State legislative races can feel low stakes when compared to national political contests. But 2022 is shaping up a little differently.
Democratically-aligned super PACs and party-affiliated groups are spending tens of millions of dollars around the country to try to change the composition of state legislatures in key swing states, warning that fair elections could hang in the balance.
The Republican Party aims to defend its majorities and to flip chambers in states where Democrats currently control both the legislature and governorship.
In either scenario, these legislative bodies have become increasingly powerful in setting policy around health care, voting, education and reproductive rights.
The U.S. Supreme Court could give state legislatures power over federal elections
Much of Democrats' urgency stems from a case that the U.S. Supreme Court agreed to hear this fall. The outcome of Moore v. Harper, a fight over partisan gerrymandering in North Carolina, could give a fringe legal doctrine known as the 'independent state legislature theory' new legitimacy.
Proponents of the theory argue that the U.S. Constitution gives state legislatures near total control over running federal elections, overriding both state constitutions and state courts. In an extreme scenario, the theory could be used as justification for a legislature "to refuse to certify the results of a presidential election and instead select its own slate of electors," counsel for the Brennan Center for Justice, a non-profit think tank and advocacy group, wrote in June.
That's a real concern for Democrats. After the 2020 election, many Republican lawmakers in states like Pennsylvania, Arizona and Wisconsin took steps to overturn the election or cast doubt on the results.
Four of the six conservative Supreme Court justices have indicated support for the theory in recent opinions.
Currently, the GOP holds majorities in the state legislatures of most major swing states. As a result, Democrats and Democratically-aligned outside spending groups are pouring money into competitive state legislature races where they see an opportunity to flip seats.
"A single Arizona state Senate seat could be more important than any other election in the country this year when it comes to the health and stability of our democracy," says Daniel Squadron, former state senator from New York and founder of the super PAC The States Project.
Spending on legislative races has skyrocketed
The States Project has committed to spending $60 million on these races. Forward Majority, another group promoting Democratic candidates in state legislatures, is investing $20 million this cycle, 70% of which will go to 25 state legislative races in three states: Pennsylvania, Arizona and Michigan.
Much of that spending is just to get voters on the ground in key areas to care about these races.
"Voters often don't know who the candidates are, they don't know what's at stake, and they don't always vote the whole ballot," says Vicky Hausman, founder and co-CEO of Forward Majority.
Those 25 elected officials could be a "bulwark" against attempts, like those following the 2020 elections, to send independent electors to Washington and override the popular vote, says Hausman.
The official party arm, the DLCC, announced it had raised $45 million for these races as of October.
Still, these numbers pale in comparison to how much can be spent on a single congressional contest.
The Republican Party wants to protect its majorities. Gerrymandering helps.
The GOP's aim this cycle is largely to hold its ground.
"We've said from the start that our number one priority this year is defending our razor-thin majorities in states like Arizona, Michigan, and New Hampshire," RSLC Communications Director Andrew Romeo wrote to NPR. "That hasn't changed as we come down the stretch."
The overturning of Roe v. Wade has boosted Democrats, making the possibility of a total "red wave" less certain. Conventional political wisdom dictates that they should win more seats, as the party not in the White House usually does during the midterms.
However, in many states Republicans have another kind of edge. In order to redraw district lines to benefit their own party after the 2010 census, Republicans put in a majority to win state legislatures that year. Even after another round of redistricting since then, very few races are actually in play. The party already holds the majority in 55 of the 88 chambers with elections this year, according to the RSLC.
"It's this endless feedback loop where the state legislature plays a hand in drawing its own lines, runs for office in those lines, and then can stay in office," says Sam Wang, professor and director of the Gerrymandering Project at Princeton University.
State legislatures are in the driver's seat on key issues from abortion to voting
State legislatures have grown in influence and power over the last two decades, leading to a patchwork of laws around the country on reproductive rights, voter registration, health care, education and guns.
"The decisions made in state capitals probably have a greater impact on people's routine activities than many of the decisions made in Washington, D.C.," says Peverill Squire, professor of political science at the University of Missouri.
Some of that is unintentional, as gridlock in Congress slowed down the pace of federal legislation, he says. Some of it is explicit, as when in 2013, the U.S. Supreme Court struck down parts of the Voting Rights Act and allowed states to make changes to election law without prior federal approval.
When it comes to abortion rights, a change of power in some state chambers could either give the GOP the edge to override vetoes by Democratic governors to institute new restrictions – for example in North Carolina – or could put more Democrats in a position to preserve abortion rights, in states such as Pennsylvania and Michigan.
"States and state legislatures in particular are setting the tone and direction for our country ... while the rest of us are distracted by the shiny objects inside the Beltway," says Squadron.