How the Supreme Court’s State Legislature Case Could Change Elections

Races in state legislatures are often quiet and turn on local issues like roads or schools. But a Supreme Court case could give these legislative bodies nearly absolute power over federal elections.

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Veronica Klinefelt, left, a Democratic candidate for the Michigan State Senate, speaking with Jennifer Trupp, a teacher, last week in Eastpointe, Mich. Democrats see the district as crucial for taking back the chamber.

EASTPOINTE, Mich. — The conversation started with potholes.

Veronica Klinefelt, a Democratic candidate for State Senate in suburban Detroit, was out knocking on doors as she tries to win a seat her party sees as critical for taking back the chamber. “I am tired of seeing cuts in aging communities like ours,” she told one voter, gesturing to a cul-de-sac pocked with cracks and crevasses. “We need to reinvest here.”

What went largely unspoken, however, was how this obscure local race has significant implications for the future of American democracy.

The struggle for the Michigan Senate, as well as clashes for control of several other narrowly divided chambers in battleground states, have taken on outsize importance at a time when state legislatures are ever more powerful. With Congress often deadlocked and conservatives dominating the Supreme Court, state governments increasingly steer the direction of voting laws, abortion access, gun policy, public health, education and other issues dominating the lives of Americans.

The Supreme Court could soon add federal elections to that list.

The justices are expected to decide whether to grant nearly unfettered authority over such elections to state legislatures — a legal argument known as the independent state legislature theory. If the court does so, many Democrats believe, state legislatures could have a pathway to overrule the popular vote in presidential elections by refusing to certify the results and instead sending their own slates of electors.

While that might seem like a doomsday scenario, 44 percent of Republicans in crucial swing-state legislatures used the power of their office to discredit or try to overturn the results of the 2020 presidential election, according to a New York Times analysis. More like-minded G.O.P. candidates on the ballot could soon join them in office.

Republicans have complete control over legislatures in states that have a total of 307 electoral votes — 37 more than needed to win a presidential election. They hold majorities in several battleground states, meaning that if the Supreme Court endorsed the legal theory, a close presidential election could be overturned if just a few states assigned alternate slates of electors.

Democrats’ chances of bringing Republicans’ total below 270 are narrow: They would need to flip the Michigan Senate or the Arizona Senate, and then one chamber in both Pennsylvania and New Hampshire in 2024, in addition to defending the chambers the party currently controls.

Democrats and Republicans have set their sights on half a dozen states where state legislatures — or at least a single chamber — could flip in November. Democrats hope to wrest back one of the chambers in Michigan and the Arizona Senate, and flip the Minnesota Senate. Republicans aim to win back the Minnesota House of Representatives and take control of one chamber, or both, in the Maine, Colorado and Nevada legislatures. They are also targeting Oregon and Washington.

An avalanche of money has flowed into these races. The Republican State Leadership Committee, the party’s campaign arm for state legislative races, has regularly set new fund-raising records, raising $71 million this cycle. The group’s Democratic counterpart has also broken fund-raising records, raising $45 million. Outside groups have spent heavily, too: The States Project, a Democratic super PAC, has pledged to invest nearly $60 million in five states.

ImageAt a candidate forum on Wednesday in Midland, Mich., Kristen McDonald Rivet, a Democrat, and Annette Glenn, a Republican, faced off in their highly competitive State Senate race.Credit…Emily Elconin for The New York Times

The television airwaves, rarely a place where state legislative candidates go to war, have been flooded with advertising on the races. More than $100 million has been spent nationwide since July, an increase of $20 million over the same period in 2020, according to AdImpact, a media tracking firm.

The State of the 2022 Midterm Elections

With the primaries over, both parties are shifting their focus to the general election on Nov. 8.

The Final Stretch: With less than one month until Election Day, Republicans remain favored to take over the House, but momentum in the pitched battle for the Senate has seesawed back and forth.
Herschel Walker: A woman who said that the G.O.P. Senate nominee in Georgia paid for her abortion in 2009 told The Times that he urged her to terminate a second pregnancy two years later. She chose to have their son instead.
Will the Walker Allegations Matter?: The scandal could be decisive largely because of the circumstances in Georgia, writes Nate Cohn, The Times’s chief political analyst.
Pennsylvania Senate Race: John Fetterman, the Democratic nominee, says he can win over working-class voters in deep-red counties. But as polls tighten in the contest, that theory is under strain.

Democrats are finding, however, that motivating voters on an issue as esoteric as the independent state legislature theory is not an easy task.

“Voters care a whole lot about a functioning democracy,” said Daniel Squadron, a Democratic former state senator from New York and a founder of the States Project. But, he said, the independent state legislature “threat still feels as though it’s on the horizon, even though it’s upon us.”

For some Republicans, the issue of the independent state legislature theory is far from the campaign trail, and far from their concerns.

“If it’s a decision by the Supreme Court, based on their legal opinion, I would defer to their legal expertise,” said Michael D. MacDonald, the Republican state senator running against Ms. Klinefelt. “I certainly respect the court’s opinion when they make it. I think it’s important that we do.”

Instead, Republicans are focusing on economic topics like inflation.

“The economy remains the issue that voters are most concerned about in their daily lives, and is the issue that will decide the battle for state legislatures in November,” said Andrew Romeo, the communications director for the Republican State Leadership Committee. The group’s internal polling shows that inflation and the cost of living are the No. 1 priority in every state surveyed.

The issues defining each election vary widely by district. Some of them, like roads, school funding and water, are hyperlocal — subjects that rarely drive a congressional or statewide race.

In the Detroit suburbs, Mr. MacDonald said he had heard the same concerns.

“When they have something to say, it’s never ‘Joe Biden’ or ‘Donald Trump,’ it’s, ‘Hey, you know, actually my road, it’s a little bumpy, what can you do?’” Mr. MacDonald said. He added, “Sometimes it could be as small as, ‘Can they get a garbage can from our garbage contractor?’”

His pitch to voters, in turn, focuses on money that Macomb County, which makes up a large part of the district, has received from the state budget since he was elected four years ago.