The Most Important Midterm Elections Have Nothing To Do With Congress
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Over the last two years, state legislatures have served as the epicenter of the far-right’s assault on American democracy. Republicans have used their dominance of that level of politics, one that often sails beneath the radar in major election seasons, to enact new restrictions on voting, target state election systems with conspiracy theories meant ultimately to undermine them, and potentially pave the way for future efforts to overturn elections they lose in ways former President Donald Trump failed to do in 2020.
Since the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health this summer, they have also used state legislatures to enact broad limitations on abortion rights, in many states making the practice virtually illegal even in the most extreme circumstances.
Democrats have been unable to pass legislation that would bolster democracy or protect abortion rights through the Senate, and likely won’t be able to even if they hang onto their slim majorities in Washington next month.
That has heightened the stakes of this fall’s battle for control of state legislatures, turning often-overlooked races into perhaps the most crucial contests on the November ballot: While congressional elections, Senate races and gubernatorial contests have predictably dominated headlines in the run-up to the 2022 midterms, it’s the hundreds of lower-profile races farther down the ballot that may ultimately decide the future of abortion rights and American democracy itself.
“It all comes down to freedom: Freedom to live your life without fear or oppression and the freedom to choose who represents you,” Aaron Kleinman, research director at the States Project, told HuffPost in a recent interview. “So if you care about freedom, you should really care about state legislatures right now. Because there’s a five-alarm fire going on with the issues around freedom.”
The States Project, a progressive group that focuses on funding and boosting key state legislative campaigns, recently announced plans to spend $60 million in battleground states like Arizona, Michigan and Pennsylvania, three states where Democrats are within range of retaking majority control of one or both chambers in each legislature. It has also homed in on states like North Carolina in an effort to prevent right-wing Republicans from winning supermajorities that would blunt the power of Democratic governors.
Kleinman, popularly known as @BobbyBigWheel on Twitter, recently spoke with HuffPost to discuss the current state legislative landscape a month from the Nov. 8 elections — including the states and candidates to watch, whether Democratic optimism in states like Michigan is justified, and why the importance of state legislative races has reached “a level we haven’t seen in decades.”
The conversation has been lightly edited for length and clarity.
Naturally, the main focus is on Senate races, the battle for Congress, and governor’s contests. But why should everyone be watching state legislatures in November?
There are two really big issues that state legislatures control more so than even other statewide elected officials.
The first is abortion access. In almost every state, the state legislature basically can put some type of restriction on – or remove them from – access to abortion, and that’s really owing to the Dobbs decision. So that means your right to make your own medical decision, even in the most extreme circumstances, depends on where you live: If you live in Denver, you’re pretty well protected. If you live in Detroit, you’re facing a potential abortion ban with almost no exceptions. So that’s the first really big issue that shows you just how your state legislature matters.
The second one is really democracy itself. The Supreme Court is taking up a case called Moore v. Harper, which could hand state legislatures complete control over federal elections and would give them the power to overrule their own voters and select the next president if they wanted to. That would be without any oversight from their state’s governor or courts, and it’s actually what Trump and his team asked Arizona to do after 2020. If you remember [Arizona state House Speaker] Rusty Bowers and his testimony before the Jan. 6 committee, he told the Trump team, “I don’t have any legal authority to throw out electoral votes and put ones for you in their place.” Moore v. Harper would give him that authority.
So it all comes down to freedom: Freedom to live your life without fear or oppression and the freedom to choose who represents you. So if you care about freedom, you should really care about state legislatures right now. Because there’s a five-alarm fire going on with the issues around freedom.
It’s almost a cliche to say that the current election matters more than any in history, but it sounds like you think that is actually true this year.
Yeah. Those two elements — the Dobbs decision and the potential for Moore v. Harper to wreak havoc on the country — have really increased the importance of state legislatures to a level that we haven’t seen in decades.
Pro choice supporters gather outside the Michigan State Capitol during a "Restore Roe" rally in Lansing, on September 7, 2022. (Photo: Jeff Kowalsky via Getty Images)
Democrats lost a lot of ground in state legislatures over the last decade, and their optimism in previous cycles hasn’t really led to the big wins they’d hoped for. Do you sense that the urgency is there for these races in this cycle?
In 2018, there was actually a lot of progress made. [Democrats] held on to Maine, they broke a supermajority in North Carolina, you saw Democrats take over in Colorado and New York. So there has been progress since the nadir five or even 10 years ago.
But progress isn’t always a straight line. One case of that is Virginia: You might think of Virginia as the place where Democrats lost the House in 2021, but if you look at 2017, Democrats ran about 5% behind the top of the ticket in races for the House and lost a number of seats that [Gov.] Ralph Northam actually carried. In 2021, Democrats ran more or less even with [Democratic nominee] Terry McAuliffe, and they actually ran ahead of him in a number of key districts. So even though some of the outcomes aren’t what you want, they’re a real sign that we’re kind of catching up.
