High Stakes in Legislative Races

DISGUSTED Electorate Heads to Polls Page 8

October/November 2014

High Stakes in All In! Ballot Legislative Fatigue?

Races The Primary Puzzle

Art and Learning Linked tEchnoLogy divErsity is vital to our ElEctricity portfolio.

Vicky Bailey EnErgy LEadEr & EntrEprEnEur

We don’t put all of our investment eggs in one basket. Why would we do that for America’s energy future?

diversity is rule number one in investing. We are working to maintain a diverse you hedge your bets. We also need a electricity system that provides the power diversified electricity portfolio that includes we need and the clean air that we want. nuclear, solar, wind, coal and natural gas. an overreliance on any one source of electricity is unwise.

Base load power sources like nuclear energy and natural gas, coupled with renewable sources, will drive economic expansion, provide affordable electricity, and lead the Get the facts at nei.org/energydiversity transition to a lower-carbon energy portfolio. #futureofenergy

Client: NEI (Nuclear Energy Institute) Pub: State Legislatures Magazine Run Date: Oct/Nov Size: 7.5” x 9.875” Full Page VeR.: Energy Diversity/Vicky - FP Ad 4CP: OCTOBER/NOVEMBER 2014 VOL 40 NO 9 | CONTENTS

STATE LEGISLATURES NCSL’s national magazine of policy and politics

Features DEPARTMENTS

4 POINT OF ORDER

5 lETTER TO THE EDITOR

6 FOUR DECADES STRONG Over the past 40 years, NCSL has achieved an impressive record of lobbying successes.

8 STATESTATS Disgusted electorate heads to polls.

9 PEOPLE & POLITICS What’s happening under the domes.

10 TRENDS & TRANSITIONS States try to boost voter turnout, a Federal Reserve Bank economist says manufacturing is robust, states grapple with the use of Native American mascots, breweries are hoppin’, and governments crack down on misclassifying workers.

14 STATELINE Superlatives from coast to coast: the state with most © 2014 BRUCE HOLDEMAN billionaires per capita, the state with the best-run elections 20 all In! and the state with the biggest annual squid harvest. By Morgan Cullen and Tim Storey With a dysfunctional federal government, states are where 16 FOR THE RECORD the action is, making for high stakes in legislative races. Q & A with political pollsters Geoffrey Garin and Neil Newhouse. 24 Ballot Fatigue? By Wendy Underhill Voters have a slew of ballot questions to answer, but not as many as in previous years.

28 The Primary PUZZLE By Louis Jacobson In this era of ideological extremes and intense partisanship, what role do primaries play in shaping “Turnout across the board may be lower in this election. election results? Voters really are disgusted, and they’re probably not crazy to feel that way.” —GEOFFREY GARIN 32 art Smart By Sara Shelton 18 SNAPSHOTS FROM THE LEGISLATIVE SUMMIT Art classes often aren’t schools’ top priority, yet research suggests perhaps they should be. 35 aS THEY SEE IT Quotes and cartoons from around the states.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 STATE LEGISLATURES A NaTIONAL Conference of State Legislatures PUBLICATION

Executive Director POINT OF ORDER William T. Pound Director of Communications Karen Hansen NCSL NEWS Editor Julie Lays

Assistant Editor Mary Winter EXPERTISE Web Editors Edward P. Smith NPR: “By all rights, the Democrats are RESEARCH Mark Wolf on defense in a midterm election when Copy Editor their guy’s in the White House. So we Leann Stelzer know going into this election cycle Contributors that the Democrats are fighting against 46 Angela Andrews the wind, and the Republicans have States holding legislative races Michael Hernandez Irene Kawanabe the tailwind.” Shannon McNamara —NCSL elections expert Tim Storey Jeanne Mejeur Wendy Underhill The Sacramento Bee: “A lot of 6,049 Art Director communities are stepping forward State legislative seats up for election Bruce Holdeman to try to help these kids, which is good, but this really needs a national Advertising Sales Manager resolution.” LeAnn Hoff (303) 364-7700 —NCSL’s immigration policy director 7,383 ...... Ann Morse on the recent surge of Total number of legislative seats NCSL OFFICERS children who have come into the nationwide President Senator Debbie Smith, Nevada country illegally President-Elect Omaha World Herald: “States are Senator Curt Bramble, Utah trying to wrap their heads around what 53% vs. 47% Staff Chair Margaret Piety, Indiana exactly these services or industries are, Portion of partisan legislative seats under ...... and what kinds of regulations need to Republican vs. Democratic control Denver Office be in place.” 7700 East First Place —NCSL program principal Douglas Denver, Colorado 80230 (303) 364-7700 Shinkle about lawmakers grappling with how to regulate ride share services. Washington, D.C. Office 444 North Capitol Street, N.W. Suite 515 FOCUSED Washington, D.C. 20001 (202) 624-5400

Website www.ncsl.org/magazine ...... State Legislatures (ISSN 0147- 0641), the national magazine of policy and politics, is published monthly by the National Conference of State Legislatures except July/August and October/ November, which are combined. Postmaster: Send address changes to: State Legislatures, 7700 East First Place, Denver, CO 80230.

Opinions expressed in this magazine do not necessarily reflect NCSL policy.

Go to www.ncsl.org/bookstore/ to subscribe. Annual rates: U.S.—$49; foreign—$55; teachers—$25 (promo code SLMTEA). Single copy: $6.50.

Letters to the editor and requests for permission to reprint may be Legislators, legislative staff and business leaders learn about mailed to Julie Lays in the Denver big data and advanced analytics during a visit to SAS in North office or e-mailed to her at: julie. [email protected]. Send subscriptions Carolina as part of the Foundation for State Legislatures and changes of address to the Partners Project called “Leveraging IT Investments to Marketing Department in Denver. Strengthen Government.” Periodically, NCSL rents mailing labels to other organizations. If you NCSL legislative leaders learn lessons prefer your name not be included from Abraham Lincoln during a please send a written request. special leadership training held at the State Legislatures is indexed in Gettysburg Battlefield. the PAIS Bulletin and Expanded Academic Index. It is also available in microform and electronically through University Microfilms Inc. (UMI) at (800) 521-0600. LETTERS

EDITOR: Your article in the July/August issue on the rapid expansion of residential solar, “Bright Days for Solar Energy,” glossed over what we believe are important questions about whether current rooftop solar subsidies are cost-effective and equitable. At the heart of the debate is a subsidy known as net-metering, which typically requires utilities to pay rooftop solar system owners for excess power they generate at the utilities’ full “retail rate.” As a result, residential solar owners enjoy the benefits of the grid without paying for it. An analysis from the American Public Power Association indicates that net-metering can result in consumer cost-shifting, since it’s typically the more affluent who can afford to install rooftop solar, leaving middle- and low-income customers— including renters who are locked out of the subsidies—to foot the bill. Also of concern to us is the practice of allowing consumers to sign long-term leases, often covering two decades, for solar panel technology that may quickly become obsolete. Policymakers should be concerned about the long-term viability of a business model so reliant on taxpayer subsidies. Bill Ray, director Colorado Consumer Coalition

State Legislatures welcomes your letters at [email protected]. We reserve the right to edit them for length and clarity.

CORRECTIONS

In the July/August 2O14 issue two photos were incorrect. This is New York Assemblyman Herman Farrell Jr., one of only nine lawmakers celebrating exactly 40 years of service More Americans turn to doctors of optometry than any other eye care professional. in statehouses. They all were first elected in With a four-year, doctoral-level clinical degree following college and 1975, the same year NCSL was formed. extensive training, optometrists are licensed to correct vision, but they also diagnose and treat eye diseases. And as the need for new advancements in eye care And this is the real Eric continue, count on optometrists to offer the most comprehensive eye care. Milstead. He was the unanimous choice of the Learn more at AmericasEyeDoctors.org Idaho Legislative Council to succeed Jeff Youtz as director of Idaho’s Legislative Services Office.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014

color palette 1 6 | 40 YEARS

Four Decades Strong The Voice of State Legislatures

innovate and be responsive to the unique Order on Federalism, which ensured By Molly Ramsdell needs and strengths of their residents. that federal agencies were guided by the AND NEAL OSTEN Guided by state-federal policies U.S. Constitution when formulating and approved by at least three-fourths of the implementing policies. dvocacy may look some- states, NCSL staff inform and educate • Fought to create State Legalization what different than it Congress and the administration on the Impact Assistance Grants in the did in 1975, but from the potential effects and possible unintended Immigration Reform and Control Act of time NCSL was created, consequences of proposed federal laws 1986, which reimburse states for costs legislative leaders knew and regulations. How does all this get associated with providing services to states needed a force to done? NCSL’s Washington, D.C. office: eligible legalized aliens. watchA out for the states’ interests, protect • Brings state legislators to the nation’s • Helped preserve the deductibility of the authority of state legislatures and be capital to testify before Congress and its state and local income and property taxes the states’ united voice in our nation’s committees. during federal tax reform efforts in 1986. capital. So when NCSL was formed from • Organizes events where hundreds of • Defeated efforts to repeal the the merger of three legislative organiza- state legislators descend on Capitol Hill to McCarran-Ferguson Act, which would tions, an office in Washington, D.C., was advocate on issues of importance to state have opened the door to federalizing the part of the plan. legislatures. regulation of insurance companies. Since 1976, NCSL’s presence in Wash- • Meets regularly with members of • Supported the creation of Section 1115 ington, D.C., has grown into a formidable Congress and the administration. waivers that provide states the flexibility advocacy force, nationally recognized to • Writes letters to key congressional to design and improve Medicaid and CHIP be the united, bipartisan voice of all state members and administrative personnel. programs. legislatures. • Submits comments to federal agencies. • Helped create a number of block grants For 40 years, the organization has • Informs legislative leaders and legislators (health services, low-income energy assis- worked to enhance and protect the role on what’s happening in Washington and tance, substance abuse, mental health, of states and state legislatures within our what they can do about it through the social services and others) that give states federal system, and that hasn’t always newsletter, “Capitol to Capitol.” greater flexibility in providing services. been easy. NCSL has fought off threats • And, through the State and Local Legal by the federal government to take over Center, files amicus curiae briefs with the The ‘90s: Unfunded Mandates & the regulation of insurance, to control the U.S. Supreme Court in support of state and Tobacco Settlement administration of elections, to remove any local governments. • Fought for greater flexibility in deter- flexibility in administering block grants, to NCSL’s victories for states, achieved mining transportation solutions in the preempt state agriculture policies, to shift with the help of state lawmakers from Intermodal Surface Transportation Effi- costs to states, and more. around the country, have been significant. ciency Act of 1991. Through changes in politics, parties Here are a few highlights. • Ensured that the Tobacco Settlement and presidents, NCSL has stood on behalf funds were reserved for states to use as of states to oppose unfunded federal The ‘70s and ‘80s: Revenue-Sharing, state officials saw fit. mandates, fight against unwarranted fed- Block Grants & Insurance Regulation • Was instrumental in drafting the eral preemption of state authority, and • Supported the reauthorization of the Unfunded Mandates Reform Act in 1995, preserve state legislatures’ flexibility to revenue sharing program that provided a which discourages the federal government portion of federal tax revenue to state and from placing requirements on states with- Molly Ramsdell and Neal Osten are directors of local governments. out providing the adequate funding. NCSL’s state-federal office in Washington, D.C. • Supported President Reagan’s Executive • Ensured legislatures maintained the

