the capacity of the] civil service [to] . . . provid[e] neutral information and [to follow] regulated, pre-determined, work processes . . .

(3) [E]limination of judicial review . . .

(4) The intentional and conscious erosion of the public sphere . . . as an epistemic and discursive basis for democracy . . .

(5) [C]odify authoritarian centralization attempts at the highest level of the law [i.e., the constitution] . . .

(6) Attacks against NGOs . . .

(7) [E]limination or suppression of an effective political competition . . .

(8) [A]cademic freedom and the autonomy of universities and research institutes shall also be restricted . . . .¹³⁹

These tactics, in short, effectuate the degree of “social control” necessary to achieve the authoritarian’s goal of “the possession and preservation of power of and by dominant individuals and groups.”¹⁴⁰

To say that the rise of authoritarianism in many places has come with popular approval is not, of course, to say that such approval—and the illiberalism that underlies it—is universal. Far from it. Even in a recent sham Russian plebiscite to ratify the lifting of term limits applicable to Vladimir Putin—a decision that had previously been taken by the government and at the time of the plebiscite already had the force of law—more than 20% of those who bothered to show up voted no.¹⁴¹ In assessing the impact of illiberalism on official action, the critical factor is not the presence of illiberal opinion within the population, but its distribution.

In any given population, it is of course possible, though unlikely, that illiberalism is distributed haphazardly. But whatever its distribution, the translation of illiberal public opinion into illiberal or authoritarian action by definition requires political mobilization. Whenever illiberalism has organized or mobilized itself for political action, it has been concentrated in one of two ways.

First, illiberalism can be concentrated in a political party. Thus, in France, for example, a strongly liberal state, support for right-wing populism is mobilized mainly through the National Front, which in recent years has earned about 14% of the vote nationwide.¹⁴² In Denmark, another thoroughly liberal state, political illiberalism is mobilized and concentrated mainly in the Danish People’s Party, which earns a similar percentage of the vote.¹⁴³ In Hungary and Poland, where illiberal sentiment is more widespread, it is nevertheless concentrated in the governing Fidesz Party and the governing Law and Justice Party, respectively.¹⁴⁴

Second, illiberalism can be concentrated in a region. In unitary states, this kind of concentration may be of little importance for a politics that is conducted predominantly at the national level. In a federal state, however, geographically concentrated illiberalism can have significant ramifications, not only for governance in the affected subnational units, but for the nation as a whole.¹⁴⁵ The next Part provides a brief overview of the history and scope of American illiberalism, and demonstrates its present concentration in the Republican Party. Part IV turns to the issue of regional concentration of illiberalism in particular states.

III. Illiberalism in the United States

A. The American Tradition of Liberalism

The idea that Americans share a profound, longstanding, universal commitment to liberalism is traceable in large part to Louis Hartz’s 1955 classic, The Liberal Tradition in America.¹⁴⁶ Widely recognized as “one of the most influential books on American history published in the twentieth century,”¹⁴⁷ and “the dominant interpretative text in American political thought for a generation,”¹⁴⁸ the book argued that the liberal philosophy of John Locke had not merely influenced the founding generation, but had provided the template for an enduring national consensus on political first principles—in Hartz’s words, “[a] Lockian creed.”¹⁴⁹ This creed, Hartz argued, follows Locke in taking as its centerpiece a “basic social norm, the concept of free individuals in a state of nature.”¹⁵⁰ So completely did Lockean thought infuse American political beliefs, Hartz argued, that what is called the “American Way of Life” is better conceived as “a nationalist articulation of Locke.”¹⁵¹

Most importantly for present purposes, a consequence of the Hartzian thesis is that “domestic struggles” occurring in the forum of American politics “have all been projected with the setting of Western liberal alignments.”¹⁵² That is to say, it follows from the depth of the American consensus on liberal first principles that political disagreements among Americans necessarily take place within the domain of liberal thought.¹⁵³ Disagreements thus are internal to liberalism, not between liberalism and other, competing belief systems.¹⁵⁴

Hartz’s analysis has had a profound impact. It “has had no rivals as the most influential book in the study of American political thought.”¹⁵⁵ It still finds supporters today,¹⁵⁶ often among political scientists,¹⁵⁷ and clearly furnishes the unifying assumption for the three schools of thought, identified earlier, concerning the nature of subnational variation in the United States—i.e., that all subnational variation occurs within a domain bounded by a shared American commitment to liberalism.¹⁵⁸

Nevertheless, The Liberal Tradition in America has also attracted a good deal of criticism.¹⁵⁹ Hartz’s critics tend to tell a very different story about the development of political thought in the United States. On their account, although liberalism without question figured prominently in American thought, it was only one of “a number of strands in American public life,”¹⁶⁰ and it existed side by side with other, deeply illiberal strands of political thought.

At its strongest, the anti-Hartzian account identifies persistent, deeply embedded strands of American thought that are exclusionary,¹⁶¹ nativist,¹⁶² and even feudal in origin,¹⁶³ and that lie at such a remove from liberalism as to generate recurring disputes within American politics that are best characterized as deep-seated “disagreements over forms of life” and “ultimate ends” rooted in “rival political cultures.”¹⁶⁴ Such disputes, that is to say, spill over the boundaries of democratic liberalism, pitting it against entirely different systems of thought. But even Hartz’s less extreme critics agree that a persistent, socially and politically significant illiberal theme in many aspects of American life has been hierarchy—hierarchies of race, gender, ethnicity, and religion.¹⁶⁵ Such hierarchies are illiberal not only in their denial of the foundational liberal tenet of human equality, but in their embrace of the concept of permanent, inherited social stations from which little or no deviation is possible except at profound risk to the legitimate social order.¹⁶⁶

None of this, to reiterate, means that liberalism has not been deeply influential in American thought. But, if true, it means that liberalism has in fact not been universally embraced, and indeed has been opposed periodically, sometimes successfully, by adherents of illiberal belief systems that have always existed within a broader and more diverse sphere of American political thought than Hartz imagined, sometimes gaining power and at other times losing it. In the words of Judith Shklar: “America has not marched single file down a single straight liberal highway . . . . What has been continuous is a series of conflicts arising from enduring anti-liberal dispositions that have regularly asserted themselves, often very successfully, against the promise of equal political rights.”¹⁶⁷

B. How Liberal Are Americans?

It is beyond doubt that illiberalism has from time to time appeared on the American political stage—not just informally, in private living rooms or around water coolers, but publicly, in organized fashion. There is, after all, an American Nazi Party.¹⁶⁸ The Communist Party USA fielded a presidential candidate in every election between 1972 and 1984.¹⁶⁹ Overt segregationists ran for President in 1948 and 1968, and carried, respectively, four and five states.¹⁷⁰ However, whether due to the pervasive influence of the Hartzian thesis or simply a persistently Whiggish sense of their own history, Americans seem to have a tendency to think of domestic illiberalism as something fundamentally confined—confined to the past, confined to a region, confined to the political margins—to “the lunatic fringe,” as the New York Times labeled the John Birch Society in 1961.¹⁷¹ A mass of social science evidence, however, suggests otherwise.

In 1954, at the height of the Cold War, Samuel Stouffer, a Harvard sociologist, conducted a large and wide-ranging survey aimed at determining the degree to which Americans supported the application of core civil liberties to unpopular groups—socialists, communists, and atheists. In a book published the following year, Stouffer revealed some shocking conclusions.¹⁷² Nearly one-third of respondents thought a socialist advocating nationalization of industry should not be allowed to speak in their community.¹⁷³ Sixty percent believed that an atheist should not be permitted to speak, 60% believed a book written by an atheist should be removed from public libraries, and 84% said that an atheist should not be permitted to teach in a college or university.¹⁷⁴ Two-thirds said a book by a communist should be removed from a library, and 91% said that a communist high-school teacher should be fired.¹⁷⁵ Seventy-seven percent thought the citizenship of an admitted communist should be revoked, and more than half thought he should be jailed.¹⁷⁶ Nearly two-thirds thought that the government should be able to eavesdrop on private telephone conversations to gather evidence of communism.¹⁷⁷

Other researchers obtained similar results in numerous follow-up studies.¹⁷⁸ A full thirty years later, for example, Herbert McCloskey and John Zaller found that 70% still believed a community should not allow an atheist group to use the civic auditorium; 79% supported prayer and religious observances in public schools; and 54% believed censorship of book publication an appropriate strategy to protect public morality.¹⁷⁹ Forty-nine percent—half of all respondents—agreed that “[w]hen it comes to the things that count most, all races certainly are not equal.”¹⁸⁰ Although 97% affirmed their belief in freedom of speech, 76% said that fascists and communists should not be allowed to hold meetings or to express their views in the community.¹⁸¹

Even today, more than three decades after McCloskey and Zaller’s follow-up study, investigators continue to document similar public attitudes. In a 2015 poll, for example, researchers asked the following question: “Thomas Jefferson wrote [in the Declaration of Independence] that ‘[A]ll men are created equal.’ Do you believe this statement is true or false?”¹⁸² Twenty-two percent of Americans answered “false.”¹⁸³ In a 2017 survey of college-educated Americans, about half agreed that speakers advancing various kinds of unpopular views—ranging from the contention that whites are racist to the view that Muslims should be barred from immigrating to the United States, and from assertions of the backwardness of Christians to claims about the superiority of men over women at math—should not be allowed to speak on college campuses.¹⁸⁴ In another recent poll, one in three expressed opposition to the separation of church and state.¹⁸⁵ Forty-one percent expressed discomfort with a Muslim teaching elementary school.¹⁸⁶ Nearly one-third believed that the aim of Muslims in the United States is to establish Shari’a law as the governing legal regime for all Americans.¹⁸⁷

These studies generally support two kinds of conclusions. One is that Americans by and large support civil liberty in the abstract, but are willing to tolerate the exercise of such liberties only selectively, and in particular, not by “groups and ideologies they [find] most objectionable.”¹⁸⁸ In other words, Americans support the exercise of civil liberties except in the only situations in which the protection afforded by such liberties would matter.¹⁸⁹ Civil liberties, evidently, are for me and my group, not for you and yours.

