WASHINGTON — Races for state attorney general are usually overshadowed by the battle for Congress in midterm elections, but next year those contests could matter significantly for President Joe Biden’s agenda as his administration faces an onslaught of lawsuits from Republicans.
Control of attorney general offices could also prove critical in the next presidential election after both parties were heavily involved in the contentious legal battles that followed the 2020 election with Democratic attorneys general defending Biden’s victory against attempts by their GOP counterparts seeking to overturn it.
Virginia Republican Jason Miyares’ victory this month over two-term Democratic Attorney General Mark Herring made him the first GOP challenger to beat an incumbent Democratic attorney general in any state since 2012. That could be a warning sign for Democrats as they seek to defend incumbent attorneys general in the key swing states of Wisconsin and Michigan.
“The attorneys general represent the tip of the spear in the battle against federal overreach, particularly by the Biden-Harris administration,” said Arkansas Lt. Gov. Tim Griffin, a Republican candidate for state attorney general next year.
Griffin, a former congressman, is one of several GOP candidates for attorneys general across the nation promising to take a more aggressive approach in contesting federal policy if elected.
He plans to appoint a deputy attorney general for federal affairs, a position which does not currently exist, whose job would be to take a proactive role in responding to federal policy and to “focus on that like a laser beam.”
Biden’s administration is already grappling with legal challenges from current attorneys general, which are complicating implementation of an order intended to increase vaccination rates.
Biden’s predecessors also faced numerous suits from state attorneys general from opposing parties, but Biden’s election was the first time state attorneys general engaged in a broad and coordinated effort to contest a presidential victory.
Texas Attorney General Ken Paxton unsuccessfully sought to overturn Biden’s victory in four swing states and 18 other GOP attorneys general signed onto a brief in support.
Even after the U.S. Supreme Court rejected that effort, the Rule of Law Defense Fund, a fundraising arm of the Republican Attorneys General Association, made robocalls promoting the Jan. 6 march to the Capitol for then-President Donald Trump’s supporters. Members of the crowd rioted and attacked the Capitol in a violent attempt to prevent certification of Biden’s electoral victory.
Impact of AG results in 2022
Sean Rankin, the executive director of the Democratic Attorneys General Association, said Biden would not be in the White House if Democratic attorneys general in Pennsylvania, Wisconsin and Michigan had not successfully defended their states’ election results in court.
“They were the firewall to protect the vote in their states,” Rankin said, noting that Wisconsin Attorney General Josh Kaul and Michigan Attorney General Dana Nessel are both up for reelection next year in key states for presidential elections
“Those races are critical to make sure there isn’t any monkey business in the next presidential election,” Rankin said. “I think the AG’s race in Michigan is critical for protecting the right to vote in Michigan and therefore protecting our system of democracy.”
RAGA, the campaign arm for Republicans in attorney general races, did not respond to an inquiry for comment. But GOP candidates in multiple states affirmed that they’re making opposition to Biden the focus of their 2022 campaigns.
“If Republicans are trying to put up any resistance to a Biden action that they believe is unconstitutional, a member of Congress doesn’t have the ability to stop it, being in the minority,” said former Kansas Secretary of State Kris Kobach, a Republican seeking the attorney general’s office in 2022. “A governor can’t stop it either, but the one official in our system that can bring any federal policy to a halt is a state attorney general.”
The U.S. Court of Appeals for the 5th Circuit issued an order Nov. 6 halting Biden’s rule that requires companies with more than 100 employees to demand full vaccination or regular COVID-19 testing for their workers. The court action was in response to a lawsuit led by Texas, one of several cases brought by GOP attorneys general against the policy.
Kobach, who filed a lawsuit Nov. 9 against the vaccine rule on behalf of two North Dakota companies, said he plans to “play offense” against the federal government if he wins the Kansas attorney general’s office. He pointed to Paxton in Texas as his model.
“Texas is doing the lion’s share of the work. It’s probably fair to say the number of suits Texas is litigating is greater than all of the other states combined. I would like to see Kansas standing shoulder to shoulder,” Kobach said, noting that current Kansas Attorney General Derek Schmidt has signed onto other states’ suits rather than filing his own.
Texas and Missouri lawsuits
The White House has repeatedly asserted its confidence that it will ultimately prevail against the GOP-led lawsuits.
“Defending a policy is not a new thing from an administration, regardless if it’s a Republican or Democratic administration. This is something that happens all the time,” Karine Jean-Pierre, the White House principal deputy press secretary, said Nov. 8. “The administration clearly has the authority to protect workers.”
But Paxton scored a major court victory earlier this year that is forcing the Biden administration to reverse another policy and reinstate a Trump-era immigration rule that requires asylum-seekers at the southern border to remain in Mexico while their claims are considered, after a federal court ruled in favor of Paxton and Missouri Attorney General Eric Schmitt.
Paxton and Schmitt are also partnering on another lawsuit seeking to force the Biden administration to resume construction of barriers at the border.
Schmitt, a leading GOP candidate for Missouri’s open Senate seat in 2022, said in a statement that Missouri will “file lawsuit after lawsuit after lawsuit” against Biden administration actions seen as federal overreach. On Wednesday, Schmitt led 10 GOP states in filing a lawsuit against Biden’s vaccine requirement for health care workers.
Seth Wimer, a Florida-based Republican consultant who specializes in attorney general races, pointed to legal battles over the Affordable Care Act under former President Barack Obama as a turning point in how state attorneys general viewed their jobs with a heightened emphasis on federal policy.
“AGs are consequential in the national conversation and as we talk about federal issues, whether it’s immigration, clean power plan, environmental issues, what we’re seeing right now with vaccine mandates and the fight over that, it’s the state AGs who have more of an ability to control the direction where these things are going than even members of Congress,” said Wimer, who served as political director of RAGA from 2016 to 2019.
Skye Perryman, president and CEO of Democracy Forward, a group that has filed friend of the court briefs in support of Biden administration policies, said that “right-wing forces are seeking to undermine an agenda and laws that protect people, family and communities.”
Perryman said the lawsuits could damage the country’s pandemic response. “We are seeing attempts to undermine public health measures that are essential for the safety and health and vitality of people in the country in the middle of a global pandemic,” she said.
State-level Democrats say that attorneys general should return their focus to consumer protection and other responsibilities rather than picking fights with the president. Kansas state Rep. John Carmichael, a Wichita Democrat, said steering staff time to a string of lawsuits against the federal government depletes resources for other necessary work.
“Where we’re headed now is that the priorities of the office are determined not by the duties of the job but by the political winds of the day,” Carmichael said. “A number of these candidates — and Kris Kobach is certainly high on that list — consider their most important responsibility to get on TV.”
Brad Todd, a GOP consultant who worked on Miyares’ campaign in Virginia, said opposition to Biden will be the paramount issue in many in 2022.
“I think that constituents in red states expect their state attorneys general to push back on overreach and in blue states they expect the same when a Republican is in control,” he said.
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(McClatchy’s Francesca Chambers and The Kansas City Star’s Katie Bernard contributed to this report.)
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