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Arkadi Gerney, Sarah Knight
October 18, 2024
The American Prospect
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_ Rebalancing conflicts over state policy will require that blue
states wield power differently. _

, Illustration by Alex Nabaum

 

_This article appears as part of a special issue
[[link removed]] of _The American
Prospect_ magazine on state policy divergence and
aggression. Subscribe here [[link removed]]._

No matter who wins the presidential election a few weeks from today,
the great divides between Red and Blue America will likely persist.
The centers of gravity for resistance to President Biden’s
administration—and more broadly to the culture, worldview, and power
centers of Blue America—are not found under the golden chandeliers
of Mar-a-Lago, or behind the door of the ever-rotating House
Speaker’s office in Washington. Rather, the beating heart of that
resistance can be found inside the state capitols that are
unilaterally controlled by Republicans. And those state government
leaders, the engines that propel policy division and political
conflict, aren’t going anywhere.

As political scientist Jacob Grumbach
[[link removed]] describes,
concentrated partisan power, which has built up over the past 30 years
and is approaching an apex, means that the states, once hailed by
Justice Louis Brandeis as laboratories of democracy, are increasingly
turning into laboratories for partisan advantage. And this has stirred
the latent potential for rising interstate aggression and conflict,
with states governed by Republicans in particular adopting policies
and practices _expressly_ designed to impose their power and policy
preferences on unwilling citizens, officials, businesses, and states
beyond their borders.

To be fair, blue states have also used policy to drive national
standards. For decades, conservatives have fretted that California’s
emissions and environmental standards stand in for the nation, since
it may be too expensive to make one product to meet California’s
strict requirements and another for Nebraska’s. Yet our review of
state actions in recent years suggests that red states are more
determined on this front, and more effective from the perspective of
achieving their objectives.

In our view, effective responses to the increasingly ambitious
red-state aggression hinge on two critical objectives. The first is to
win (or at least not lose) the policy battles around which these
conflicts are arising, vindicating the power of blue-state voters to
determine their own destinies. The second is to contain the conflicts
between states sufficiently to avoid a conflagration. You could say
that these objectives draw from two doctrines, one from recent legal
theory and practice, and one from common negotiating
strategy: _constitutional hardball_ and _deterrence_.

In the face of red-state aggression, we think it’s time for blue
states to embrace their governing majorities as affirmative sources of
power—and began to exercise those powers more fully, more
effectively, and with greater coordination.

LARGE-SCALE INSTANCES OF INTERSTATE AGGRESSION are obviously not
without precedent in American history. The decades before the Civil
War saw rising efforts by slaveholding states to force free states to
return what the people of soon-to-be Confederate states saw as their
property, and comply with pro-slavery requirements that violated the
laws of states like Maine and Ohio. Free states not only refused to
follow these laws, but attempted to use their power within the
federalist system to refuse admission to new slaveholding states. In
the decade before the descent into civil war, legislative aggression
and legal gamesmanship often evolved into militia violence and clashes
among rival armed mobs. Today’s provocations—if less frequently
violent so far—recall that era, reflecting a new and dangerous level
of modern hostility.

In a 2017 essay
[[link removed]], conservative
academic Angelo M. Codevilla compared the deep divisions among
“countrymen who increasingly regard each other as enemies” to the
fundamentally different worldviews that characterized mid-century
conflicts between the U.S. and the Soviet Union. Believing that “so
many on all sides have withdrawn consent from one another,” and
despairing that “it is difficult to imagine how the trust and
sympathy necessary for good government might ever return,” Codevilla
used an indelible phrase to describe this era: “the cold civil
war.” And, he warned, “statesmanship’s first task is to prevent
it from turning hot.”

The best way to force Republicans to re-evaluate their asymmetric
interstate aggression is to remove the asymmetry.