Relatedly, these studies suggest that a latent illiberal intolerance can be readily activated, even in citizens otherwise predisposed to tolerance, by a perception of threat,¹⁹⁰ or by priming associated with some group perceived as an “enemy.”¹⁹¹ Thus, for example, studies of intolerance find American intolerance more or less stable over time, but focused on different groups in different periods—communists in the 1950s, but “Radical Muslims” today (with atheists and communists close behind, even after fifty years).¹⁹²

Second, these studies have consistently shown that elites—community leaders, business leaders, leaders of trade and bar associations, party and elected officials—as a group display greater commitment to civil liberties and greater tolerance for political deviance than ordinary people.¹⁹³ This in turn suggests of course that the comparatively strong record of the United States on civil liberties since the late twentieth century results principally from the efforts of governing elites rather than of the citizenry, and that more robust and responsive democracy—of, say, the populist kind now emerging—is likely to produce less rather than more liberal results. Indeed, one factor commonly accepted as contributing to Donald Trump’s political rise is the transfer of control over presidential nomination, beginning in the 1970s, from party elites to the party rank and file.¹⁹⁴

If a substantial minority of the American public holds views on the merits of public policy that are illiberal—or that, if liberal, are readily abandoned under minimal pressure—a similarly substantial minority also demonstrates a declining commitment to democracy. In a recent study, Yascha Mounk found that the percentage of Americans who thought it “essential” to live in a democracy declined from 71% among those born in the 1930s to only 29% among those born in the 1980s.¹⁹⁵ One in four millennials believes that democracy is a “bad” or “very bad” system of government.¹⁹⁶ In 1995, Mounk reports, “34 percent of young Americans aged 18–24 felt that a political system with a strong leader who does not have to bother with Congress or elections was either good or very good. By 2011, 44% of young Americans felt the same way.”¹⁹⁷ Support in the United States for direct military rule rose from 8% of 18-to-24-year-olds in 1995 to 24% in 2011, and for all ages rose from 7 to 16 percent.¹⁹⁸

In a similar study, Larry Diamond obtained less dire results, but concluded that “we still have serious cause for concern.”¹⁹⁹ Diamond’s study found overall American support for democracy still strong—somewhere between about 75% and 85% for most formulations of the question²⁰⁰—but found that the proportion of Americans who support “a strong leader who does not have to bother with Congress and elections” was 24%, much higher than in Canada, France, and Germany.²⁰¹ Support among Americans for military rule in the United States rose from 8% to 18% between 1995 and 2017.²⁰² Only 54%, Diamond found, “consistently [hold] a prodemocracy position,” and 28% “gave a nondemocratic response” on two of five items on which he surveyed.²⁰³

Let us suppose, then, that some substantial minority of Americans holds views that are either outright inconsistent with the nation’s historical, publicly professed commitment to liberal democracy, or, if nominally liberal, can be easily moved to an illiberal position. What kind of risk, if any, to longstanding, national, liberal democratic commitments and institutions might be posed by such a condition? The answer depends in great measure on how the holders of such views are distributed. If they are dispersed randomly, or at least unsystematically, then, as Madison observed, “relief is supplied by the republican principle”²⁰⁴—they will be everywhere a minority, and everywhere outvoted.

Illiberalism in the United States, however, is not distributed randomly. As is the case elsewhere, it tends to be concentrated in a particular political party, in this case the Republican Party.²⁰⁵ It is also concentrated geographically. The next Section reviews briefly the growing illiberalism and authoritarianism of the Republican Party. The Part immediately following examines in some detail the concentration of illiberalism geographically, in particular states. As will be seen, they are states governed, logically enough, by Republicans.

C. Illiberalism in the Republican Party

Americans have for some time now been wringing their hands about the “polarization” of the two main political parties.²⁰⁶ The concept of “polarization,” however, by definition presupposes a single spectrum along which two polarizing things may both be placed. In the common conceptual apparatus of political science, the relevant spectrum is one running from conventional notions of political liberalism on the left to conventional notions of political conservatism on the right. It is rarely remarked, however—and for most of the last six decades it would have been unnecessary to remark—that this spectrum is located entirely within the bounds of philosophical liberalism. The present question, in contrast, is altogether different: does the concept of “polarization” any longer apply? Has the Republican Party merely moved to the right on a scale that still counts as liberal? Or has it fallen off the liberal spectrum altogether—has it become, in Paul Krugman’s characterization, “an authoritarian regime in waiting?”²⁰⁷

The boundary between democracy and authoritarianism is hazy,²⁰⁸ and that between liberalism and illiberalism even more so, and it can therefore be difficult to identify the precise point at which a party or leader slides definitively, in the most common contemporary pathway, “from hardball democrat to legalistic autocrat.”²⁰⁹ Nevertheless, especially since 2016, the evidence has mounted to the point where it is possible for serious political scientists to proclaim that, in the United States, there has been a “grafting of authoritarian behavior onto one of the two major parties,”²¹⁰ and that “the dangers of [democratic] backsliding are closely related to developments at work in the contemporary Republican Party.”²¹¹

Any consideration of this question must begin with the basic fact that Donald Trump now heads the Republican Party, and that his behavior, first as a candidate and then as President of the United States, was breathtaking not only in his profound rejection of long-established norms of liberal democracy, but in the ferocity of his assault on their legal and institutional foundations. Others have exhaustively documented Mr. Trump’s offenses against liberal democracy; here is just one such account:

Does President Trump fit the authoritarian-populist classification? We think so. His speeches feature a mélange of xenophobic fear-mongering and Islamophobia, narcissism, misogyny and racism, conspiracy theories (“millions of fraudulent votes”), and isolationist “America First” policies. It is in his legitimation of authoritarian values that Trump represents the gravest threat to American democracy with his equivocal treatment of neo-Nazi and white supremacist hate groups, his open approval of some of the world’s most repressive regimes, attacking the press and using Twitter to slam “fake news,” seeking border limits on migrants from Muslim-majority countries and promising to build a wall to keep out Mexicans, casting doubts on the integrity of American elections and the independence of the judiciary, prioritizing military security and American jobs over defending democracy and human rights abroad, weakening multilateral cooperation and international conventions, and disparaging the rule of law. Like other authoritarian rulers, he shows a casual disregard for the truth and a willingness to challenge the legal constraints on his powers. Many of the tensions observed in his administration arise from his rejection of democratic restraints.²¹¹Norris & Inglehart, supra note 5, at 245–46 (footnote omitted).

And this summary does not even mention his attacks on the loyalty and integrity of the federal civil service,²¹² his interference with law enforcement activities directed against himself and his associates,²¹³ his nepotism in political appointments and attempts to profit personally from official activities,²¹⁴ his denial of the authority of Congress to oversee or even to question his activities,²¹⁵ or his attempts to manipulate foreign powers into interfering with American democratic processes for his own advantage.²¹⁶

None of this is in issue. The real concern for present purposes is the response of the Republican Party. A “conservative” party in the traditional American sense—one still committed to liberal democracy²¹⁷—might have resisted Mr. Trump’s behavior by pushing back from its bases in Congress and the judiciary, or at least complaining publicly. The Republican Party did nothing of the sort: it fell compliantly into line.²¹⁸ By the time it was clear that Trump would be the nominee, leading Republicans, including the President pro tem of the Senate and the Speaker of the House, endorsed and then “closed ranks behind” Donald Trump, which “normalized” his election.²¹⁹ Once Mr. Trump took office, Republicans responded with loyalty; the result has been that “Trump’s deviance has been tolerated by the Republican Party, which has helped make it acceptable to much of the Republican electorate.”²²⁰ “Acceptable” is an understatement: for virtually every week of his presidency, Trump’s job approval among rank-and-file Republicans was in the upper eighty- to lower ninety-percent range.²²¹ At the same time, Republican office-holders were unwilling to use congressional power or other institutional levers to control even Mr. Trump’s worst excesses.²²²

Historically, the Republican Party has been “conservative” in the sense of supporting policies that lie at the politically conservative end of the liberal policy scale—policies such as free markets, free trade, limited government, and so forth. Today, however, “the fact that conservative and establishment Republicans represent the president’s strongest supporters lends indirect evidence of a realignment.”²²³ This realignment is clearly one that takes the party “away from its conservative roots,”²²⁴ and the final destination appears to be some form of illiberal authoritarianism.

This is not necessarily a sudden development. As historian Joseph Ellis observed a decade ago, “[t]o reduce the Republican party to its antitax, antistate rhetoric and policies is to miss the authentically nonliberal and antiliberal elements in the party’s creed.”²²⁵ Political scientists have for some time been documenting the asymmetry of the divergence between the two major parties.²²⁶ The growing chasm in American politics does not, however, result from each of the parties purifying itself ideologically and consequently moving further, in tandem, from the political center.²²⁷ In fact, “[t]he Republican Party has made a much more pronounced shift toward extremism.”²²⁸ The reasons for this shift need not concern us here, though, as Richard Schragger and Micah Schwartzmann observe, “[t]he evangelicalization of the Republican Party” is doubtless an important factor.²²⁹ Indeed, Rachel Marie Blum and Christopher Sebastian Parker argue that the fundamental project of the Republican Party has evolved to become something “very different from traditional conservatism”; the central mission of Republicans now focuses principally on “efforts to maintain the prestige of their group”²³⁰—a fundamentally inegalitarian, and thus thoroughly illiberal, political telos.