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 40 YEARS | 7

authority to appropriate federal welfare assistance. farm bill, which would have preempted and child care development funds (the • Influenced the final regulations in REAL state agriculture policies. Brown Amendment). ID, increasing flexibility for states and • Defeated provisions to limit categorical • Preserved states’ flexibility when using reducing costs. eligibility in the farm bill’s Supplemental welfare reform’s contingency fund during • Fought to reinstate the deductibility of Nutrition Assistance Program. periods of economic distress. sales taxes in lieu of income taxes. • Fought to reduce the number of • Promoted the creation of the child care • Worked to repeal burdensome and reporting mandates in the DATA Act. and development block grant, which helps duplicative Section 527 campaign • Defeated federal proposals to states provide low-income families with reporting mandates. undermine state sovereignty reguarding child care while a parent works or is in a • Ensured state and local control over bankruptcy protection. training program. the administration of elections in the Help • Obtained flexibility in matching funds • Supported the creation of the State America Vote Act. for federal conservation projects. Revolving Fund in the Safe Drinking Water • Turned child support mandates into • Protected states from being Act to help pay for efforts to keep our options. disproportionately hit by federal deficit water clean. • Protected states’ authority from being reduction efforts. • Advocated for the State Criminal Alien preempted concerning the use of digital NCSL also has filed hundreds of briefs Assistance Program, which reimburses signatures in contracts. voicing states’ concerns with the Supreme state and local governments for the costs • Ensured a state role in regulating Court, but that’s another story for another of incarcerating unauthorized immigrants. communications services. issue. • Won a repeal of the Boren Amendment, • Led the effort to enact the Mobile providing states far greater freedom in set- Telecommunications Sourcing Act, which The Next 40 Years ting nursing home payment rates under established a framework for state and local What’s in store as we begin NCSL’s fifth Medicaid. governments to collect taxes on cellular decade? We’ll head into 2015 with a new • Opposed efforts to establish a dual sys- services. Congress, a fast-approaching presidential tem for the regulation of insurance at the • Avoided redundant and burdensome election and a lot of unfinished business federal level. pension requirements that were targeted from 2014. All will have an impact on at private sector plans. which issues move to the front burner and The ’00s and Beyond: REAL ID, Help • Served as the key force in getting which get pushed to the side. America Vote & Marketplace Fairness the U.S. Senate to pass the Marketplace Whatever happens, NCSL will be there • Worked with a bipartisan group of sena- Fairness Act. on the front lines, serving as the voice of tors to secure $20 billion in state fiscal • Defeated the King Amendment in the state legislatures.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014

8 | STATESTATS Disgusted Electorate Heads to Polls he mood is heavy as America enters election season. Voters are anxious about the economy, pessimistic about the future and fed up with gridlock in Washington, polls show. More than half the public disapproves of President Obama’s performance, and in late August, a whopping 83 percent disapproved of the job Congress has been doing. Joblessness is down and consumer confidence is up, but many Americans don’t feel that things are improving. Sadly, 59 percent of respondents to a CNNMoney poll in June said they believe the American Dream is no longer possible. Among the most discouraged were young people—63 percent of respondents aged 18 to 34 said they felt equal economic opportunity no longer exists. TExtreme partisanship is often blamed for the malaise, but numerous other issues weigh heavily on voters, including the disappearing middle class, the widening income gap, long-term debt, terrorism and global warming. The angst may give Republicans the edge on Nov. 4, but opinion is split. In a George Washington University poll in late August, respondents favored GOP congressional candidates over Democrats 46 percent to 42 percent. A different poll reversed those odds: Pew Research Center/USA Today found 47 percent of respondents planned to vote Democratic, and 42 percent Republican. This is exactly why polls are often right and sometimes wrong.

Top Issues Confidence in a Better Future

By percentage, how respondents answered: “Which are the most important issues for you?” Percent of respondents who feel confident life for their Economy Social Security Immigration Environment Health care Education children’s generation will be better than it has been for them.

28 27 24

16 14 15 13 11 11 10 2007 2014 5 5 5 5 3 1 2 Feel confident Don’t feel confident Other

Democrats Republicans People over age 65 Source: NBC News/Wall Street Journal Survey, July 30-Aug. 13, Source: Economist/YouGov Poll, Aug. 9-11, 2014, 998 respondents 2014, 1,000 respondents Direction of the Country American Dream Is Fading Percent who say country is “off on the wrong track.” Almost six in 10 Americans agree “the American Dream has become impossible for most people to achieve.” Forty 18-29 48% Age percent disagreed and 1 percent had no opinion. 30-44 55% 45-64 69% 65+ 72% Total 61%

Race White 69% Black 39% Hispanic 57% American Dream is Other 31% unachievable: 59%

Region Northeast 65% Midwest 61% South 61 % Source: ORC International Survey for CNNMoney, May 29-June 1, West 56% 1,009 respondents. Source: Economist/YouGov Poll, Aug. 9-11, 2014, 999 respondents

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014

PEOPLE & POLITICS | 9

LEADERSHIP IS “THE MOST COMPLEX Berry INDIANA SENIOR STAFF ATTORNEY PEGGY PIETY IS THE NEW PROCESS OF ECONOMIC GROWTH,” STAFF CHAIR OF NCSL. “It is an honor to represent legislative staff

according to the Maine Development Piety from around the country,” Piety said. “Staff members Foundation. And in an unusual move, the are crucial to the success of state legislatures, and we’ll foundation presented its President’s Award to be working on ways to help address trends and changes the Legislature’s Joint Select Committee on that affect legislatures.” Piety has worked for the Indiana Maine’s Workforce and Economic Future. The Legislative Services Agency in the Office of Bill Drafting state had been last in private sector growth since and Research since 2000. NCSL is the only national 2011 and had recovered only a third of the jobs lost to the recession. organization that provides training, professional growth So the joint committee developed a $73 million bond package to opportunities and information sharing for legislative staff. Piety succeeds encourage jobs in technology, microbiology and marine resources. Tom Wright of Alaska, chief of staff to the speaker. “Targeted, smart investment by the state can create good paying jobs in 21st century fields that will keep our bright young people here at MARYLAND DIRECTOR OF LEGISLATIVE home, enlarge the markets for what we provide and push Maine’s SERVICES KARL ARO HAS BEEN ELECTED NCSL economy forward,” said Workforce Committee Chair and House STAFF VICE CHAIR. Aro has worked for the General Majority Leader Seth Berry (D). Assembly since 1979, working on issues ranging from workers’ compensation to social science research to health NEVADA SENATOR DEBBIE SMITH (D) care, and is best known for his work on redistricting. “I am IS THE NEW PRESIDENT OF NCSL. She Aro honored to serve as staff vice chair and look forward to assumed the position at the 2014 Legislative contributing to the success of the premier organization for legislators and Summit in Minneapolis, succeeding Oregon staff,” he said. Senator Bruce Starr (R). Smith is the assistant majority leader of the Nevada Senate, where NEVADA SENATE SECRETARY DAVID BYERMAN RECEIVED she has served since 2012, following five terms Smith NCSL’S KEVIN B. HARRINGTON AWARD for Excellence in

in the Assembly where she was speaker pro tem Byerman Democracy Education at the Legislative Summit. Called “a her last term. “NCSL has built an impressive reputation over 40 creative, out-of-the box thinker,” Byerman has pioneered years and I am honored to serve as president,” Smith said. “I know numerous innovative democracy education programs, first-hand the important role NCSL plays in providing legislators including uLegislate, a lawmaking simulation that has throughout the country support, ideas and connections to help us brought 750 Nevadans into the Senate Chamber, and lead our states.” Smith is the first Nevada legislator to serve as an Channel 21, a legislative network. He is also executive officer of NCSL. director of the Nevada Youth Legislature. “I share this honor with our hard-working Senate employees and the public servants NCSL’S NEW PRESIDENT-ELECT IS UTAH who have supported me to make this vision a reality,” Byerman said. SENATOR CURT BRAMBLE (R). Bramble is the president pro tem of the Utah Senate, where EMBATTLED SOUTH CAROLINA SPEAKER BOBBY HARRELL he has served since 2000. He has been majority (R) TRANSFERRED HIS LEADERSHIP DUTIES AND SUSPENDED leader and chair of committees on revenue and HIMSELF from the House following his grand jury indictment on nine tax, business and labor, and retirement. Bramble misdemeanor charges that include falsely disclosing will become NCSL president in 2015. Bramble campaign reports, misconduct in office and using campaign money for personal expenses. House Speaker Pro Tem IOWA SENATE MAJORITY LEADER MIKE Gronstal Jay Lucas (R) became the acting speaker. Lucas appears GRONSTAL (D) WAS SELECTED NCSL VICE to have the inside track in the race to succeed Harrell, PRESIDENT at the Legislative Summit. He was but former House majority leader and Ethics Committee first elected to the Senate in 1985, following a Harrell Chair Kenny Bingham plans a run, as does Representative term in the House, and after spearheading an Jim Merrill, also a former majority leader. Harrell, according to the effort to capture 30 seats in the Senate in 2006, state solicitor general, lost the authority to suspend himself when the was elected leader. Gronstal is in line to become indictments came down because of the potential sentences some carry, and NCSL president in 2016. Democrats have asked for an attorney general’s opinion.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 10 | TRENDS & TRANSITIONS

