Abortion Remains Central to This Year’s Most Important Legislative Contests

Editor's Note: this article is a part of Governing's Inside Politics newsletter. Sign up here.

Abortion Remains Central to This Year’s Most Important Legislative Contests: The norm these days is for legislatures to be run by large or even veto-proof majorities. That’s not the case in Virginia. It’s one of only two states where legislative control is divided between the parties. Republicans are hopeful that in November they can erase the Democrats’ two-seat majority in the Virginia Senate, which would give them control of the entire state government. Democrats, by contrast, have their hearts set on erasing the GOP’s equally narrow majority in the state House, which has changed hands in both of the two previous election cycles.

Democrats believe their chances will be fueled by the abortion issue. The Supreme Court’s 2022 Dobbs decision, which ended the federal right to abortion, helped dampen Republican performance during the midterms last year. At the legislative level, Democrats took four legislative chambers, while the GOP gained none. Since Virginia holds its legislative contests in odd-numbered years, voters there haven’t had an equal chance, until now, to voice their displeasure. “Abortion rights is absolutely critical to Democratic efforts in these elections,” says Larry Sabato, who directs the University of Virginia’s Center for Politics. “The anger has not faded, especially among Democratic and independent women and those under age 30.”

Democrats have made abortion central to an ad campaign launched last month in 14 key districts. They never tire of pointing out that Virginia is the only Southern state that has not restricted or banned abortions. That would no longer be the case if Republicans take control in Richmond. “I will fight to safeguard and defend reproductive rights and will vote against any abortion bans,” Michael Feggans, a candidate for the state House, states at the top of his campaign website’s “priorities” page.

Republicans are countering by claiming that Feggans and other Democrats support abortion on demand until birth (which Feggans and others deny). GOP Gov. Glenn Youngkin and Republican legislative candidates have unified behind an abortion ban at 15 weeks, with some exceptions, which they have framed as a reasonable proposal. But they may be playing into Democrats’ hands by affirming that they will, indeed, take action on an issue that generally cuts against them.

“Both parties are trying to turn back the clock to a different year,” says Chaz Nuttycombe, director of CNalysis, an independent legislative forecasting group. “The Republicans are trying to turn back the clock to 2021 (when Youngkin won), which is why Youngkin’s campaign signs say ‘Parents Matter,’ invoking parental rights in public education. Democrats, in turn, are trying to turn back the clock to 2022, running on protecting abortion rights.”

Both parties are pouring enormous resources into the state, knowing the stakes are high not only for legislative control but Youngkin’s own political future. Youngkin’s political action committee raised nearly $6 million between April and June alone. In response, President Biden directed the Democratic National Committee to devote an additional $1.2 million to Virginia earlier this month.

Absent the abortion issue, Sabato says, Republicans would be likely to hold on to the House and be at least an even-money bet to take the Senate. But abortion remains at the top of the issue list. “As long as Democrats have the resources to compete, they should be able to hold the Senate,” Sabato says, “and maybe, on a good night, take the House.”

What Makes Special Elections So Special: Virginia Democrats bolstered their slim Senate majority back in January, when former football player Aaron Rouse took over a formerly Republican seat in a special election. It was the start of a pretty good year for the party in special legislative elections nationwide.

There hasn’t been much partisan turnover. Rouse’s gain was numerically matched by Republicans flipping a Maine House seat in June. But Democrats have still been doing well. In fact, they’ve done a lot better than Biden’s showing in the same districts back in 2020. In roughly two dozen special legislative elections held so far this year, Democrats have outperformed Biden by an average of 8 percentage points.

Every special election is, as the term suggests, unique unto itself. Turnout is always low, especially when races are not seriously contested. Still, when the trendline moves in one direction, that’s generally a good sign for the party that’s doing well. Special elections are often indicators of a pretty good year in regularly scheduled contests coming the following year.

“Lower turnout special elections are often about being able to rally your base and your most reliable voters, and Democrats have been overperforming,” says Michael Sargent, a Democratic consultant. “It signifies among other things that the Democratic base is really engaged — and it’s probably one of the least-reported facts about the political environment today.”