Pursuit of an illiberal political telos may naturally enough demand illiberal methods, and thus “[t]he GOP’s efforts to cling to power by coercion instead of persuasion”²³¹ should not be entirely surprising. As David Frum observed in 2018, “[i]f conservatives [i.e., Republicans] become convinced that they cannot win democratically, they will not abandon conservatism. They will reject democracy.”²³² That prediction has been accurate. As we will see in the next Part, the principal, though by no means the only, manifestation of Republican Party illiberalism has been its persistent efforts to subvert democratic processes so as to avoid sharing power with—much less being ruled by—the opposition party.²³³

Leading Republicans have been increasingly—and shockingly—vocal and transparent about this goal. Nearly twenty years ago, Paul Weyrich, a leading Republican activist and founder of both the Moral Majority and the Heritage Foundation, proclaimed: “‘I don’t want everybody to vote.’ The Republican Party’s ‘leverage in the elections quite candidly goes up as the voting populace goes down.’”²³⁴ More recently, a sitting Republican United States Senator, addressing a small crowd of supporters on the topic of voting by college students, told them: “[T]here’s a lot of liberal folks in those other schools who maybe we don’t want to vote. Maybe we want to make it just a little more difficult. And I think that’s a great idea.”²³⁵ A Republican member of Congress openly praised property qualifications for voting.²³⁶ Trump himself, speaking recently of a federal House bill designed to make voting easier, remarked: “The things they had in there were crazy. They had . . . levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”²³⁷

These views are fundamentally illiberal. They deny the equality of citizens for purposes of self-governance—the most basic root of a liberal order of any kind, not just a democratic one.²³⁸ They are also authoritarian. They deny the legitimacy not merely of political competition, but of political pluralism itself.²³⁹ Those who are not members of the group destined to lead, or who do not at the very least profess the beliefs approved by that group, lack any claim to agency in the political sphere. Their role is to accept, not to compete for, leadership.²⁴⁰

IV. Authoritarianism in the States

As indicated above, in addition to being concentrated in a political party, illiberalism can be concentrated in a region. In a federal system, the key question is whether illiberalism is sufficiently concentrated in any subnational unit to justify concluding that the state or province is itself illiberal. With that objective in mind, this Part first examines generally the problem of regional concentration of illiberalism in federal states, and then, turning to the United States, collects relevant evidence of the growth of subnational authoritarianism here at home.

A. Illiberalism in Federal States: The Problem of Authoritarian Enclaves

Neither liberalism nor democracy arrives in a place suddenly and spreads uniformly, in linear fashion.²⁴¹ Rather, liberalism and democracy tend to gain small initial footholds from which they then gain and lose ground repeatedly, often over the course of lengthy, vigorous, and repeated struggles against beneficiaries and defenders of the illiberal regimes they replace.²⁴² Full consolidation of liberal democracy thus often takes a very long time. Even in the United States, a place unusually receptive from the beginning to liberal democracy, democratic consolidation occurred in fits and starts over the space of more than a century-and-a-half, and in the view of many, did not arrive fully until enactment of major national civil rights legislation during the 1960s,²⁴³ or even later.²⁴⁴

A spate of recent research has added greatly to our understanding of the way democracy spreads in federal states.²⁴⁵ Federalism is of course deliberately designed to enable subnational units to adopt their own preferred policies, but the range of policies from which subnational units may choose is bounded in principle by shared policy commitments established at the national level and typically entrenched in a federal constitution.²⁴⁶ Nevertheless, the same federal constitutional structures that enable subnational units to deviate from national policy commitments within a permitted range often can be manipulated to resist the imposition subnationally even of foundational principles of governmental organization to which the entire nation has by hypothesis committed itself.²⁴⁷ In consequence, as Edward Gibson writes in his leading study, “local authoritarian enclaves . . . dot the landscapes of democratic countries around the world.”²⁴⁸ That is to say, democratizing states do not democratize throughout their territory uniformly at the same rate, and subnational units previously under authoritarian rule may hold out locally against national democratizing trends with considerable tenacity—perhaps even indefinitely—using tactics of what Gibson calls “boundary control.”²⁴⁹

In the most common pattern, boundary control involves a struggle between, on one hand, an authoritarian or illiberal²⁵⁰ subnational unit seeking to seal off local institutions from national forces of democratization; and on the other hand, a democratic or democratizing national government seeking to reform subnational institutions by conforming them to nationally adopted norms of liberal democracy.²⁵¹ Tactics deployed by subnational units to maintain the autonomy necessary to resist local democratization commonly include the manipulation of local electoral rules to maintain the ruling party in power; clientelistic control by subnational leaders over the distribution of fiscal resources received from the national government; and the exercise of direct influence over national politics through control over local nominations to national office and the ability to deliver local votes on demand to national leaders.²⁵² While these tactics can be effective even for a single authoritarian enclave, when several such enclaves “band together in defense of a set of illiberal structures and practices, their combined leverage at the federal level becomes sufficient to block or distort nationwide democratic responsiveness.”²⁵³

Studies of subnational illiberal enclaves have identified them mainly in contemporary federal states ordinarily conceived as democratically fragile, such as Argentina, Mexico, Brazil, and Russia.²⁵⁴ But the problem of subnational authoritarianism is not confined to foreign countries with young and weak democratic institutions. In fact, the most successful, powerful, and longstanding enclave of subnational illiberalism in the history of democratization is home grown: from their founding through the late twentieth century, the states of the American South “are best understood as eleven enclaves of authoritarian rule.”²⁵⁵

The illiberalism of the slaveholding states prior to the Civil War is scarcely debatable,²⁵⁶ but it is commonplace to view the South between Reconstruction and roughly the 1970s as something far better, if still imperfect—as a region “democratically governed [but] racist.”²⁵⁷ Recent scholarship, however, persuasively debunks this view. Even as the United States, following the Civil War, experienced “the most extensive case of territorial democratization in history,”²⁵⁸ leaders of a consolidating Solid South slowly constructed

a single regime, and equipped it with institutions to demobilize white electorates, extrude blacks from electoral politics, and forestall workers’ challenges to state institutions and policies. Enclave rulers carefully protected their polity’s conditional autonomy and skillfully deployed federal officeholders to block potential interferences, especially concerning voting rights and state-sponsored violence.²⁵⁹

Suffrage restrictions that disenfranchised Blacks and “dampened poor whites’ political participation” were supplemented by measures that “weakened local governments, converted many elective offices into appointive positions controlled by the governor or state legislature, and further insulated state judiciaries from popular input.”²⁶⁰ Before long, these and similar measures “eliminat[ed] the possibility of building opposition parties”²⁶¹—the hallmark of authoritarian rule.

Visiting the United States at the crest of a Jacksonian movement of democratic egalitarianism,²⁶² Alexis de Tocqueville wrote that the expansion of voting rights is inherently irreversible, and has no stopping point short of universal suffrage.²⁶³ The ingenuity of Southern authoritarians stands as the only significant counterexample to Tocqueville’s dictum: “The enfranchisement of southern blacks and poor whites in the 1860s and 1870s and their wholesale disenfranchisement shortly thereafter took place under a national democratic regime. Never before or since in a national democracy (absent a coup or regime change) has this feat been matched.”²⁶⁴ That is to say, democratization imposed on the South by force and entrenched in national law eventually was deconsolidated so thoroughly as to convert the South into an illiberal subnational enclave not all that different from the kind of quasi-feudal subnational regimes researchers have found lingering in places like Argentina or Mexico.²⁶⁵ Indeed, it is thought that the tactics employed by the American South to retain local authoritarian rule have for more than a century provided a reliable template for authoritarians around the world.²⁶⁶

In light of the recent American tilt toward authoritarianism at the national level, described above, this analysis raises profound questions about the nature of contemporary subnational variation in the United States. If the South was illiberal for so much of U.S. history, did it ever actually become liberal? Was illiberalism confined to southern enclaves, or did it take root elsewhere? Was the long, national struggle to consolidate a liberal democracy ever won? Just how common, in other words, is illiberalism in the United States, and how is it distributed?

B. What Counts as Evidence?

In assessing the degree to which state-to-state variation tracks, or has begun to track, or threatens to track a cleavage between liberalism and illiberalism, a preliminary question concerns what counts as evidence one way or the other. Rather than get bogged down in definitional questions about whether specific states’ policies and actions count as liberal or illiberal, I shall instead focus on whether state actions and policies can be characterized as anti-democratic and authoritarian. Unlike illiberalism generally, the meaning of which is contested, the characteristics of authoritarianism are less so, and scholars have identified concrete, empirical indicia that mark out the path from democracy to authoritarianism—a path which, to be sure, is not necessarily identical to the path from liberalism to illiberalism, but is sufficiently closely related to it to provide a highly useful proxy measurement.

For the purpose of determining whether and to what degree national trends toward authoritarianism may be manifesting themselves on the state level, I will draw on well-established patterns that have emerged in nations around the world in which democratic backsliding has occurred. For example, the hallmark of democratic backsliding globally is a steady accretion of power in the chief executive.²⁶⁷ Authoritarian leaders frequently consolidate their power by engineering the replacement of the existing constitution with one granting additional executive power,²⁶⁸ or by ramming through amendments that consolidate executive control.²⁶⁹ Another common tactic is gaining control of the judiciary and then eliciting from it decisions that interpret the scope of existing executive power much more broadly than had previously been thought.²⁷⁰ We seem to observe some of this behavior at the national level; do we observe it as well subnationally, in the states?

