The Washington PostDemocracy Dies in Darkness

Opinion How state legislatures went off the rails

Kansas Gov. Laura Kelly answers questions from reporters during an event at a women's shelter in Topeka on Jan. 23. (John Hanna/AP)
8 min

Last year, progressives celebrated when voters in conservative Kansas overwhelmingly defeated a ballot initiative that would have removed the right to abortion from their state constitution. It was the first clear demonstration of what would become a backlash at the ballot box following the Supreme Court’s decision to overturn Roe v. Wade.

But if Kansans signaled that they wanted a more moderate course on social issues, that message apparently didn’t get across to the state legislature, which has been churning out hard-right measures as fast as it can.

Gov. Laura Kelly (D) has vetoed what she correctly called a “misleading and unnecessary” bill making it a felony for medical providers not to provide care to an infant born alive during an abortion procedure (something no evidence suggests has happened in Kansas). And another that would require doctors to tell women that medication-induced abortions could be reversed (a claim unsupported by science, according to the American College of Obstetricians and Gynecologists). Still another that would add National Rifle Association-backed firearms education to the K-12 curriculum. (Critics have said the program, deemed ineffective by the Academy of Pediatrics, is more about indoctrination than safety.)

Her vetoes might amount to little more than a waste of ink, however, given that Kansas is one of 28 states where the legislature has a veto-proof majority and can therefore do pretty much whatever it wishes. All but nine of those 28 “supermajority” states are in Republican control.

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State constitutions determine where that veto-proof threshold lies; in Kansas, as in most states, an override requires a two-thirds vote in each chamber.

As recently as 2020, only 22 states had veto-proof legislatures. Elections since then added an additional four. And just since mid-March, Republicans gained two more as they persuaded a Democratic state representative in Louisiana and one in North Carolina to switch parties — significantly diminishing the power of Democratic governors in both states.

The margins in a half dozen other states are sufficiently large that they are close to tipping into supermajorities, either because they have veto-proof numbers in one chamber already, or because both houses are only a seat or two short, according to a tally by Ben Williams, who studies elections and redistricting for the National Conference of State Legislatures. (Not counted in that total is Nebraska, with a single-house legislature that is nominally nonpartisan but effectively Republican. It has 32 GOP-endorsed members; gaining just one more would make them veto-proof.)

It should come as no surprise that, as the balance of power in state capitols is becoming more lopsided, we are seeing more extreme measures coming out of them, particularly those where Republicans have control.

“State legislatures are not only crossing lines and abusing authority but are increasingly misaligned with the will of the voting public,” says Wendy R. Weiser, who directs the democracy program at New York University’s Brennan Center for Justice.

In Kansas, the legislature in April overrode Kelly’s veto of a bill banning transgender athletes from playing women’s sports. (Of the 109,000 students registered with the state high school activities association, only 11 are transgender, and the association has received zero complaints about them.) It is likely to do the same to her vetoes Thursday of measures barring transgender people from using bathrooms according to their gender identities, preventing them from changing their names or gender on their driver’s licenses — and a host of other restrictions.

“Companies have made it clear that they are not interested in doing business with states that discriminate against workers and their families,” Kelly said in her veto message. “I’m focused on the economy. Anyone care to join me?”

In Ohio, another state where Republicans hold a supermajority , lawmakers are trying to thwart a citizen-led effort to put a constitutional amendment on the ballot that would prohibit banning abortion before fetal viability. So, lawmakers are advancing an amendment of their own that would change the rules and require a 60 percent threshold, rather than the current 50 percent, for such ballot initiatives to pass.

Supermajorities also offer the means for a party in power to violate traditional norms and trample the minority. In early April, the Tennessee House expelled two Democrats who joined raucous demonstrators agitating for gun control in the chamber. A censure might have been warranted for this breach of decorum, but instead, the GOP majority mustered the two-thirds it needed for a far more severe action that the legislature had taken against its own members only three times since the Civil War. (Both lawmakers were quickly reinstated by votes of their local governments.)

Last year, as Florida Gov. Ron DeSantis (R) was campaigning for a second term, he regularly drew attention to legislative races down the ballot, noting: “We may have a supermajority in the Florida Legislature, veto-proof after this election.”

Florida Republicans did indeed manage to flip enough seats to gain two-thirds majorities in both chambers. The legislature in its ongoing session has backed DeSantis’s presidential ambitions by passing his agenda with dizzying speed. It has banned abortions past six weeks of pregnancy, expanded school choice, made it harder for crime and personal injury victims to sue, eliminated a unanimous jury requirement for the death penalty, and given the governor more leverage in the war he declared on “woke Disney.”

There was a time not long ago when legislatures were, by and large, pragmatic institutions. Political scientists generally agree that began changing after the 2010 midterm elections. That year, most of the nation’s attention was focused on the fact that Republicans regained a majority in the House and added substantially to their number in the Senate. Less noticed in the tea party wave was that the GOP also picked up 680 seats in legislatures across the country — more than at any other time in modern history.

Part — but only part — of what is happening on the state level now can be attributed to aggressive gerrymandering. “Gerrymandering exaggerates a problem that would exist in its absence,” says Justin H. Kirkland, a professor of politics and policy at the University of Virginia. He noted that, in many states, even the fairest of maps would give Republicans an advantage because their partisans are spread widely across suburban and rural areas, while Democrats tend to be more concentrated in urban centers.

State-level elections also are infected by the same tribalism that afflicts national politics, Kirkland adds. Split-ticket voting is rarer than it used to be, and candidates’ stances on the issues tend to be less important to voters than simply whether they have a “D” or an “R” after their names. Only two states — Virginia and Pennsylvania — currently have divided legislatures, in which each party has control of one house; as recently as 2009, there were eight.

Meanwhile, there’s scant evidence that voters even know all that much about who their state lawmakers are — or what they are up to. Steven Rogers, a St. Louis University political science professor, took a national survey in 2018 and asked people to name their state representative — or at least make a stab at it. Only 11 percent knew the right answer, 31 percent gave a wrong one, and 18 percent said they had no clue. (Most, however, are aware of which party controls their legislature.)

Nor do state legislative incumbents generally feel the heat from the voters. Rogers notes that nearly half of those running for reelection in recent decades have faced no challenger in the general election, and more than one-third ran unopposed in both the primary and general election contests.

Adding to this unhealthy situation is the continuing decline of local media, which has created what Rogers calls a “severe visibility problem.” That’s another way of saying hardly anyone is keeping watch anymore. News outlets have shrunk or shut down their state capital bureaus, which were once a coveted assignment for sharp-eyed reporters. Across the country, there are fewer than 1,800 full- and part-time journalists covering state government — about one-third of the number who were credentialed to cover the 2022 Super Bowl, Rogers notes in his upcoming book, “Accountability in State Legislatures.”

Many Democrats acknowledge they were not sufficiently focused on what was happening in state capitols, either. While Republicans were making gains in state houses over the past decade, Democrats put their resources into presidential and congressional races. That has left them out of position in the key battlegrounds where the hottest questions are being decided, and where decisions that will affect millions are being made. The transformation of state legislatures “came out of nowhere, seemingly, though not for those who were watching,” says the Brennan Center’s Weiser.

Everyone should be paying attention now. Democrats regularly cite the fact that they have popular support on their side on such issues as abortion and guns and LGBTQ rights. But Republicans have for years understood this to be a long war that can be won if they stay close to the ground. If the other side doesn’t meet them there, they will continue to march ahead.