March 30, 2022

Podcast - 2022 Midterm Elections: The State AG Landscape

Eyes on Washington Series - Conversations with State Attorneys General

In this episode of our Public Policy & Regulation Group's "Conversations with State Attorneys General" podcast series, co-chairs of the State Attorneys General Practice Group Stephen Cobb and Jim Schultz sit down to discuss the 2022 midterm election cycle. With roughly half of U.S. state attorneys general seats on the ballot this year, Mr. Cobb and Mr. Schultz share their predictions. They start by noting some national trends that are likely to reveal themselves this cycle and whether those trends will be reflected in the AG races. Their conversation also provides insight on specific states that will likely have hard fought races and may even flip parties, including Nevada, Wisconsin and Iowa.

Current State Attorneys General Party Affiliation


Podcast Transcript

Stephen Cobb: Welcome to another installment of Holland & Knight's Eyes on Washington podcast, State Attorneys General Edition. My name is Stephen Cobb, I'm a partner in Holland & Knight's Washington D.C., office. Former deputy attorney general of Virginia and co-chair of Holland & Knight's State Attorneys General practice. With me today is my fellow co-chair and law partner, Jim Schultz out of Philly. Jim, great to be here on the podcast with you.

Jim Schultz: Great to be on with you again, too Stephen. There's some exciting things going on around the country politically right now.

2022 Midterm Election Cycle: Macro Trends

Stephen Cobb: Absolutely. So, one of the things we've done so many of these podcasts talking with state AGs and senior leadership at state AG offices, focusing in on the substance of those offices. But as you know, and as our listeners may know, for the most part, state attorneys general are themselves elected statewide officials. And so I want to say the number is 46 out of the 51, including D.C., are popularly elected. And so, like so much going on right now, it is election season and many of them are going to be in tight contests. So I thought today that we kind of talk a little bit about what the political environment looks like nationally, what it looks like in some states specifically, and then talk about how that might impact some of the priorities and politics of state attorneys general. So with that, you know, Jim, what are your thoughts? Let's start macro. In your mind, where do things look as far as the 2022 cycle and how do you think that's going to affect state AGs?

Jim Schultz: Look, I think you're going to see all things kind of remain the way they are now. You're going to see pretty much a red wave sweeping across the country, largely because especially in some of these swing states, Biden's numbers are in the tank. We're seeing that in Pennsylvania, where I'm from and you're seeing, you know, I think we're going to see huge gains in Congress. You're going to see some very competitive Senate races in places where I think that wouldn't normally be competitive. And at the state level, you're going to see some very competitive gubernatorial races in places where Republicans haven't normally been competitive. But I think, you know, very telling is the AG races, and I think there's going to be some, you know, in some of these swing states, some very competitive races and in places where Democrats traditionally had strongholds.

I think you're going to see all things kind of remain the way they are now. You're going to see pretty much a red wave sweeping across the country, largely because especially in some of these swing states, Biden's numbers are in the tank.

Predictability of State AG Races Based on National Trends

Stephen Cobb: You know, it's interesting you say that. One of the things that I've noticed that I keep telling folks over the last few years is that state AGs are themselves becoming such a force within their own states that you can't always predict the state AG race by the national trends. And by that, I mean, if you looked at the 2016 cycle and the 2020 cycle, you often saw state AGs overpowering the top of the ticket with their vote share. So with Democrats in particular, in those cycles, you're looking at the Josh's, Shapiro and Stein in North Carolina and Pennsylvania, respectively, running ahead of the presidentials in their states. I'd be interested in your thoughts, Jim, on kind of how you see that? And then of course, the same is true with with many Republican AGs, and I'd be interested in getting your thoughts. From my perspective, there is part of this, that is to quote Tip O'Neill: 'All politics is local,' and that state AGs more so than their counterparts in the U.S. Senate or in presidential politics have a stronger connection to local communities across the state, which allows them to cut through, sometimes by a fraction of a point, sometimes by several points, some national trends. What are your thoughts?