On the other hand, constitutions in authoritarian regimes do not always reflect the actual dynamics of power; sometimes such documents retain the trappings of democratic structure as a kind of “window dressing . . . to obfuscate actual political practice.”²⁷¹ Moreover, as events at the national level have vividly revealed, much of what we think of as the constitutional order rests not on formally enacted constitutional rules, but on informal norms of official behavior which, although unwritten, are nevertheless widely understood and obeyed by those committed to the existing order.²⁷²

It follows that the better place to look for authoritarian tendencies may not be in the realm of formal law—in the polity’s “large-C” constitution—but in the actual behavior of the regime—its “small-c” constitution.²⁷³ To detect such behavior, I will use as my guide the “authoritarian’s playbook” developed by political scientist Larry Diamond, which focuses on informal behaviors such as the rhetoric employed by authoritarian leaders; attacks on the independence of courts, the media, and the civil service; cronyism; and, significantly, manipulation of the electoral process.²⁷⁴ Here is Diamond’s formulation, which is worth quoting at length:

Begin to demonize the opposition as illegitimate and unpatriotic, part of the discredited or disloyal establishment, hopelessly out of touch with the real people.
Undermine the independence of the courts. . . by purging judges and replacing them with political loyalists, or by restructuring the judiciary so it can be packed and placed under partisan control.
Attack the independence of the media, by denouncing them as partisan fabulists, mobilizing public fervor against them, . . . regulating them[, and] finally taking over their ownership . . . .
Gain control of any public broadcasting, politicize it, and make it an instrument of ruling party propaganda.
Impose stricter control of the internet, in the name of morality, security, or counterterrorism, thus further chilling free speech and the freedom to organize.
Subdue other elements of civil society—civic associations, universities, and especially anticorruption and human rights groups—by painting them as part of the arrogant, effete, selfish elite that have betrayed the people and the country. Make university professors afraid to criticize the government in their writings and classrooms. Render student groups liable to prosecution for peaceful protest. Create new, fake civic organizations that will be faithful to the populist leader and party.
Intimidate the business community into ending its support for political opposition. Threaten to unleash tax and regulatory retribution on businesses that fund opposition parties and candidates . . . .
Enrich a new class of crony capitalists by steering state contracts, credit flows, licenses, and other lucre to the family, friends, and allies of the ruler and his clique.
Assert political control over the civil service and the security apparatus. Start referring to professional civil servants and military officers loyal to the democratic constitution as members of a “deep state.” Purge them. . . .
Gerrymander districts and rig the electoral rules to make it nearly impossible for opposition parties to win the next election. Ensure that the ruling party can retain its grip on power even if it fails to win most of the vote.
Gain control over the body that runs the elections, to further tilt the electoral playing field and institutionalize de facto authoritarian rule.
Repeat steps 1 to 11, ever more vigorously, deepening citizens’ fear of opposing or criticizing the new political order and silencing all forms of resistance.²⁷⁵

In the next Section, I examine the formal constitutional record—the large-C constitutions of the states—for evidence of practices listed by Diamond. In the subsequent Section, I turn to the informal behavior that makes up the small-c constitutions of the states.

C. The Formal Constitutional Record

The United States is one of the most decentralized federations in the world, and given the degree of autonomy that American states enjoy, especially concerning the structure of their own political processes,²⁷⁶ it is sometimes surprising to observers how little variation actually exists among state constitutions.²⁷⁷ In particular, consistent with powerful currents in the American constitutional tradition, all state constitutions are formally democratic and liberal.²⁷⁸ They uniformly affirm liberal principles of popular sovereignty; provide that all major offices are to be filled by direct popular election based on essentially universal suffrage; adhere to inherited conceptions of constitutionalism and the rule of law; and provide—formally, at least—substantial protection for citizen equality and individual dignitary rights.²⁷⁹

Nothing that has occurred recently—over the last five years, say—has altered these basic facts. No state constitution, for example, has been replaced with a more authoritarian version; in fact, no state has replaced its constitution since the mid-1980s,²⁸⁰ and indeed, no state has held a full-scale constitutional convention since 1986.²⁸¹ On the other hand, some states provide for mandatory periodic ballot measures asking the people whether a constitutional convention should be called.²⁸² In the two most recent such votes—in New York (2017) and Rhode Island (2014)—convention calls were rejected,²⁸³ in large part over fears that a convention would result in illiberalization of the state constitution. In New York, for example, public employee unions opposed a convention call over fears that a convention “would open up protections for labor, education and social services to attacks from right wing groups.”²⁸⁴ The New York Civil Liberties Union opposed a convention because it would place at risk existing state constitutional protections for “free speech, public education, separation of church and state, the environment, aid and care to the needy, workers’ right to organize and pension rights.”²⁸⁵ New York environmental groups argued against a convention on the ground that opening up the state constitution to change would put at risk the prized “forever wild” provision limiting development in the Adirondack Park.²⁸⁶ In Rhode Island, Planned Parenthood opposed a constitutional convention on the ground that it would endanger constitutionalized women’s reproductive rights, and “could send women back to the 1950s.”²⁸⁷ It is noteworthy that these fears were so pronounced in what are probably two of the most politically liberal polities in the nation.²⁸⁸

Similarly, no state constitution has been amended in recent years in a way that suggests movement toward significant new concentrations of power in the hands of the governor. Amendments to structural aspects of state constitutions are in general far less common than amendments dealing with individual rights or substantive policy matters,²⁸⁹ and in the last few years, structural amendments have been few and marginal in impact.²⁹⁰ About as many have worked slight reductions in executive power as have increased it. For example, a 2018 Florida amendment prohibited state courts from deferring to administrative agencies’ interpretations of state statutes or rules, transferring power from the executive to the judicial branch;²⁹¹ and a 2016 Idaho amendment constitutionalized the authority of the state legislature to review, approve, and reject administrative rules, transferring power from the executive to the legislature.²⁹²

Nor have state high courts recently issued major decisions altering the separation of powers in favor of the executive. Indeed, in what is probably the most significant state separation of powers decision issued in the last five years, the North Carolina Supreme Court went the other way, upholding a diminishment of executive power. That case, Cooper v. Berger,²⁹³ concerned a statute enacted by the Republican-controlled state legislature in December 2016, two weeks before newly elected Democratic governor Roy Cooper was to take office.²⁹⁴ The new statute for the first time subjected the governor’s cabinet appointments to senatorial confirmation, reducing the governor’s power over his own executive branch appointments.²⁹⁵ The court upheld the statute against Cooper’s separation-of-powers challenge.²⁹⁶

This information, however, must be understood in a broader context. First, American governors tend to be very powerful state actors, and any with authoritarian aspirations may not need formal enhancement of their power through the kinds of constitutional changes most often sought by authoritarians elsewhere.²⁹⁷ Although originally meant to be weak and subordinate to state legislatures,²⁹⁸ governors emerged in the late nineteenth and early twentieth centuries as the most powerful players in state government, a consequence of an American turn toward “executive leadership” as the most efficient and democratically legitimate way to implement the popular will.²⁹⁹ Indeed, as Saladin Ambar argues, the powerful, modern presidency was to a great extent shaped by governors who, upon their elevation to the presidency, inhabited the office in much the same way as they had previously inhabited their governorships.³⁰⁰

Second, the extent of gubernatorial power—and in particular the degree to which it exceeds legislative power—cannot typically be read off the face of the formal constitutional document. For example, in many states the legislature is a part-time and largely amateur assembly.³⁰¹ Although this practice is rooted in a benign and charmingly republican wish to ensure that legislators are drawn from the general citizenry rather than a distinct political class, and that they remain in close touch with their constituents, the actual effect is to transfer considerable power to the governor and the executive branch bureaucracy, which are permanent, full-time, professional, and well-funded.³⁰² Governors tend also to dominate the budgetary process.³⁰³ Many have an extremely powerful and flexible item veto that permits them to shape legislation, and even, in some cases, to alter it significantly.³⁰⁴ As Jonathan Zasloff has perceptively argued, the governor of California is not best thought of primarily as an executive officer, but as a “super-legislator, who wields his power through the lawmaking and budgetary processes”³⁰⁵—a power highly valued by authoritarian leaders around the world.³⁰⁶

Third, the de facto power that governors exercise does not necessarily track what we might suspect to be the divide, if one exists, between liberal-democratic and illiberal-authoritarian U.S. states. According to rankings of gubernatorial power produced periodically by the late political scientist Thad Beyle, some of the most powerful governors have been those in strongly liberal states like New York, Massachusetts, and Maryland, and some of the weakest in states of the Old Confederacy such as Alabama and Mississippi.³⁰⁷

Beyle’s analysis, moreover, is generally consistent with the state constitutional jurisprudence. In states like Alabama, Florida, Kentucky, Missouri, and West Virginia, apparently heavily influenced by what Jim Rossi calls “[a]ntifederalist separation of powers ideals,”³⁰⁸ the separation of powers and the concomitant scope of executive power tend to be “strictly construed.”³⁰⁹ In Massachusetts and New York, in contrast, courts take a more generous view of the scope of executive power.³¹⁰ Thus, if there is at this moment a strongman ruling an American state, it might well be Andrew Cuomo of New York or Gavin Newsom of California, governors apparently as strongly committed as any in the United States to democratic liberalism.³¹¹

Finally, some of the most severe constitutional norm-bashing occurring in the states over the last few years has been the work not of governors, but of state legislatures attempting to enhance their own powers at the expense of governors. The most prominent examples come from North Carolina and Wisconsin, in which Republican-controlled state legislatures enacted measures to strip power from newly elected Democratic governors before they took office, discussed further below.³¹² These actions constitute a gross breach of longstanding, universal norms of democratic contestation, which require fair alternation of power among the parties and gracious acceptance of electoral defeat.³¹³

D. Informal Behavior

When we turn our attention from the large-C constitution of formal text and jurisprudence to the small-c constitution of informal norms and actual behavior of government officials, the picture looks considerably different. Below, I work through the most pertinent items from Diamond’s authoritarian’s playbook.

1. Demonization of the opposition

Donald Trump is without peer in his persistent demonization of those who oppose him, demolishing, with evident glee, a critical, longstanding informal norm of civility in American democratic politics.³¹⁴ During his first campaign he repeatedly called for his Democratic opponent in the presidential election, Hillary Clinton, to be “locked up,” and continued tacitly to encourage the idea during his reelection campaign.³¹⁵ He routinely insults and denigrates political adversaries, often, as in the case of judges, investigators, and prosecutors, merely for performing the tasks entrusted to them by the Constitution or laws.³¹⁶ Some members of Congress have emulated the President’s behavior.³¹⁷ Do we observe similar behavior from state officials?