While we disagree with much of the ideology and purported facts that
underpin Codevilla’s threat assessment, the description of a cold
war rings true. Of course, we don’t share the conservative
movement’s ambition to starve the federal government until it could
be “drowned in a bathtub.” So it is perhaps unsurprising that
Democrats have only haltingly and half-heartedly embraced what we
would describe as progressive federalism: the exercise of power at the
state level to make tangible progress, shape national policies, and
counter ideological advances from the right.

Progressives tend to favor national projects, pouring our energy into
securing rights, freedoms, power, and a decent life
for _all _Americans. Strategies that rely on expanding state power
may feel antithetical to our core project and values. But, returning
to the fundamentals of American government, we need to be realistic
about the political environment and constitutional structures that
constrain us, and open to exploring all available options.

In 2004, Mark Tushnet’s landmark essay
[[link removed]] described
constitutional hardball as “consist[ing] of political claims and
practices—legislative and executive initiatives—that are without
much question within the bounds of existing constitutional doctrine
and practice but that are nonetheless in some tension with existing
pre-constitutional understandings.” At the federal level,
constitutional hardball can be seen in changes to Senate rules on
nominations (as practiced by Democrats in 2013 and Republicans in
2017); the penalization of political opponents, like the targeted
Republican policy that limited state and local tax deductions, which
disproportionately affected blue states and cities as part of the 2017
Trump tax cuts; or the use of tools like impeachment in unprecedented
circumstances, such as recent Republican efforts to remove Homeland
Security Secretary Alejandro Mayorkas.

At the state level, constitutional hardball looks like aggressive
partisan gerrymandering, or legislative efforts to overturn reforms
enacted by ballot measures that represent the direct will of the
voters. Just as they have been heavier users of interstate aggression,
Republicans have been far more sustained in their employment of
constitutional hardball at all levels—a condition that has been
described as _asymmetric hardball
[[link removed]]_.

We view a deterrence strategy as the key to getting out of this cycle.
The best way to force Republicans to re-evaluate their commitment to
asymmetric interstate aggression is to remove the asymmetry. As legal
scholar Jack Balkin argues
[[link removed]],
“When your opponents engage in constitutional hardball in order to
get their way, the correct response is not to wring your hands and
urge them to play fair by the old rules … Rather, the correct
response to constitutional hardball of this sort is to engage in
constitutional hardball of your own, in order to make the other side
come to the bargaining table and agree to a new set of understandings
about how the game of politics is to be played.” Other scholars
have made the same point
[[link removed]]:
If you want to end constitutional hardball, you have to get on the
field.

The hallmark example of interstate aggression in recent years is Texas
moving undocumented migrants to blue-state cities. AP Photo

SO IF REPUBLICANS ARE IN FACT ENGAGED in a game of asymmetric
hardball, how should blue-state Democrats respond? Given our twin
objectives, we believe blue states should engage in a bold and
coordinated counteraggression strategy. This unfamiliar and perhaps
unwelcome territory is likely not only our best path to protecting,
defending, and advancing rights and shared policy agendas, but also
essential to avoiding the greatest systemic risks to American
democracy associated with asymmetric, unchecked, and rising red-state
aggression.

Effective governance in blue states—and, critically, across closely
divided states as well—has to take seriously the threats and
opportunities that stem from the great chasms in policy across states,
as well as the potential for state laws, judicial decisions, and
executive actions to affect conditions outside a state’s boundaries.
As blue-state leaders consider their options, they have a lot of tools
available to them:

LEVERAGING ECONOMIC, CULTURAL, AND PEOPLE POWER. The 17 blue trifecta
states represent 47 percent of U.S. GDP, versus just 37 percent for 23
red trifecta states. Blue states should leverage economic power to
shift business behavior in the direction of their favored policies,
and toward investment in the companies, industries, and products that
will benefit a climate transition, raise standards for workers, and
promote a healthy middle class. The blue trifectas control roughly
twice the pension fund assets of red trifectas; they should coordinate
and deploy that investment power more effectively and intentionally.

