States at Play: Dynamics in Seven States Are Key to Election

The U.S. Presidential contest is not really one national election; instead, it is 50 separate state elections.   And in 2024, a small subset of those states will actually decide who wins.  Victory in these battleground states will hinge not just on the voters, but upon the electoral rules and the people who make, administer, and interpret them. Election officials, many of whom are volunteers, will play a key role in ensuring a fair process.  So too will elected legislators, governors, attorneys general, and secretaries of state.  And don’t forget the courts.  Each state has its own court system and Supreme Court. Some of these judges are elected and some are not. But all are endowed with the power to interpret individual state law on how the elections should be run.

Much Has Changed

Many of us still remember the Bush-Gore presidential contest of 2000, which came down to one state and whether disputed votes would continue to be counted.  The Florida Supreme Court had ruled that officials should continue their efforts to get an accurate count in several key counties.  The U.S. Supreme Court, however, said “no,” and stopped the count with George Bush several hundred votes ahead.  Al Gore graciously conceded, and the words “stop the steal” was never heard from the Democratic frontrunner.   

Much has changed since then.  No longer can one find “hanging chads'' on election ballots that are difficult to decipher.  Votes are often counted by computer and relatively easy to check.  Studies of our elections reveal little fraud, and certainly not enough to flip a contest.  Despite our improvements, however, confidence in the fairness of our process has waned over the last decade.  Though Trump proponents will deny their role in this, the downward spiral in confidence began in 2016, and the former president’s endless attacks have generated the view, especially among Republicans, that the upcoming election will neither be fair nor honest.   If Trump loses, he doubtless will litigate, both through actual lawsuits and in the court of public opinion. Heads I win, tails you lose. And most of his legal efforts will focus on the swing states.  Knowing a little about the political dynamic in each as well as the people who occupy key positions, is key to understanding how this election will unfold. 

Same States-New Players

Seven states with a total of 93 electoral politics will likely determine the next president.  They include Pennsylvania (19 electoral votes), Michigan (15), Georgia (14), Arizona (11), Wisconsin (10), and Nevada (6). North Carolina (16) becomes number 7, if only because Biden lost the state in 2020 by less than 2 percent, it has a Democratic governor and the Republican seeking that seat this year is less than stellar.  

The 2020 Biden margins in several of the battlegrounds were razor-thin; Arizona and Georgia were each won with fewer than 13,000 votes.  A shift of 46,000 total votes in Arizona, Georgia, and Wisconsin would have meant a tie in the electoral college, and Trump would likely have been elected by the U.S. House of Representatives.   Had Trump won in Wisconsin, Pennsylvania, and Nevada, he would have accumulated

     The Battleground States

enough electoral votes for reelection. Since 2020, Republican-controlled legislatures have been relentlessly enacting measures that make voting more difficult.  With the exception of Georgia and North Carolina, however, they have not been very successful in most of the battleground states.

Optimism?

Despite Biden’s standing in the polls, Democrats have reason to believe that they can win enough of these states to prevail.  Reproductive rights is a more significant issue in 2024 than 2020, and abortion will literally be on the ballot in both Arizona and Nevada in the form of ballot initiatives that could enshrine reproductive rights in their state constitutions. Recent experience suggests that these measures bring larger turnouts among voting groups typically associated with Democrats.

Democrats should also be optimistic about political leadership in the contested states.  While Georgia and Nevada have Republican governors,  the chief executives in the other five states are Democrats, up one since 2020. Democrats control the election apparatus in 5 of the 7 states, and should be heartened that Georgia Secretary of State Brad Raffensberger, while a Trump supporter in 2020 and an advocate for more restrictions on the right to vote, had the fortitude to say “no” to the president’s request to “find him enough votes” to win the state. And perhaps most importantly, Democrats in 2022 were able to flip state legislatures in Pennsylvania, Michigan, and Nevada.  Why are these changes important?

