Democrat Justin Nelson (left) is running against incumbent Ken Paxton. New York’s Tish James promises to oppose and investigate the president.(L: AP Photo / CQ Roll Call / Bill Clark; R: AP Photo / Bebeto Matthews)
Tish James claimed the Democratic nomination for New York attorney general in late September with a call to arms. The first black woman nominated by a major party for statewide office in New York explained that her campaign is about much more than filling another ballot line in another election. “Most importantly,” James said, it is “about that man in the White House, who can’t go a day without threatening our fundamental rights, can’t go a day without threatening the rights of immigrants, can’t go a day without dividing us.” James told a cheering crowd in Brooklyn that she is seeking one of the most potent law-enforcement posts in the nation in order to erect “a wall of constitutional protection that never crumbles”—a wall stronger than anything Donald Trump has proposed.
That’s no idle promise. State attorneys general have the tools to challenge edicts from the White House, as was powerfully illustrated just days after Trump’s inauguration, when Attorney General Bob Ferguson of Washington State upended the new president’s Muslim ban with a legal challenge that identified the executive order as unlawful and unconstitutional. Since Trump took office in January 2017, Democratic attorneys general have resisted his administration’s assaults on everything from immigrant and labor rights to legal marijuana—just as Republican AGs have aligned with the administration’s schemes to undermine the Affordable Care Act and promote judicial nominees like Brett Kavanaugh.
The nation’s state attorneys general have come to be understood both as forces unto themselves and as members of multistate coalitions that can affect national policy. As the chief law-enforcement officer on the state level—30 of whom will be elected this fall—they have the authority to safeguard the environment, protect consumers, shield employees from workplace abuses, defend immigrants, and fight for the rights of women and members of the LGBTQ community. They can put criminal-justice reform on the agenda, demand accountability from the Catholic Church, preserve voting rights, and assure that the meetings of state and local boards are open and their records accessible. The power of these positions, which has been utilized more aggressively in recent years, has made attorney-general races some of the most high-stakes contests in an incredibly high-stakes election year. In an era characterized by gridlock and dysfunction at all levels of government, attorneys general get things done.
Nevada State Senate majority leader Aaron Ford—now a Democratic nominee for attorney general who has pledged to fight for background checks on gun buyers in a state that was traumatized by last year’s Las Vegas massacre—is right when he argues, “Some people refer to [the office] as a quote-unquote ‘down-ballot race.’ I think it’s separate and apart from the ballot, because it serves as a check on other agencies.”
The old days when attorney-general races were seen as local contests between county prosecutors who might eventually aspire to judgeships are over. These days, state attorneys general have become governors, senators, even president. The Senate Judiciary Committee is full of them: Kamala Harris (D-CA) is a former attorney general, as are Sheldon Whitehouse (D-RI), Richard Blumenthal (D-CT), and John Cornyn (R-TX), a key conservative on the committee. Likewise, many of the breakthrough Democratic winners in recent election cycles have been former AGs: Tom Udall in New Mexico, Heidi Heitkamp in North Dakota, and Catherine Cortez Masto in Nevada.
But attorneys general do not have to be elected to the Senate to play on the national stage. They have the authority to challenge federal policies and alter the course of presidencies. Members of Congress recognize that power: Last year, a rising Democratic star in the House, Xavier Becerra, quit to take over from Harris as California’s attorney general. This year, former Congressional Progressive Caucus co-chair Keith Ellison is the Democratic nominee for attorney general in Minnesota. (Ellison was accused by a former girlfriend of domestic abuse days before he won the state’s August primary; an attorney hired by the Minnesota Democratic-Farmer-Labor Party recently concluded that the allegations could not be substantiated, but they remain a focus of his Republican rival’s campaign.) And, of course, Trump’s disgraced and now-discarded Environmental Protection Agency administrator, Scott Pruitt, came to the president’s attention for his performance as Oklahoma’s attorney general.
“We’re in this very unique moment in history when the courts and the lawyers matter more than ever,” says veteran prosecutor January Contreras, the co-founder of Arizona Legal Women and Youth Services (ALWAYS), a pioneering nonprofit group that advocates on behalf of children and young adults who have survived trauma, homelessness, and sex trafficking. “The laws and the courts,” Contreras adds, “are where we’re going to stop the worst from happening.”
Her point is well-taken, but it is not guaranteed. Because attorneys general have great flexibility when it comes to applying the law, the line between stopping the worst from happening and making sure that it happens has to be drawn by voters. This year, Contreras is the Democratic challenger to Arizona Attorney General Mark Brnovich, a former senior director of business development for Corrections Corporation of America, the private-prison conglomerate, who also has ties to the secret donor networks of the billionaire Koch brothers. Contreras says that, if elected, “I’ll get rid of the grip that special interests have on our state government so we can get back to the business of holding everyone accountable to the same set of rules.”