Turning Up Turnout

oter turnout in the upcoming midterms will 64.3 percent of eligible voters, by McDonald’s calculations) be in the low-40s percentage range—com- cast a ballot in the 2012 general election, while Washington pared to the typical presidential year turnout of had a turnout of 81.2 percent of registered voters, or 65 around 60 percent—if history is an indicator. percent of eligible voters. Both states enjoyed strong Many policymakers would like to boost turnout before all-mail elections became law. Additionally, midterm turnout, but research shows it’s dif- research published in 2001 showed that vote-by-mail failed ficult—complicatedV by factors ranging from political polariza- to expand the electorate beyond wealthy and well-educated tion and frequency of elections to Election Day weather and voters. the level of enthusiasm sparked by citizens’ initiatives and ballot measures. Same-Day Registration Still, legislators continue to seek out measures to increase Ten states plus the District of Columbia allow citizens to participation in elections, including the following. vote on the same day they register at the polling place or elections office. Some researchers say same-day registration Early, Absentee and Mail Voting does the most to increase turnout, boosting it an average of Providing alternatives to Election Day voting through 10 percent. The states require proof of residency and some early in-person voting, absentee voting and vote-by-mail form of identification, and some use an electronic poll book elections has a small but statistically significant impact on to ensure the person has not already registered and voted at turnout, the 2008 report, “Convenience Voting,” found. another polling place. The report maintained these measures could boost turnout by an estimated 2 percent to 4 percent. Vote Centers Although these options increase convenience, they Turnout also can be affected by vote centers, also prompt concerns about the possibility for which take the place of traditional neighborhood voter fraud when a person is casting a precincts and allow voters from any part of a ballot away from a polling place. jurisdiction to cast a ballot. Michael McDonald, a University of Eleven states permit jurisdictions to replace Florida professor who runs the United precincts with vote centers or have authorized States Elections Project, says vote-by- vote center pilot projects in some jurisdictions. mail elections often increase turnout Vote centers can reduce an infrequent voter’s for local and smaller elections but confusion about where to cast a ballot, and not for larger elections. Oregon and vote centers often are located near offices, Washington, which have had only schools and shopping, generally making them all-mail elections for 14 years and more accessible and convenient, Bob Stein four years, respectively, have some contends in his report, “Engaging the of the nation’s highest voter turnout Unengaged Voter: Vote Centers and Voter rates. Oregon reported that about Turnout.” 82.8 percent of registered voters (and – Michael D. Hernandez

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 TRENDS & TRANSITIONS | 11 Economist: Manufacturing Is Rockin’

s there a disconnect between economic reality and public per- manufacturing sector is “the growth engine for our economy,” ception? but people don’t realize it because the sector produces more Toby Madden, regional economist at the Federal than ever with fewer employees. Reserve Bank of Minneapolis, told attendees at NCSL’s Moderate economic growth is expected to continue during Midwest States Fiscal Leaders Meeting in August the vast the rest of 2014 and into 2015, according to the Federal majority of people he speaks with “don’t realize that we Reserve Bank of Minneapolis. Madden said fiscal issues, Iare producing record amounts” of manufactured goods. He a European or Chinese crisis, and changes in agricultural blamed this disconnect on an uneven economic recovery. production are potential risks that could derail the economic Certain states, economic sectors and socio-economic groups expansion. —Luke Martel and Anna Petrini have outpaced others. Percent Change in Real Gross Domestic Product, 2013 Madden emphasized that the United States “is in an economic expansion.” In 2013, the GDP hit record levels in 38 states, and “2014 is shaping up as another record year,” he said. However, he noted that 12 states are still in recovery. According to Madden, homebuilding usually leads the country into periods of economic expansion. This recovery, however, has been led by other sectors, including manufacturing, information technology, science, natural RI resource development, mining and agriculture. He explained 3.0 to 9.9 DC that housing growth is just now kicking in but is poised to “help 2.0 to 2.9 PR keep the expansion going.” 1.6 to 1.9 VI** “Manufacturing is expanding and leading, but there is a lot of 1.0 to 1.5 GU* turmoil with new products coming in,” because the economy –2.5 to 0.9 MP* AS is now experiencing “a hyper-growth rate of technologies,” he

said. * 2012 data He also cited manufacturing employment statistics as **The U.S. Virgin Islands’ GDP was -5.4 percent due a decline in petroleum contributing to the misperception. He explained that the refining. Source: U.S. Bureau of Economic Analysis What’s in a Name?

tates still struggle with the use of Native American instruction held a hearing. The school board had to prove names, images and caricatures by sports teams; that the nickname, mascot or team name did not promote race-based names of mountains, streams and discrimination. Under the new legislation, the complaint other geographic features also concern lawmakers. must be signed by at least 10 percent of the school district’s Native American team names and mascots population, and those filing the complaint must show that the were common at one time, but today, many race-based name is detrimental to Native Americans, switching SAmericans argue they are racist and demeaning, and they the burden of proof to the complainants. negatively stereotype Native Americans. In other action, California and the District of Columbia (for This year, Oregon became the first state to pass a bill a second time) passed resolutions calling for the pro football requiring a school district to get a tribe’s written permission if team in the nation’s capital, the Washington Redskins, to it wants to use a name associated with that tribe. The measure change its name. follows a 2012 Oregon Board of Education rule strictly banning States are also looking at other uses of Native American public schools from using Native American names, symbols or names. Maine, Minnesota, Oklahoma, Oregon and, most images as school mascots by July 1, 2017. recently, South Dakota prohibit the use of “squaw” or “squa” for In a move opposed by several tribes, Wisconsin made it geographic features. South Dakota is changing the names of 25 more difficult to force school districts to change race-based such features. mascots or logos. Previously, if a school district resident —Martha Salazar complained about a name, the state superintendent of public

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 America’s Beer Distributors

Fueling 130,000 Beer Distributor Jobs Helping America’s brewers grow Delivering choice and value to consumers

National Beer Wholesalers Association • www.nbwa.org @NBWABeer

NBWA_NCSL ad Oct/Nov 2014.indd 1 9/19/14 5:43 PM BY THE NUMBERS TRENDS & TRANSITIONS | 13 A Spirited Month

What better occasions than Octoberfest Independent Contractor— and Halloween to check in on the U.S. brewing industry? Business is booming. or Tax Scam? In 2012, 869 breweries were bottling the malted magic, more than double the number of breweries in pre-recession 2007. The soda pop market, conversely, lost fizz.

118% Growth in number of breweries from 2007 to 2012, from 398 to 869

$28.3 billion Value of beer shipments, up roughly 33.6 percent over 2007

22,077 Total number of brewery employees, up 17.2 percent over 2007

30 ncle Sam and the states have had enough of a common tax scam, and they are Average number of employees per doing something about it. brewery, down from 56 in 2007 Here’s how it works: Employers misclassify their workers as “independent contractors” rather than “employees” to avoid paying payroll taxes on them, costing states and the federal government millions of dollars in lost tax 31.6% revenue annually. The practice also allows employers to dodge labor and wage Portion of wine made in 2012 that was Ulaws and to avoid providing workers compensation coverage. The businesses gain an unfair red; 29.2 percent was white, while rose and competitive advantage by reducing their labor costs, which helps them in bidding on private other berry wines totaled 2.6 percent sector and government contracts. The McClatchy news organization conducted a year-long investigation into employee misclassification and recently released “Contract to Cheat.” The report estimated that billions 37,602 of federal tax dollars were awarded in federal contracts to businesses, particularly in the Employment in wineries in 2012, up from construction industry, that then avoided their tax obligations by misclassifying their workers. 33,390 in 2007 The report estimated that nearly 40 percent of workers on public projects in southern states were misclassified. Governments are fighting back. In September, the U.S. Department of Labor issued more $46,482 than $10 million in grants to 19 states to help them increase fraud detection, audit businesses Average winery salary in 2012, up 10.7 and conduct outreach programs. Four of the states—Maryland, New Jersey, Texas and Utah— percent over 2007 will receive a “high-performance bonus” for the work they have already done in detecting tax fraud related to employee misclassification. States also are creating task forces and study commissions through legislation or executive orders. Several have passed laws to clarify 3% the status of workers and address industries where the practice is more common, including Drop in U.S. soda sales in 2013, the ninth construction and transportation. straight yearly contraction Congress is responding, too. Following the McClatchy report, a bipartisan group of lawmakers condemned businesses that cheat workers out of proper wages and protections and Sources: U.S. Census Bureau, 2012 Economic shortchange cash-strapped governments. Congressional hearings are likely after the midterm Census Industry Series; Wall Street Journal; elections. Beverage Digest —Jeanne Mejeur

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 14 | STATELINE

WHERE THE BILLIONAIRE$ ARE Probably not a surprise that three of the most1 populous states—California, New York and Texas—also have the most billionaires, a Forbes.com analysis shows. But you may not know that the least populated state, Wyoming, has the most billionaires per capita—six—or one per 94,000 residents. The richest is Wal-Mart heiress Christy Walton, with a net worth of $36.7 billion. The nation’s 492 billionaires hail from 40 states. Below, the top 10, and the number of billionaires in each: 1. California: 111 2. New York: 88 3. Texas: 51 COP CAMS 4. Florida: 37 2In New Jersey, new city police cars must have dashboard video 5. Illinois: 19 cameras starting March 1, 2015. The law is a professional as well as 6. Connecticut: 15 personal victory for its sponsor, Assemblyman Paul Moriarty (D). In 7. Washington: 12 2012, Moriarty was charged with drunken driving but was cleared 8. Michigan: 11 because video from a camera in the officer’s cruiser showed Moriarty 9. Pennsylvania: 10 did not cut off the officer, as the officer claimed, and that Moriarty 10. Arizona, Maryland and Wisconsin: 9 each passed sobriety tests. The officer is facing 14 criminal charges, including official misconduct and falsifying a police report. The video bill was signed soon after the fatal police shooting of unarmed teenager Michael Brown in Ferguson, Mo., which triggered race riots and a national debate about police treatment of African Americans. A police video of SCHOOL FUNDING UNDER FIRE the shooting, some pointed out, would 3A coalition of charter schools has sued New York, saying their students get have answered many questions about less state funding than mainstream school students. The Northeast Charter the case. Schools Network claims charter students receive as little as three-fifths of what district students receive in the same community, mainly because the state gives mainstream schools $2.7 billion annually for buildings and equipment, and doesn’t give the same to the state’s 250 charter schools. The suit claims the state’s funding formula disproportionately affects minority and lower-income students, the bulk of the state’s more than 107,000 charter students. Governor Andrew Cuomo, legislators and other officials named in the suit have not publicly responded. 4VOC-ED VACUUM A shortage of skilled workers, caused in part by a dearth of vocational and technical schools, is hurting the Massachu- setts economy, a North- eastern University School of Law study 5SQUID-LICIOUS has found. Schools turned away at least 3,500 What’s golden brown and crunchy, applicants in the past two years because they delightfully chewy and irresistible when it comes were full, while thousands of well-paying jobs piled high in a basket with a side of cocktail sauce or marinara? If you said the in the health and computer fields sat empty. A separate survey of 334 official state appetizer of Rhode Island, congratulations. Calamari—made from Massachusetts employers by the Massachusetts Business Alliance the tentacles of squid and usually deep fried or sautéed with hot peppers— for Education found that 69 percent had difficulty finding employees has been named the official appetizer because it contributes so much to the with appropriate skills. Some blame the skills gap on the emphasis on economy. In 2012, Rhode Island harvested 23.5 million pounds of the homely college over vocational training in recent decades; others point to the mollusk, nearly 50 percent of the East Coast’s quota, valued at $18.6 million, relatively high cost of technical training. Making matters worse, the according to the Providence Journal. Some complained the measure was vocational schools with the longest waiting lists are in communities frivolous, but Representative Joseph McNamara (D), bill sponsor, said it was with high unemployment. time lawmakers put their arms around the measure. STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 STATELINE | 15

