State attorneys general are on the ballot in ten states, which means so are your rights.
As the state’s top lawyer, the attorney general advises the state and litigates on its behalf. Much of that litigation involves consumer protection, antitrust lawsuits, and environmental law. But increasingly, state attorneys general are having an impact on national policy by joining together to sue the federal government.
Under the Trump administration, states have brought lawsuits against travel bans, anti-LGBTQ rules, attacks on the Affordable Care Act’s contraception mandate, and the anti-abortion Title X “gag” rule. With 26 Republican attorneys general in place (though that number might change after the election), these types of lawsuits would likely continue even if former Vice President Joe Biden wins the presidency, said Colin Provost, associate professor of public policy at University College London.
“Since Trump was elected in 2016, Democratic AGs have brought record numbers of lawsuits to stop Trump policies or to stop proposed rollbacks of Obama-era rules,” Provost wrote in an email. “As with Obama, these lawsuits are occurring in a number of different policy areas.”
Roe has collapsed in Texas, and that's just the beginning.
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In the state attorney general races highlighted below, voters will choose between a pro-choice Democrat promising to take action against the Trump administration and a Republican candidate ready to defend anti-choice laws. Here are three to look out for.
Incumbent Democrat: Josh Stein, a longtime reproductive rights defender
Republican candidate: Jim O’Neill, who has the endorsement of anti-abortion and anti-LGBTQ group NC Values
Attorneys general like Stein have played an important role in challenging anti-choice actions by the Trump administration, said Susanna Birdsong, North Carolina director of public affairs at Planned Parenthood South Atlantic.
“It makes a big difference that [Stein] is participating in that way,” Birdsong said. On the state level, Stein pushed to process a backlog of rape kits and refused to participate in the legal defense of the state’s abortion restrictions.
Although Stein has highlighted racism in the criminal justice system, he has been criticized for his handling of specific cases. The national racial justice group Color of Change pointed to Stein’s handling of the case of Dontae Sharpe, a Black man wrongly convicted of murder and exonerated 25 years later.
“Dontae Sharpe was incarcerated at 19 years old and spent 24 years in prison for a crime that he did not commit because the state of North Carolina and Attorney General Stein failed to act sooner,” Scott Roberts, senior director of criminal justice campaigns at Color of Change, wrote in an email. “The Pitt County District Attorney and Attorney General Stein should have overturned this conviction due to the overwhelming evidence supporting Dontae’s innocence and consented to his release years ago.”
State attorneys general can play a role in overturning wrongful convictions, though they often choose not to, as Sharpe’s case shows. Several state attorneys general—including Pennsylvania’s Josh Shapiro—have opened offices to address wrongful convictions, but according to the National Registry of Exonerations, none of these have recorded any exonerations yet.
Some attorneys general also have the power to investigate “police departments with records of misconduct,” Provost said, meaning they could be involved in police reform efforts. Color of Change has also called on attorneys general and district attorneys to prosecute police officers who break the law.
Incumbent Democrat: Josh Shapiro, who has NARAL Pro-Choice Pennsylvania’s endorsement
Republican candidate: Heather Heidelbaugh, who has the endorsement of anti-choice organizations
Shapiro record of protecting abortion rights includes joining other states to file a lawsuit against the Trump administration’s domestic “gag rule,” which prevents Title X funding recipients from referring patients for abortion care. Shapiro is on the Democratic Attorneys General Association (DAGA) executive committee, which announced last year it would only endorse candidates who commit to protecting reproductive rights.
Heidelbaugh, meanwhile, has endorsements from anti-choice groups, including Susan B. Anthony List and Pennsylvania Pro-Life Federation
Democratic candidate: Jonathan Weinzapfel, who supports abortion and the Affordable Care Act
Republican candidate: Todd Rokita, who is anti-choice and supports Indiana’s participation in a multistate lawsuit against the Affordable Care Act
There is an open attorney general seat after Rokita defeated the Republican incumbent in the primary. Rokita was among the most conservative Republicans in Congress from 2011 to 2018, according to rankings by Govtrack.us. He told the Indianapolis Star that he would defend the state’s abortion laws.
“We have to trust women to make the right decision,” when it comes to abortion, Weinzapfel told the Star.
The outgoing Indiana Republican attorney general, Curtis Hill, was asked to resign “after a state lawmaker and three other women accused him of inappropriately touching them at a party in March 2018,” the Star reported. Hill refused.
A springboard for a higher position?
As we’ve seen with Sen. Kamala Harris, the Democratic vice presidential candidate and former California attorney general, attorneys general often run for higher office.
A 2010 academic article by Provost found that attorneys general who frequently take part in multistate lawsuits against businesses are more likely to run for higher office in the future. Female attorneys general are less likely to seek higher office than male attorneys general; however, the study looked at a relatively small number of women (26).
Impact on state policy
State attorneys general can also give nonbinding opinions on legal questions. However, the impac tis limited in frequently debated issues like abortion, according to Ian Eppler, an attorney and author of a law review article on the opinion power of attorneys general; strong existing viewpoints mean public officials are unlikely to be persuaded by the attorney general’s argument.
“There’s an inverse relationship between … the polarization, and the persuasiveness of an AG opinion,” he said. “If it’s something people have strong opinions on, it’s more likely [they will] defer to their own judgment.”
Litigation is where attorneys general have a bigger impact, Eppler said. This is especially true of cases tried in state court on state constitutional grounds; the Supreme Court, even with a conservative supermajority, can’t reinstate an abortion ban struck down on the basis of a state’s constitution.
In addition to attorney general elections, voters in several more states and territories are voting for the people who will appoint their next attorney general. Governors in American Samoa, New Hampshire, and Puerto Rico, and legislators in Maine are up for election, and they appoint the attorney general.