Nov 27, 2022 - Politics & Policy

The growing, unchecked power of state legislatures

State legislatures with veto-proof <span style="color:#c5310a;">Republican</span> or <span style="color:#016db6;">Democratic</span> majorities
Data: NCSL; Map: Tory Lysik/Axios Visuals

Half of all state legislatures are on track to have veto-proof majorities, handing the party in power a historic level of control over elections, redistricting, abortion rights, gun laws and other major policies.

Why it matters: Supermajorities often boast sweeping power to amend state constitutions and overrule governors. In Wisconsin, where Republicans fell barely short of a supermajority in the midterms, a governor's veto is the only check standing in the way of a statewide abortion ban.

Between the lines: The balance of power in state governments could be even more critical with the Supreme Court poised to weigh in on the "independent state legislature theory," a once-fringe doctrine that would give legislatures sole control over election and redistricting rules.

  • After the 2020 election, former President Trump and his allies sought to exploit the theory to allow GOP-controlled legislatures to overrule the popular vote in key battleground states.
  • Lawmakers in Kansas and North Carolina who have gerrymandered maps to favor Republicans have also cited the theory in an effort to block state courts from intervening.

What they're saying: Tom Wolf, deputy director at the Brennan Center’s Democracy Program, called the independent state legislature theory and expanded veto-proof majorities "a perfect storm" that would erode "democratic controls and accountability for actions of state legislatures."

  • At its core, the independent state legislature theory "is about melting down the system of checks and balances at the state level that helps ensure that we have democratic, representative and responsive government," Wolf said.

What to watch: Before the midterms, 21 states had veto-proof majorities, a vote margin that varies by state. At least 25 are poised to have supermajorities.

  • That would give Republicans veto-proof majorities in 17 states and Democrats in nine, including New York, where results are still coming in.
  • Vermont, Delaware, Illinois, Florida and Ohio are projected to be added to the list, according to the National Conference of State Legislatures.
  • While supermajorities aren't always necessary when the party in power also holds the governor's mansion, even the threat of a veto "transfers significant policymaking power to state lawmakers," NCSL's Ben Williams writes.
  • Vermont, Kentucky and Kansas have veto-proof majorities along with a governor of the opposing party, increasing the possibility that the legislature would have the opportunity to flex its veto override, according to Ballotpedia.

By the numbers: After a decade of Republican dominance, Democrats finally started clawing back control of state governments in this year's midterms. With results still coming in, Republicans control 57 out of 98 state chambers, while Democrats control 40.

  • Alaska results are still pending, and Nebraska's unicameral chamber is nonpartisan, though unofficially controlled by Republicans.
  • Democrats grew the number of states where they have total control — both legislative chambers and the governor's seat — from 14 to 17. They also have total control in the District of Columbia. Republicans' state trifectas declined from 24 to 22, with Alaska still pending.
  • 10 states currently have split control — down from 12 before the election.
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