SNOW WHITE OF ELECTIONS 6Mirror, mirror, on the wall, who runs the most efficient elections of them all? It’s North Dakota, according to Pew Charitable Trusts’ Election Performance Index, which measures 17 indicators, including voter wait times, provisional ballots and disability-related voting problems. North Dakota voters waited an average of 7.5 minutes to cast a ballot in 2012, four minutes less than the national average. Also, more than 80 percent of military and overseas ballots were returned in time to be counted in 2012, a much higher rate than the average. The state’s small population is a big plus—local elections officials often know every voter who shows up at the polls, resulting in fewer time-consuming provisional ballots. Colorado, Minnesota and Wisconsin also received high marks for short wait times and efficient election administration. IDAHO WORKIN’ IT 7An estimated 21 percent of Idaho businesses plan to hire in the next year, and the state is helping find those workers. State labor department employees will match job-seekers with openings in a program called Choose Idaho. Job-seekers upload their resumes to the ChooseIdaho.gov website, and PREGNANT? labor department personnel look for positions that best fit their skills. The service is free to TAKE A BREAK businesses and job-seekers and will not increase the labor department payroll, since staff Delaware is making it easier for pregnant who worked on unemployment-related services simply switched their focus to match- workers to stay on the job. The Pregnant Workers8 making. “Our goal is to keep Idaho’s best and brightest in Idaho, encourage former Fairness Act ensures that mothers-to-be receive Idahoans to come home and welcome people with new skills to our communities,” reasonable and fair accommodations, such as more Governor C.L. “Butch” Otter stated in a press release. bathroom breaks; a place to sit; and lighter duties, such as desk work instead of lifting—as long as the accommodations don’t pose undue hardships on businesses. The Delaware act enjoyed wide bipartisan support, as have similar recent measures COUNTY FAIRS STRUGGLE in Illinois, Maryland, Minnesota, New Jersey and West Virginia. Attendance at Illinois’ 104 county fairs9 is down, and California and Hawaii already have such legislation. Supporters so is state funding. From 2000 to 2013, the state cut say low-wage workers, in particular, often have to quit their $3.1 million, or 38 percent, for county fairs—from $8.16 jobs or use all their sick time or unpaid leave when they million to $5.07 million— Bloomberg reports. Fairs are get pregnant. Similar legislation has been introduced only one victim of spending cuts in Illinois, which is awash in in Congress, where it has been blocked by unfunded benefit liabilities and budget shortfalls. In Macon County, opponents who say it penalizes businesses about 180 miles south of Chicago, this year’s scaled-back fair got no and lowers their profits. funding from the state because the fair still owed 2013 exhibitors about $36,680 in prize money, fair treasurer Teresa Wilson told Bloomberg. There were no livestock competitions or harness races, and the marquee tractor pull was replaced by go-kart racing. Nationally, declining rural populations have hurt county fairs. Macon County’s population fell 1.3 percent from 2010 to 2013, while the state’s grew 0.4 percent.

A LEG UP California lawmakers leaped on the chance to help save an endangered10 frog by designating it the state’s official amphibian. The California red-legged frog, made famous in Mark Twain’s “Celebrated Jumping Frog of Calaveras County,” is one hop away from extinction. Pollution, disease, a shrinking habitat and predators—including humans, who consumed a reported 80,000 of the critters yearly during the Gold Rush—have taken a huge toll. Students at Sea View Elementary in Salton City contacted Assemblyman Manual Perez (D), who carried the legislation. The creature, which measures two inches to five inches and has reddish legs and belly, eats mosquitoes and flies, among its many other good deeds. Several states have named crawly things, including the Texas Toad, as official state amphibians, to bring attention to endangered species.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 16 | FOR THE RECORD Neil Newhouse and Geoffrey Garin

eil Newhouse and Geoffrey Garin are two of the nation’s preeminent political pollsters. Newhouse, Geoffrey Garin (D): And frankly, Democrats at the national a Republican, is a partner and co-founder of Public level are more likely to invest in getting Democratic voters out to Opinion Strategies. Garin, a Democrat, is the presi- the polls where there are competitive races. And in states where dent of Hart Research Associates. They were keynote there are no contested federal elections or Democrats aren’t com- speakers at the 2014 Legislative Summit and were petitive, at the state legislative level, Democrats are concerned Ninterviewed by NCSL’s Mark Wolf. that nobody is doing the hard work or putting in the resources necessary to successfully get voters to turn out. STATE LEGISLATURES: How does what happens on the federal level affect elections in the states? STATE LEGISLATURES: How much of a burden is Presi- dent Obama’s low approval ratings on Democrats? And Neil Newhouse (R): Everything goes downhill. When you how much should congressional Republicans be con- have a political environment that’s structured to be responsive to cerned about the public’s low regard for Congress? what’s going on at the federal level, it has a tremendous impact on local elections. For instance, if there’s a Republican tilt in the GARIN: That’s the sixty-four thousand dollar question of this federal races, that goes all the way down to state legislative, local election. There are probably some laws of gravity that will ulti- and city council races across the country. It impacts turnout, it mately apply in terms of President Obama’s approval rating. But impacts voter enthusiasm. So it has tremendous impact on those this is a different kind of election cycle than the one we had in close legislative races across the country. 2010 when it was all about President Obama and the Democrats. People took their frustrations out on them virtually 100 percent. “Congress’ 10 But since the 2010 election, the Republican Party brand has really degraded considerably—people are unhappy with the way percent approval the Republican majority in the House has conducted itself—its rating is a ‘friends contribution to gridlock and its affiliation with Tea Party Repub- licanism. To what extent will that leaven the Obama impact? I and family think it will some. I also think these races will be contested cam- program’—only paign by campaign. They’re more about the candidates and less about whether you like John Boehner or President Obama. But, friends and family as I said, the law of gravity ultimately applies here. approve of the job N EWHOUSE: And not surprising, we see things similarly but they’re doing.” with some nuance. President Obama’s approval rating is sitting at around 42 percent, about 10 points lower than in 2012. That –NEIL NEWHOUSE has a tremendous depressing effect on some of those Democratic constituencies he depended on in 2012: the younger voters, His- panics, African Americans, unmarried women. It’s going to play a significant role in this election—not in determining individual races as much as in setting the political environment. It’s a hurdle Democrats have to overcome, and a much bigger hurdle than any negative impression of Republicans the public might have from Congress. Neither Republicans nor Democrats in Congress are very popular right now. We joke that Congress’ 10 percent approval rating is a “friends and family program”—only friends and family approve of the job they’re doing.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 “Voters really GARIN: When we ask voters in focus groups their feelings about what’s going on in Washington, President Obama is not the first are disgusted, thing they say. What they talk about more than anything else is and they’re not that nothing gets done and that they resent the mindless partisanship. And that creates a little bit of a plague on both. I think turn- crazy to feel out across the board may be lower in this election. Voters really that way.” are disgusted, and they’re not crazy to feel that way. —GEOFFREY GARIN

STATE LEGISLATURES: You’ve said you’ve never seen such a sharply divided political landscape with such extreme hyper-partisanship. Why do you think that’s so?

NEWHOUSE: It hasn’t happened quickly. It’s happened over a number of years and any number of things have contributed to it—from redistricting to the primary systems. Republicans and Democrats have never been further away in terms of how they view each other. The polarization has never been greater in how voters view the president. And it is beginning to have a serious negative impact on the political system. That’s one reason voters are frustrated that nothing is getting done in Washington. The frustration level is going through the roof.

GARIN: In some ways state legislators share in the blame, at your chickens before they’re hatched. Enthusiasm 75 days out least in those states where the legislature draws the district lines. doesn’t mean a damn thing. What means something is actually The elections are decided in [closed] primaries and so all you who votes. And if Democrats can get their ground game going care about is voters in your party. You have to be able to com- so that they turn out those low-propensity voters, we’ve got our pete for the middle. California changed its system so that both work cut out for us. We’re taking nothing for granted in this parties run in the same primary and just the top two go on. That election, and the enthusiasm gap we’re taking with a grain of may force candidates to worry a little bit more about the middle. salt right now.

STATE LEGISLATURES: How much of a concern should STATE LEGISLATURES Do you predict Republicans will it be to Democrats that Republicans seem to have a gain control of the U.S. Senate? more motivated electorate? Conversely, are Republicans underestimating the Democrats’ ground game? NEWHOUSE: I believe it. I think we’re going to do well. I feel very confident about a number of the races we’ve got going. GARIN: Well, we have a very good ground game. I worked on The races that are in play are within a point or two in the major Terry McAuliffe’s campaign in Virginia in 2013 and we invested states—from Iowa to Colorado, Louisiana, North Carolina. I feel a large share of our resources both in understanding drop-off very confident that the Republicans are going to do well. But it’s voters, by which I mean people who vote in presidential years going to be tight. We may not decide the Senate until the Decem- but not in other years, and in trimming them out, and that was ber runoff election in Louisiana—that may be the deciding vote. extremely successful—so much so that if the electorate in 2013 had looked like it did in 2009, we’d be talking about a differ- GARIN: I’ll flip a coin. There are a lot of close elections. The ent governor than Terry McAuliffe. But we really were able to challenge for Democrats is many of those are occurring in very affect turnout in that race, and Democrats, I think, are making red states, states that Mitt Romney won not just narrowly but very substantial investments this time around. Issues with enthu- substantially, and it’s not that Democrats have to run the table in siasm will affect this, but Democrats do have a very good, smart all of those states, but they have to win a large majority of those ground game with a lot of proven results in recent elections. close elections in order to keep the Senate.

