By: Lori Kalani, Bernie Nash and Mira Baylson

Originally published on January 18, this article was updated on January 20, 2022 following the announcement of Massachusetts AG Maura Healey’s intention to run for Governor.

Over the next six months, the Cozen O’Connor State AG team will provide guidance on what corporate America needs to know in planning legal, regulatory and political strategies to anticipate and react to shifts in the AG landscape. Our team will take you beyond the basic who-what-where of the election cycle and provide you with insights to properly prepare for the election outcomes.

2022 is finally here and with it, a new election season.  As even the casual political observer now knows, state attorney general elections matter locally and nationally.  The prominent role an AG plays politically and legally has expanded over the past decade through the Obama administration, Trump administration, and continuing through the first two years of the Biden administration. AGs are the top law enforcement officer in most states, determining civil and criminal enforcement priorities. They are also vital advocates for their state as to the use of presidential executive power as indicated by the active litigation by state AGs challenging such policies, regardless of who is in the White House. They serve as critical gatekeepers in ensuring free and fair elections. Moreover, the position of AG is a feeder for higher office. A growing number of elected officials who were previously AGs are now on the national stage, for example Vice President Kamala Harris, U.S. Health and Human Services Secretary Xavier Becerra, and sitting U.S. Senators from Alaska, Connecticut, Missouri, Nevada, Rhode Island, Texas, as well as Arizona AG Mark Brnovich (R), Missouri AG Eric Schmitt (R), and former Nevada AG Adam Laxalt (R) who are currently running for U.S. senate seats.

AGs Are Key Protagonists With A National Role

In 2022, AG elections will take place in 30 states, three territories, and the District of Columbia.  There are currently 9 open races where the incumbent is not running for re-election. They are:

• Arizona, where AG Brnovich (R) is term-limited.
• Arkansas, where AG Leslie Rutledge (R) is term-limited.
• District of Columbia, where AG Karl Racine (D) will not seek re-election.
• Kansas, where AG Derek Schmidt (R) is running for governor.
• Maryland, where AG Brian Frosh (D) will not seek re-election.
• Massachusetts, where AG Maura Healey (D) is running for governor.
• Nebraska, where AG Doug Peterson (R) will not seek re-election.
• New Mexico, where AG Hector Balderas (D) is term-limited.
• North Dakota, where AG Wayne Stenehjem (R) will not seek re-election

Other open races may materialize in the next few months, but nothing is set in stone.  For example, in an abrupt turn of events, New York AG Letitia James (D), who had announced a run for governor, withdrew her nomination in December 2021 and instead announced she would seek re-election as attorney general, causing many of the cluster of candidates who declared for her seat to withdraw from the Democratic primary race.

Some Early Observations

As we move into 2022,  here are a few top-of-mind observations:

• Incumbent Virginia AG Mark Herring (D) was unseated by incoming AG Jason Miyares (R) last November. Many see the upset as signaling a trend that will continue into 2022, where voters make local election decisions (down ticket) based on their approval of the party’s overall success in Washington D.C (top of the ticket).  Just as Republicans struggled in 2018 because of then-President Donald Trump’s low approval rating (37%), Democrats will also have to contend with President Biden’s similarly low rating (44%).  Also, we know from past elections that the opposition party (currently the Republicans) generally does well in midterm elections when the ruling party controls the presidency. There is little to indicate 2022 will be any different.
• COVID-19 is still a major issue globally, and its impact on the opening of schools and businesses emerged as a significant factor in the Republican success in Virginia’s 2021 elections. An AG nominee’s position on how prior administrations (state and federal) have handled this public health emergency and subsequent economic and supply-chain disruptions will be a litmus test for many voters. For businesses, such positions can be instructive about the type of AG a nominee will be.
• Election turnout will likely increase, despite COVID-19. Historically, voter turnout tends to dip in midterm elections. Increasingly, however, local elections are serving as an important bellwether for the next presidential election and as a sign of voters’ changing priorities. If Virginia’s election in 2021 was any indication, Democratic and Republican bases appear energized and focused on 2022 state elections, including AG elections. Turnout is likely to be further improved over historical mid-term trends as many states have moved toward more accessible voting (especially in the wake of the pandemic), including expanded mail-in, early, and absentee voting.

What You Need To Know

As we walk you through the primary season and into the general elections, the Cozen O’Connor State AG team will share our perspectives on the 2022 election process and its impacts for businesses, including:

• How an AG’s prior experience influences their priorities and approach.
• The critical role AG office staff plays, sometimes regardless of the AG.
• What election transition looks like and how it can affect companies already involved in litigation or other enforcement activities with an AG office.
• How businesses should prepare for the post-election world.
• The importance of getting to know and building relationships with AGs and their staffs before you need them.

Our State AG website is your resource for all things elections. As November 8, 2022 approaches, we look forward to introducing you to the candidates, informing you about the races as they unfold, and empowering you to act on the results.