From my perspective, there is part of this, that is to quote Tip O'Neill: 'All politics is local,' and that state AGs more so than their counterparts in the U.S. Senate or in presidential politics have a stronger connection to local communities across the state, which allows them to cut through, sometimes by a fraction of a point, sometimes by several points, some national trends.

Jim Schultz: I think some of it is also attributed to the fact that where you have democratic elected attorneys general in states like Pennsylvania, right, where we didn't have up until Josh Shapiro, we had one other elected Democratic attorney general in Kathleen Kane. But up until Kathleen Kane, we hadn't had a Democratic elected attorney general. They were all Republicans. So what I think you see in a state like ours where you have cross pressure issues, specifically law enforcement issues, where Democrats can move more towards the center and center right on on law enforcement issues, it has an ability for them to have real impact in swing states. And I think that's what we've seen out of Josh Shapiro in Pennsylvania. He's taken on violent crime issues very aggressively. He's taken on gun crime issues very aggressively in the state. And I think that's largely the reason why he's been able to be so successful in a state like Pennsylvania is because he's been able to take these traditionally Republican law enforcement issues and turn them into a positive for himself by just doing the job.

Stephen Cobb: A hundred percent. And one of the other things that I think is is interesting is that there is a large part of the state AG portfolio, as listeners know who have listened to our podcast previously that focus on kind of apolitical issues like consumer protection, like competition issues like data privacy issues, and you start to see those cut across traditional political lanes, such that incumbents in particular tend to be able to campaign on accomplishments in consumer protection and antitrust and data privacy, and their campaigns become a referendum on how effectively they've been able to improve the lives of day to day constituents.

Jim Schultz: No, that's exactly right. I mean, you know, especially, you know, protection of children, protection of minors. There's a lot of great issues, not just the commercial issues, but the ones that really impact people's daily lives in the consumer protection space, like you said, that really allowed AGs to gain real name I.D. and then become successful down the road. And there's always kind of the insiders joke that the attorney general also stands for aspiring governor as well.

State by State Breakdown: Who Will Remain in Office? Will Any States Flip? 

Stephen Cobb: So true, so true. Let's get into the map, you know, there I think about half the states are up this cycle. But even though half are up, a much smaller number are have risk of flipping and an even smaller number of other issues of losing incumbency. So let's kind of break these down. First, why don't we go through some of the states that I know from the Democratic side, I don't think are at risk of losing a Democratic incumbent. You have a bunch of those in the Northeast. You have New York, Vermont, Massachusetts, although the incumbent is running for governor. Connecticut, Rhode Island, Maryland, New Mexico, California. While all of these states are all on the ballot this November, I don't think that those are inherently in concern of competitive races. You know, obviously that can always change. What about the Republican side? There's there's a bunch up. Which ones do you see not being competitive and are safe?

Iowa

Jim Schultz: I think the line share of the traditional Republican states are going to just, you know, the red states are going to continue to be red, right, especially in this environment. So without going through the list, I do think that most of the incumbent Republican seats are in good shape. I know there has been some question about Texas, but I do think that Texas is going to solidly remain in the red as it relates the attorneys general race. Interesting state right to talk about, though on the swing side of it I think for a pickup, for the Republicans is Iowa. So Iowa, we have a sitting attorney general, Tom Miller, Democratic elected attorney general. How many years has he been in office? I think it's 11 terms now, right?

I think the line share of the traditional Republican states are going to just, you know, the red states are going to continue to be red, right, especially in this environment. So without going through the list, I do think that most of the incumbent Republican seats are in good shape.

Stephen Cobb: I want to say it's like 42 years something. General Miller is the longest serving state attorney general in the history of the United States.

Jim Schultz: But I think we've seen a trend now in politics that incumbency isn't always a good thing, right? And I think you become part of the problem if you're in there for a long time. We're also seeing kind of the red wave making its way across the country and, you know, with Biden's numbers in the tank. So in a place like Iowa, we have the Democrat, the Republicans have Guthrie County Attorney Brenna Bird, who's an old friend of mine, from the days when she was general counsel to the governor of Iowa and when I was general counsel to the governor of Pennsylvania. And she's run for the office before she didn't win the last time she's running unopposed in the primary. And she is the leading candidate, you know, is a leading, you know, targeted race for the Republicans this year to sink money into it, to pick up that seat.

