Little-noticed statehouse races could reshape election policies next year

This article was originally published by Votebeat.

Americans agree the fate of democracy rests on the outcome of the 2024 presidential election, even if they don’t agree on what that outcome should be. But they may be too focused on the top of the ticket.

A small number of lower-profile state legislative races in districts around the country could shift partisan control of legislative chambers in several key swing states next year, potentially allowing state lawmakers to reshape how elections are run.

“What’s really going to impact most voters when it comes to how they experience their elections—the timing of their elections, when ballots are counted, how things are processed, security and infrastructure changes—that’s all happening at the state level,” said Megan Boler Bellamy, vice president of law and policy at Voting Rights Lab, a nonprofit group that monitors state legislation on voting and elections.

“The makeup of the state legislature is really, really critical to the voting experience of most of the citizens in these states,” Bellamy said. I think it’s something that’s not getting the attention it should.”

In states including Georgia, Arizona, Michigan, Pennsylvania, and Wisconsin, she said, the Voting Rights Lab is watching how lawmakers handle several key issues: rulemaking around certification and other election administration issues, funding for elections, a push to require voters to provide documentary proof of citizenship, and threats to election officials, among other things.

A shift in the balance of power in legislatures could send long-stalled bills on election policy shooting towards approval. It could also mean more abrupt changes in election laws and regulations for long-suffering election officials.

In Pennsylvania, for example, changes in the makeup of the closely divided Legislature could jumpstart efforts to give local election officials time to pre-process mail ballots, a Democratic priority, or a Republican push for new voter identification requirements. In Michigan, voters amended the state Constitution in 2022 to pass several voting and election changes, including allowing early voting and dropboxes, but lawmakers control funding and important choices about how the changes work in practice.

Republicans have long dominated state legislatures, but that means they’re playing defense in more states, a nonpartisan analysis by the University of Virginia’s Center for Politics found, and Democrats made more gains in 2022 than expected.

Republican and Democratic operatives alike are keenly aware that power and control in some states could shift hands, and both parties are focusing on a small number of seats they say could be decisive.

The prospect of Democrats regaining control of a majority of state legislative chambers for the first time since 2010 is “the greatest long-term threat to our party,” wrote the Republican State Leadership Committee, the party arm that takes the lead on legislative races, in a memo describing spending plans and highlighting battleground races in Arizona, Wisconsin, Pennsylvania, Michigan, and other states.

The RSLC will spend $50 million in state legislative races this cycle, a new record, the group said.

Will Rusche, a spokesman for the Democratic Legislative Campaign Committee, the Democrats’ state legislative campaign arm, said that in both the 2022 and 2023 elections, state legislative majorities were decided by extremely close margins. For example, he pointed out, Democrats secured a single-seat majority in the Pennsylvania House in part because one Democrat eked out a victory by just 63 votes. That means either party could gain ground with less investment than might be required to move the needle on a competitive statewide U.S. Senate race, for example, and volunteering on behalf of a candidate could potentially have a big effect.

Rusche said the DLCC is focused on states at a tipping point, where investing resources could change the power balance. For example, he said, Republicans control both houses of the North Carolina Legislature, but flipping a single seat in the state House would take away the party’s supermajority and allow Democrats to sustain a governor’s veto.

“State legislatures are kind of the building blocks of democracy,” he said. “It’s where a lot of our election processes and voting laws right now are being passed.”

Here’s a look at the some of the states where shifts in the statehouse could determine the course of election policy:

Arizona: Democrats Hope to Chip Away at Voting Restrictions

In Arizona, the Republican-controlled Legislature has been determined to overhaul the state’s election system, but has failed to get any substantive proposals past Democratic Gov. Katie Hobbs in the last two years. That’s unlikely to change next year, no matter what happens with legislative races in November.

But Democrats may have their best chance in recent history to gain some legislative seats this election, according to some political observers, which would put Republicans’ narrow control at risk.

Wonder Woman herself, actress Lynda Carter, has even weighed in on one closely watched House race, declining to endorse her sister, who is running as a Republican.

A loss of control for Republicans would give Democrats a chance to chip away at Republican-led election policies that restricted voting access in recent years. And, considering that Republicans spent the last two years inviting election conspiracy theorists to speak at legislative hearings and entertaining extreme measures in committee, it would also mean a major change in the way lawmakers do business.

Both parties are keenly aware that every vote could matter in the down-ballot races.

When election officials recently discovered a glitch in state systems that threw into question whether nearly 100,000 voters could vote in state and local races in addition to federal ones, the state GOP pushed for them to have a full ballot. In this case, the largest group of affected voters were Republicans. An analysis showed many lived in key legislative districts, which could be decided by slim margins. The Arizona Supreme Court ruled Friday that those voters will remain full ballot voters.

