Voting booths are set up at the Orange County Supervisor of Elections Office on the first day of early voting for the 2022 midterm general election in Orlando for the 2022 midterm elections.Paul Hennessy/SOPA Images/LightRocket/Getty
More than any election in recent memory, the fight for control of state legislatures in this November’s midterms looms large. State legislatures are a major source of power in American politics—from education to housing to redistricting and much more—and they are typically much more productive than Congress. But this year, the US Supreme Court has put the spotlight on state legislatures in a new way.
When the Supreme Court ended the constitutional right to abortion this June, it enabled each state to make its own laws about abortion access. This added weight to the question of which party controls a state’s legislature. Further, this term, the Supreme Court will decide whether to embrace the “independent state legislature” theory, a fringe theory which posits that state legislatures can gerrymander and pass voter suppression laws virtually unchecked in federal elections. If the court rules for this theory, it could also provide cover to GOP-controlled legislatures that want to overturn the results of their state’s presidential elections in 2024 and beyond.
With both abortion and election subversion likely in the hands of state lawmakers, both Democrats and Republicans are focusing on state legislative races this year. The Republican State Leadership Committee (RSLC), which helps elect Republicans in state legislative races, has raised a record $71 million this cycle. The Democratic Legislative Campaign Committee (DLCC), which helps elect Democrats to statehouses, has broken records with a $47 million haul. Both groups say the other side, with help from outside super PACs, has the monetary advantage.
But Republicans do seem to be better off. Not just because this midterm election is shaping up to favor them, but also because the party has historically invested in state legislative races while Democrats have focused on the national level. In 2010, a wave election for Republicans, the GOP made a huge investment in state legislative races. Because the census and new Congressional maps come around every 10 years, Republicans saw an opportunity to control state houses and therefore state and congressional political maps. Their bet paid off, and Republicans gerrymandered themselves into power, particularly at the local level. Many of those maps have held strong for the last 12 years, so that even now, the playing field favors the GOP in swing states. Today, Republicans have complete control of 30 state legislatures; Democrats control 17—both parties have about an equal number of vulnerable chambers, which will likely leave Democrats in an equal or worse position after the midterms.
Jessica Post ran the DLCC’s field operation in 2010, where she witnessed the GOP wipe Democrats from power across the country. In 2016, she returned as executive director. Post spoke to Mother Jones about why Democrats are behind at the state level and what would happen if they invested long term in local politicians.
In June, the Supreme Court turned over the issue of abortion to the states. Has that created more interest in state legislative races?
State legislative races have always been extremely important, but overlooked, I think, by a lot of Democrats, as our donors and institutions have focused on federal power instead of state power. But now everything is increasingly moving to the states. With the reversal of Roe, the stakes are higher than ever because these elections will really determine if legal abortion is accessible in individual states, or if patients are going to have to spend exorbitant amounts of money to access care, and then potentially be prosecuted and sent to jail if they access care in many of these states.
The other issue that is bringing more national attention to state races is concern about our democracy. Republican state legislatures tried to overturn Biden’s victories in several states in 2020. All of a sudden state legislatures are a key part of faithfully carrying out federal elections.
With the advancement of this independent state legislature doctrine, this Moore v Harper case that the Supreme Court will take a look at, the legislatures want to be able to [determine the laws governing elections] on their own. And this is especially concerning because we have more than 750 Republican election deniers—folks that believe in the big lie, that are existential threats to democracy—running for office, and those are just the ones that we’ve been able to identify. That’s definitely an undercount.
That’s 750 election deniers running for state legislative seats?
That’s just the state legislatures specifically. One in eight Republicans. We saw what they did in the 2020 election, where they did everything they could to cast doubt on the election results. In those states where they had these fake audits of election results, what they were ultimately trying to do was undercut the accuracy of the popular vote and then establish a case for the state legislature instead to allocate electoral votes. I’m happy with the January 6 committee; they’ve shined a light on it. But I think it’s way worse. The January 6 committee is saying Donald Trump is the singular figure that is bad for democracy. But for every Mark Finchem or Doug Mastriano—these statewide candidates that have become known for election denying—there are dozens more at the state legislative level.
You mentioned Moore v. Harper, which is this Supreme Court case in which the court may decide that state legislatures have virtually unchecked authority over federal elections in their states. The Supreme Court is pretty partisan right now, and I assume the allure for the GOP-appointed justices is that Republicans have this investment and leg up in state legislatures already.
The US Supreme Court is run by extreme conservative partisans. They know that the majority of state legislature chambers are controlled by Republicans. They understand that in battleground states, the Republicans do [already] control the levers of the election.
