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Last week’s state attorney general races brought little change on the surface, but change in Washington significantly increases the risk of enforcement and litigation by the states. If it seems counterintuitive, it is. But this Washington changeover heightens the complexity of the relationship between Washington and state capitols.

State attorneys general wear two hats. On the one hand they are typically their state’s chief law enforcement and legal officer. On the other hand, they are a statewide elected official. Thus, a pairing of legal and political. They also may well be the most powerful officials in our government because there are few checks on their authority to investigate and litigate. A governor may sign laws only after legislatures enact them, and legislatures are rarely monolithic. But, an attorney general can file a complaint or issue a subpoena with the stroke of their pen.

There were 11 state attorney general races in this cycle. Consistent with recent history, there were no turnovers of party control. No incumbent seeking reelection lost his or her position. Maine’s attorney general will be elected by the state’s legislature in December. Democrats retained control of both houses in the recent election, and they are expected to select a Democrat as attorney general.

Outcomes of State Attorney General Races

State

Winner

Challenger(s)

Remarks

Indiana

Todd Rokita (R)

Jonathan Weinzapfel (D)

Rokita beat incumbent Curtis Hill (R) in a party convention

Maine

 

 

AG will be elected by legislature in December. Incumbent is Aaron Frey (D).

Missouri

Eric Schmitt (R)

Rich Finneran (D)

Schmitt won first full term after serving as Acting AG since 2018.

Montana

Austin Knudsen (R)

Raph Graybill (D)

Knudsen won first term to fill open Republican-held seat

North Carolina

Josh Stein (D)

Jim O’Neill (R)

Stein won second term.

Oregon

Ellen Rosenblum (D)

Michael Cross (R)

Rosenblum won third term.

Pennsylvania

Josh Shapiro (D)

Heather Heidelbaugh (R)

Shapiro won second term.

Vermont

TJ Donovan (D)

H. Brooke Paige (R)

Cris Ericson (Progressive)

Donovan won third 2-year term.

Utah

Sean Reyes (R)

Greg Skordas (D)

Reyes won third term.

Washington

Bob Ferguson (D)

Matt Larkin (R)

Ferguson won third term.

West Virginia

Patrick Morrisey (R)

Sam Petsonk (D)

Morrisey won third term.

Nonetheless, the risk of state enforcement and litigation has been significantly increased for several reasons:

  • Many Democratic attorneys general have received significant appropriations enhancements since 2016 to attack the Trump administration’s actions. As a new Biden-Harris administration moves to undo its predecessor’s actions, we anticipate many of these AG matters to resolve quickly. This will leave these state attorneys general with significant affirmative litigation capability to be repurposed.
  • President-elect Joe Biden’s late son, Beau, was the attorney general of Delaware at the time of his death and through Beau, then Vice President Biden had significant interactions with his son’s colleagues. Vice President-elect Kamala Harris is the former attorney general of California. Many incumbent attorneys general served with her and will have direct access to her going forward. She is also a prosecutor by trade and brings an enforcement mindset to bear. Thus, we anticipate historically strong relations between attorneys general on one hand and the White House and thus presumably appointees in cabinet and independent agencies such as DOJ, HHS, DOL, SEC, CFPB, and FTC on the other hand. The strength of these relationships will further enhance the influence of the state attorneys general.
  • Republican attorneys general will likely revert to the significant role they played the last two Democratic administrations by using their parens patriae litigating authority to challenge what they have termed “regulatory excess” from Washington.
Strategies to mitigate enforcement and litigation risk must take into account not only legal merits of the issues at stake but also the legal and political considerations discussed above.