First, not only can governors affect turnout;  both they and the state Boards of Elections also certify electors to the electoral college.  While certification is legally a ministerial duty required after the accuracy and validity of election results are confirmed, some have suggested that Republican governors could “go rogue” by refusing to certify Biden electors, thereby prompting a call to create a slate of alternate electors claiming the mantle of representing a state.  In 2020, Trump failed to convince Republican governors Doug Ducey in  Arizona and Brian Kemp in Georgia to refuse certification of Biden electors. With Arizona now in Democratic hands and North Carolina Democratic Governor Roy Cooper’s term not expiring until December 31, 2024, any Trump effort to deny certification is limited to a new Republican Governor – Joe Lombardo of Nevada, and Kemp, who rebuffed Trump’s ask in 2020.  

Second, Democratic takeovers of swing state legislatures in 2022 has made any “fake electors scheme” even more difficult.   Wisconsin, Georgia, and North Carolina still have Republican legislatures, but, in the absence of “rogue” governors, reconvening these part-time bodies after they have adjourned to choose electors different from those elected in November would require a “special session.” In most states, only the governor or a two-thirds majority of the legislature can call a special session, which would be difficult in all of these states save North Carolina, which retains a GOP legislative supermajority. 

Third, Democrats now control the secretaries of state in all but two of the seven states – Pennsylvania and Georgia (remember, Raffensberger is no friend of Trump) – and occupy the office of attorney general in all but Georgia. Trump allies brought more than 60 lawsuits in 2020, and lost all important ones.  Expect another round of litigation if he loses again. Democratic control of the key positions will ensure the fairness of the results and defense of them in court.  

State Law- and State Courts – Make a Difference

Much of the litigation following this election will either occur in state courts or will involve interpretation of state law.  Several of the seven states, notably Georgia and North Carolina, have made voting more restrictive since 2020.   In North Carolina, Governor Roy Cooper’s vetoes could not prevent Republican supermajorities from curtailing voting rights.  And the state’s supreme court that has flipped from Democratic to Republican control, reversed itself to allow hyper partisan redistricting in the state.  In Georgia, the Republican legislature restricted the number of ballot dropboxes, changed ID requirements, and shortened the period for requesting absentee ballots.  While the state still allows 21 days of early voting, the Secretary of State Raffensberger was removed from the state election board, and the state has become a hotspot for Republican litigation seeking to sow suspicion about the integrity of the state’s voting procedures.  

Litigation is a key piece of the Republican strategy.  Most recently, the RNC and associated groups sued New Mexico over the maintenance of state voting rolls and alleged that Arizona’s Manual for voting procedures is illegal.  Defenses to these have been mounted by recently elected Attorney General Kris Mayes in Arizona, and Nevada’s Aaron Ford, who has occupied his position since 2019. 

Since some lawsuits will be brought in state courts, decisions of those supreme courts may make a difference.  In several of the seven, judges have changed.  In Wisconsin, where a four-three conservative majority decided four cases against Trump in 2020, Janet Protasiewicz was elected in 2023, giving that court its first liberal majority in 16 years. Michigan has seen a similar change. During the 2020 election litigation, its 4-3 Republican- affiliated majority ruled against Trump in the three state cases. Since then, two Democrats have replaced Republicans.  The Pennsylvania Supreme Court, also an elected body, has a five-two Democratic majority.   This could make a major difference in November.

Don’t Forget the Rest

Focusing on battlegrounds alone would be a huge mistake. There are major contests for Senate, especially in Montana and Ohio, and a chance that Democrats could wrest control of the House away from MAGA Republicans by winning key seats, even in Republican-leaning states.  New York and California are likely to remain Blue at the presidential level, but voting in those states remains critical, not only in the presidential contest but in down ballot races such as state legislative elections, where party control can make a huge difference in everything from voting rights to education.

Virginia is not included on the list of battlegrounds, owing partially to its recent bluish hue and the antipathy that vote-rich Northern Virginia has shown to Trump.  Nonetheless, elections are never won without the work being done and citizens showing up to vote.  Failure to do this would mean disaster for Biden.

A 2020 Repeat?

Elections are increasingly unpredictable and with Donald Trump in the mix, anything is possible.  Expect continued attacks on the fairness of the election, and more lawsuits both before and after election day.   Joe Biden cannot take anything for granted. To win, he will need the votes.  If he gets them, however, stronger political guardrails exist today to protect a victory than in 2020, both because Trump is not the President and key states are less subject to political shenanigans than four years ago. Worries about the election remain justified, but if Biden can win a majority of these seven battleground states, he can likely defend the victory after it has been achieved.