LawFlash

State Attorney General Results — 2012

November 08, 2012

Continued and Increased Collaboration Between State and Federal Enforcers and Regulators Anticipated.

Two Leaders of Multistate Task Force Investigations Have Turned Over Party Control From Republican to Democrat, Signaling Increased Activism and Regulation Through Litigation.

Continuation of Concerted Republican Opposition to Obama Administration Policies Expected.

The 2012 election cycle included ten Attorney General posts, six of which were in Democratic hands and four of which were in Republican hands. In contrast, the 2014 electoral cycle will include 35 Attorney General posts — the Democrats will defend 18 and the Republicans will defend 17.

Three newly elected Attorneys General — in Montana, Pennsylvania and West Virginia — will be holding elective office for the first time. Two — in Montana and West Virginia — come from the private sector and two — in Pennsylvania and Utah — come from the prosecutorial ranks.

The leadership of offices that historically have been in the forefront of Attorney General multistate efforts — Pennsylvania and Washington — has changed from Republican to Democrat.

Democrats Hold Onto Four Seats — Missouri, North Carolina, Oregon & Vermont

In Missouri, Chris Koster (D) was re-elected with 56% of the vote, prevailing over Ed Martin (R), who served as Chief of Staff to Governor Matt Blunt and, thereafter, launched an unsuccessful 2010 Congressional bid. Koster was first elected in 2008 with 53% of the vote. Koster, who had served as a Republican state senator and challenged “Obamacare” as Attorney General, outpaced Governor Jay Nixon (D) and Senator Claire McCaskill (D), both of whom were re-elected with 55% of the vote.

Interim Oregon Attorney General Ellen Rosenblum (D), who was tapped last summer to serve as Attorney General after predecessor John Kroger (D) resigned, will retain the Attorney General post. She defeated attorney James Buchal by 56%-39%. She is the fourth consecutive Democratic Attorney General, a post that has been in Democratic hands since 1993.

Two long-standing Democratic Attorneys General won re-election. North Carolina Attorney General Roy Cooper (D), running unopposed, won his fourth term. Bill Sorrell (D), after surviving a primary challenge by 51% to 49%, was re-elected to his eighth two-year term as Vermont Attorney General, defeating lawyer and businessman Jack McMullen (R), by a 58%–33% margin.

Republicans Hold Onto Two Seats — Indiana & Utah

Incumbent Republican Attorney General, Greg Zoeller (IN), was elected to his second term, defeating Indianapolis attorney Kay Fleming by 58% to 42%. In addition, John Swallow (R), who served as Chief Deputy Attorney General to Mark Shurtleff (R), was elected to succeed Shurtleff as Attorney General, defeating Weber County Prosecutor Dee Smith by a margin of 65% to 30%.

Partisan Shifts in Four States — Montana, Pennsylvania, Washington & West Virginia

In Montana, Republican attorney Tim Fox, making his second run for the post, defeated former Montana Chief Deputy and Department of Labor attorney Pam Bucy (D), 53% to 47%, to succeed Attorney General Steve Bullock (D), who prevailed in his gubernatorial race. Fox will be the first Republican in 20 years to serve as Attorney General.

West Virginia went from Democratic to Republican when Patrick Morrisey, a lawyer with King & Spalding, defeated five-term Attorney General Darrell McGraw. McGraw had won re-election in 2008 with just more than 50% of the vote. Morrisey, whose margin of victory was 51% to 49%, won in a cycle that saw the state’s Democratic Governor and Senator re-elected.

The Attorney General post switched from Republican to Democratic in Pennsylvania, where former Lackawanna County (Scranton) assistant D.A. Kathleen Kane, buoyed by criticism of Governor Tom Corbett’s (R) conduct of the Jerry Sandusky investigation while he was Attorney General, became the Commonwealth’s first elected Democratic Attorney General. She defeated Cumberland County (Harrisburg) D.A. Dave Freed by 56% to 42%, running four points ahead of President Obama’s winning margin and two points ahead of Senator Bob Casey’s winning margin in the Commonwealth. She will replace interim Attorney General Linda Kelly, who was appointed in 2011 to fill the unexpired term of Governor Corbett.