To be sure, some state officials have occasionally adopted similar kinds of rhetoric. A Republican Oklahoma state representative called for Hillary Clinton’s execution by firing squad.³¹⁸ A Republican county chair in Kansas compared a mandatory masking order issued by Democratic governor Laura Kelly to Nazi orders rounding up Jews for transportation to death camps.³¹⁹ Republicans in Texas, Oklahoma, and elsewhere have made hateful, demeaning comments about immigrants or Muslims,³²⁰ both groups that might be thought to lean politically toward Democrats. In general, though, in what we shall find to be a fairly consistent pattern, activity at the state level seems to involve less rhetoric and more action. In these instances, the states are indeed serving as laboratories—not laboratories of democracy, as Justice Brandeis proposed,³²¹ but as “laboratories of authoritarianism.”³²²

To insult or demonize another person is, literally, depersonalizing—it proceeds by definition from the view that the insulted are not fully human, and thus need not be treated with the decency to which humans are inherently entitled. In the political context, to insult or otherwise demonize others for holding contrary beliefs is to treat such individuals as political inferiors who do not fully count in any appropriate calculus of public opinion, and whose participation in politics is thus fundamentally illegitimate. This belief, however, need not manifest itself solely in rhetorical attacks like insults; it may take in addition the form of justification—justification for disenfranchising and otherwise ignoring, blocking, or overturning political participation by adversaries, so that the relevant jurisdiction can be ruled through the popular sovereignty of the “true” people, those legitimately entitled to rule.³²³

In what is surely the most remarkable example of this phenomenon, Republican-controlled governments in North Carolina, Wisconsin, and Michigan reacted to recent elections of Democratic governors by enacting legislation, in the waning days of lame duck sessions, to strip from the executive branch substantial amounts of power for the sole purpose of diminishing the political agency of incoming Democratic officials and the voters who put them in office. In North Carolina, immediately following the 2016 gubernatorial election in which Democrat Roy Cooper defeated the incumbent Republican Pat McCrory, the legislature enacted and Governor McCrory signed a package of bills that transferred control of the Board of Elections from the governor to the legislature; subjected gubernatorial cabinet appointments to senatorial confirmation; stripped the governor of power to appoint trustees of the University of North Carolina system; and reduced the authority of the governor to hire and fire government employees.³²⁴

In 2018 in Wisconsin, following wins by Democratic candidates for governor and attorney general, the outgoing Republican-controlled legislature enacted, and the lame-duck Republican governor signed, legislation that deprived the governor of control over significant public programs and transferred from the attorney general to the legislature authority to withdraw from various kinds of litigation.³²⁵ The legislation was apparently intended in great measure to cripple the ability of the incoming Democrats to deliver on their campaign pledges—the very basis, presumably, of their election to office³²⁶—thereby subverting the only reason to hold elections in the first place. Similarly, in 2018, following a sweep of statewide offices by Democrats, the Republican-controlled Michigan legislature enacted and the lame-duck Republican governor signed legislation limiting executive authority to oversee campaign finance laws.³²⁷

2. Undermine judicial independence

As Stephen Levitsky and Daniel Ziblatt observe, “[i]t always helps to have the referees on your side.”³²⁸ For this reason, capture of independent judicial bodies is high on the wish list of would-be authoritarians; it is a tactic that autocrats have successfully employed in Hungary, Turkey, Russia, Peru, Egypt, Venezuela, Ecuador, and elsewhere.³²⁹ It is also a tactic that has been deployed in American states controlled by Republicans.

Control over the ideological commitments of judges has long been a strategic objective of the Republican Party.³³⁰ That goal has been pursued single-mindedly on the federal level since the Reagan Administration through careful, highly selective ideological vetting of judicial appointees.³³¹ The task is more complicated on the state level: most state judges are elected rather than appointed, and in states where the governor has the power to appoint high court judges, the most common arrangement limits gubernatorial choice by requiring nomination from a list forwarded by an independent nominating body.³³² Different tactics are thus required.

One such tactic has been court-packing—altering the size of the court. In 2016, for example, the Arizona legislature expanded the size of the Arizona Supreme Court from five to seven to permit the Republican governor to appoint two new justices.³³³ That same year, the Georgia legislature enacted legislation to expand the Georgia Supreme Court from seven to nine.³³⁴ At the time of the enactment, four of the justices were Democratic appointees and three were Republican appointees, allowing the Republican governor to alter the partisan balance on the court.³³⁵ Unsuccessful attempts at court-packing were made in Florida (2007) and in Iowa (2009), the latter following a decision by the Iowa Supreme Court striking down a state law prohibiting same-sex marriage.³³⁶ Other unsuccessful attempts were made in South Carolina (initially by Democrats but then, in 2013, by Republicans) and Louisiana (2017).³³⁷ Conversely, attempts have been made by Republican-controlled legislatures to shrink the size of the state supreme court to deny Democratic governors new appointments, most notably in Montana.³³⁸

A more conventional tactic to control the judiciary in states where high court judges are elected has been to pour resources into contested judicial races, as well as to increase the brutality of the campaigns, which by longstanding prior custom had been low-key, genteel affairs of extremely low political salience.³³⁹ Spending on judicial races more than doubled between the 1990s and 2000s,³⁴⁰ and previously unheard-of amounts were poured into state supreme court races by outside interest groups.³⁴¹ Although the sources of these funds are nearly impossible to determine,³⁴² it is highly likely that much of the funding was generated out-of-state. In 2017–2018, the highest levels of expenditures in judicial races by far were spent in eleven states: Alabama, Wisconsin, Michigan, West Virginia, Arkansas, North Carolina, Pennsylvania, Texas, Ohio, Nevada, and Georgia.³⁴³ During this period, Republicans already controlled the governor’s office and both chambers of the legislature in seven of these states (Alabama, Wisconsin, Michigan, Arkansas, Texas, Ohio, and Georgia), and controlled both chambers of the legislature in three (West Virginia, Pennsylvania, and North Carolina).³⁴⁴ Nevada is the only state in this group in which Democrats controlled the legislature, although the governor was a Republican.³⁴⁵ North Carolina had actually eliminated partisan judicial elections in 2004, but reinstated them in 2016 in what was widely seen as a nakedly partisan attempt by Republicans in the state legislature to maintain partisan control of the state bench.³⁴⁶

Efforts to control the state judiciary have not, however, been limited to attempts to win judicial seats in ordinary elections; they have also included attempts to inflict electoral punishment on judges who make rulings that either on the merits might be characterized as philosophically liberal, or which impede the ability of Republicans to maintain political control of the state.³⁴⁷ Sometimes, where electoral punishment is not available, judges issuing such rulings have been threatened with impeachment.³⁴⁸

For example, in 2010 three justices of the Iowa Supreme Court were ousted in retention elections—the first time any Iowa justice had not been retained—in retaliation for a 2009 decision legalizing same-sex marriage in the state.³⁴⁹ The outcome of this election was heavily influenced by a surge of spending by out-of-state groups that routinely support Republican causes.³⁵⁰ Similar, though unsuccessful, efforts were mounted in Alaska, Colorado, Kansas, Illinois, and Florida “targeting supreme court justices for rulings on abortion, taxes, tort reform and health care.”³⁵¹ In Pennsylvania, following a historic 2018 ruling by the state supreme court invalidating on state constitutional grounds a grotesque partisan gerrymander favoring Republicans, Republican leaders in the state legislature introduced a motion to impeach the four Democrats on the court who had ruled to invalidate the gerrymander.³⁵² Although most of these efforts have been unsuccessful, even the unsuccessful ones subject theoretically independent courts to discipline imposed by the other branches because of their sheer in terrorem effect.³⁵³

It is difficult, of course, to gauge whether and to what degree these efforts might be affecting the independence of state courts. Nevertheless, in a number of recent cases state high courts have issued surprising decisions upholding measures taken by the legislative or executive branches of state government that have been taken straight out of the authoritarian’s playbook—most notably, measures to suppress voting. For example, following passage in 2018 of an initiative amendment to the Florida Constitution eliminating permanent disenfranchisement of convicted felons, the Florida legislature enacted a law, clearly intended to thwart the voters’ intent, that prohibited restoration of voting rights to convicted felons until they had paid off all fees, costs, and other financial obligations associated with their convictions.³⁵⁴ The Florida Supreme Court upheld the law.³⁵⁵

In Wisconsin, a pitched battle erupted between the Democratic governor and the Republican-controlled legislature over whether to take measures to make voting safer during the coronavirus pandemic.³⁵⁶ The legislature repeatedly refused the governor’s requests to postpone the state’s spring election, including the Democratic presidential primary, and to require the Secretary of State to mail absentee ballots to all voters.³⁵⁷ Eventually, the governor invoked his emergency powers and issued an executive order suspending in-person voting.³⁵⁸ The Wisconsin Supreme Court—one of the most bitterly partisan in the nation³⁵⁹—invalidated the governor’s order.³⁶⁰ In so doing, it left voters no option but either to risk their health by voting in person, or to take their chances with applying for an absentee ballot and hope it arrived in time. As it turned out, some 13,000 such ballots were never received by voters.³⁶¹ Later, the court went on to rule that the legislature, and not the governor, had constitutional authority to deal with the pandemic and so invalidated the governor’s stay-at-home orders altogether.³⁶²

Meanwhile, the Texas Supreme Court affirmed the position of the governor and attorney general overruling an interpretation of state law issued by various county clerks and election administrators that fear of contracting COVID-19 during a pandemic constituted a “disability” under state law entitling those who claimed such a fear to vote by absentee ballot.³⁶³ And in North Carolina, the state high court upheld a measure enacted by the Republican-controlled legislature diminishing the power of the incoming Democratic governor by for the first time subjecting gubernatorial cabinet appointments to Senate confirmation.³⁶⁴

It is worth mentioning that in reaching these kinds of rulings, state supreme courts are to some degree following a path marked out by the U.S. Supreme Court, which for decades has been controlled by a majority of Republican appointees.³⁶⁵ Although state supreme courts are free to interpret state constitutions independently from the interpretations federal courts give to the U.S. Constitution, in practice they often take their lead from the U.S. Supreme Court, proceeding in “lockstep” with it³⁶⁶—a practice for which they have often been criticized.³⁶⁷ In cases involving voting, the Supreme Court has over the years sided repeatedly with Republican initiatives, upholding burdensome photo ID requirements,³⁶⁸ striking down the preclearance provisions of the Voting Rights Act,³⁶⁹ and most recently, overturning a district court order directing the state of Wisconsin to accept late-arriving ballots during a primary election scheduled to be held in the midst of a pandemic.³⁷⁰