NEWHOUSE: It costs a lot more money to turn out an unen- NEWHOUSE: It could be a late night in November. thusiastic voter, a drop-off voter, than it does one who is pretty excited about it. But the warning for Republicans is, don’t count GARIN: It could be.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 18 | SNAPSHOTS FROM SUMMIT

YOU SHOULD HAVE BEEN THERE. The host-state slogan—“Minneapolis Nice”—was no exaggeration. The speakers were nice. The sessions were nice. The networking was nice. Even the weather cooperated during NCSL’s 40th annual Legislative Summit, this year in Minneapolis. More than 100 sessions on a wide range of public policy issues and insightful speakers—from former NATO commander Wesley Clark to humanitarian Cindy McCain to cellist Yo-Yo Ma—were only part of the agenda. If you weren’t there, or you’d like a refresher, go to www.ncsl.org to review handouts, photos, videos and more from another successful Summit. We’re already planning next year’s. Mark your calendars now for Seattle, Aug. 3–6, 2015.

STATE-FEDERAL POLICIES WERE ADOPTED

State legislators adopted policy resolutions to guide NCSL’s efforts in our nation’s capital. “Our resolutions have to promote federalism, oppose unfunded mandates, oppose federal preemption and support the notion of flexibility with federal policy,” says Utah Senator Curt Bramble (R), NCSL president-elect. This year’s resolutions:

• Give states the authority to collect the sales taxes owed them from online and remote sales by supporting the Marketplace Fairness Act.

• Solve America’s long-term transportation funding crisis by allocating resources for states to use to explore alternatives to the fuel tax.

• Continue to support veterans OPINIONS WERE HEARD and the Army National Guard by Washington Senator Randi Becker (R) plugs the 2015 Legislative Summit in Seattle. Bicyclists get protecting several educational, health a view of both sides of Minneapolis during the 10th annual Bipartisan Bike Ride. Massachusetts care and employment programs from Representative Jay Kaufman (D) speaks at the annual business meeting. funding cuts.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 18 | SNAPSHOTS FROM SUMMIT SNAPSHOTS FROM SUMMIT | 19

SPEAKERS WERE THOUGHT-PROVOKING, SESSIONS WERE FANTASTIC, FRIENDSHIPS WERE FORMED “It’s all good, but I love the networking, which cannot be beat anywhere else!”

“I am always struck by the balanced professionalism of the NCSL staff.”

“Some sessions were the best I have attended in over 30 years.”

“Legislative Staff University with Sari de la Motte was AMAZING.”

“Amy Klobuchar and Cindy McCain were terrific.”

“Sir Ken Robinson was brilliant.” BY THE NUMBERS “The pollsters were excellent!” 4,753 “Sessions were fantastic.” Twitter posts using #NCSLSummit 1,830 Views of sessions that were streamed at Summit 60.91% Portion of survey respondents who answered “no” on whether Congress is capable of solving the country’s problems 78.33% Portion of respondents who favor greater state control of transportation policy, infrastructure and financing

SOLUTIONS WERE SHARED Nevada Senate Secretary David Byerman receives the Kevin B. Harrington Award for Excellence in Democracy Education from Texas Senate Secretary Patsy Spaw. Oregon Senator Bruce Starr (R) passes the gavel to NCSL’s new president, Senator Debbie Smith (D) of Nevada. And, Amy Klobuchar, U.S. senator from Minnesota, and Cindy McCain, businesswoman and philanthropist, share a laugh during an otherwise serious session on human trafficking.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 20 | ELECTIONS All In! With a dysfunctional federal government, states are where the action is, making for high stakes in legislative races.

By Morgan Cullen and Tim Storey

trend in American politics nearly as consistent as the sun rising in the East is that the party holding the White House takes it on the proverbial chin every four years in midterm elections. That’s why Repub- licans are optimistic, and Democrats are working harder than ever to buck history. AIn the past 114 years, there have been 28 midterm (between presidential) elections. In 26 of those, the party holding the presi- dency lost an average of 415 seats, or 5.6 percent, of all state legislative seats nationwide. The extent of the losses, however, has varied widely. The worst defeat for any party, in any elec- licans netted an historic 725 legislative seats and wrested control tion since the Civil War, was in 1922, when Republican Warren of 21 chambers—the biggest shift since the Great Depression. Harding lived at 1600 Pennsylvania Ave. His party lost 1,749 Democrats, with President Barack Obama at the top of the ticket, legislative seats. recovered only a little of that territory in 2012, gaining a modest On the opposite end of the spectrum are the two lone occa- 150 seats. And, although the Democrats won back eight cham- sions when voters rewarded the president’s party in midterm bers that were lost in 2010, they lost another five. elections. The first was in 1934 when the nation was in the midst Perhaps the biggest challenge facing Republicans in 2014 is of the Great Depression and President Franklin Roosevelt was that they enter the November election in such a dominant posi- two years into his first term. Democrats gained 1,108 legislative tion in legislatures that it might be difficult for the pendulum seats that time. The second occasion was in 2002, when George to swing any further toward the GOP. The low-hanging fruit is W. Bush was in the White House and the nation was poised for gone. war with Iraq. Republicans that year pulled off the history-defy- Currently, out of a total of 7,383 state legislators, 3,836 are ing trick of netting 175 seats. Republicans, 3,448 are Democrats and 26 are third-party law- This year, voters are extremely frustrated with the dysfunc- makers. Nebraska has 49 nonpartisan senators, and the remaining tion of the federal government, yet most observers believe the seats are vacant. In 27 states, Republicans control both chambers current gridlock is unlikely to improve following the election. of the legislature; Democrats do so in 19 states. Iowa, Kentucky In fact, it could get even worse, although that’s hard to imagine. and New Hampshire are the only states where legislative control All this increases the stakes in state elections, as state legislators is split. Having only three divided legislatures is unusual; the last continue to make the big policy decisions of the day. time was in 1946. Republicans hold majorities in 57 legislative chambers, Whose Year Is It? Democrats in 41. (That adds up to only 98 chambers because In the last midterm election cycle in 2010, a massive Repub- Nebraska has only one chamber and members of it are elected lican wave swept over the state political landscape and the party on a nonpartisan basis.) When factoring in GOP-leaning coali- wound up in their best position in more than six decades. Repub- tions that control the New York and Washington senates despite the fact that Democrats hold numerical majorities, the picture Morgan Cullen and Tim Storey track state elections for NCSL. becomes even rosier for the GOP. The “effective” Republican

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 ELECTIONS | 21

chamber advantage then grows to 59-39. Before 2010, the Dem- New Hampshire, Pennsylvania and Wisconsin senates. ocrats held a 62-36 lead in chambers. Whether Democrats can hold the line, or even pick up a cham- Given that the state legislative map is decidedly more red than ber or two, as they face the headwinds of history depends on blue heading into this midterm election, further Republican gains whether this election is a GOP wave or just a ripple. Political might be challenging, even with history on their side. But that’s scholars have coalesced around the notion that this year’s elec- not slowing down their efforts. “Republicans are absolutely on offense in 2014,” says Jill Party Control Before 2014 Election Bader, of the Republican State Leadership Committee, an organization charged with electing Republican down-ballot, state- level office holders. “We have a solid ground game in place and have identified 16 chambers across the country where Republi- cans can win a clear majority.”

Neither Party Wants to Play Defense Democrats are not content to play defense. In fact, “they are poised to make gains this cycle,” Michael Sargeant, executive director for the national Democratic Legislative Campaign Committee, said in a press release in early July. “No doubt Republican about it,” he said, citing strong candidate recruitment efforts ■ Democrat and the Democrats’ fabled advantage in campaign field opera- ■ Split tions because of their large army of volunteers and a database ■ Nonpartisan of voters Republicans are still trying to emulate. His belief that ■ Democrats will gain seats is strengthened by the fact that at least Note: In the New York and Washington Senates, a coalition of six GOP-held chambers could switch with a gain of just three Republican senators and a small number of Democrats have func- or fewer seats: the Arkansas and Iowa houses, and the Arizona, tional control, even though Democrats hold the majority of seats.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 22 | ELECTIONS State Elections 2014

No Elections

■ House Only

■ Governor Election

tion is not shaping up as one that will have a seismic shift toward either party. Amy Walter, the national political editor for the Cook Political Report, is one of many pundits who has noted, “Since very early in this cycle, both sides have conceded that 2014 will not be a ‘wave’ election like we saw in 2006, 2008 or 2010.” Republicans are counting on strong anti-Obama sentiment among their base voters, something elections scholars refer to as “the enthusiasm gap,” to build the wave. And if that wave develops in the final weeks of the campaign, expect Republicans to pad their current state legislative advantage by adding 150 to 300 seats and nudging a few more chambers into their column. If a GOP wave does not develop, and the Democrats gain a few seats, this could be a very interesting election of little age, although it might uptick slightly if voters continue in the change. That would, indeed, be historic. anti-incumbent mood they appear to be in. Typically, about 20 percent of state legislators are new following every election. By the Numbers Fourteen of the 15 states with legislative term limits are hold- Forty-six states are holding elections for 6,049 legislative ing elections this year; 225 incumbent legislators were barred seats this year. Louisiana, Mississippi, New Jersey and Virginia from seeking reelection. Although this number is high compared hold their races in odd-numbered years. In Kansas, Minnesota, to states without limits, it is the lowest number of term-limited New Mexico and South Carolina, only the house seats are up. members since 1998. There also will be 20house seats decided in American Samoa, The state with the most term-limited members this year is 15 Senate seats in Guam and 15 Senate seats in the U.S. Virgin Nebraska, where 35 percent of the one-chamber legislature was Islands. termed out. The Michigan and Arkansas houses are also losing In about a quarter of these contests, candidates are running a large number of incumbents to term limits, 26 percent and 25 unopposed. And in only 15 states are the Democratic and Repub- percent respectively. lican numbers close enough for truly competitive races. Turnover rates in the last two election cycles have been Battlegrounds Brewing well above average. In 2010, more than 23 percent of all seats Of the 88 chambers holding elections this year, only about 18 changed hands (but not necessarily parties). And in the post- are likely “in play” unless something dramatic happens before redistricting election of 2012, turnover shot up to 26.6 percent. voters head to the polls. That is noticeably fewer than the 24 In Maine and Montana, redistricting of legislative lines is competitive chambers in 2012 or the 27 before the 2010 elec- not completed until three years after the census, so candidates tions. there are running in new districts this year, and that could lead to Lou Jacobson, an editor for Politifact, rates legislative elec- higher turnover and volatility in those legislatures. Both of these tions every two years. He believes the political forecast for states also have legislative term limits. The highest turnover is state legislators is particularly ominous for Democrats this year, almost always in states with legislative term limits. simply because they will be playing defense in more legislative Turnover in state legislatures this year is expected to be aver- chambers and in more states. Jacobson identifies 17 chambers as

