Watch Out: States Where Control of State Legislatures Is on the Line
In Dobbs v. Jackson Women’s Health Organization, Justice Brett Kavanaugh wrote in his concurring opinion that the majority was “return[ing] the abortion issue to the States.” A more truthful definition is that the Court was returning the question of abortion access to state legislatures, where Republicans have spent the past few decades building disproportionate political power, aided by partisan gerrymandering.
It’s not just abortion — state legislatures have focused on democracy too, adopting a flood of voter suppression bills over the last few years. A New York Times investigation revealed that over 357 current GOP legislators in just a few battleground states “have used the power of their office to discredit or try to overturn the results of the 2020 presidential election.” And, if the U.S. Supreme Court embraces the radical independent state legislature (ISL) theory in a case it will hear later this term, state legislatures will get free rein to set federal voting rules and draw congressional maps without state court oversight.
Each state has a legislature divided into two chambers, typically a lower House or Assembly chamber and an upper Senate chamber. The exception is Nebraska, the only state with a unicameral, single-chamber legislature. State legislatures vary greatly in size and structure (60 members in Alaska to 424 in New Hampshire) and pay and time commitment ($110,00 salaries in New York to none in New Mexico).
During the 2022 midterm elections, 88 of the country’s 99 state legislative chambers, both lower and upper, will hold elections. In several states, partisan control over the legislature is on the line, determined by voters this November and crucial to the future of democracy. While some states have the opportunity to flip their legislatures to blue, states like Colorado, Maine and Nevada are looking to maintain Democratic control.
Arizona
The Arizona state legislature is one of the most closely divided in the country. The Senate has 16 Republicans and 14 Democrats; the House has 31 Republicans and 28 Democrats. Unfortunately, there’s another superlative that Arizona earns — the highest percentage (81%) of the state’s Republican legislators worked to discredit or overturn the 2020 election. The state Senate focused its time after the 2020 election on a costly, fraudulent “audit.” The Speaker of Arizona’s House of Representatives Rusty Bowers (R) — a staunch conservative who dared to reject the false claims that the election was stolen — lost his reelection bid this year and was censured by the Arizona Republican Party.
According to Democracy Docket’s case tracking, as of Oct. 7, Arizona is also the state with the largest number of voting and election lawsuits filed in 2022. The Grand Canyon state is a hotspot for voter suppression legislation, often focused on improperly removing eligible voters from the voter rolls. In fact, there are six lawsuits challenging a single law, including one by the U.S. Department of Justice.
Michigan
The Michigan Legislature currently contains 22 Republicans and 16 Democrats in the Senate and 58 Republicans and 52 Democrats in the House. Michigan has had notoriously gerrymandered state legislative maps in past decades; however, this year, the maps are more competitive than ever. (In 2018, Michiganders created an independent, citizen-led commission via ballot initiative.) The Michigan GOP has tried to pass voting restrictions, but Gov. Gretchen Whitmer (D) has stopped those bills in their tracks, describing herself as “the last line of defense.”
Minnesota
Minnesota leans blue on the statewide level, however, the political geography tends to benefit Republicans in legislative office. The Minnesota Legislature is actually one of only two states where one party controls one chamber and the other party controls the other chamber (along with Virginia, which will not have legislative elections until 2023). There are 34 Republicans and 31 Democrats in the Senate and 69 Democrats, 63 Republicans and one independent in the House.
New Hampshire
Fun fact: New Hampshire’s lower chamber is actually the third largest legislative chamber in the world with 400 members, only behind the United Kingdom’s House of Commons and the U.S. House of Representatives. There are 202 Republicans, 178 Democrats and one independent (plus a handful of vacancies) in the House and 13 Republicans and 10 Democrats in the significantly-smaller Senate.
New Hampshire has the highest percentage of college students than any other state, largely young people from out-of-state. This known fact to the GOP-controlled Legislature has turned into an attack on young voters and student voters. In July 2021, one of the laws that disproportionately impacted students was struck down by the New Hampshire Supreme Court, invalidating the strict, new proof of residency documentation for imposing “unreasonable burdens on the right to vote.” Just a few months ago, the Legislature enacted a law that could discard votes cast by Election Day registrants.
North Carolina
In the North Carolina Legislature, there are 28 Republicans and 22 Democrats in the Senate and 69 Republicans and 51 Democrats in the House. Both the state House and Senate maps initially passed by the Legislature following the 2020 census were found to be impermissible partisan gerrymanders that violate the North Carolina Constitution. The GOP-controlled Legislature was given another chance, with mixed results — the remedial state House plan is much fairer than before, though the state Senate plan still skews towards Republicans. A three-judge panel adopted both maps.
In addition to producing lopsided maps — which have gone up to the U.S. Supreme Court several times — the Republican Legislature has repeatedly passed problematic voting restrictions. In fact, in 2017, the 4th U.S. Circuit Court of Appeals struck down a photo voter ID law after determining that the law was passed with discriminatory intent, concluding that the way the law was designed appeared to “target African Americans with almost surgical precision.” In 2022, another photo ID law is back in court, in addition to limitations on voter assistance.
Pennsylvania
The Pennsylvania General Assembly has 28 Republicans and 21 Democrats in the Senate and 113 Republicans and 89 Democrats in the House. However, the elections will be more competitive than ever after fairer, commission-drawn legislative maps from this latest redistricting cycle were implemented. Unfortunately, the same New York Times analysis found that 78% of Republican legislators in the Keystone State embrace the “Big Lie,” making Pennsylvania another hotspot for election denial.
In June 2021, the Republican-controlled Legislature’s attempts to impose a series of new voting restrictions was halted by the Democratic governor’s veto. This is a notable shift from 2019, when the Legislature passed Act 77, an omnibus election bill that, among other things, established no-excuse mail-in voting. Just a few years makes a big difference, as some of the very same GOP lawmakers who pushed for Act 77 now argue that the mail-in voting provision is unconstitutional.
In every legislature, in every state, democracy hangs in the balance.
States like Georgia, Texas, Florida and Wisconsin should be on this list. Unfortunately, gerrymandering ensures that politicians pick their voters, instead of the other way around, so those legislatures are not as competitive as they should be, based on statewide partisan preferences.
While the “Big Lie” has notably gripped Arizona and Pennsylvania, the unsubstantiated and farcical notion that the 2020 election was stolen from former President Donald Trump is present across the country. Bad voting laws that emerge from Florida, Georgia and Texas often catch the most attention, but Iowa, Arkansas and Missouri are passing disenfranchising voting restrictions too. “We know that the fight is in our own backyards,” wrote New York State Senate Majority Leader and chair of the Democratic Legislative Campaign Committee Andrea Stewart-Cousins. “State legislatures are the soil from which our polity grows, and must be secured against corrosive ideals.” In every legislature, in every state, democracy hangs in the balance.