President Biden became involved in state legislative races for the first time, with an email Friday asking Democrats to each donate the modest sum of $7 to his party’s campaign arm for statehouse elections.
And, following his Sept. 1 speech lashing “MAGA Republicans,” Biden is framing the stakes as a battle for American democracy, coupled with a bread-and-butter message about inflation, an issue that has bedeviled his presidency and given Republicans hopes of a red wave in races all the way down the ballot.
“State legislatures are the key to stopping Republican abortion bans, attacks on L.G.B.T.Q.+ rights, bills that undercut our democracy by making it harder for people to vote,” Biden wrote in the email, which was sent to the Democratic Legislative Campaign Committee’s mailing list. “Not just that, state legislatures are essential — I mean it, essential — to lowering prices for American families and building an economy that works for everyone.”
Biden’s email, which the White House had been working on for weeks, comes as Republicans warn that they are being outspent in state legislative races. It’s a noteworthy shift in messaging for the traditionally chest-thumping G.O.P., and therefore revealing regardless of what the numbers actually tell us.
As my colleague Nick Corasaniti reported on Friday, one outside group working on winning statehouses for Democrats, the States Project, plans to spend $60 million across just five states. That would be a humdrum sum for a hot Senate race, but it’s an astronomical amount in races where spending is often in the range of thousands of dollars, not even tens of thousands and far from millions.
Nick’s reporting included a memo sent this week by the Republican State Leadership Committee, the D.L.C.C.’s counterpart on the right. It warns conservative donors that Democrats are vastly outspending them in key states.
“While Democrats cry out for more resources,” it reads, “they are dominating the television spending at this point in the campaign.”
That is only partially true.
Citing publicly available advertising data, which The New York Times verified, the memo notes that in Michigan, Democrats have spent nearly six times as much as Republicans in state legislative races since the primaries. In Colorado, another hotly contested state, the R.S.L.C. memo notes, “Democrats have spent and booked nearly four times more than Republicans since the June 28 primary.”
Michigan followed a nonpartisan redistricting process this year that threw out a heavily gerrymandered map that favored Republicans. A flood of spending has come to the state: Democrats have spent and booked more than $20 million in TV ads, while Republicans have spent and booked just under $3.7 million.
Nick found, however, that “on the television airwaves, Republican candidates and outside groups have spent roughly $39 million, while Democrats have spent roughly $35 million,” citing data from AdImpact, a media-tracking company.
The State of the 2022 Midterm Elections
With the primaries over, both parties are shifting their focus to the general election on Nov. 8.
In Pennsylvania and Arizona, Nick reported, “Republicans have spent nearly $1 million more than Democrats on ads since July.”
Just one Democratic state senator, Mallory McMorrow, had already raised nearly $2 million as of Friday, according to her campaign.
The presidential factor
Presidents have typically focused on winning races for the Senate, the House and governorships. But over the last decade, as Democrats have worked to reverse the nationwide gains Republicans made after redistricting in 2010, many in the lower ranks of the party have been pushing Democratic leaders to pay more attention to the bottom of the ballot.
Three factors have changed the game this year.
The first is Donald Trump, who started getting involved in state legislative races as he embraced candidates who endorsed his conspiracy theories about the 2020 election. In addition, some candidates for secretary of state would be in charge of running elections even though they falsely claim that Trump won in 2020, On Politics wrote on Thursday.
The second is abortion. Republicans have spent decades amassing power and support in state legislatures while national Democrats largely ignored state politics in favor of higher-profile contests. The Supreme Court’s decision to overturn Roe v. Wade in June shined a spotlight on the gains Republicans had made at the state level as so-called trigger laws went into effect in many states, restricting abortion after the ruling.
In Michigan, for instance, where Republicans control both houses of the State Legislature, Democrats are investing great hopes in a ballot measure that seeks to overturn a 1931 law that the Roe reversal triggered, although a judicial ruling has kept abortion legal in the state for now.
And the third is the long tail of the 2010 redistricting, which Republicans used to redraw maps in their favor after midterm elections that President Obama famously described as a “shellacking.”
President Biden remains fairly unpopular, despite making some gains over the last few months. His approval rating was 42.7 percent as of Friday, according to FiveThirtyEight’s average of public opinion polls.