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 ELECTIONS | 23 President’s Party in Midterm Elections

1,500

1,000

500

-500

-1000 SEATS LOSTSEATS GAINED SEATS -1,500

-2,000

1902 1922 1934 1958 2002 2010

legislatures, voters will also elect governors. Of the seats up, Republicans are defending 23, Democrats 13—perhaps a silver lining for Democrats. Although several of these races are considered predictable, as many as 15 were neck-and-neck according to many polls in early September. The best opportunities for Republicans to pick up new gubernatorial seats will be in Arkansas, Connecticut and Illinois. In Arkansas, where Democratic Governor Mike Beebe is term-limited, Congressman Asa Hutchison, the Republican candidate, appears likely to take the reins as he has held narrow leads in just about every poll. In Connecticut and Illinois, incumbent Democratic governors were trailing in polls throughout the fall. For Democrats, the best chance for grabbing back a gover- battlegrounds. Of those, Democrats must defend majorities in 11, nor’s seat is in Pennsylvania, where Democratic challenger Tom while Republican need only focus on six. Wolf has maintained large leads over incumbent Tom Corbett. Jacobson predicts most of these chambers will be won by The Democrats also are excited about prospects in Florida, Kan- Republicans. The two most vulnerable chambers currently under sas, Maine, Michigan and Wisconsin. Polling in all these states Democratic majorities, according to Jacobson, are the New show challengers in dead heats against Republican incumbents. Hampshire and West Virginia houses. Toss-ups include the Col- orado, Iowa and Nevada senates and the New Mexico House. Spending Up, Up, Up The only state in the Republican column that Jacobson lists as Campaign spending in legislative races continues to grow at a a toss-up is the New York Senate, where the Independent Demo- staggering pace. In the last election cycle, the National Institute cratic Caucus joined with Republicans to share power. on Money in State Politics reported that state legislative candi- Perhaps the most surprising chamber on the list is the New dates raised more than $1 billion. For this cycle, Ed Bender, head Hampshire House, where Democrats currently hold a 41-seat of the institute, expects “state legislative candidates to raise well majority in the 400-member body. The Granite State electorate over a billion dollars.” has proved particularly volatile in the past two elections, with The surge in campaign spending and lobbying in the states major seat swings in both. Four years ago, Republicans won the may be the direct result of the fact that while Washington has majority in grand fashion by picking up 122 seats, only to lose it remained gridlocked, state lawmakers have been busy mak- two years later by giving up 120 seats. ing policy. From all points on the political spectrum, they have Another interesting chamber to watch will be the Arkansas addressed today’s challenging issues—from immigration, educa- House, which the Democrats lost in 2012 for the first time since tion, transportation and job creation to energy, health care, guns, Reconstruction. In 1990, not one legislative chamber in the the environment, same-sex marriage and the minimum wage—to 12 states of the old confederacy was held by the GOP. Today, name a few. Republicans have a majority in every chamber in the South. The parties and candidates are “all in” state elections, as the action, mostly likely, will continue to be in state capitols. No Big Year for Governors wonder there’s a growing consensus that these legislative races In 36 states, in addition to deciding who will control state matter now more than ever.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 24 | ELECTIONS Ballot Fatigue?

Voters have a slew of ballot questions to answer, but not as many as in previous years.

1980. In fact, it’s not much more than half the average for recent By Wendy Underhill even-year elections. The high-water mark came in 2006, when motivated groups sent 76 initiative questions directly to citizens oters soon will not only decide who their governors, to decide. congressmen and legislators will be, they’ll also Legislative referenda are down too, with just 90 this year. answer statewide ballot questions that can be summed That compares to 115 in 2012 and 121 in 2010. up with the old saw: something old, something new, Why are the numbers low? The dip may be simply a valley in something borrowed, something blue. a naturally occurring peaks-and-valleys oscillation. Or it could Some issues are old standbys (taxes, gambling, be that both lawmakers and citizen groups are responding to vot- Veducation). Most are borrowed ideas from neighboring states. As ers’ frustration over long ballots. for blue, four measures relate to water quality, and water’s blue, As for initiatives, it could be that the process has become pro- right? hibitively expensive and exhausting. So what’s new? There are fewer ballot measures than in years “You have to have a pretty dedicated public following an past. Voter fatigue may be a factor. issue to get it on the ballot and to win these days,” says Craig This November, voters will face 147 statewide ballot mea- Burnett, a political scientist from North Carolina University at sures. That’s down from an average of 175 for even-numbered Wilmington. years since 2000. There is one uptick in ballot measures this year, however, and The downturn is reflected in the two most common kinds of that is with advisory questions. Thanks to Illinois, there are five ballot measures: initiatives and referenda. This year’s total of 38 of these nonbinding questions that ask voters for their opinions, initiatives—measures placed on the ballot by voter petition in but don’t have the force of law if passed. Voters in the Land of the 24 states that allow it—is lower than any year since at least Lincoln will answer questions on the minimum wage, insurance coverage for contraception and a “millionaire tax” to fund education. Why ask voters if their answers don’t matter? Some say that Wendy Underhill manages NCSL’s election team. these measures are just efforts to get out the vote.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 ELECTIONS | 25

Still Something for Everyone Ballot Measures Primer All politics may be local, but policy debates often are quite similar in statehouses coast to coast. As such, they provide law- “Ballot measure” is a catch-all phrase that refers to any policy or finance makers everywhere with the best preference polling possible on question that appears on a ballot. Within this broad category are four significant issues that may be coming soon to a chamber or ballot box near subgroups. them. Virtually all the big issues of the day are on a ballot some- Citizens’ Initiative: Twenty-four states allow citizens to place statutory—and, where, even with the lower-than-usual number. The only peren- in some cases constitutional—amendments on the ballot after gathering a certain nial favorite that’s missing is marriage. It’s been a rare year since number of signatures from registered voters. Initiatives are sometimes referred 2000 that something related to the definition of a marriage has to as “direct democracy” because they bypass the legislative process. States vary not been on a ballot somewhere. Before Maine voters approved in how many signatures are required and in other details. of marriages between same-sex couples in 2012, ballot measures defining marriage as between a man and a woman were Legislative Referendum: In all 50 states, the legislature may “refer” a measure the favored ones. to the voters for their approval. Legislatures may do this to avoid a governor’s What else is on ballots this year? Money matters, of course, veto or to let the most contentious issues be decided by the people. It is used and oh-so-much more. Below is an alphabetical review. more in some states than in others.

Abortion Popular Referendum: Twenty-four states allow citizens to petition to have a For the third time, Colorado voters will consider whether to newly enacted law go to a vote of the people. Details vary by state on the num- include “unborn human beings” as “people” in the criminal code ber of voters’ signatures required and how much time is allowed after the law and whether to include “unborn humans” in the definition of is passed. wrongful death. Under the measure, the death of an unborn child due to a criminal act such as domestic violence or drunken driv- Advisory Question: Legislatures may ask voters their opinions about certain ing could be prosecuted as homicide. statutes or language in the state constitution. The results of the measures, how- In North Dakota, voters will be asked whether to guarantee in ever, are nonbinding. the state constitution “that the inalienable right to life of every human being at any stage of development must be recognized whether defendants may waive a jury trial and go before a judge and protected.” Tennessee’s proposed amendment takes a differ- instead. Missouri’s voters will decide whether to allow a defen- ent tack. It would establish that nothing in the state constitution dant’s prior criminal history to be brought up in court when a sex secures or protects the right to an abortion and that the legislature crime against a minor is involved. And in Illinois, lawmakers are has the power to enact laws on abortion. asking voters whether to expand crime victims’ rights in the state constitution. Crime If California’s Proposal 47 passes, the Golden State would Education join many other states in reducing certain nonviolent felonies to Education measures run the gamut from preschool to gradu- misdemeanors. This trend is driven in large part by the cost of ate school. And the common thread in all of them? Education incarceration. North Carolina voters will have the chance to say takes money. In Hawaii, voters will decide whether state funding should go to certain private preschool programs. Washington voters will weigh in (for the second time in a decade) on school class sizes. Oregonians will consider whether to set up a special scholarship fund. New York residents are being asked to approve $2 billion in new bonds for education. And in Nevada, voters will decide on a 2 percent margin tax on business revenues over $1 million.

Elections Connecticut and Missouri voters will decide whether to allow early voting. If the measures pass, these states would join 36 others that allow some form of pre-Election Day voting. Oregon voters will decide whether to replace traditional Dem- ocratic and Republican primaries with an “open” or “top-two” primary, as neighboring California and Washington have done. If passed, all candidates for office, regardless of party, would run

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 26 | ELECTIONS

on one primary ticket, with only the top two vote-getters moving ing for a “win” somewhere, with the hope that this issue, like the on to compete in the general election. legalization of medical marijuana, will then spread to other states. Proponents believe “closed” party primaries draw voters with extreme ideologies that only deepen partisanship and that the Guns “top-two” version will counteract that. Although the jury is still This year, Washington is the center of a debate over back- out on whether that’s true, it’s clear that an open system allows ground checks for gun ownership. One measure calls for more the one-third of registered voters who don’t affiliate with a party to participate in primaries.

Environment Massachusetts voters will decide whether to extend the state’s bottle deposit law to more containers. Alaskans will vote on whether to require the Legislature to approve mining proposals that might affect the Bristol Bay Fisheries Reserve. New Jerseyites will vote on whether to raise the corporation business tax dedicated to environmental protection from 4 percent to 6 percent.