I think we've seen a trend now in politics that incumbency isn't always a good thing, right? And I think you become part of the problem if you're in there for a long time.

Stephen Cobb: Well, not surprisingly, I'm going to push back and disagree with you slightly there in Iowa. I think Tom Miller has been elected over four decades because I think he really represents the needs of Iowans in that office. I think when you look at some of the demographics of folks and where it splits on partisan lines, I think you've seen decade in, decade out Tom Miller being able to draw from across the aisle and when you have somebody going into a race against somebody that they've already beat before. I mean, you know this from a kind of campaign perspective, you already have those voter IDs, you know where your voters are and when to touch. So I'm going to be incredibly surprised, I know it's going to be a hard fought race, but I'm going to be surprised if Tom Miller, he doesn't win.

Jim Schultz: Yes, Stephen, you're comfortable, you're real comfortable being in the wrong, right? You know, we talked about this about a year ago when we were talking about the state of Virginia. You know how that was going to that was going to continue its trend of being blue and we saw what happened there. So I think in a state where Trump's won by nine points in 2020, I do believe it's, you know, it's ripe for a pickup for Republicans.

Stephen Cobb: Oh, I didn't say it wouldn't take work, but you know, to the point in Virginia, Mark Herring, my former boss still punched ahead of the top of the ticket, which was just shows, you know, further underlines that connection that I think state AGs have perhaps as a statewide, perhaps greater show than anyone, be that a governor or state senator.

Nevada

Jim Schultz: Another place where you have a potential pickup for Republicans is Nevada, where you have Attorney General Aaron Ford. You know, the Republicans feel pretty good about this race. There are a number of, I think there are two people in the primary thus far. I think the person who I've seen the most of is a former classmate of mine from law school Sigal Chattah. She's been working very hard. She's Israeli born, came to United States, as you know, from Israel, and created a law career there that included taking on some pretty controversial issues when she was there, for instance, the closure of the state Capitol, the closure of the synagogues and the churches, she filed lawsuits there to open those up and got wins on them. So I think that's something that may resonate with Nevada voters.

Stephen Cobb: It's interesting. Nevada is one of those states, I can't say enough good things about Aaron Ford. I believe he holds five degrees, including a Ph.D. in an education, I'm not mistaken. Just a wonderful, wonderful leader out there. But I'm also, you know, with his high favorability, is in that of also, I believe, Senator Cortez Masto, who's also I'm wondering if some of these states where you have a U.S. senator up, as well the AG, how much of those Senate races will need to have legs?

With his high favorability, is in that of also, I believe, Senator Cortez Masto, who's also I'm wondering if some of these states where you have a U.S. senator up, as well the AG, how much of those Senate races will need to have legs?

Jim Schultz: I think you're right on that.

Texas

Stephen Cobb: I wanted to get your thoughts because it's timely and you alluded to it. Texas is still going to be a hard place for Democrats to pick up statewide, but there is a runoff primary between the incumbent Ken Paxton and George P. Bush, who's I believe the state agriculture commissioner. I want to say and headed to a runoff, any prognostication that you think that you want to give on the outcome of that primary.

Jim Schultz: I think with a lot of the issues that Ken Paxton has faced in terms of legal issues and the like losing staff, I mean, all of that stuff factors into that runoff nomination. And I think, you know, it'll be an interesting race to watch. Obviously, George P. Bush is an incredibly popular Republican there and has had a very successful political career. Certainly name I.D. isn't a problem for him. So I think he could give Ken Paxton a hard time.

Stephen Cobb: It's going to be interesting to see how that plays out. You know, I know that General Paxton has long had a strong support in the conservative wing of the Republican Party, particularly there in Texas. So it'll be interesting to see how that that kind of plays out.

I know that General Paxton has long had a strong support in the conservative wing of the Republican Party, particularly there in Texas. So it'll be interesting to see how that that kind of plays out.

