Signs are emerging that Donald Trump is trying to steal an Electoral College victory through state legislatures. The US Constitution empowers those legislatures to “appoint, in such manner as the legislature thereof may direct” their presidential electors. Biden’s victory hinges on five states he appears to have won, but whose legislatures remain fully controlled by Republicans after Democrats failed to win them back in 2018.
The whole affair is a reminder of the importance of state races — and Democrats failing to prioritize them.
That failure not only imperils the presidential election results this year, but could also spell disaster in state and congressional elections over the next decade. Legislatures will begin redrawing federal and state legislative district maps after this year’s census — and Republicans’ continued dominance of legislatures gives them more power to draw those maps in ways that maximize their representation in the narrowly divided US House.
A Down-Ballot Disaster
By most metrics, the 2020 election was a disappointment for Democrats. Despite Donald Trump’s mismanagement of the COVID-19 pandemic that cratered the economy and left more than 233,000 Americans dead, Biden only eked out a win with narrow margins in key states. The down-ballot races were an outright disaster. Democrats lost at least half a dozen House seats and they won’t control the Senate unless they manage to win two long-shot runoffs in Georgia.
By far the biggest blow, however, was in state legislatures, which Joe Biden had pledged to help win back as part of his electability argument in the Democratic primary.
Given the census, Democrats needed to recapture as many state legislative chambers as possible in order to blunt Republican redistricting efforts. Every ten years, following the census, the state legislatures redraw their own districts as well as those for the US House of Representatives. Those maps have the power to determine representation and thus the direction the country goes for the next decade.
Republicans have dominated the state legislatures since the Tea Party wave in 2010. Recognizing opportunity in the first midterms since the election of President Barack Obama, the Republican State Leadership Committee that year implemented a strategy known as REDMAP to extend victories down-ballot.
Republicans would gerrymander a standing GOP advantage in state legislatures and the House with the aid of advanced mapping technology and Supreme Court precedent — set six years earlier — holding that partisan gerrymandering was a non-justiciable issue.
That’s exactly what they did. Republicans turned an election sweep where they wiped out half of the Blue Dog caucus into a down-ballot coup. Republicans gained two dozen state legislative chambers, coming away from the midterms with control of fifty-four of the ninety-nine nationwide. That control enabled them to draw the districts as they saw fit.
The end result put Democrats at a significant disadvantage. The next cycle, the GOP House majority survived despite Democrats winning 51 percent of the popular vote. A 2017 study from the Brennan Center for Justice noted that “[i]n the 26 states that account for 85 percent of congressional districts, Republicans derive a net benefit of at least 16-17 congressional seats in the current Congress from partisan bias — significantly more than previously thought.”
Over the course of Obama’s two terms, Democrats lost over nine hundred seats in state legislatures nationwide.
Republicans Maintain Hold on States Ahead of Redistricting
In 2018, Democrats were determined to win back ground. With Trump in office, the party was sure to have a strong turnout — midterms typically favor opposition parties and Trump was particularly galvanizing. It was a wave election, and Democrats regained control of the House.
They also made modest gains at the state level winning back three hundred fifty seats nationwide, particularly in states like Texas and North Carolina where Democrats flipped fourteen seats and sixteen seats respectively. Despite the gains, Democrats in 2018 captured just seven legislative chambers in five states.
The party was hoping to build on those numbers in 2020 as 5,876 — or 80 percent — of the nation’s 7,383 legislative seats were up for grabs. Democrats planned out a $50 million budget, but with their base energized to defeat Donald Trump, they ended up surpassing that by $38 million. Republicans, on the other hand, raised $60 million to hold the line.
Still, it wasn’t enough. Democrats failed to win even a single chamber. Instead, they lost ground. Both legislative chambers in New Hampshire flipped to Republican control. According to the National Conference of State Legislatures, the GOP now controls the legislatures in twenty-nine states with total control in twenty-one. By contrast, Democrats control the legislatures in nineteen states and have total control of just sixteen.
Republicans are sure to once again dominate the redistricting process including in key states like Texas, Florida, North Carolina, and Georgia — and they will have particularly wide latitude to do so given that in 2013, the Supreme Court struck down the Voting Rights Act provision requiring states with histories of racial segregation to submit redistricting plans to the Department of Justice for preclearance.
While the Senate may be in play, the 2022 midterm congressional and state legislative maps could present an insurmountable challenge for Democrats even with big turnout. Should Republicans retain control of at least one chamber of Congress, any agenda the Biden administration had would be crippled.
Since the disappointing results on election night, intra-party fighting has broken out over where to pin the blame. Establishment Democrats and conservative operatives blame the rhetoric of the party’s left wing despite the fact that progressives fared far better down-ballot than their centrist counterparts. The Left, on the other hand, blames centrist reluctance to embrace policies like Medicare for All or a Green New Deal.
But part of the problem for Democrats this cycle had to do with where they directed their money.
Democratic cash was aimed at long-shot campaigns and vanity projects at the expense of winning state races.
In all, $88 million was raised for the Democratic Legislative Campaign Committee, which runs the party’s national effort to win state legislatures. The initial goal had been $50 million.
For comparison, Amy McGrath, the retired US Air Force fighter pilot handpicked by Senate Minority Leader Chuck Schumer to run against Majority Leader Mitch McConnell, raised $88 million and lost her race by nearly 20 percentage points.