To date, there have been AG primary elections in 17 states and DC.[1] The Michigan Democratic Party endorsed a candidate in April[2] and both major parties in South Dakota selected their nominees via conventions in June.

As we look ahead and try to handicap the outcomes of the next wave of AG primary elections beginning in August,[3] including hotly contested primary elections in Florida, Minnesota, and New York, it’s helpful to reflect on some of the key takeaways from the AG primary elections thus far.

AG Elections have become key races to watch

The 2018 cycle has been truly exceptional in terms of the unprecedented amounts of local and national media coverage, political commentary, and attention surrounding AG primary elections. Thus far, Republican AG primary elections in Alabama and Oklahoma and Democratic AG primary elections in Colorado and Illinois have elicited immense national interest. This elevated focus on AG elections is likely the result of a number of factors that created a “perfect storm” environment.

First, corporate America continues to increasingly recognize the importance of AGs to the business community. As companies plan their legal, regulatory, and political strategies, they factor in how potential shifts in the AG landscape may change AG enforcement priorities that touch virtually every industry.

Second, the office of AG continues to rise in visibility and prestige, both in terms of the influence AGs can have on a wide range of matters and their increased prominence as advocates or opponents of issues in state and national politics. This has prompted well-known political figures, including members of Congress, former Governors and AGs, and state legislative leaders to seek the office. Minnesota Congressman Keith Ellison, former Illinois Governor Pat Quinn, former Alabama AG Troy King, and Michigan Speaker Tom Leonard are a few examples of this year’s AG candidates.

Also, as a result of a significant uptick of federal constitutional, statutory, regulatory, and policy challenges brought by AGs during the Obama and Trump Administrations, AGs have evolved into national figures or even “quasi-celebrities.” Some AGs have sought to capitalize on this status when deciding to run for higher office. At the beginning of the 2018 cycle, nine AGs were seeking higher office – seven were running for Governor and two for U.S. Senate.[4]

Third, an unprecedented amount of money is being raised and spent on AG races today, particularly from outside political organizations such as the Democratic Attorneys General Association (DAGA) and the Republican Attorneys General Association (RAGA). In July, RAGA reported raising $26.6 million for the 2018 election cycle, including $5.5 million in the second quarter of 2018. This is the first time in RAGA’s history that the organization raised $5 million, or more, in back-to-back quarters.[5] According to reports, DAGA has raised $10.12 million for the cycle and $1.52 million in the second quarter. There also has been no shortage of negative campaign rhetoric from both sides due to the competitive nature of the races. Today’s 24-7 social media environment pays particular attention to personal attacks, as is most evident during the final stretch of a tight race.

Lastly, unforeseen developments such as the resignation of former New York AG Eric Schneiderman and the surprising last minute announcement by Minnesota AG Lori Swanson that she will run for Governor, have injected unexpected drama into this cycle and have brought the total number of AG open seat races to 12. Several of these open seats are in states that are considered presidential swing states and have competitive Governor and U.S. Senate races including Colorado, Florida, Nevada, and Ohio. In today’s polarized political climate, high-stakes storylines elevate the profile of all races, including AG.

Runoff Formats Are Creating Turmoil for Republican AG Incumbents

The complex laws governing AG primary elections vary from state to state. Ten states[6] require a candidate to win a primary with a majority of the votes or some other threshold percentage in order to advance to the general election. If no candidate receives the mandatory percentage of votes, the top two vote getters have a runoff primary to determine the nominee. Thus far, Republican AG incumbents in Alabama, Oklahoma, and South Carolina were forced into runoff primaries. While all of these states are considered safe Republican seats, runoff elections prove to be a burden for incumbents. In addition to compelling them to spend more money early and defend themselves against attacks that will ultimately be used against them by their Democratic opponent in the general election, it also forces them to delay campaigning for the general election which requires a different strategy and messaging.

The “Bernie Factor”

As part of the campaign, AG candidates vie for endorsements from a wide range of stakeholders including sheriffs, state attorneys, state legislators, the business community, and political organizations. If you are a Democrat running in a competitive AG primary, one of the most influential and powerful endorsements you can get is from U.S. Senator Bernie Sanders. The “Bernie factor” carries with it the benefit of loyalist grassroots supporters that will turn out in droves to vote or participate at party conventions. A rain storm, snowstorm, or heatwave is no obstacle for them.