Gambling Many states depend on gambling revenues, so it is an “ever- green” issue for voters. This year, Colorado is considering tacking casino-style gambling onto existing racetracks to replace waning revenues from horse and dog racing. The proceeds would be ear- marked for education. The most surprising measure this year comes from Massa- chusetts. Voters will decide whether to undo a 3-year-old law permitting casinos, although none are yet operational there. If background checks, while another would limit background passed, the Bay State would be the first to roll back gambling. checks to only those mandated by federal law. It’s not clear what Currently, 22 states allow casino gambling. will happen if both pass.

GMOs Health Oregon and Colorado will decide whether foods that have All eyes are on Arizona, where a “Dallas Buyers Club” mea- genetically modified organisms must be labeled as such. Similar sure, if passed, would permit people with terminal illnesses to measures were defeated in Washington in 2013 and Oregon in try drugs that are not yet fully approved and licensed. The rapid 2012. It seems as though proponents of GMO labeling are look- spread of Ebola in western Africa is helping this measure gain national attention. In California, voters could pass a first-in-the- nation requirement that doctors be tested for drugs. Californians are also being asked to increase malpractice coverage. South Dakota would join many other states in requiring health insurance companies to list “any willing provider” who is qualified and meets the conditions for participation with that insurer.

Marijuana Two policy questions surround marijuana. The first is whether adults should be permitted to use marijuana recreationally. Vot- ers in Alaska, Oregon and the District of Columbia will address that question. Voters in Colorado and Washington answered “yes” in 2012. The second question is whether marijuana should be permitted for medical purposes. Voters in Florida and Guam will have their say in November. Earlier this year, Florida lawmakers enacted legislation to legalize limited medical marijuana for use with specific conditions such as childhood seizures.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 ELECTIONS | 27

Taxes Holding the line on new taxes has been a ballot box staple since Californians passed Proposition 13 in 1978. It focused on limiting property taxes, but over the years, citizens have targeted just about every kind of tax. Georgia is voting on a constitutional amendment that would prohibit the General Assembly from rais- ing the maximum income tax rate. If the voters say “yes,” this measure won’t have an immediate impact on tax rates, but it will restrict decision making in the future. In Tennessee, which does not collect income taxes, citizens will vote on whether to perma- nently prohibit the implementation of them. On a different kind of tax path, Massachusetts citizens are being asked whether to eliminate the practice of indexing gas taxes to the cost of living. Right now, the tax is set to increase as the cost of living goes up.

Transportation Transportation finance and funding measures are ballot regu- lars. This year, Louisiana’s measure would create a state bank to loan money for infrastructure projects. A Texas amendment would transfer general revenues to the state highway fund. And

Minimum Wage Should states set a minimum higher than the federal one, currently $7.25? So far, 23 states and the District of Columbia have set higher minimums. Along with Illinois’s advisory questions, Alaska, Arkansas, Nebraska and South Dakota have ballot measures for the voters to weigh in on.

Redistricting New Yorkers will vote on whether the Empire State will use Wisconsin’s Question 1 would ensure that state transportation a bipartisan redistricting commission to determine boundaries system revenues are not diverted to any other purpose than fund- for congressional and legislative seats. More than a dozen other ing transportation systems. states have some variation on this theme. Water California is the big fish in the sea of water-related measures, with a proposed $7 billion bond on the ballot. If approved, it will pay for improvements in water quality, supply and infrastructure. Smaller measures in other states include $10 million for clean drinking water and wetlands in Maine, bonds to create loans for dam and reservoir owners in Hawaii, a proposal to establish the Artificial Reef Development Fund in Louisiana, and a proposed fund to protect wetlands in Florida.

Stay-Tuned This “A-to-W” review is hardly the whole enchilada when it comes to 2014 ballot measures. No wonder voters may be feeling just a little fatigued. Many of these policy questions take a considerable amount of brain power to answer. Just ask a lawmaker.

Check out NCSL’s online database of all state ballot measures at www.ncsl.org. It will be updated throughout election night as results roll in.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 28 | ELECTIONS

In this era of ideological extremes and intense partisanship, what role do primaries play in shaping election results?

By Louis Jacobson

here primary elections are concerned, there’s more than one way to skin a cat. And for years, political thinkers have debated what effect the design of a state’s primary has on electoral results. In this age of sharp partisan polarization— Wwhen primaries often determine who occupies the seat more than the general election does—the question of how primaries can shape results has become increasingly urgent. High-profile congressional upsets in recent primaries—House Majority Leader Eric Cantor in Virginia and Senator Thad Cochran of Mississippi (although he later squeaked out a win in the runoff)—have also drawn attention to the debate over which type of primary best reflects the will of the voters. Some political reformers see opening up primaries as a way to curb the influence of the parties’ ideological extremes, which tend to dominate in closed primaries that are open only to registered party members. But does wresting primaries from the control of only registered party members actually result in the election of candidates with more moderate views? Research suggests it’s, at best, an open question. Those who have studied the phenomenon say the hard evidence is under-whelming.

A Variety of Options States have a range of possibilities when deciding on what kind of primary election to use. At one end of the spectrum is the closed primary, which permits only registered party members to vote. On the other extreme is the open primary that allows all voters to cast a ballot in the primary of their choice, regardless of their own affiliation. Some states use this method across the board, while others use it only in certain circumstances. In some states, voters have to publicly declare which primary they’re voting in, while in others, they can make the decision in the privacy of the voting booth. Then there is the “top-two” system, which generally puts all

Louis Jacobson is deputy editor of PolitiFact and a contributor to Governing magazine. ELECTIONS | 29 The Variations Closed Closed primaries or caucuses allow only registered members of the political party to participate in the nomination process. Proponents believe only those Primary Systems committed enough to the party to register should be allowed to decide who will be their candidates. They say closed systems contribute to strong party organization. Opponents note that closed systems exclude independent, unaffiliated and third party voters from the important nomination process.

Open Open primaries permit any registered voter to participate, regardless of political affiliation, or lack there of. Proponents argue this system gives all voters the most choices. Opponents counter that it gives non party members the opportunity to inter with their party’s nomination process.

Closed Top-Two Open In this system, all candidates are listed on one ballot, but only the top two vote- Top Two getters, regardless of party, get to compete in the general election. Proponents Hybrid say this system gives independent voters an equal voice and may help elect more moderate candidates from the two major parties. Opponents argue it reduces the * Nebraska uses the top-two primary system for nonpartisan legislative ability of third-party candidates to get on the ballot and limits voters’ choices races only. as well. Source: NCSL, Oct. 2014 Hybrid candidates on a common primary ballot, with only the top two Many states use a primary system that falls somewhere in between open and advancing to the general election. Washington in 2008, and Cali- closed. In a few states, voters choose which party to register with by choosing fornia in 2012, were the first states to institute this new format which primary to vote in. Some states allow unaffiliated voters to choose either when voters approved ballot measures. party’s primary to vote in, while other states bar them from both. And in other Louisiana uses a variation of the top two in the general elec- states, the political parties decide whether to welcome voters who are unaffili- tion, where all candidates are listed on the same ballot. Those ated or from another party to participate in their primary. who receive 50 percent or more of the votes win immediately, —Wendy Underhill, NCSL but if no one gets 50 percent, the top two finishers face off in a runoff. out as well, since it ensures that voters in heavily Republican There are other hybrid formats as well. Semi-closed primaries or Democratic districts will have at least two candidates from occupy a middle ground by requiring party members to vote only which to choose, rather than just one. So far, the top-two system in their party’s primary, but allowing independents to choose has not increased primary turnouts in California and Washing- either. ton, but experts say it’s still too early to judge. For reformers, the appeal of open primaries is clear: They hold the possibility of diluting the power of each party’s most Efforts to Change active (and often most ideologically hard-core) members by In the last two years, efforts were made in 19 states to change allowing other (and presumably more moderate) voters to have primary systems, either in the legislature or by ballot. Only two Representative a say in who runs in the general election, when turnout tends to survived: Utah lawmakers amended the state’s unique conven- Scott Drury be highest. tion primary system, and Oregon voters will decide if the state Illinois should adopt a top-two system on Nov. 4. Low Turnout Illinois was among eight states that saw failed attempts to In 2012, the number of votes cast in U.S. House general elec- switch to an open primary. Illinois Representative Scott Drury tions was more than four times higher than the number of votes (D) says the main goal of his bill was “to increase voter partici- cast in House primaries. In U.S. Senate races, 3.7 times more pation.” The legislation stalled in committee, but Drury says he votes were cast in general elections than in primaries. will continue to fight for it because “too often I hear that people This year, turnout for primaries also appears weak: As of mid- don’t vote in primaries because they do not want to declare a summer, in the 25 states that had held primaries, voter turnout party. That is a travesty and needs to be corrected.” was 14.8 percent, down from 18.3 percent in 2010, according to Attempts to switch to a closed primary took place in five a new report by the Center for the Study of the American Elec- states, and four states (including Oregon) saw efforts to adopt torate. a top-two system. In three states, bills were introduced to allow The top-two format has the potential to increase primary turn- split-ticket voting.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 30 | ELECTIONS

“The idea was to do something affirmative to increase citizen participation.” Senator Curtis Bramble Utah —UTAH SENATE PRESIDENT PRO TEM CURTIS BRAMBLE