For example, blue states can use pension funds to make investments in
solar and wind operations, not only in their own states but also in
states like Texas, expanding the political power of renewable-energy
providers. Taxing out-of-state residents for legal marijuana
purchases, to use another example, could not only spur citizen demand
in states where cannabis remains prohibited to institute their own
legalization regimes, but fund critical blue-state programs in the
meantime.

EXPLORING POLICIES THAT ARE BETTER AND MORE HUMANE THAN MIGRANT
BUSING, BUT THAT CREATE SIMILAR POLITICAL OPPORTUNITIES AND IMPOSE
SIMILAR POLITICAL COSTS WITHIN RED STATES. The hallmark example of
interstate aggression in recent years is the migrant busing strategy
that Texas Gov. Greg Abbott initiated in 2022, which has physically
moved nearly 120,000 undocumented migrants to cities in blue states.
Successful countermeasures need to be good politics within blue states
and divisive among Republicans in red states; they need to create
immediate effects in those red states, and those effects need to be
tangible in ways that change residents’ minds and create windows of
political opportunity.

That might include blue-state efforts to bulk-purchase or manufacture
low-cost insulin, not only for California residents, but also for
Idahoans who can’t otherwise afford essential medicines, and who may
begin to wonder why their own red state isn’t investing in their
health and well-being. There could be a doubling down on existing
efforts
[[link removed]] to
establish mobile mifepristone clinics that dispense abortion care
medications at or near borders with states that prohibit it. Another
option could be blue states making up for persistent shortages of
teachers or health care professionals by recruiting in red states,
where restrictive rules on teaching or abortion bans create
frustration and despair within those professions.

FORGING COMPACTS AND ALLIANCES THAT CREATE EFFICIENCIES OF SCALE AND
COMPARATIVE PURCHASING ADVANTAGES. State procurement alliances sprang
up around COVID, enabling groups of states to buy PPE at lower cost
and avoid cutthroat competition with each other. Similar advantages
might be realized if blue states banded together to procure voting
equipment and educational materials, or if they established mutual aid
agreements and more portable licensure requirements.

States have also engaged in agreements around climate action and
reproductive freedom. We could add other creative compacts, like
agreements that use pooled funding to address regional housing
shortages—as has been initiated
[[link removed]] in some
regions [[link removed]]—or
ones that make things like voter registration or occupational
licensing and accreditation transferable across borders. It could take
the form of concerted efforts by blue states to provide free or
low-cost training to medical and nursing school students whose
red-state schools no longer offer training in the full array of
pregnancy, miscarriage, and abortion care, with the expectation that
some would stay and lend their talents to blue states. On the more
aggressive side, goods that arrive in blue states could be assessed
additional fees if they come from right-to-work states, on the grounds
that they would have to be inspected further for quality and safety.

ENGAGING IN A “RACE TO THE TOP” THAT RAISES STANDARDS IN BLUE AND
RED STATES ALIKE. Minnesota’s “North Star Promise” program
provides free college tuition for some low- and moderate-income
students who are Minnesota residents. Because Minnesota and North
Dakota compete to attract the region’s top students, the program had
the effect of forcing North Dakota to meet Minnesota’s standards.
Similar programs might work in other regions—particularly where the
promise of tuition breaks could overlap with the chance to attend
college in a state where abortion is safe and legal.

After what we’ve seen in Springfield, Ohio, where Haitian immigrants
who were filling jobs and helping the community thrive were demonized
by the top of the Republican presidential ticket and harassed, a
blue-state program that encourages communities to take in skilled
foreign workers might be another “race to the top” strategy. Rural
counties that voted for Joe Biden in 2020 had above-average
in-migration population increases, and this strategy could help
incentivize more of it.

