State AG races become litmus test for GOP election claims

Races for state attorneys general are emerging as important battlegrounds this year as Republicans seek to expand their reach in the office sometimes referred to as “the people's lawyer.”

Election 2022 State Attorneys General (Idaho Statesman)

Idaho Attorney General Lawrence Wasden, a Republican, has won re-election multiple times in a state where the GOP dominates politically and, in his telling, has “a 20-year track record of calling balls and strikes fairly and squarely.”

That may not be enough for him to survive a GOP primary challenge and keep his seat. Wasden was one of seven Republican attorneys general to opt against joining an ill-fated challenge of the 2020 presidential election results in other states. And last fall, he declined to join other GOP attorneys general in a letter to President Joe Biden complaining about vaccine mandates, although he ended up joining lawsuits against several of them.

His more moderate positions have put him at odds with a growing share of Republicans who chafe at COVID-19 restrictions and repeat the false claim that widespread fraud cost former President Donald Trump re-election. Wasden is facing two challengers who are to his right in the Republican primary as he seeks a sixth term as the state's top government lawyer.

One of the challengers, Arthur McComber, said a key function of the attorney general's role is to act as a watchdog against federal power — something he said Wasden hasn’t done enough.

“It’s basically a misunderstanding of the attorney general position,” said McComber, a real estate lawyer.

The challenge to Wasden from within his own party is emblematic of the broader far-right shift within the GOP. Similar dynamics are permeating races for attorney general across the country as an office often referred to as “the people's lawyer” — responsible in most states for criminal prosecutions and consumer protections — has become increasingly consumed by ideological battles.

Seats for attorneys general are up in 30 states this year. Some of the most likely to attract heavy spending will be in political battlegrounds such as Michigan Nevada and Wisconsin, states that again are expected to play outsized roles in the 2024 presidential contest.

Republicans currently hold 27 attorneys general seats. Paul Nolette, a Marquette University political scientist who studies the office, said Republicans could bump that number to 30 or more in a midterm election year when Republicans are primed to do well in races up and down the ballot.

They've already notched an early victory. Last fall, voters ousted the incumbent Democratic attorney general in Virginia, a state that had been leaning increasingly Democratic in recent years. It was part of a GOP wave in the state that also saw the party claim the governor's office and one house of the legislature.

Nolette said party affiliation matters for the office more than it used to: “The office has really become like other statewide offices at this point — highly polarized.”

Ahead of the 2020 election, an arm of the Republican Attorneys General Association held “war games” for officials to plan a reaction in case of a Trump loss. That group, the Rule of Law Defense Fund, later promoted the Jan. 6, 2021, rally that preceded the storming of the U.S. Capitol by Trump supporters seeking to thwart the certification of electors.

For Democrats, there is increasing concern that a Republican wave in this year's elections could sweep Democratic governors, secretaries of state and attorneys general out of power in crucial presidential battleground states. Steve Bullock, a Democrat who has served as attorney general and governor in Montana, warned that a rogue attorney general could undermine election results.

“How can they mess with it if they don’t actually believe in the rule of law? Both in affirmatively bringing action and defensively failing to defend the states’ interest,” he said.

While secretaries of state oversee elections in most states, attorneys general can play pivotal roles in the aftermath, as demonstrated in 2020.

A month after that election, Texas Attorney General Ken Paxton asked the U.S. Supreme Court to throw out the results in four states that supported Biden over Trump. The court rejected the effort, but only after 18 other Republican attorneys general filed papers in support.

Idaho's Wasden was not one of them.

“In taking a look at the Texas case, it was evident that that lawsuit was contrary to the Constitution," he said in an interview. “If Texas can sue Pennsylvania, then California can sue Idaho."

McComber, who has slightly outraised Wasden during the campaign so far, said he would have joined the Texas lawsuit and added an amicus brief to raise additional legal points. The U.S. Supreme Court ultimately found that the states lacked standing to challenge election results in other states.

Democratic attorneys general defended their states' 2020 election results in Michigan, Pennsylvania and Wisconsin, as did the Republican attorney general in Georgia.

“The public must know which side their state AG is on,” Nevada Attorney General Aaron Ford, co-chair of the Democratic Attorneys General Association, said during a video news conference in January.

Sigal Chattah, the only Republican running for the job in Nevada, faults Ford, among other things, for not investigating election fraud sooner and more vigorously. His office filed charges in October against one voter for allegedly casting a ballot on behalf of his deceased wife.

“Do we really believe this was an isolated incident?” Chattah asked. “I don’t.”

The Associated Press investigated potential cases of voter fraud from the 2020 presidential election in Nevada and the five other political battleground states where Trump and his allies disputed his loss. The AP found that election officials across Nevada had identified between 93 and 98 potential cases — representing less than 0.3% of Biden’s margin of victory in the state.

The fields are not set in every attorney general race, but GOP primary showdowns between more establishment-style conservatives and those further to the right is a common theme in several states, including Kansas, Michigan and Minnesota.

“In so many of these races, it is a race to see who can align themselves closest with Donald Trump, his brand of politics and the big lie” that the election was stolen, said Geoff Burgan, a spokesman for the Democratic Attorneys General Association.

Johnny Koremenos, a spokesman for the Republican Attorneys General Association, declined to directly answer questions left by voicemail and email about whether Republican attorneys general might seek to undermine lawful election results. In a statement, he said “2002 will be a great year for Republicans running for attorney general.”

In Michigan, where nominees are chosen at state party conventions rather than primaries, former state House Speaker Tom Leonard is hoping for a rematch against Democratic incumbent Dana Nessel.

But first, Leonard, who touts having been named the state’s most conservative lawmaker, has to defeat two GOP opponents in a party convention. One of them is Matthew DePerno, a lawyer who sued Michigan's Antrim County claiming voting machines there recorded votes for Trump as being for Biden in the 2020 election. The claim was dismissed.

While Leonard is focusing on issues such as reducing violent crime, DePerno sees election fraud as a driving issue — despite Republicans themselves finding no evidence of systemic fraud in the state. He has Trump's support.

“That says it all,” said David Dulio, a political scientist at Oakland University in Michigan. “He has certainly hitched his wagon to Donald Trump, counting on the fact that the Trump brand will have strength in this election.”

DePerno did not respond to interview requests.