Sargent, being a partisan, attributes this to the specter of former President Donald Trump and Republican inaction on issues such as gun safety and climate change. Other Democrats see the primary driver, as in Virginia, being abortion. "Republicans have not had a good election night since before the Supreme Court overturned Roe v. Wade,” said Ben Nuckels, a Democratic strategist in Wisconsin.
Pennsylvania Democrats’ Struggle to Maintain Control: The other state with a divided legislature is Pennsylvania. Last November, Democrats won the state House for the first time in a dozen years, eking out a 102-101 majority. They’ve had to fight and claw to keep control ever since.

Democrats started the year with three vacancies, with one of their members having died prior to the election and two others leaving for higher office, including Lt. Gov. Austin Davis. They won back control for real in special elections in February. Then, they did it again with another special election in May. Currently, the chamber is nominally tied – although Democrats kept power under new rules they passed this year that allows them control absent an outright Republican majority. Democrats are expected to break the tie back in their own favor with yet another special election taking place in Allegheny County next Tuesday.

They’ll likely have to do it at least once again next year. Longtime state Rep. John Galloway is running for district judge, so his Bucks County seat should soon become vacant. In Pennsylvania, Speaker Joanna McClinton enjoys the distinct advantage of being able to call, and therefore time, replacement elections. She’s been able to work the calendar so vacancies haven’t hurt her much. The House will return to session later this month, when McClinton should again have a working majority as she negotiates a budget with the Republican-controlled Senate. “Even with a narrow majority, Democrats have been delivering for all Pennsylvanians by advancing pro-worker, pro-student and pro-public safety measures,” says Nicole Reigelman, McClinton’s press secretary.

Still, it would be a lot easier if Democrats could hold onto a majority for a while. Even a one-seat majority.
Attorneys General Keep Getting in Trouble: If you’re a state attorney general, your shorthand job description is “chief law enforcement officer.” So why are so many AGs facing legal trouble themselves?

The most prominent case is Ken Paxton, who’s currently facing an impeachment trial in the Texas Senate. The state House has presented pretty damning evidence that Paxton abused his office to help a donor, among other things. One of the talking points among Paxton’s defenders is that voters knew about allegations of wrongdoing when they re-elected him last year. That may be a winning political argument, but it doesn’t speak well in terms of ethics. Elections are not supposed to be the sole accountability moment for officeholders. That’s why impeachment exists.

If Paxton is convicted and removed from office, it will be the second time in two years that has happened to a state AG. The South Dakota Senate removed Attorney General Jason Ravnsborg last year, after he killed a pedestrian with his car and then tried to cover it up. Over the past decade, state attorneys general have also resigned in the wake of scandal in Utah and Pennsylvania. It’s not exactly an epidemic, but that’s more AGs in trouble than, for instance, the number of governors who’ve faced serious complaints.

And now Austin Knudsen, the attorney general of Montana, is looking at professional misconduct charges. It’s a complicated story, but the gist is that Knudsen’s office obtained some 5,000 emails that had been sent out by judges, and then fought with courts for months about whether he had to return them.

“Knudsen and lawyers under his supervision routinely and frequently undermined public confidence in the fairness and impartiality of our system of justice by attempting to evade the authority of the Montana Supreme Court and assaulting the integrity of the judiciary and the individual justices who were duly elected by Montana citizens to make decisions,” Timothy Strauch, the special counsel for the Office of Disciplinary Counsel, wrote in a complaint filed last week with the state Supreme Court.

Knudsen has a total of three weeks to respond before a commission appointed by the Supreme Court will decide whether to hold a formal hearing. His spokeswoman dismissed the complaint as “meritless” and a “political stunt.”

Knudsen may or may not be the victim of a political persecution, but there is some truth to the idea that state attorneys general now have bigger targets on their backs. They’ve earned both enmity and attention in recent years by playing expansive roles in going after both private industries and presidential administrations.

“AGs getting into legal and professional trouble used to be uncommon, but the latest with the Texas and Montana AGs show that these offices are hardly immune to scrutiny,” says Paul Nolette, an expert on state attorneys general at Marquette University. “With AGs at the forefront of many high-profile, ideological issues these days, the offices are getting more attention than ever.”