WE’RE BEGINNING TO SEE EVIDENCE of blue-state leaders using
hardball and deterrence strategies successfully to contain aggression
in some contexts. For instance, after getting rolled by Republicans in
the 2000 and 2010 redistricting cycles, Democrats entered the 2020
cycle with a more ambitious and aggressive approach. After a 2019
Supreme Court decision
[[link removed]] effectively
blessing partisan gerrymandering as a constitutional practice, key
Democrats abandoned quixotic appeals for fair districts and began to
fight fire with fire. Eric Holder’s National Democratic
Redistricting Committee and others worked to shift the balance of
power, drawing maps that consolidated power in Democratic trifecta
states. As one headline
[[link removed]] summarized:
“The House Map’s Republican Bias Will Plummet in 2022—Because of
Gerrymandering.”

Meanwhile, Democrats’ willingness to take the gloves off made
compromises possible that would not have been viable in the absence of
credible counterthreats. In Wisconsin, for example, Janet
Protasiewicz’s 2023 state supreme court victory signaled a real
possibility that the state court would redraw the extreme Republican
gerrymander of legislative districts. The court did strike down the
existing legislative districts
[[link removed]] as
unconstitutional, and intimated that it would draw the maps themselves
if the legislature didn’t respond. Democrats wielded that threat to
force the Republican-controlled legislature (itself the product of
extreme gerrymandering) to compromise on a less gerrymandered
redistricting map
[[link removed]] that
gives Democrats a real chance to win a majority.

The most aggressive strategy blue states can deploy is making their
states great places to live.

We also see versions of hardball and deterrence in late-stage efforts
to game the Electoral College before November. Throughout this year,
Nebraska’s Republican governor and legislature floated the prospect
of a special session to reconsider the state’s allocation of
electoral votes. While most states use a winner-take-all approach to
allocate electors, for more than three decades Nebraska has used a
“split” system, where the statewide winner gets two electoral
votes and the winner of each of three congressional districts gets one
electoral vote. While Nebraska’s statewide vote has gone to
Republicans by large majorities for many cycles, Democrats are
competitive in the state’s Second District (which Barack Obama won
in 2008 and Joe Biden won in 2020). If enacted, the change could have
been decisive: A 270-268 Harris-win electoral map, which is very
possible in a couple of scenarios depending on who wins the swing
states, could shift to a 269-269 Harris-Trump tie, allowing likely
Republican majorities among U.S. House delegations
[[link removed]] to
elect Trump president.

Democrats ultimately hit on a counter-hardball deterrence strategy to
check the Nebraska Republican power play. Maine also allocates
electoral votes with a split system. There, Trump won the electoral
vote from Maine’s Second Congressional District in 2016 and 2020,
but Democrats have a trifecta and the statewide vote advantage. In
late April, Maine’s Democratic House majority leader Maureen Terry
announced that Maine would advance its own winner-take-all law if
Nebraska moved forward, a move that would effectively cancel any
potential electoral advantage.

At this writing, Maine’s counteraggression appears to have
successfully deterred and delayed Nebraska. Nebraska Republicans
attempted a last-minute late-September play to change Electoral
College apportionment during a window where Maine could not respond
(Maine’s constitution imposes a 90-day waiting period for a law to
become effective absent a two-thirds majority vote—a supermajority
Maine Democrats do not have). But the key Nebraska Republican
holdout cited
[[link removed]] the
very last-minute nature as a principal reason for his opposition. So
it appears neither state will change its electoral vote allocation
before the election. Deterrence worked.

WHILE THESE ARE ENCOURAGING SIGNS OF LIFE from blue-state leaders,
hardball, deterrence, and counteraggression are far from their default
or dominant political strategies. Divided Democrats in New York state,
for example, agreed to a weak redistricting compromise
[[link removed]] earlier
this year that left several potential competitive and blue-leaning
House districts on the table. And some of Maine’s Democratic leaders
were notably AWOL when Terry fired her warning shot at Nebraska.