Jim Schultz: Yeah, he certainly has a base that's going to stick with him. The question is whether his problems that he's had in the past couple of years and whether the name, I.D. and popularity of George P. Bush will rule the day.

Stephen Cobb: Let's talk about another state that I know, you know, apropos of our conversation about Nevada. Nevada, pardon me. I don't need to make folks there correct me on my pronunciation.

Jim Schultz: You got to say it the right way Stephen!

Georgia

Stephen Cobb: I got it, I corrected myself! But, when we talked about, you know, a state that's going to be impacted by the other statewide candidates on the ticket, let's flip the script and look at Georgia. You know, here you have an incumbent Democratic senator, Raphael Warnock. You have an incumbent Republican governor who's getting primaried to his right. And of course, you're going to have a down ballot AG race. How do you see that all playing out?

Jim Schultz: So I think what we're going to see there is, you know, a tremendous turnout in Georgia, right? You have the Senate seat, you have the gubernatorial seat and Chris Carr has done a great job as attorney general. As you know, he's done a great job there in Georgia. The question is, does he get caught in the crossfire there? I think he's done well enough and, has you know, kind of raised the profile of himself in that office in a very good way as attorney general. I think he ends up winning that race ultimately. But I think if there's any race in the country that you're seeing, the Democrats sink some money into, especially with the state senator Jim Jordan getting in there, I think that's something that Carr has to be worried about. But I do believe, you know, Georgia is starting to trend back red again, we have a wave year and I think Carr's going to be just fine.

Stephen Cobb: It's interesting. This is one of the races that I look at it and can see, as you know, I alluded to with North Carolina and Pennsylvania and then Virginia, where actually I could see Chris Carr getting a higher vote share than either of the Republicans for governor or Senate.

This is one of the races that I look at it and can see, as you know, I alluded to with North Carolina and Pennsylvania and then Virginia, where actually I could see Chris Carr getting a higher vote share than either of the Republicans for governor or Senate.

Jim Schultz: Yeah, I think you're right about that.

Stephen Cobb: But you know, it's going to be interesting, you know, looks like obviously Senator Warnock is back up. Stacey Abrams running for governor. It's possible, and you know, they've got a strong, hard working candidate in Senator Jordan running for AG. It's possible that Senator Warnock and Stacey Abrams have coattails, and so to your point, I think lot of money is going to get spent here. I think it is going to be a phenomenally put together ground game. I think that field, I think there's going to be a lot of door knocking in that state, a lot of phone calls in that state, a lot of text messages in that state. And that's going to be a bellwether for some of these purple states going forward.

Jim Schultz: Yeah, Stacey Abrams has certainly built quite a grassroots operation there in Georgia. And I think that cannot be underestimated going into this race and it's going to be turnout, turnout, turnout. And I think Georgia is going to have a big turnout this year for a midterm election.

Stacey Abrams has certainly built quite a grassroots operation there in Georgia. And I think that cannot be underestimated going into this race and it's going to be turnout, turnout, turnout. And I think Georgia is going to have a big turnout this year for a midterm election.

Massachusetts and Maryland

Stephen Cobb: We have two states, I think, that are worth mentioning and keeping an eye on, not for the potential to flip, but just because there are two states that have taken nationwide leadership on some multistates and clearly in some policy pushing forward. And that's Massachusetts and Maryland. I don't see either of these states flipping to Republican control. But I think these are going to be two hard fought primaries, and it will be interesting to see who's going to pick up the mantle, Mark Healey and Brian Frosh moving forward. You know, in Massachusetts, especially, you have Quentin Palfrey. Quentin was the Democratic nominee for lieutenant governor in 2018. So has himself name recognition. And then you also have a City Council person from Boston who ran for Mayor, Andrea Campbell, I believe, is her name. And so I believe that's also going to be a hard fought race. And then in Maryland, Anthony Brown is running as well as a Baltimore judge, and so that's going to be another really, Katie O'Malley. So it's going be another hard fought race, you know, kind of a PG county versus Baltimore City, Baltimore County base race and all four, Massachusetts and Maryland, respectively, are very qualified individuals who I think are ready to step into the leadership vacuum of their predecessors.