What the forecasts say
Whether this strategy will help Democrats keep the statehouses they picked up in 2018, and held in most cases in 2020, is another matter.
According to forecasts by CNAnalysis, one of the few publicly available prognosticators that focuses on state legislative races, it’s looking like it will be a very Republican year across the country.
As of Friday, CNAnalysis was predicting that Republicans would hang on to legislatures in Arizona, Michigan, Pennsylvania and New Hampshire, with Maine and Minnesota as tossups. Democrats, the firm expects, will retain Colorado and New Mexico.
But such forecasts are inherently difficult in races where polling is scant, and much depends on which way undecided voters break in the fall.
Will they side with Republicans and their complaints about the prices of gas and groceries, or will they hear out Democrats’ messages about abortion, L.G.B.T.Q. rights and democracy?
That’s the $1 million question of this election — whether it’s in a high-profile Senate race in Pennsylvania or a humble statehouse contest in Arizona.
The wider stakes
Nick’s article also mentions a once-obscure legal doctrine called the “independent state legislature theory.” Richard L. Hasen, a law professor, called it the “800-pound gorilla brooding in the background of election law cases working their way up from state courts” in June.
The doctrine is an unorthodox interpretation of the Constitution. It holds that the framers of the Constitution intended for state legislatures to reign supreme over secretaries of state and even state constitutions. Most law professors view it as far out of the mainstream, but some conservative legal scholars, including at least two current Supreme Court justices, see it as legitimate.
Quietly, lawyers linked to the Republican National Committee and to congressional leaders have been angling for the Supreme Court to rule on the doctrine. Conservative lawyers under the banner of a group called the Honest Elections Project invoked a version of the theory in Pennsylvania in 2020, citing it in a petition for writ of certiorari to the state Supreme Court.
The lawyers, David B. Rivkin Jr. and Andrew M. Grossman of the Republican-linked firm Baker and Hostetler, argued that the secretary of the commonwealth at the time, Kathy Boockvar, had overstepped her constitutional boundaries by altering the date by which the state would accept late-arriving mail-in ballots.
If the Supreme Court does embrace the doctrine, it could fundamentally alter how elections are conducted in the United States, from the rules governing the mechanics of voting to who makes the final decisions on what is and is not legal.
In some cases, senior Democrats have privately warned candidates against filing lawsuits that could trigger the court’s conservative majority to take up the concept in the so-called shadow docket, in which the court does not hold a full oral argument session but issues a ruling with little explanation.
That is not likely to happen before the midterms, court watchers say. Democratic legal experts also think they will have a better shot during one of the court’s regular sessions, during which they can present their counterarguments in full.
In March, Justice Brett Kavanaugh, responding to a case in North Carolina, appeared to signal that the court was eager to rule on the independent state legislature theory in what my colleague Adam Liptak described as “an orderly fashion.”
“The issue is almost certain to keep arising until the court definitively resolves it,” Kavanaugh wrote, adding that the court should grant a petition seeking review on the merits “in an appropriate case — either in this case from North Carolina or in a similar case from another state.”
What to read about democracy
A whistle-blower who worked for Twitter and testified before the Jan. 6 committee told The Washington Post that extremism and political disinformation on social media pose an “imminent threat not just to American democracy, but to the societal fabric of our planet.”
A law in Georgia that lets people and groups submit an unlimited number of challenges to voters’ eligibility is causing headaches for election workers as they try to prepare for ballots to be cast in the state’s crucial races, according to The 19th.
A tough question
On Politics regularly features work by Times photographers. Here’s what Shuran Huang told us about taking the image above:
Capturing nuanced moments is one of my favorite tasks when I am covering news events in Congress.
Amid hours of grueling testimony, witnesses usually manage to keep up a steely disposition during hearings on Capitol Hill.
But not always.
Here, William Demchak, chief executive officer of PNC Financial Services, took a deep breath with his eyes closed after answering a tough question from a lawmaker.
The light hit Demchak’s face in just the right way to highlight his frustration — and created a contrast to the smiling face on the painting behind him.
Thank you for reading On Politics, and for being a subscriber to The New York Times. — Blake
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