3. Subdue civil society institutions

If a “lively civil society” is a critical requirement of a successful liberal democracy,³⁷¹ then universities, as centers of inquiry committed to freedom of thought, speech, and learning, play an important role in a liberal state. This is precisely what makes them tempting targets in states experiencing democratic backsliding. Perhaps the paradigm here is Viktor Orbán’s persistent and ultimately successful efforts to push the Central European University, one of Europe’s most prestigious centers of independent learning and scholarship, out of Hungary altogether.³⁷²

Although the United States is probably too large, with too many universities, for aspiring authoritarians to exile or control them all, several Republican-controlled states have nevertheless waged what has been called a “[w]ar on [p]ublic [u]niversities.”³⁷³ One method by which this war has been waged is through sharp attacks on public employee unions that represent university employees, discussed further below. But the principal weapon in the war has been the state’s higher education budget, which in Wisconsin, Louisiana, Kansas, North Carolina, Arizona, Alaska, and Iowa, among others, has been cut severely.³⁷⁴

Funding for higher education suffered around the country following the 2008 recession, as states cut deeply into all spending sectors to balance their budgets.³⁷⁵ But while spending climbed back steadily in most states following economic recovery, in some states it has not, and reductions have even continued.³⁷⁶ In Louisiana, for example, per-student spending on higher education dropped 38% between 2008 and 2012³⁷⁷ and has continued to drop ever since, falling a total of 55% since the recession.³⁷⁸ Alabama’s spending on higher education fell by 36% following the recession but has fallen further since then.³⁷⁹ The Republican governor of Alaska in 2019 vetoed $130 million of higher education spending resulting in a cut of 41% in state funding.³⁸⁰ Spending on higher education in Arizona fell 55% between 2008 and 2018.³⁸¹

As political scientist Larry Sabato observed, these kinds of cuts were predictable: “Most GOP elected officials believe that universities are hotbeds of Democratic support—and the voting patterns in most college precincts support this.”³⁸² Or, as a Republican Tennessee legislator remarked in a moment of candor, higher education in the state should be eliminated because it serves as a “liberal breeding ground.”³⁸³

In Florida, just to make sure that the state university’s board of trustees did not attempt to mitigate the impact of reductions in funding, a 2018 amendment to the Florida Constitution changed the voting rules for the state university’s board of trustees on a single matter—raising fees charged to students—by requiring an affirmative vote of nine of the thirteen trustees, a 70% supermajority.³⁸⁴ This change guaranteed that the six members of the board appointed by the governor could effectively block any attempt by public universities to collect additional operating revenue.³⁸⁵ The amendment also constitutionalized the existing statutory structure of the state university system so that future administrations would be unable to alter it.³⁸⁶

4. Attacks on economically powerful actors that support the opposition

In other countries experiencing democratic backsliding, attacks on disfavored holders of economic power tend to follow the model pursued by Turkish President Recep Erdoğan, who, as a tactic to consolidate power, “threatened businesses that might dare to fund opposition parties.”³⁸⁷ In Russia, Vladimir Putin went much further, neutralizing potential financial backers of opposition parties through a program of outright state confiscation of the business holdings of uncooperative Russian oligarchs,³⁸⁸ and even conducting criminal prosecutions charging tax evasion, fraud, money laundering, and embezzlement.³⁸⁹ In the United States, the equivalent behavior consists of a constant, systematic barrage aimed at labor unions, which historically have been among the most consistent and best-resourced supporters of Democratic candidates and their policies.³⁹⁰

Some American states have long attempted to weaken unions through such measures as “right-to-work” laws.³⁹¹ These laws, which prohibit mandatory union membership or mandatory payment of the equivalent of union dues as a condition of employment, weaken unions by allowing non-union employees to free-ride on the organizational power of dues-paying union members, thereby undermining the incentives of workers to join and financially support unions.³⁹² The loss of membership and dues reduces union resources, thus limiting the capacity of unions to contribute resources to political candidates and causes.³⁹³

Such measures continue to the present day, even more aggressively in the form of attempts to constitutionalize right-to-work principles so as to insulate them from alteration or repeal should partisan control of state government change hands.³⁹⁴ In 2016, for example, Alabama voters approved Amendment 8, a legislatively referred amendment that constitutionalized existing state policy prohibiting any requirement of union membership as a condition of employment.³⁹⁵ A similar measure, also referred to voters by the state legislature, appeared on the 2016 Virginia ballot but was rejected.³⁹⁶

A more recently adopted strategy involves legislatively prohibiting state agencies bidding out contracts from requiring bidders to use union employees. A 2017 Wisconsin law, for example, not only prohibits state agencies from requiring a labor agreement as a condition of submitting a bid, but forbids even any consideration of the existence of such an agreement as a factor in awarding contracts.³⁹⁷ Republican-controlled states have also taken measures to prevent Democrat-controlled localities within the state—typically large urban areas—from using otherwise available powers of local autonomy to insist on contract terms that contain or mimic terms negotiated by labor unions. A 2016 Alabama law, for example, withdraws local authority to regulate terms of employment, and prohibits local governments from requiring a minimum wage, minimum leave, or any other employee benefits, whether for their own employees or for the employees of contractors.³⁹⁸

The scope of these attacks seems in recent years to have expanded to include generalized attacks on workers themselves, whether unionized or not. For example, during the current coronavirus pandemic, Iowa and Oklahoma announced that fear of contracting the virus would not count, for purposes of eligibility for unemployment insurance, as a valid excuse for turning down an offer to return to work.³⁹⁹ Some states are presently considering legislation to relieve employers of liability should returning workers contract COVID-19, measures that would weaken incentives employers might otherwise have to take stringent measures to protect their own workforce.⁴⁰⁰ In view of longstanding attacks on unionized workers, it is difficult to escape the conclusion that the best explanation for this behavior is a desire to keep all workers in a terrorized condition of compliance with official policy.

5. Attacks on the civil service

At the federal level, attacks on civil servants have been fierce, though mainly rhetorical. Former President Trump notoriously labeled the federal civil service a “deep state,” which he characterized as opposing, and through bureaucratic means undermining, his various programs and initiatives.⁴⁰¹ Although Trump waged this campaign mainly verbally rather than through action, early in his term he issued several executive orders meant to weaken the federal civil service by restricting the role of federal public employee unions in the workplace and increase the flexibility available to agencies in disciplining civil servants.⁴⁰²

At the state level, there has been less bluster but more substance. These attacks, initiated by Republican administrations, appear to have two motives. One motive is to weaken legal protections long meant to professionalize and de-politicize the civil service, thereby providing governors with significantly more power to hire and fire, to engage in patronage employment practices, and to tighten their control over and ability to discipline state bureaucracies.⁴⁰³ A second motivation appears to be to punish unions generally, and public employee unions in particular, for their tendency to provide financial support to the Democratic opposition, and to weaken them by drying up their resources, thereby reducing their political efficacy.⁴⁰⁴

By far the most significant effort to de-professionalize a state civil service is an Arizona statute enacted in 2012 with strong backing from then-Governor Jan Brewer. That law ended civil service protections for all state employees hired after September 29, 2012, making their employment expressly at-will.⁴⁰⁵ It also provided that any state employee who voluntarily accepts a new job assignment within Arizona government—a promotion, for example—also becomes at-will.⁴⁰⁶ To an employee population that had been subject to a wage freeze for four years,⁴⁰⁷ the law additionally offered a one-time 5% pay bonus to any employee who agreed to move from protected to at-will status,⁴⁰⁸ but provided expressly that any change in status from protected to at-will would be irrevocable.

A more common strategy deployed against civil servants has been to attack public employee unions. The first major broadside occurred in 2011 when, with the energetic backing of Governor Scott Walker, the Wisconsin legislature enacted Act 10, a collection of measures meant to badly weaken the state’s public employee unions.⁴⁰⁹ Among its provisions, Act 10 eliminated all collective bargaining rights for public university employees and health care workers, and “effectively abolished collective bargaining for all [other] public employees,” except law enforcement and fire personnel,⁴¹⁰ by stripping public employee unions of the authority to bargain over any terms of employment other than base wages, and then only within a range capped by the annual rate of inflation.⁴¹¹ Act 10 also added “clearly punitive provisions” unrelated to the Governor’s ostensibly budgetary justifications, including a burdensome requirement of annual recertification of public employee unions by vote of an absolute majority of employees (rather than just a majority of those voting), and a prohibition on paycheck deductions for union dues, requiring unions to divert resources to collection of dues.⁴¹²

Oklahoma and Tennessee also repealed collective bargaining rights of public employees in 2011.⁴¹³ Nevada and Ohio restricted the availability of collective bargaining to certain classes of public employees, though Ohio’s measures were subsequently reversed by referendum.⁴¹⁴ Many similar measures have been adopted since then. For example, 2017 legislation adopted in Iowa and Kentucky prohibits collective bargaining by public employee unions on dues checkoffs and payroll deductions.⁴¹⁵ The Iowa measure also requires mandatory union retention elections before the expiration of any public employee contract, and the Kentucky law prohibits strikes by public employees.⁴¹⁶ In 2017, Illinois Republican Governor Bruce Rauner vetoed the Collective Bargaining Freedom Act,⁴¹⁷ a measure enacted by the Democrat-controlled state legislature to establish the right of all employees, including public employees, to bargain collectively.⁴¹⁸

6. Manipulation of electoral rules and processes

By far the most significant steps by Republican-controlled states down the path toward authoritarianism are an extensive suite of measures designed to manipulate electoral rules and practices to favor the interests of the Republican Party, and indeed to do so to such an extent as to ensure as far as possible that the party and its adherents retain power, even in the face of future erosion of public support, should it occur.