Wisconsin and Emerging Trends in the Midwest

Jim Schultz: The other state that could be a swing here for the Republicans is Wisconsin, and I think that's largely because we have, again a year where states like Pennsylvania, Wisconsin are going to be front and center in terms of swing states. I think you're going to, you know, the turnout model and the and the generic ballot being in favor of Republicans could be another another win for the Republicans and an upset there.

Stephen Cobb: Yeah. You know, looking at that whole region. Josh Cole, Wisconsin, Dana Nessel in Michigan, Keith Ellison in Minnesota and as we talked about earlier, Iowa, you know that whole Midwest is becoming more and more of a battleground. I think without exception, each one of those AGs in there in their first term, Michigan, Wisconsin and Minnesota have all worked extremely hard and right now, you know, most polls are showing them with kind of a five to six point lead and with net insignificant favorability, which obviously bodes well. But, I don't think you can look at any race, any statewide race in any of Michigan, Wisconsin or Minnesota at this point and not see them as going to be hard fought races within a couple of points one way or another.

But, I don't think you can look at any race, any statewide race in any of Michigan, Wisconsin or Minnesota at this point and not see them as going to be hard fought races within a couple of points one way or another.

Arkansas

Jim Schultz: Yeah. Another place where, just kind of wrap it up on our side of it, you are going to see a switch in Arkansas, but just switch from one Republican to another. Leslie Rutledge is running for lieutenant governor and Lieutenant Governor Tim Griffin is the favorite to be the Republican nominee there and will likely win that one in a walk

Stephen Cobb: They're switching roles.

Jim Schultz: That's right. That's right.

Stephen Cobb: Only in Arkansas!

Jim Schultz: Samuel Sanders will be the governor there. So, you know, that's one worth noting that you're going to have to switch. It's just not from Republican to Democrat it'll be Republican to another Republican.

Arizona

Stephen Cobb: What are your thoughts on Arizona?

Jim Schultz: I think Arizona, I think that remains red. I think, you know, Arizona is trending more back to where it was prior to 2020. I think, while you know, 2020 didn't go the way of the Republicans, I do think it's trending back that way. And internal polling shows that the political environment there is pretty good and it's improved for Republicans and that the Republican nominee there should have had somewhat of an advantage going into the race. But, you know, open seat, we'll we'll see how that goes.

Stephen Cobb: Yeah, I think Arizona similar to Georgia, but in a very different way, it's going to be a unique indicator because I think at the top of the ticket, I think Mark Kelly is looking very strong in his reelection to the Senate. So the question is going to be, you know do split ticket voters still exist. You know, I think the conventional wisdom is that is less and less. But again, all politics is local, and so it'll be interesting to see with an open AG seat how that plays out and whether folks are running to be people's lawyer, running to be top cop, whether they're running to be the consumer protection czar are and to see how those subject matter issues play out at the ballot box or whether or not this is just a straight ticket state.

The question is going to be, you know do split ticket voters still exist. You know, I think the conventional wisdom is that is less and less. But again, all politics is local, and so it'll be interesting to see with an open AG seat how that plays out.

Closing Thoughts

Jim Schultz: That's right. Well, I think that pretty much covers it, Stephen. You know, any parting thoughts on this going forward? Other than the fact that you're going to get lumped up again on your side of the aisle this year.

Stephen Cobb: I got faith in our incumbents. I think they're doing a great job. I look forward to seeing them out on the campaign trail. It's going to be interesting and I encourage everybody to keep a close eye because state attorneys generals play such a vital role in the day to day in communities, public safety and in corporate regulatory efforts. So to continue to be a vitally important position. And so I hope folks who aren't involved or aren't paying attention to these races do so.

Jim Schultz: And I just encourage everyone to listen in again, as we continue to interview attorneys general from around the country and touching on issues that both folks in their states care about but the business community and business climate in general cares about. So, thank you for listening, and we'll catch you on the next one.

Stephen Cobb: This has been another installment of Holland & Knight's Eyes on Washington podcast State Attorneys General Edition. We look forward to having you next time.

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