In order to win control of the Legislature, Democrats would need to both pick up seats and defend some vulnerable ones, said Republican political consultant Barrett Marson. Marson expects high voter turnout from young Democrats excited about a ballot proposition that would solidify abortion rights in the state, but he doesn’t know if those voters will take the time to fully fill out their ballot and vote Democratic on down-ballot races, especially given how long the ballot is this year.

If Democrats gain control, or if there’s a 50-50 split, Democrats may try to reverse some of the laws Republicans have passed in the name of election security. They might attempt to repeal a law requiring documented proof of citizenship for voters and bring back the permanent early voting list, which allows voters to receive a ballot in the mail every election even if they don’t ever vote by mail, for example.

A Democratic-led Legislature might also try to create automatic voter registration in the state, which automatically registers residents to vote when they interact with a state agency such as when they get a driver’s license, something that many Democratic lawmakers have said they support.

If Republicans maintain control, expect more proposals to restrict early and mail voting and to eliminate vote centers. Even though Republicans had a one-seat majority in both chambers the last two years, those proposals didn’t make it through the Legislature, in large part because state Sen. Ken Bennett, a Republican and former secretary of state, voted against them.

But Bennett lost his primary race this year to Mark Finchem, a former state lawmaker who has been a leader in the movement to spread election fraud conspiracy theories. A Republican-controlled Legislature next year could also continue to give generous speaking opportunities to those making election fraud claims, while limiting time for others.

Ben Scheel, executive director of the left-leaning group Opportunity Arizona, said that this would continue to erode voter confidence.

“It’s completely damaging to voter confidence when you have entirely unfounded claims going on in the government-sanctioned, institutionally sanctioned committee hearings,” Scheel said. “It makes it look like it’s true, and it’s just not true.”

—Jen Fifield

Michigan: Laws Related to Proposal 2 Are at Stake

In 2022, for the first time in decades, Democrats won control of both chambers of the Legislature, while holding on to the three statewide offices: governor, attorney general, and secretary of state. But they don’t hold the legislative majority by much: Control hinges on two-seat margins in the House and Senate.

Polling shows several statehouse races are nearly tied. If Republicans were to reclaim either chamber, the divided control would likely slow the passage of election legislation that Democrats have pushed for. If Republicans win back the House and Senate, first on the chopping block could be election laws that the party has opposed over the past two years.

That’s likely to include laws such as Public Act 74, which changes the requirements for recounts and includes felony charges for those who “willfully interfere” with recounts. The law wouldn’t go into effect until three months after the 2024 session fully adjourns, which hasn’t happened yet.

Republicans could also seek to weaken the laws prompted by 2022′s Proposal 2, which amended the state constitution to expand voting access, including early in-person voting. That could take a variety of forms, including limiting how jurisdictions conduct early-voting days.

A Republican majority would also imperil any bills that don’t make it through the legislature this year, such as the proposed Michigan Voting Rights Act. The package of bills, which aims to reinstate some of the protections of the 1965 federal Voting Rights Act that were weakened by the courts in recent years, passed the Michigan Senate just last week, moving on to the House committee on elections.

The legislation has been criticized by Republicans for going beyond federal standards.

“These bills would cost taxpayers millions of dollars and create new obstacles for our clerks and local units of government that are simply unnecessary,” Sen. Ruth Johnson, a Republican from Holly and a former secretary of state, said in a news release after the Senate passed the bills. “These bills go far beyond the voting rights protections already afforded to all of our citizens under both the U.S. and Michigan constitutions, and they would create a huge new bureaucracy under the secretary of state that would help interest groups sue our local units of government and our hardworking clerks.”

—Hayley Harding

Pennsylvania: Partisan Shift Could Ease Gridlock on Election Bills

All of the state House’s 203 seats and half of the state Senate are up for grabs this year. Pennsylvania currently has the nation’s only split Legislature, with Democrats in control of the House and Republicans holding the upper chamber.

Democrats hold the House by the thinnest of margins: A single seat. Any losses there could put both chambers squarely in the hands of Republicans, since the Senate is unlikely to see a shift.

The closely divided Legislature has essentially meant gridlock on election legislation. Early hopes for a grand bargain packaging both parties’ priorities came to naught. But shifts in control could shake legislation loose.

If Republicans win, they could return to a tactic they deployed in previous sessions: going straight to the voters with proposed constitutional amendments that get around the threat of a veto by the Democratic governor. Republicans could use this tactic to revive stalled voter ID legislation, though they would have to maintain their control during the 2026 midterm elections, since constitutional amendments have to pass in two consecutive legislative sessions before going on the ballot.

