Change is the watchword in the 2012 state legislative elections as Democrats seek to recover some of the vast ground they lost two years ago. Nearly a quarter of the 7,382 state legislators elected in 2010 and 2011 were newcomers, and the turnover could be even higher this year.
“We’re going to have new faces, new approaches and new ideas with all the positives and negatives this brings,” said Tim Storey, an elections expert with the National Council of State Legislatures who observed that turnover is always high the year after the decennial reapportionments based on the latest census.
Whether there will be sufficient Democrats among this flood of newcomers to reverse the recent Republican tide remains an open question. Republicans now thoroughly dominate the statehouses after a historic breakthrough in 2010 when they won the House of Representatives and more state legislative seats than in any election since 1928. The GOP has majorities in both legislative chambers in 26 states plus virtual control in Wisconsin, where it holds the Assembly and the Senate is tied because of a vacancy. Unicameral Nebraska, nominally nonpartisan, is behaviorally Republican. Democrats control both chambers in 15 states; party control is divided in the other seven.
State legislative races fly below the radar of presidential and congressional campaigns. But in terms of policy change, Republican state victories in 2010 mattered more than did the GOP takeover of the House of Representatives. Gridlock prevails in Washington, where Democrats control the White House and the Senate and Republicans the House.
In contrast, GOP governors and state legislators have during the past two years substantially advanced a conservative agenda on abortion, collective bargaining, immigration, pension reform and voter identification.
Legislatures could become even more influential in the future if the U.S Supreme Court limits the federal role on health care and immigration. The high court is expected to rule in June on the constitutionality of the Patient Protection and Affordable Care Act that President Barack Obama pushed through Congress on a party-line vote in 2010. If a provision of the law mandating purchase of medical insurance is struck down, health insurance will become a central issue for the states.
Then there is the federal challenge to Arizona’s 2011 immigration law, which among other things allows local police officers to inquire into the citizenship of persons they detain. Encouraged by Arizona, other states have passed even more controversial immigration laws, including a statute in Alabama that requires public schools to ask students about the immigration status of their families. A federal court has put this provision on hold, pending the high court ruling on the Arizona law.
The Obama administration has never offered a comprehensive immigration bill but nonetheless contends that immigration is exclusively a federal responsibility. If the court decides to the contrary, expect a flood of proposed new state immigration laws when legislatures convene in 2013. Many undoubtedly will be restrictive, but federal preemption would also sweep away liberalizing laws such as the Utah measure that allows illegal immigrants to have conditional driver’s licenses.
With so much at stake in the legislative elections, partisans on both sides are focusing on a few states where the presidential race is close and legislative control is narrowly divided. In Gallup’s computation, a dozen could go either way in the presidential election, in which Gallup currently gives a narrow edge to Obama against his Republican challenger, Mitt Romney.
Historically, it is these swing states where political advertising is concentrated in which the presidential race has the most spillover effect on congressional and state legislative races. The good news for Republicans is that they have such sizable margins of control in the legislatures of the most populous swing states — Florida, Michigan, Ohio and Pennsylvania — that they are likely to remain in GOP hands no matter what happens in the presidential race.
Republicans also appear to have an insurmountable advantage in North Carolina legislative races and will retain legislative control in Virginia, which does not hold state elections this year. Seven other Gallup swing states — Colorado, Iowa, Michigan, Nevada, New Hampshire, New Mexico and Wisconsin — are competitive in various degrees.
Democrats may have their best opportunity to take over a legislature in Colorado, which Obama carried in 2008 and where Democrats defied the Republican trend in 2010. Colorado Democrats, who control the Senate by five votes, are eying the state House of Representatives, where Republicans hold a one-vote margin.
Democrats also have hopes in Wisconsin, which in a June 5 recall election will provide an early test in a closely divided state. Democrats seek to recall Republican Gov. Scott Walker and replace him with Milwaukee Mayor Tom Barrett, a Democrat. They have five chances to win the deadlocked state Senate. Four Republican senators face recall against Democratic challengers, and the vacant seat is also contested. The gubernatorial election, a possible harbinger for November, is drawing funds and campaign workers from outside Wisconsin. Walker is the bete noire of organized labor but a hero to conservatives for banning collective bargaining for most public employees.
In three other swing states, Democrats are playing defense in an effort to hold state senates by narrow margins. Democrats lead by four seats in New Mexico, two in Iowa and one in Nevada. New Hampshire, the other presidential swing state, appears safely in Republican hands, but the House has 400 districts, all tiny by standards of other states, so a slight shift in the vote can have large consequences. Storey thinks the Democrats may have an outside chance.
Beyond the presidential swing states, attention is focused on state senate races in California and New York, both of which are safely in the Obama column in every poll. California is so lopsidedly Democratic that Republicans lost every statewide race in 2010, and are heavily outnumbered in the Legislature. But California requires a two-thirds vote to raise taxes, and Democratic Gov. Jerry Brown has been consistently frustrated in his effort to do so by Republican legislative minorities. Redistrictings and retirements, however, have given California Democrats a chance to win an elusive two-thirds majority in the Senate, which has been Brown’s biggest stumbling block. Democrats now hold a 27-15 advantage. In New York, where Democrats have a big majority in the Assembly, Republicans took over the Senate by two votes in 2010. Democrats are trying to get it back.
In independent-minded Maine, likely Democratic in the presidential election, Republicans hold five-vote margins in both legislative chambers and Democrats will challenge for control of both of them. Arkansas, which voted Republican in the 2008 presidential election and is expected to do so again this fall, is the last of the 13 Confederate states in which Democrats control any legislative chamber. Democrats hold a five-vote edge in the Senate and an eight-vote margin in the House; Republicans aim to reduce these majorities.
This rundown comes with the usual disclaimer: the elections, except for the Wisconsin recall, are more than five months away and much can happen between now and November. Nonetheless, the 2011 redistrictings were instructive. In a country that is closely divided, both parties generally took a cautious approach in drawing new districts, more like boxers circling one another in the ring rather than aiming for a knockout. For the most part — Democratic legislators in Illinois and their Republican counterparts in Texas were conspicuous exceptions — the parties that controlled redistricting sought to cement control of seats they already hold rather than take a chance of pursuing marginal districts.
Such prudence could enable Republicans to hold onto a large share of the legislative seats they won in 2010 even if the presidential election does not go their way. It’s also worth noting that states in which nonpartisan commissions do political reapportionment generally lived up to their independent billing by creating a significant number of congressional and legislative districts in which either party has a chance to win.
In 2012, the independent-commission states have been joined by California, which is engaging in a double experiment by also having an open primary in which the top two vote-getters advance regardless of party. In the short run, these twin experiments appear likely to benefit the Democrats. In the long run, independent redistricting and the open primary could once again make California politically competitive. That’s the hope, anyway, of the good-government groups that supported the changes. Only time will tell if they work.
— Summerland resident Lou Cannon is a longtime national political writer and acclaimed presidential biographer. His most recent book — co-authored with his son, Carl — is Reagan’s Disciple: George W. Bush’s Troubled Quest for a Presidential Legacy. Cannon also is an editorial adviser to State Net Capitol Journal, which published this column originally.
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