Special-interest donors recognize the power of attorneys general. That’s why, according to an assessment of this year’s AG races by The Hill, the two parties and their allies “will spend more than $100 million on the contests, two or three times more than has ever been spent on attorneys general races before.” This record-shattering spending spree is expected to target states like Colorado, Florida, Michigan, Nevada, Ohio, and Wisconsin, where the races for attorney-general seats currently held by Republicans are all toss-ups, according to an analysis earlier this year from Governing, the nonpartisan journal of state politics and governance. “In a neutral environment, this would suggest the Democrats could expect to gain a couple of seats,” the journal observed. “But if there’s a Democratic wave, the party might win even more than that, perhaps enough to turn an overall Republican lead in AG seats into a Democratic one.”
The wave elections of 2010 and 2014 put Republicans in a dominant position in the nation’s statehouses, and that domination extended to the attorney-general’s office. Twenty-seven of the 50 state attorneys general are Republican; 21 are Democrats (Alaska’s attorney general is an independent, and Hawaii’s serves in a nonpartisan capacity). Of the 30 state AG positions that are up for grabs this year, 18 are currently in Republican hands, while 12 are held by Democrats.
Strong Democratic contenders—such as former federal prosecutor Josh Kaul, a voting-rights advocate who is mounting an aggressive challenge to Brad Schimel, the scandal-plagued attorney general of Wisconsin; or Michigan civil-rights lawyer Dana Nessel, a top litigator on LGBTQ issues who helped get a court to strike down Michigan’s same-sex-marriage ban over a year before the Supreme Court intervened—are well positioned to win AG seats currently held by Republicans. Nessel has run a strikingly effective campaign that uses the headlines of the moment to focus attention on the authority of the office she seeks. In a video featuring stories about powerful men who have sexually abused women, the candidate says, “When you’re choosing Michigan’s next attorney general, ask yourself this: Who can you trust most not to show you their penis in a professional setting? Is it the candidate who doesn’t have a penis? I’d say so.” Then she doubles down on the point: “I will not sexually harass my staff, and I won’t tolerate it in your workplace either. I won’t walk around in a half-open bathrobe, and I’ll continue to take all sex crimes seriously, just like I did as a prosecutor.”
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Another thing that Nessel and the other Democratic attorney-general candidates around the country say they won’t do is attack the Affordable Care Act. University of Texas law professor Justin Nelson, who once clerked for Supreme Court Justice Sandra Day O’Connor and is challenging Republican Attorney General Ken Paxton in the Lone Star State, has highlighted Paxton’s lawsuit to overturn the ACA’s protections for people with preexisting conditions. “I will withdraw Texas from this lawsuit on the very first day in office,” Nelson vows.
Nelson is running an uphill race in Texas, but he’s viable at least in part because the incumbent is under felony indictment for securities fraud. “Ken Paxton will lie, cheat, and steal to remain in power and line his pockets,” says the challenger. “His indictment is a disgrace to the Office of the Attorney General and the state of Texas. Texans deserve an attorney general dedicated to enforcing the law, not breaking the law.”
Restoring the rule of law at the state level is one thing. But attorneys general also have the authority to address wrongdoing by presidents, and that authority is especially significant when the New York AG is going after a billionaire president who made his name and his money in New York City. That’s why it’s so significant that Tish James is promising to “follow the money, because we believe that [Trump] has engaged in a pattern and practice of money laundering—laundering the money from foreign governments here in New York State, and particularly related to his real-estate holdings.” As a former assistant attorney general and a veteran elected official, James understands the awesome power of the AG’s office, and she knows that power has already been aimed at Trump by former state attorney general Eric Schneiderman and interim attorney general Barbara Underwood. She is confident that she can use that power to hold the most powerful man in the world to account—so much so that James says: “It’s important that everyone understand that the days of Donald Trump are coming to an end.”
That’s a bold prediction from a candidate who proudly identifies herself as “still just a girl from Brooklyn.” But the power that attorneys general wield is real, and if the voters choose to rest that power in the hands of James and other Democrats like her, it could be the most consequential result of the November 6 election.
John NicholsTwitterJohn Nichols is a national affairs correspondent for The Nation. He has written, cowritten, or edited over a dozen books on topics ranging from histories of American socialism and the Democratic Party to analyses of US and global media systems. His latest, cowritten with Senator Bernie Sanders, is the New York Times bestseller It's OK to Be Angry About Capitalism.