The right wing has a five-decade head start on state legislatures, going back to the Powell memo. We’re building back, but it was never going to be this overnight thing. And it can be frustrating to not see that progress really imminently, especially in a year where we might be buffeted by some headwinds, but the progress is still there.
What’s the Powell memo?
The Powell memo was written by future Supreme Court Justice Lewis Powell, for the Chamber of Commerce, which wanted to provide a roadmap to right-wing power. It had three main prongs. The first was taking over the judiciary, which is why you have the Federalist Society. The second was creating alternate right-wing institutions including a media arm, which is why you have Fox News, the Heritage Foundation, etc.
And the third is taking over state legislatures, so they could pass regressive laws that take away fundamental rights once the right-wing judiciary gave them that power and [while] right-wing institutions serve as their PR arm.
So what’s the lay of the land in 2022?
A month out, you can really see it going either way. There have been some favorable trends, but it’s still a midterm, and the party shut out of the White House tends to do well in midterms. So it really seems like anything can happen. And that’s why it’s so important to all of these candidates to get their message out and get them the resources to do that.
There seems to be Democratic optimism about Michigan specifically, given some of the signals there: a new independent redistricting commission and special election victories after the Roe leak. Is that the best chance for Democrats to flip, and where else are they focused?
There’s a good chance in Michigan because there’s finally a fair fight there. If you look at the last decade, from basically 2012 to 2020, Democrats won more votes than Republicans in statehouse elections there for four of those five elections. But they never won a majority, because of gerrymandering. But in 2018, voters in Michigan passed an initiative that provided for an independent redistricting commission, and now the state has the fairest maps they’ve had in decades. So we’re really focused on Michigan, especially the state Senate there.
Pennsylvania is a state where, similar to Michigan, you have fair maps for the first time in decades, at least at the state House level. They’re in a bit more of a hole there numbers-wise: In Pennsylvania, Democrats have to gain 12 seats to get a majority. But you could still see them making progress this year and really narrowing that majority.
In Arizona, Democrats are one seat away from tying either chamber, so they’re fighting really hard to make sure that they can break that right-wing control of Arizona. But even if you kind of come within one, you can really mitigate some of the worst things coming out of the right-wing legislature there. So many Arizona Republicans really have bought into some of the “Big Lie” conspiracies, but there’s still a few who are holding out. So hopefully, you can work with kind of the pro-democracy Republicans in Arizona to really prevent the worst things from happening there.
You mentioned North Carolina, and it’s kind of the epitome of how aggressive gerrymandering has helped cement Republican power in state legislatures. Democrats don’t have a great chance to flip it this cycle, but how important would it be to prevent Republicans from gaining a supermajority?
If you look at the North Carolina House, the map has a Republican lean, but there’s certainly enough seats where preventing a supermajority is possible.
Gov. [Roy] Cooper (D) has a veto, but if [Democrats] lose any ground there, the far right will be able to override his vetoes.
North Carolina is the closest state that provides access to abortion for a lot of women in the South, so it has nationwide implications. So North Carolina is definitely the biggest supermajority prevention opportunity in the country.
Is Roe the issue that’s really driving Democratic campaigns on the ground, across states?
There are so many extreme bans that are being proposed, so that’s the big thing that’s really animating a lot of these: You’re seeing laws with no exceptions being proposed in a lot of these states.
In Arizona, a court there recently implemented a law that predates the [1881] gunfight at the O.K. Corral that basically bans all abortion in the state. It’s so draconian, it’s so regressive. It’s so kind of counter to the principle that you can kind of just live your life, but it’s there. And unless you vote for a state legislature that is going to try to fight for the rights of people to live their lives freely, then it’s going to stay in place. So it is a really animating thing for sure.
Not long ago, you tweeted about Eva Diaz, a state legislative candidate in Arizona who you argued needed attention “more than any state legislative candidate in the country.” Why is that race so important?
It’s a seat west of Phoenix, what should be a pretty Democratic seat normally. But there was a contested primary, and the guy who won the primary accepted a job to be a lobbyist for a utility company around the date of the actual primary. He resigned and quit the race without giving a heads-up to anyone on the ground. He would be running unopposed. Under Arizona law, when that happens, he stays on the ballot.
Now there are something close to a dozen write-in candidates, and there are more Democrats than Republicans. Between that and the fact that there’s a Democrat on the ballot, there’s a real risk that one of the Republicans is going to end up getting the most votes.
We’ve endorsed Eva Diaz, who is the write-in candidate that a lot of people in the district have coalesced around. She’s had to stand up a campaign from scratch, with just weeks to go before voting starts. In Arizona, most people vote mail-in, so you can’t just stand outside the polling place, you’ve got to get to people in their homes. Thankfully, people have really responded, and we’re close to being able to help her fund that campaign.
And again, in Arizona, it’s one seat between breaking right-wing control of state government or not.
What are some of the other big races that will serve as bellwethers of sorts for whether Democrats can take majorities in these key states?