Some of the reluctance to vigorously pursue blue-state
counteraggression strategies reflects a nostalgia for national
solutions. That impulse is somewhat understandable: It would be better
if Congress or the courts established national rules. Indeed, the
mid-20th-century era of lesser partisan policy divergence across the
states coincided with a strong federal government. But the combination
of the distorted Electoral College system, Senate malapportionment,
and the conservative capture of federal courts make that an extremely
unlikely bet in the coming decades. Under these circumstances, hoping
for some federal _deus ex machina_ to save us from interstate
conflict seems not just optimistic, but unrealistic.

Let’s consider the best-case scenario. It’s possible that Election
Day will create a federal trifecta for President-elect Harris. If it
does, relying on federal mechanisms to resolve conflicts among the
states is still a weaker bet than coordinating state power, for three
reasons. First, the Biden administration has been remarkably muted in
response to recent episodes of red-state aggression around abortion,
migrants, and the growing set of state-level decisions barring
companies from diversity, equity, and inclusion (DEI) programs or
investment decisions that incorporate environmental, social, and
governance (ESG) goals. Occasional interventions, like the Justice
Department contesting Alabama’s authority to criminally prosecute
abortion travelers, are overshadowed by the far more numerous times
the federal government did nothing at all.

Second, to the extent that federal authority is relevant to resolving
(or accelerating) conflicts between states, that authority rests
principally in the federal courts, a branch that’s likely to be
stuck in a conservative vise grip for decades to come. Recent Supreme
Court cases overturning long-established “_Chevron_” deference to
federal rulemaking will likely only accelerate state policy divergence
and interstate aggression.

Finally, the federal government’s structure is beholden to the
biases of large, low-population states, even as the U.S. population
becomes more concentrated in blue urban areas. This could be the
reason that the Senate flips to Republicans this year, even as more
voters support Democratic Senate candidates, and Democratic senators
represent a considerably higher percentage of the population. As the
redistricting and Electoral College allocation fights portend, there
is no path to durable federal power without the creative, ambitious
exercise of state power.

Ultimately, the most aggressive strategy blue states can deploy is
making their states incredibly dynamic economies that are also great
places to live. By many measures, this is already the case.
Blue-staters live, on average, significantly longer, healthier lives,
with a 7.1-year gap
[[link removed]] in
life expectancy between Hawaii (81.8 years) and Mississippi (74.7).

But blue-state leaders don’t have a monopoly on good ideas, and we
don’t think that across-the-board progressive policy maximalism is
the answer to red-state aggression. The winning strategy also has to
address some serious problems that have emerged in blue states around
the cost of living in general and high housing costs in particular
(see sidebar). Successful blue-state counteraggression cannot be
decoupled from developing and implementing highly effective policies
that make more Americans want to live in Blue America.

The strategy of coordinated, calibrated counteraggression we propose
should not be misunderstood as a license for knee-jerk extremism or
escalating cruelty. We certainly aim to understand Ron DeSantis’s
playbook and Greg Abbott’s tactics in order to comprehend what makes
them politically powerful. But successful counteraggression demands
something more and better than simple political plagiarism. Our
approach must be appropriately differentiated by our values. An
effective blue-state response does not involve herding vulnerable
people onto buses and driving them a thousand miles to leave them on
cold city streets. Instead, we’ll need to imagine how to use _all
the power_ of blue states—creatively, boldly, aggressively—not
only to help people who live within them, but to begin to use that
leverage to reset the national balance of power.

ARKADI GERNEY and SARAH KNIGHT are strategists whose work focuses on
the intersection of law, politics, policy, and democracy.

_The American Prospect_ is devoted to promoting informed discussion
on public policy from a progressive perspective. In print and online,
the _Prospect_ brings a narrative, journalistic approach to complex
issues, addressing the policy alternatives and the politics necessary
to create good legislation. We help to dispel myths, challenge
conventional wisdom, and expand the dialogue.

Founded by Robert Kuttner, Paul Starr, and Robert Reich, read the
original 1989 prospectus for the magazine.
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and Kuttner
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reflecting on 25 years of politics and change.

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