In Washington, King County (Seattle) Councilmember Bob Ferguson (D) defeated fellow Councilmember Reagan Dunn (R) by a 53%–47% margin. Ferguson will succeed Rob McKenna (R), who lost his race for governor to Jay Inslee (D).

Projected Partisan Make-Up

The current partisan make-up is 25–25, but should soon change to 26–24 in the Democrats’ favor. The Maine Attorney General is elected by that state’s legislature. Both houses of the legislature have switched from Republican to Democratic and we expect William Schneider (R) to lose his post once the legislature convenes in early December. This is a far cry from the 32 Democratic – 18 Republican split that existed prior to the 2010 election cycle.

Over the last two years, many Attorneys General have been increasingly aggressive in challenging increased Federal regulation such as the Affordable Care Act as well as energy and environmental protection measures.

The New Attorneys General

Montana — Tim Fox (R), a Montana native, has served as a solo practitioner, a public defender, a special assistant attorney general, legal counsel for a regional bank and, most recently, a private practitioner with a law firm. His campaign stressed Fox’s commitment to improving Montana’s business climate, gun rights, protecting children from sexual predation and repealing “Obamacare.” Fox obtained his undergraduate and law degrees from the University of Montana.

Oregon — Ellen Rosenblum (D) has served as interim Attorney General since June 2012. She had served as a judge on the Oregon Court of Appeals and, prior to that, on circuit and district courts in the state. Before that she was an assistant U.S. Attorney in Oregon and in private practice. Her campaign stressed her commitment to consumer protection and environmental enforcement and pursuing financial and technology fraud. She has also promised to make marijuana enforcement a low priority, and protect the rights of medical marijuana patients. Her undergraduate and law degrees are from the University of Oregon.

Pennsylvania — Kathleen Kane (D), a Lackawanna County native, served as an assistant D.A. in Lackawanna County, prosecuting murder, child and elder abuse, domestic violence and insurance fraud cases. Her campaign stressed her commitment to protecting the elderly, consumers, the environment, and pursuing violent criminals and public corruption. She also unveiled a “Child Protection Initiative” in response to the Sandusky scandal, stating that “it has never taken me 33 months to get a predator off of the street.” Kane obtained her undergraduate degree from the University of Scranton and her law degree from Temple University School of Law.

Utah — John Swallow (R) has served as the state’s Chief Deputy Attorney General since 2009. Prior to that, Swallow served in the Utah House of Representatives. He also was general counsel for a Utah-based dietary supplement company and worked as a private practitioner, specializing in commercial, real estate, financial, government and corporate matters. He ran unsuccessfully for Congress in 2002 and 2004. Swallow’s campaign stressed his commitment to fighting illegal immigration, child predation and “Obamacare” and his support of second amendment rights and state sovereignty, especially as it relates to federal policies that cut off access to public lands. Swallow obtained his undergraduate and law degrees from Brigham Young University.

Washington — Bob Ferguson (D) is a fourth-generation Washingtonian. After federal court clerkships, he joined a Seattle law firm and, in 2003, was elected to the King County Council, where he chairs the Council’s Government Accountability, Oversight and Financial Performance Committee. He supports abortion rights and same-sex marriage and vowed to create an environmental crimes unit, pursue unscrupulous mortgage practices and continue the Attorney General office’s historical commitment to consumer protection. Ferguson obtained his undergraduate degree from University of Washington and his law degree from New York University.

West Virginia — Patrick Morrisey (R) is a New Jersey native who has resided in West Virginia since 2006. He has practiced healthcare, administrative and election law in Washington, D.C., and also served as Deputy Staff Director and Chief Health Care Counsel to the House of Representatives Energy and Commerce Committee. He also ran unsuccessfully for Congress from New Jersey in 2000. As a private practitioner, Morrisey assisted the state Attorneys General’s challenge to “Obamacare” and stressed his support of ethics reform, consumer protection, states’ rights, the second amendment and the unborn during his campaign. He obtained his undergraduate and law degrees from Rutgers.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Gess-Nicholas
Shea-Timothy
Merrill-Stephen

This article was originally published by Bingham McCutchen LLP.