After President Obama won in 2008, Republicans thought that they might not be able to win statewide elections, or US presidential elections ever again, because of the composition of the Obama coalition. So Republicans doubled down in state legislatures in 2010. They flipped 21 state legislative chambers on election night 2010, including a number in battleground states. So we still don’t have democratic majorities in Wisconsin, Michigan, Pennsylvania, and in Arizona, places where we’re really competitive statewide, [because] the state legislative maps in many cases have been gerrymandered against us.
Which state legislatures are being contested this cycle, where abortion and election meddling could be at stake?
Michigan—their state legislative districts did improve after redistricting. We think that we have an opportunity to make significant gains in Michigan this cycle. We’re also protecting the Colorado State Senate, where there are radicals running for the Colorado legislature.
There’s a possibility in an election cycle like this that we could go backwards and lose control in Democratic strongholds. So we’re doing a lot of investing to protect those Democratic majorities in places like Colorado, New Mexico and Nevada. Because we may have a war over fake electors or over independent state legislatures doctrine in these states. We need to make sure that we shore up some of our states that people consider safe that obviously are absolutely not safe this cycle.
You mentioned that Republicans have put a lot of money and organizing into capturing state legislatures. How does the Democratic Party view these races?
We’ve relied on federal power as Democrats and progressives for so many things. From integration to the Voting Rights Act and marriage equality, we rely on federal action to get this progress. Democrats don’t understand that federal action on these rights start in the states, with states passing marriage equality to lay the groundwork for progress nationally.
I’ve talked to operatives in DC who think—it’s like the baseball analogy—when you get to the major leagues, that’s when you have real power. I feel like 50 percent of my job is just ringing an alarm bell about the importance of state legislative races. And we have a lot of folks in our party that just don’t understand the raw mechanics of power in the states. So a lot of our job is to educate our Democratic donors and to educate folks across the country about this lever of power that is, I think, more accepted within the Republican Party as a key lever of power.
And you attribute this to habit? Because, like you mentioned, in the past the Supreme Court or Congress has protected Democratic goals.
As a party, we should have learned a giant lesson after 2010 about gerrymandering and voting rights and state-based power. Democrats will say things to me like, ‘Well, I think with Moore v. Harper, [Chief Justice John] Roberts is going to intervene.’ So as a party we have this hope that some of these conservatives might save us. But the federal government’s not coming to save us. Conservative justices aren’t coming to save us. We as a party have to save ourselves. I do think it’s reflexive.
If you’re a democratic donor, it’s much easier to get your head around the key races for governor or it’s easier to get your head around the US Senate. President Biden has said give me two more Senate seats and we’ll protect Roe [by passing federal legislation that enshrines abortion access nationally]. I hope that that passes. But the truth is there are a lot of things that have failed to pass federally, whereas the states are passing hundreds of pieces of legislation around abortion rights and voting rights.
You’ve described the Democrats state legislature strategy as trickle down—spend on national and statewide races and let that trickle down to the statehouses. If you could change it to trickle up, how would Democratic politics change?
I think it could be a sea change for us as a party. We would see increased competition across the country. We’d see the Democratic brand held up in areas like rural and ex-urban areas and small towns that have been more difficult to win, and that we [often] cede to the Republicans. We’d see improvements in voting laws, access to abortion and reproductive health, and hopefully a greater understanding by folks across the country about the level of power that exists in state legislatures. And [we would be able to communicate] “here’s what it means to be a Democrat in Missouri or a Democratic in rural Wisconsin.”
There’s a lot of talk about how Democrats are urban elites, and they’re out of touch with the rest of Americans. Do you think having serious candidates in non-urban areas would help remedy that?
One thousand percent. Part of our challenge is a lot of our party’s representatives come from these urban elite areas. And so with the nationalization of press, and even some of our campaign messaging, it appeals more to urban elites.
For example, some people in our party want to compare cost of living increases to the cost of living increases in Europe. People don’t think about that, right? They just think, can they access childcare? Can they access health care? And can they put their kids in good schools? And can they make a living? Those are the things that we need to start addressing really directly.
When you live in a place like Springfield, Missouri, or Duluth, Minnesota, or Tulsa, Oklahoma, you’re really thinking about the priorities of the people in your neighborhood. And you’re able to go and represent that. There’s so much we can learn from the messaging from state legislative candidates because they’re so close to the voters.
You talk a lot to donors as you fundraise for the DLCC. With abortion and democracy issues looming large, have you seen a shift in how donors are thinking about local versus national races?
There’s certainly been an increase in folks understanding the role of secretaries of state and understanding the role of state-based election administration.
It’s gonna take us a long time to build that power in states like Alabama, Missouri, Arkansas: places that Democrats held and lost within the past 20 years. People think, ‘Oh, it’s a quick fix [to win at the federal level]. But we are still in a country now where your access to abortion, your access to vote, everything is determined by who runs your state.