The baseline assumptions in modern democracies are (1) that suffrage should be universal and (2) that all who wish to participate in democratic self-rule should have a reasonable opportunity to do so.⁴¹⁹ Republican-controlled states have launched sustained and forceful attacks against both of these premises of popular sovereignty. These measures have by now been so well-documented that it will suffice to review them only briefly.

a. Attacks on voter eligibility

Under the constitutional scheme, states control eligibility to vote in all elections,⁴²⁰ and for more than a century registration has been a nearly universal prerequisite to voting.⁴²¹ Moreover, unlike in many other countries where voter registration is considered to be the responsibility of the state, in the United States the burden of registering to vote has long been laid upon citizens.⁴²² This procedural quirk has created an opening for vote suppression through state regulatory measures designed to increase the difficulty and burden of registering to vote. Below is a partial listing of some of the measures Republican-controlled states have taken to restrict voter eligibility.

Proof of citizenship. The “most restrictive” of these measures, enacted in Kansas, Arizona, Alabama, and Georgia, requires those seeking to register to produce documentary proof of U.S. citizenship.⁴²³ Although U.S. citizenship may legitimately be required as a precondition for voting,⁴²⁴ and is in fact everywhere required as a condition of eligibility to vote in federal and state elections, in the past a registrant’s affirmation of citizenship under penalty of perjury has been deemed sufficient evidence to satisfy the requirement.⁴²⁵ These new provisions require production of a birth certificate, naturalization papers, or a U.S. passport—documents that not all prospective voters possess or can easily obtain. Where implemented, these policies have had a considerable impact: “In Kansas, nearly 20 percent of new registrations were suspended for lack of proof of citizenship,” and in the 2014 general election, a number of voters equal to 2.5% of total turnout were affected.⁴²⁶ Moreover, “Democrats were 1.55 times more likely than Republicans to have their registrations suspended,” and “[u]naffiliated voters were 3.8 times more likely than Republicans” to face suspension of registration.⁴²⁷
Registration purges. Under the federal National Voter Registration Act of 1993⁴²⁸ (NVRA or “Motor Voter” law), states are required to take steps to maintain the accuracy of their voter registration rolls on the theory that inaccuracies create opportunities for fraudulent voting.⁴²⁹ Republican-controlled states have exploited this mandate to conduct massive purges of voter registration rolls.⁴³⁰ These purges have been badly inaccurate and have disproportionately stripped from voter registration rolls “the poor, minorities, and the young”—groups that tend to support Democrats.⁴³¹ In a five-year period, for example, Ohio Secretary of State Jon Husted purged two million names from the state’s voter rolls by using a method that purported to identify obsolete listings through a combination of non-response to mailed inquiries and subsequent non-voting for a period of four years.⁴³² Under this system, voters in neighborhoods that supported Barack Obama for President in 2012 saw more than twice as many registration purges as neighborhoods where Obama earned less than 40% of the vote.⁴³³ Similarly, Kansas Secretary of State Kris Kobach tirelessly promoted the “Crosscheck” system, which purported to identify obsolete voter registrations by comparing databases across states; the system, however, has “an error rate of more than 99 percent.”⁴³⁴
Restrictions on voter registration drives. A standard tactic of campaign mobilization has long been drives to register new voters. Research finds, moreover, that “minority voters are nearly twice as likely as white voters to register through a drive.”⁴³⁵ Several states have taken aim at these drives in an effort to suppress participation. A 2012 Florida law, for example, imposed onerous fines on civic groups conducting voter registration drives that fail to turn in the forms within forty-eight hours or maintain copious records, causing the League of Women Voters and Rock the Vote, two major, nonpartisan supporters of voter registration, to suspend efforts in the state and later to sue.⁴³⁶ Under a 2011 Texas law, registration drives could be conducted only by officially appointed “volunteer deputy registrars” who had to be Texas residents and eligible voters, and were required to complete a training course offered only intermittently.⁴³⁷ The law also criminalized failure to turn in new registration forms within five days.⁴³⁸
Legislative subversion of loosening of registration requirements. In 2018, Florida voters approved an initiative amending the state constitution to restore the right to vote to convicted felons.⁴³⁹ In so doing, Florida voters reversed a voting disqualification so stringent that it disqualified nearly one-third of adult Black males in the state.⁴⁴⁰ Immediately, in the guise of implementing the amendment, the Republican-controlled legislature enacted a law instead subverting it by establishing as a prerequisite for restoration of voting rights the repayment in full of all outstanding fines, fees, and restitution—a requirement impossible to meet for most convicted felons upon the conclusion of their prison terms.⁴⁴¹

b. Suppression of voting by eligible voters

These measures aimed at curtailing eligibility have in many Republican-controlled states been supplemented by measures designed to reduce voter turnout among those who are already eligible, and in ways that “have the most marked effects on the poor and members of racial and ethnic minority groups,”⁴⁴² the natural and likely constituency of the Democratic Party. Again, below is a partial listing of such measures.

Voter identification requirements. For most of American history, registered voters appearing at a polling place to vote were required to identify themselves either by simply stating their identity, or by signing a poll book, which constituted a legally binding affirmation of their identity.⁴⁴³ Voter impersonation is in every state a felony, and as a result, the incidence of fraudulent voting through impersonation is approximately zero.⁴⁴⁴ Nevertheless, a nationwide, coordinated Republican effort over the last fifteen years has led to the enactment of photo ID requirements as a prerequisite to voting in numerous states.⁴⁴⁵ Ten states—Alabama, Georgia, Indiana, Kansas, Mississippi, Pennsylvania, South Carolina, Tennessee, Texas, and Wisconsin—have enacted photo ID requirements that are both highly restrictive and highly selective in the kind of documentation that will be accepted.⁴⁴⁶ For example, in Texas and Tennessee, acceptable forms of identification include gun licenses—documents more likely to be possessed by whites than Blacks⁴⁴⁷—but not student ID cards.⁴⁴⁸ In invalidating a North Carolina law imposing strict photo ID requirements, the U.S. Court of Appeals for the Fourth Circuit noted that the law “retained only those types of photo ID disproportionately held by whites and excluded those disproportionately held by African Americans.”⁴⁴⁹
Making voting inconvenient. Although states are under no obligation to make voting easy, many states by the early 2000s had introduced measures to ease the burden of voting. These measures included adding polling places, extending polling place hours, and introducing early voting before Election Day.⁴⁵⁰ These kinds of measures proved extremely popular with African-American voters; according to some estimates, up to 70% of Black voters in some jurisdictions voted during the early voting period.⁴⁵¹ Between 2010 and 2014, however, eight Republican-controlled states—Florida, Georgia, Nebraska, North Carolina, Ohio, Tennessee, West Virginia, and Wisconsin—cut back on these measures.⁴⁵² For example, a 2013 North Carolina law cut back the number of days of early voting by nearly half; eliminated an existing county option to offer early voting hours between 1 p.m. and 5 p.m.; and required early voting hours be uniform throughout the state without regard to actual utilization patterns.⁴⁵³ One consequence of these cutbacks has been to increase lines at polling places significantly in some neighborhoods, disproportionately Democratic-leaning ones.⁴⁵⁴

A newly developed tactic that greatly increases the stakes is a 2019 Indiana law that strips voters of standing to petition state courts to extend polling place hours to accommodate voters waiting in long lines and hoping to vote before the polls close.⁴⁵⁵ Most recently, Republican-controlled states have resisted calls to facilitate voting in the 2020 cycle, which is occurring during an unprecedented pandemic, by expanding the availability of absentee voting, or by mailing absentee ballots preemptively to all voters, whether or not they have requested a ballot.⁴⁵⁶ The only conceivable explanation for this behavior is to suppress voting by forcing voters to choose between risking their health and casting a vote. The Republican Governor of Missouri, Mike Parsons, has essentially admitted as much, encouraging voters who “don’t feel safe” to “stay home.”⁴⁵⁷

c. Combined impact of attacks on voters

Taken individually, none of these measures necessarily has a significant impact on the results of most elections. Such restrictions, however, often are packaged together. Alabama, for example, recently adopted a proof-of-citizenship requirement, a strict photo ID law, and other measures that makes voting less convenient.⁴⁵⁸ Kansas, Texas, and Virginia also have recently adopted three different kinds of measures aimed at suppressing voting.⁴⁵⁹ Most remarkable of all, perhaps, is North Carolina, which in 2013, following almost immediately on the heels of the Supreme Court’s evisceration of the preclearance provisions of the Voting Rights Act in Shelby County v. Holder,⁴⁶⁰ enacted a law that

included a strict voter identification provision[,] . . . cut a week off early voting, . . . barred local election boards from keeping the polls open after 1 p.m. on the final Saturday before the election[,] . . . eliminated same-day voter registration[,] . . . eliminated preregistration of sixteen- and seventeen-year-olds in high schools[,] . . . [and] provided that a voter who votes in the wrong precinct . . . would have her or his whole ballot thrown out . . . .⁴⁶¹

It is difficult to imagine a justification capable of supporting a measure so thoroughly hostile to democratic processes other than a desire to suppress voting.⁴⁶²

7. Gain control over body that runs elections

Unlike many other countries, the United States does not have a centralized, professional agency that regulates and administers elections.⁴⁶³ Instead, the power to make the electoral laws that govern elections for federal, state, and local offices, and to direct the manner of their administration, is lodged in the hands of state legislatures.⁴⁶⁴ In the United States, then, to control the body that runs elections means controlling state legislatures. The main route to control of a state legislature is the achievement of partisan dominance, and the main technique for obtaining such control—in the absence of confidence in actual popular support—is partisan gerrymandering. Although both parties have engaged in partisan gerrymandering from time to time,⁴⁶⁵ since the 2010 redistricting cycle the Republican Party has made it a top priority, one that has been implemented aggressively and successfully by Republican-controlled state legislatures.⁴⁶⁶

Knowing that state legislatures elected in 2010 would control redistricting following the 2010 Census, Republicans invested heavily in state legislative elections in 2010.⁴⁶⁷ The results were spectacular: Republicans picked up 675 state legislative seats around the nation, flipped control of 21 state legislative chambers, and gained control of both chambers in 25 states; Democrats managed to control only 13.⁴⁶⁸ Among the states Republicans then dominated were the nationally important battleground states of Florida, Pennsylvania, Ohio, Michigan, North Carolina, and Virginia.⁴⁶⁹