One race to really focus on is between Kristen McDonald Rivet and [state Rep.] Annette Glenn in Michigan’s Senate District 35. Glenn is the Republican nominee. She won’t say why she wants to audit the 2020 election in Michigan, and her state party won’t commit to abiding by the people’s wishes in the next election. It’s scary, and it’s a pretty close district. So keep an eye on that.
Far-right state legislators and candidates have continued to push the conspiracy theory that the 2020 election was stolen, and policies based on Trump's "Big Lie." A looming Supreme Court case could hand legislatures the power to potentially overturn elections in a way that Trump failed to do (Photo: Brent Stirton/Getty Images)
In Arizona, you have Christine Marsh and Jeanne Casteen, two women running for state Senate against a pair of far-right Republicans who signed a letter to Mike Pence asking him to throw out the electoral votes for Joe Biden.
Those are two districts located next to each other in an area that’s really going to be a bellwether for determining our hopes for democracy and freedom in this country, in 2023 and going forward.
The States Project created a fundraising model called Give Smart that allows small-dollar donors to target certain state legislative races — or slates of races — where the money is most needed and effective. How has that changed the outlook of progressive candidacies in these races?
It’s been helpful to kind of connect people out there who really want to make the biggest difference, and to show them that this is where your dollar goes farthest.
In terms of how candidates run their campaigns, if you can help them fill gaps in their budget and get the word out, it’s really useful for that. A state legislative campaign costs like 3% of a federal election, and people tend to have fewer preconceived notions about state legislative candidates. People are more open to being persuaded at the state legislative level, so it’s just a really effective way to make a difference.
So the dollar just goes much farther than giving another $5 to a bigger Senate or governor campaign that already has, say, $80 million in their account?
The example I’ll use is that [2020 Maine Democratic Senate candidate] Sara Gideon had $15 million left over and she still ended up losing. What a lot of people don’t know about 2020, though, is that Democrats actually increased their majority in the state Senate, and the States Project helped with that effort. We spent about 1% of what Sara Gideon had left over in her bank account if you want to think about just how much farther your dollars go in state legislative elections.
The races just cost so much less, and people are so much more open to persuasion in lower-profile races. If you combine those two things, you can make so much more of a difference if you want to get involved at the state legislative level.
To loop back to the Supreme Court case: If Republicans hold on to a bunch of these legislatures and the Supreme Court rules their way, is the 2024 election at risk of an even bigger effort to contest the results than we saw in 2020?
There’s definitely a risk. We’re really focused on getting a pro-democracy majority in Michigan and Arizona because if you look at those states, the majorities that will be in power on the Safe Harbor Day in 2024, when electors basically are chosen in the states — or are presumed valid in the states — the lawmakers elected in this election will be the ones determining that. So in Michigan and Arizona, it’s really critical that we get as many pro-democracy lawmakers in office as possible in 2022.
And again, in 2020, there were a number of Republicans who were willing to say, “I supported Trump, I voted for Trump, but I’m not going to let the legislature overrule the will of the people.” So even if we end up falling a few seats shy of a majority, our hope is that some of those Republicans will stick around and we can form a pro-democracy coalition with them, and protect 2024.
Then if you look at Pennsylvania and New Hampshire, for example, lawmakers there can be sworn in before that safe harbor deadline in 2024. So in Pennsylvania, even if Democrats fall a little short in 2022, they still have another cycle to try to get there. The Republican leader of the Pennsylvania Senate signed an amicus brief in Moore v. Harper because she apparently wants the ability to throw out election results. So hopefully there can be a pro-democracy majority in Pennsylvania before the 2024 safe harbor deadline.
Those [pro-democracy] Republicans are increasingly rare, given that state legislatures have served as an accelerant for the GOP’s race to the far-right. Candidates for governor, like Doug Mastriano in Pennsylvania, or many of the congressional Republicans who voted to contest the election in 2020, came from state legislatures. Among the GOP candidates in these key races, is the party still racing to the far right?
It is unfortunate that that trend keeps continuing, but we’re seeing the most right-wing candidates win their primaries, by and large.
If you look at Michigan, for example, there was a really concerted effort to push through candidates who would overturn the will of their own voters. So you might see names like Jonathan Lindsey, or Angela Rigas, or Rachelle Smit, who all won primaries after a real push from the far right there. [Ed note: Rigas was in Washington during the Jan. 6, 2021, insurrection at the U.S. Capitol.]
Similarly, in Arizona, you have a number of people that the same forces backed, like [state Senate candidates] David Farnsworth, and Robert Scantlebury. Scantlebury is in a swingier seat, so the hope is that we can defeat him. But some of these candidates are running in very heavily Republican seats, so there’s a real risk that we see the next wave of Marjorie Taylor Greenes coming from the states.
And I assume that heightens the stakes of keeping them in the minority in places like Michigan or Arizona if you care about the state of the country’s democracy?
Absolutely. The last thing you want to give them is a bigger platform.
This article originally appeared on HuffPost and has been updated.