Historically, midterm elections generate lower voter turnout than presidential elections. That means grassroots activist support is key and can propel a lesser known or funded candidate to victory. For example, “Bernie” enthusiasts flocked to the Michigan Democratic Party’s Endorsement Convention to support progressive civil rights attorney Dana Nessel. In a major upset, Nessel defeated Pat Miles, the establishment candidate and former U.S. attorney for the Western District of Michigan, who was endorsed by the United Auto Workers and AFL-CIO and led in fundraising. Similarly, in the Colorado Democratic AG primary election, the establishment candidate, Phil Weiser, a former University of Colorado Law Dean and Obama Administration official, barely beat State Representative Joe Salazar for the nomination. Weiser outspent Salazar 10-1 but only won the primary election by 5,136 votes.[7] Salazar’s name recognition certainly helped but the “Bernie factor” made him a contender. Salazar recognized this in his concession speech having remarked, “Today is a victory for grassroots power. We’ve started a lot of conversations about the importance of the attorney general’s office, how to ensure equity and justice are priorities of our elected officials, and about the future of the Democratic Party.”[8]

Looking ahead to the Minnesota Democratic primary for AG on August 14, Congressman Ellison has been endorsed by Senator Sanders over four other competitors, including Matt Pelikan, the candidate endorsed by the Minnesota State Democratic Party. Senator Sanders even recently joined Ellison on the campaign trail to turn out the Democratic vote calling him a “personal friend” and “vigorous fighter.” Ellison’s challengers argue that Senator Sanders’ endorsement proves that he is too extreme for Minnesota.[9]

Trump Administration Policies Dominate the Debate

The hot button issues being debated by both major parties during this cycle’s AG primary elections have focused more on the policies of the Trump Administration than on state specific issues. During the Illinois Democratic AG primary, the eight candidates used their platforms to criticize the Trump Administration’s positions on immigration, marijuana, and the Second Amendment. At a recent debate in Florida featuring Republican candidates Ashley Moody and Frank White, the debate centered around who would be the most loyal friend to the Trump Administration, in addition to defending the rule of law. In the Colorado Democratic primary, Weiser ran a TV commercial that announced that he “is running for AG because of President Trump.[10] In South Dakota, a local economy driven by agriculture, Republican candidates for AG made their case to delegates at the nominating convention against Trump’s tariff and trade policies. President Trump is proving so influential that even politicians who have defined themselves by opposing him do so at their peril. During the California top-two primary, AG Xavier Becerra’s opponents criticized him for being so consumed with fighting Trump that he has failed to carry out his chief responsibilities as the top cop and law enforcement officer of the state.[11]

Conclusion

The trend of AG races dramatically increasing in profile, prestige, competiveness, and expense did not begin with this election cycle. But the factors that have come to define politics over the last few years—a hyper-polarized electorate, populism on both sides, passionate national disagreement on major issues, a larger role for outside campaign spenders, and the conventional-defying presidency of Donald Trump—have poured gasoline on the flame. Post-Election Day, there will be a lot to say about the 31 AG races this cycle, but perhaps the most significant takeaway will be the continuing evolution of the increasing impact AGs have on our nation’s policies, legal system, and politics.

[1] Alabama, Arkansas, California, Colorado, D.C., Georgia, Idaho, Illinois, Maryland, Iowa, Nebraska, New Mexico, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, and Texas.

[2] The Democratic Party’s Nominating Convention will take place August 25-26; the Republican Nominating Convention will take place on August 25.

[3] AG primary elections start-up again on August 7 in Connecticut and Kansas.

[4] Governor: Colorado, Maine, Michigan, Minnesota, Nevada, Ohio and South Dakota; U.S. Senate: Missouri and West Virginia

[5] https://www.republicanags.com/2018/07/17/raga-has-raised-26-6-million-for-the-2018-election-5-5-million-in-second-quarter-of-2018/

[6] http://www.ncsl.org/research/elections-and-campaigns/primary-runoffs.aspx

[7] http://castlerocknewspress.net/stories/colorado-attorney-general-race-remains-close-salazar-weiser,265323

[8] https://denver.cbslocal.com/2018/06/30/joe-salazar-concedes-phil-weiser-attorney-general/

[9] http://www.startribune.com/sen-bernie-sanders-to-rally-support-for-rep-keith-ellison-at-first-ave/488103021/

[10] https://www.youtube.com/watch?v=7PsdTnqEucM

[11] http://www.chicagotribune.com/lifestyles/health/sns-bc-ca–california-primary-attorney-general-20180505-story.html