Democrats are unlikely to win control of the state Senate, but if they do and also manage to maintain or expand their House majority, they could have an easier time passing their voting priorities, such as allowing pre-canvassing of mail ballots, which speeds the tabulation and reporting of results, and same-day voter registration.

“The very slim majority for Democrats in the House has made it difficult for them to get anything done,” said Kyle Miller, a policy advocate with the nonpartisan group Protect Democracy. And unless the Senate flips or becomes evenly split, giving the Democratic lieutenant governor a tie-breaking vote, Miller said, “we’re going to see more of the same” next year.

—Carter Walker

Texas: Race for State House Speaker Looms Large

The fate of new election legislation in Texas could depend less on the outcome of the November elections, and more on who wins the race for House speaker in the next session.

Republicans easily control both chambers of the legislature, but some GOP-backed election administration and voting legislation stalled in the state House last year, including a proposal to eliminate the widely used countywide polling place program and a bill that would require proof of citizenship to register to vote.

Some Senate Republicans and Lt. Gov. Dan Patrick have blamed House Speaker Dade Phelan.

Most proposals approved by the Senate last year “never even received a hearing in committee,” Patrick said in a statement in August. “The Texas Senate passed 23 election-related bills that did not pass the House. These bills would have been a step toward restoring the public’s confidence in fair and honest elections in the State of Texas. It’s an absolute disgrace that Speaker Phelan killed these critical bills.”

Phelan, a Republican from East Texas, is likely to win reelection in November, but whether he’ll be selected again as speaker is up in the air: At least five House Republicans and one House Democrat are challenging him for the gavel.

Phelan narrowly survived a primary challenge this year after he supported the 2023 impeachment of Attorney General Ken Paxton, a fellow Republican, on corruption and bribery charges. Paxton was acquitted.

A change in speaker could lead to other changes affecting the Legislature’s handling of election bills. Phelan has been criticized within his party for sometimes appointing Democrats as committee chairs, though the House committee on elections has been led by Republicans. Experts say the choice of chairman next year will dictate how quickly legislation advances between the two chambers, and whether election and voting legislation championed by the most conservative Republicans will stall again.

Something else to watch: Republicans are widely seen as attempting to establish a supermajority that would make it easier to pass such bills, as well as other conservative priorities such as school voucher legislation.

“People think that Democrats don’t have a say in governing because they’re in the minority of the legislature, but that’s not true. They do have a significant say,” said Brandon Rottinghaus, a political science professor at the University of Houston. “They can really gum things up if they wanted to, and they will if they don’t get a speaker who they think is right or that will work with them. The House Speaker is a traffic cop for the house’s agenda, and so how much trust they have among the members and their skills at navigating a tense session is critical.”

—Natalia Contreras

Wisconsin: Impact of a Potentially Split Legislature Isn’t Clear

The composition of the Wisconsin Legislature is all but certain to change significantly under new legislative maps that undid what experts deemed some of the most gerrymandered political boundaries in the nation. Under the previous GOP-drawn maps, Wisconsin Republicans were just a couple of seats short of a supermajority in both chambers, which would have allowed them to override a veto by Gov. Tony Evers, a Democrat, on election legislation.

The new maps make Democrats more competitive, but they still aren’t likely to gain a legislative majority in both chambers this cycle. Senate elections are staggered, so Democrats’ hopes of a majority will almost certainly have to wait until 2026. But they do have a chance of flipping the Assembly.

If they do, it would be the first legislative session in more than a decade with split control. It’s unclear whether that would affect which election legislation reaches the governor’s desk, because many of the bills that clerks and liberals have prioritized—for example, a bill that would have allowed clerks to process absentee ballots the day before the election—passed through the Assembly but didn’t receive a Senate vote.

Other bills, such as a proposal to bring Wisconsin in line with the federal Electoral Count Reform Act, passed the Senate but not the Assembly. A Democratic Assembly majority, or even a slimmer Republican majority, could lead to that bill passing in next year’s session.

One area where a Democratic Assembly majority could matter is the budget. Every two years, the Legislature processes different agencies’ budget requests. Last time around, legislative Republicans rejected a Wisconsin Elections Commission request to fund an office focused on building transparency and focusing on election compliance.

The commission has a similar request in the upcoming budget, and it could get through if Democrats land an Assembly majority, giving them more seats on the budget-writing legislative committee.

But beyond narrow requests and compromises, other Democratic priorities—like reducing the residency requirement, letting 16- and 17-year-olds preregister to vote, and expanding early in-person voting—are unlikely to pass through the Legislature in the upcoming session. They stand a chance if Democrats secure a Senate majority in 2026.

—Alexander Shur

Correction: Democratic Legislative Campaign Committee spokesman Will Rusche’s name was initially misspelled.