Under a plan coordinated by the national Republican Party, known as REDMAP, redistricting experts, using software far more sophisticated than had previously been used, redrew legislative maps in Republican-controlled states to maximize Republican seats and minimize Democratic voting power.⁴⁷⁰ These efforts were highly effective. In the 2012 congressional elections, Democratic House candidates received more votes in Michigan, North Carolina, Pennsylvania, and Wisconsin, yet Republican candidates won more seats.⁴⁷¹ For example, in Pennsylvania, 49% of the vote handed Republicans 72% of the House delegation, and in Ohio, 55% of the vote gave Republicans 75% of the congressional delegation.⁴⁷² As a result of the gerrymandering undertaken by state legislatures, Republicans earned a thirty-three-seat advantage in the House of Representatives, flipping it to Republican control.⁴⁷³ Republican gerrymanders in Wisconsin and North Carolina enacted pursuant to the REDMAP policy, as well as a retaliatory Democratic gerrymander in Maryland, were so egregious that lower federal courts, for the first time in three decades, invalidated them as unconstitutional partisan gerrymanders.⁴⁷⁴ The U.S. Supreme Court, however, overruling thirty years of precedent, reversed, holding that partisan gerrymandering presents a nonjusticiable political question.⁴⁷⁵

The aggressive Republican approach did not stop there. During the previous redistricting cycle, in a dramatic breach of longstanding norms of democratic contestation, Republican-controlled state legislatures engaged in additional rounds of redistricting between censuses.⁴⁷⁶ In Texas, Democrats controlled the lower legislative chamber through 2002.⁴⁷⁷ When Republicans unified control over both chambers in 2003, the legislature enacted a new redistricting plan to increase Republican advantage.⁴⁷⁸ The U.S. Supreme Court rejected a challenge to the constitutionality of mid-decade redistricting.⁴⁷⁹ In Colorado, the state legislature, which had been split in 2001, achieved Republican unity in 2003, and enacted a new redistricting law that year.⁴⁸⁰ However, the Colorado Supreme Court ruled that mid-decade redistricting was unconstitutional under the state constitution.⁴⁸¹

Partisan gerrymandering is extremely unpopular with voters,⁴⁸² and one increasingly common reaction has been for voters in initiative states to bypass the legislature to establish independent redistricting commissions. Nineteen states now have taken the power to redistrict away from partisan legislatures and lodged it in such commissions.⁴⁸³ Republicans have bitterly resisted these initiatives, repeatedly bringing lawsuits—thus far, unsuccessfully—to challenge virtually every aspect of the makeup and activity of independent redistricting commissions.⁴⁸⁴

Finally, in the most blatant attempt to gain effective control of the body that regulates elections, the Republican-controlled North Carolina legislature in 2016 enacted a law during a lame-duck session, immediately preceding the installation in office of a newly-elected Democratic governor, that would have consolidated into one body the state boards of elections and ethics, given the legislature half the appointments, and prohibited the governor from removing any member of the board except for cause.⁴⁸⁵ The North Carolina Supreme Court invalidated the law under state constitutional separation of powers principles as an excessive invasion of the executive powers of the governor.⁴⁸⁶

Conclusions: The Nature of Subnational Variation in the United States

It is clear from this overview that any movement in the American states toward authoritarianism remains to this point far removed from the worst excesses observed abroad. North Carolina is not Hungary or Turkey: no new state constitution has been rammed through; the powers of the governor have not been rapidly increased; members of the opposition party have not been arrested; journalists have not been detained and prosecuted; the government has not imposed massive fines on independent news organizations; the University of North Carolina at Chapel Hill has not been forced out of the state.⁴⁸⁷ Despite the erection of significant electoral obstacles and aggressive vote suppression, a candidate of the opposition party was able to win the governorship.⁴⁸⁸

At the same time, it is equally clear that a number of American states have taken many small steps, with a potentially significant cumulative impact, on a path toward authoritarianism that has been well marked out by foreign leaders such as Viktor Orbán in Hungary, Recep Erdoğan in Turkey, Hugo Chávez in Venezuela, and Jaroslaw Kaczynski in Poland. The worst behavior at the state level in some domains lags well behind what is occurring domestically at the national level, and in other domains far exceeds it. State leaders typically do not exhibit the lack of verbal self-restraint displayed by Mr. Trump, yet in many cases they have acted where the President merely ranted on Twitter.

In the preceding review of authoritarian-style actions, summarized in the table below, certain states show up far more frequently than others.

Table 1: Creeping Subnational Authoritarianism

Measure from the Authoritarian’s Playbook	States Adopting or Attempting
Demonization of the opposition	MI, NC, WI
Undermine judicial independence	AL, AK, AZ, AR, CO, FL, GA, IL, IA, KA, LA, MI, MT, NV, NC, OH, PA, SC, TX, WI, WV
Subdue civil society institutions	AK, AZ, FL, IA, KA, LA, NC, WI
Attacks on actors supporting opposition	AL, IA, OK, VA, WI
Attacks on civil service	AZ, IA, IL, KY, OH, OK, NV, TN, WI
Manipulation of electoral rules and processes	AL, AZ, FL, GA, IN, KA, MS, NE, NC, OH, PA, SC, TN, TX, VA, WI, WV
Gain control over body that runs elections	CO, FL, MD, MI, NC, PA, OH, TX, VA, WI

Based on this analysis, it seems plausible to conclude that North Carolina and Wisconsin have advanced the farthest down the road to subnational authoritarianism, with Florida, Texas, Kansas, Arizona, and Alabama not far behind. Disturbing initial signs of democratic backsliding may be seen as well in Georgia, Iowa, Michigan, Ohio, Pennsylvania, and Tennessee. Meanwhile, New York and California, whose governors openly, repeatedly, and sometimes loudly opposed Mr. Trump,⁴⁸⁹ may have deepened their states’ commitment to liberal democracy, though how well those polities actually implement that commitment is an entirely different question.

This brings us back to the question with which we began—the question of how to describe subnational variation in the United States. What conclusions does the evidence support? First and foremost, it is probably too early to say anything definitive. No American state resembles a paradigmatic enclave of illiberal authoritarianism such as the Argentine province of Santiago del Estero, in which a long-serving governor and his wife enjoyed a “cult of personality” and ruled through personally directed violence.⁴⁹⁰

Nevertheless, the evidence does tend to pile up, to the point where it is plausible to consider an account quite different from the three prevailing models of state-to-state variation described at the outset. That alternative amounts to this: several American states are well along the road to becoming—or, in the cases of North Carolina, Florida, Texas, Alabama, and Georgia, reverting to—illiberal, authoritarian enclaves. Contrary to the traditional account, they differ from other states not in their embrace of values at one end or the other of the liberal scale, but in their rejection of the basic tenets of liberal democracy. Contrary to the normal variation account, they are not liberal. And contrary to the partisan account, their public policies do not reflect the commitments of an out-party at the national level seeking to regain national power; they reflect instead a rejection of the democratic commitment to alternation in power itself. In these respects, the Southern states in particular bear a close resemblance to countries like Hungary and Turkey, which seemed for a while to have made the transition to liberal democracy, but in which democratic backsliding has been so severe as to call into question the degree to which liberalism ever really took root. These American states, that is to say, may be in the process of severing their relatively recent—and it turns out, shallow—ties to the family of liberal democracies.

To be sure, authoritarianism in the American states, insofar as it has to this point manifested itself, looks different from the kind of authoritarianism that presently prevails elsewhere. It does not, for example, conform to the model of excessive concentration of power in the office of the chief executive, nor to the classic populist model of a highly charismatic strong, individual leader. In some states, such as Wisconsin and North Carolina, the principal driver of authoritarian measures most recently has been the legislature rather than the executive. Within the apparatus of state government, party seems to be a much more important factor associated with authoritarianism than office.

State-level authoritarianism in the United States may be different from national-level authoritarianism in other ways as well. The public might well be more tolerant of authoritarian behavior on the subnational level than on the national level because of the generally lower salience of state politics,⁴⁹¹ and the concomitant possibility that the norms of state politics have historically demanded a lesser level of refinement, civility, and even rationality than have the norms of national democratic politics. States are of course also subject to many more legal and constitutional constraints than is the national government, and these constraints not only confine their discretion, but open opportunities for the national government to rein in state excesses in ways that have no counterpart at the national level.

On the other hand, whereas illiberal populist parties elsewhere tend to be third parties,⁴⁹² the structure of the American two-party system means that when illiberalism and authoritarianism do find a home in a major political party, that party will immediately be in contention for public office, and in circumstances that may not require it to compromise for the purpose of negotiating its way into power, as would be the case in a parliamentary system. And although the range of available state action may be for the moment restrained by the operation of normal checks and balances, what seems unrestrained in at least some states is the sheer bellicosity of the anti-democratic measures officials have conceived and implemented.

In sum, these developments provide legitimate cause for concern. Committed, liberal Americans around the country have worked hard for half a century to make good on the nation’s founding promise by pushing and hauling the country ever closer to the achievement of a truly liberal, truly democratic state. These efforts are now being undermined by a turn to authoritarianism not only at the national level, but at the state level as well, where states seem to be clustering into two groups, one still committed to democratic liberalism and the other willing to entertain a radical and highly risky experiment in authoritarianism.

If this account is accurate, the really important question will be whether and to what extent the nation’s federal structure both permits illiberal states to experiment with authoritarian forms of self-governance, and even more importantly, the extent to which federalism is capable simultaneously of providing security and protection for state polities that want no part of it. Abraham Lincoln famously proclaimed: “A house divided against itself cannot stand.”⁴⁹³ He was referring at the time to a nation “half slave and half free.”⁴⁹⁴ We may then ask, similarly: is it possible for the United States to survive if federalism provides a path to a nation half democratic and half authoritarian? The answer is at this point unclear, and perhaps the best response is simply to hope that the question need never be answered.

Illiberalism and Authoritarianism in the American States

Share this post

Contact Us

Join Our Mailing List