Utah lawmakers changed their system of nominating primary opposed to Byrne,” says University of Alabama political scien- candidates at party conventions, which Republican activists have tist William Stewart. Bentley went on to win the governorship. long dominated in the deeply conservative state. The aim was Most studies, however, suggest that, if open primaries do have to elect more politically pragmatic candidates —”not just one an impact on electoral results, it is small. person pushed into office by a select, small group of individu- Jon C. Rogowski, a political scientist at Washington Univer- als,” Lane Beattie, head of the Salt Lake Chamber and a former sity in St. Louis, says his research has found that switching to a Republican state Senate president, told the Los Angeles Times. more open system can generate more moderate candidates—but The new law, effective in 2016, preserves conventions but the effect is small. gives candidates an alternative way to get on the ballot by col- Michael McDonald, a political scientist at the University of lecting a required number of signatures. In addition, the measure Florida, also found a limited effect in a study that uses a new allows independent voters to cast a ballot in any party primary. database of candidate ideologies drawn from campaign finance “The idea was to do something affirmative to increase citizen data. The study found that moderate candidates do have an participation,” says Utah Senate President Pro Tem Curtis Bram- advantage in relatively open primaries—but only when they ble (R), NCSL president-elect. come from the state’s dominant party. “This makes sense when you consider that a party’s members Unclear Results defect to vote in the other party’s primaries only when the other So how well do the more open primary systems do in encour- party’s candidates are the ones likely to win in the general elec- aging moderation? tion,” McDonald says. Some evidence suggests open primaries can make a differ- And finally, other research suggests switching primary sys- ence, while other studies say they have no impact. The top-two tems makes no difference on the type of candidate elected. system may have a somewhat stronger influence on electoral Political scientists Seth Masket of the University of Denver, results, but experts say more data are needed. Eric McGhee of the Public Policy Institute of California and In a 2003 paper, political scientists Karen M. Kaufmann, three co-authors looked at all state legislatures over the past two James G. Gimpel and Adam H. Hoffman studied state-level decades to see whether there was a correlation between primary exit poll data from 1988 to 2000 and found that open primaries systems and legislators’ voting patterns. boosted participation by younger and more moderate voters. “We really didn’t find any impact at all,” Masket says. And political observers from around the country offer some “Legislators from open primary states are just as polarized as anecdotal evidence about how the shape of the primary system those from closed primary states. We even looked at states that had an impact. switched systems to make their primaries more closed or more In Arkansas in 1990, for instance, then-Governor Bill Clinton open. We still didn’t detect any real effects.” was running for his second four-year term. He was unopposed The study suggests several possible reasons for the lack of in the Democratic primary, but the GOP primary attracted two impact, including the persistent strength of party activists and the candidates—Sheffield Nelson and Tommy Robinson. Robinson possibility that there are simply fewer politically active indepen- was perceived to be the greater threat to Clinton’s re-election, dent voters than previously assumed. says Hal Bass, a political scientist at Ouachita Baptist Univer- sity. Tens of thousands of Democrats voted in the GOP primary Turnout Too Low To Matter? instead, likely providing the margin of victory for Nelson. Clin- Wellesley College political scientist Hahrie C. Han—whose ton was reelected. research with David W. Brady of Stanford and Jeremy Pope of In Alabama, in 2010, the state’s open primary format allowed Brigham Young University has found similar results—suggested Democrats to vote in a hard-fought Republican runoff for gov- the lack of impact may stem from the fact that turnout in primary ernor. Democrats “played a big part in helping Robert Bentley elections “is so low overall that the potentially moderating effect defeat Bradley Byrne, since the teachers’ union was adamantly of an open primary is not there.”

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 ELECTIONS | 31

Douglas Ahler of the University of California at Berkeley policymakers and voters will have to decide.” suggested another possible factor: “Voters simply didn’t know In California, some research has shown the top-two system enough about the candidates to distinguish moderates from has a modest moderating impact, though the data are preliminary extremists within parties.” and, in many cases, mixed. Kristin Kanthak, a University of Pittsburgh political scientist Ahler, for instance, says research he conducted with his who has studied the role of primary structures, agrees. “To take Berkeley colleagues Jack Citrin and Gabe Lenz found “little evi- advantage of my ability to cross-over vote in an open primary, I dence that voters are choosing more moderate candidates when have to know the names of the candidates and know which one given the opportunity to do so on the top-two ballot.” Yet, at the I like,” she says. “Most of the time, voters just aren’t sophis- same time, he added, research by Christian Grose of the Uni- ticated enough to use these systems to make a big difference. versity of Southern California has found that legislators’ voting Party remains an easy cue for voters, so voters are going to rely records after 2012 have been less partisan. on that.” University of Arizona political scientist Barbara Norrander says her research suggested that, if anything, the path to more moderate candidates may actually run through closed primaries, not open ones. In states with closed primaries, she found, more moderate voters tended to register with a party, because not having a party affiliation entails a real cost—the right to vote in the primaries. By contrast, in open primary states, the parties tended to attract more hard-core activists and fewer moderates, since moderates could choose to be independent without losing their vote in the primaries.

A Modest Moderating Effect Too Early To Know The top-two system may have a somewhat stronger influ- Block advises caution when drawing conclusions about Cali- ence on electoral results. Anecdotally, experts suggested a few fornia. “Most political scientists I’ve spoken with say it’s far too examples in recent years. In Louisiana, a little-known Repub- early to judge the overall effect of top-two,” he says. “They take lican, Vance McAllister, won a 2013 special election for a con- the view that it will take three or four election cycles before the gressional seat after finishing second in the all-party first round. public becomes accustomed to the system.” Had Louisiana used a closed primary system, McAllister likely So, is moving toward a more open primary system a good idea would have been eliminated in the initial round, and the first- for states? place Republican and the leading Democrat would have faced The best argument, perhaps, is that open systems tend to be off in the general election. popular among voters. And with more citizens choosing not In California, the most notable example occurred the first year to identify and register with a specific party—and thus being the state used the top-two model, in 2012. In the 31st Congres- shut out from important primary voting—the appeal of open sional District, which covers San Bernardino County, Democrats primaries is likely only to increase. At least that’s what politi- held a 41 percent to 35 percent edge in voter registration, but cal observers from states as far flung as Georgia, Louisiana and four Democratic candidates split 49 percent of the primary vote, Minnesota say. while two GOP candidates split the remaining 51 percent, says “The open primary is quite popular in Texas, and there is no A.G. Block, associate director of the UC Center Sacramento. serious talk of reforms that would move toward either a closed As a result, the top two candidates for the November run- or semi-open primary,” says Mark P. Jones, a Rice University off were Republicans, even though the district, by the numbers, political scientist. should have gone to a Democrat. But while most observers see no major harm in a state switch- “In 2012, some of the most heated congressional races in the ing from a closed system to something more open, they warn country occurred in the districts in California that pitted two can- that states should be realistic about how much such a change can didates from the same party against each other,” says Rogowski accomplish. of Washington University. Based on the evidence so far, Rogowski says, “Changing pri- “In these cases, the ideological differences between the candi- mary systems is not likely to dramatically reshape the ideologi- dates tend to be quite small, so the election outcome hinges sub- cal tenor of the state’s politics.” stantially on mobilization and the personal characteristics of the Kanthak, from the University of Pittsburgh agrees. “States candidates. Whether that is ultimately a good thing is something should not see primary system changes as a panacea.”

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 32 | EDUCATION Art Smart

Art classes often aren’t schools’ top priority, yet research suggests perhaps they should be.

neering. They collaborate daily and discuss the kids and what By Sara Shelton they are learning. And, they are all certified to teach English language learners. n a sunny spring afternoon in northeast Denver, “We have an incredible team that focuses on culture and Celesta Cairns’ third graders at Cole Arts and Science creating community, traditions and space for kids to feel safe Academy are working in groups with professional and creative,”says Cairns, a veteran music teacher who was musicians to orchestrate a concert from start to fin- instrumental in getting the young composers program into the ish. Sixty-three young composers are making sounds school. All students at Cole receive arts instruction daily and from keyboards and drums to “illustrate” the stories are never pulled out of art classes for more reading or math. Othey have just written. “The freedom to make decisions at the school level regarding “What I like best is getting to work with my friends to make budget, hiring, curriculum and professional development has up a story,” says Matt, age 9, one of the young composers. “It been extremely useful,” she says. “I’ve made it my focus to was fun to make up a story with some friends. Our story was ensure the arts get as much attention as math, English and sci- about three sharks called ‘Fred’s Adventures.’ But it was way ence classes.” more interesting when we got to add music to it.” The Very Young Composers program is funded by a private The professional musicians in the Colorado Symphony’s Very foundation and a local philanthropist. The program is thriving Young Composers program transcribe the sounds the kids make in New York City public schools in partnership with the New into real musical notes, and at the end of the school year perform York Philharmonic and is slowly finding its way into other urban the compositions. The concert attracts parents and children who areas. The program pairs professional musicians with schools. rarely, if ever, attend musical performances or go to the theater. It is a perfect partnership between the arts community that has For many of Matt’s classmates, this was the first time they or experienced a decline in patrons and schools that lack art pro- their families had ever been to a symphony. grams due to limited resources. According to the National Center Cole Elementary is used to receiving more attention for its for Education Statistics, 42 percent of schools indicated they had failures than for its successes. It has a history of lagging test partnerships with cultural or community organizations to help scores and low attendance rates, for example. It serves a low- meet their school’s arts education goals. income, minority student population—73 percent are Hispanic, 18 percent are African American, and 93 percent qualify for Show Me the Evidence a free or reduced lunch, a federal program based on family Decades of research shows that participation in the arts— income. After a number of leadership and management changes, music, visual arts, dance or drama/theatre—can lead to higher the school reopened in 2008, and was granted “innovation sta- levels of self-confidence, persistence, civic engagement, cre- tus” by the state to come up with new, effective ways to meet the ativity, problem-solving ability and critical thinking skills in needs of its diverse and constantly changing student population. students. Moreover, the benefits of an arts education are more In return, the state granted the school leaders more autonomy. dramatic in schools where family income and achievement levels The school launched the Very Young Composers program this are very low. year with its third graders. They plan to expand the program next The evidence from numerous studies has convinced many year by adding 25 fourth graders. education professionals and policymakers to value arts as a criti- A cohesive team of educators at the school teach visual arts, cal component of a complete education. Even so, supporters face music, physical education and dance, along with the librarian for challenges in providing a high-quality program when funding is creative storytelling and a technology teacher for sound engi- tight, other concerns take precedence, and qualified instructors are few and far between. Sara Shelton is a former NCSL education policy specialist. That’s where legislators come in. Their support can be vital.

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 EDUCATION | 33

“When times get hard, arts instruction should not be seen as a frill,” says South Carolina Sena- Americans for the Art tor Wes Hayes (R), a member of the Education For the past nine years, the Americans for the Arts and the National Con- Committee. “Art is an important part of educa- ference of State Legislatures have recognized state legislators whose leader- tion—it’s critical and needed, and legislators ship has heightened public awareness of the value of the arts and arts education should provide a safeguard.” Hayes, who also to their states. Minnesota Senator Richard Cohen (DFL) and South Carolina co-chairs South Carolina’s Legislative Arts Cau- Senator Senator Wes Hayes (R) are past award recipients. This year’s recipient will be cus, says, “Arts is a significant part of keeping Wes Hayes announced at the NCSL Fall Forum in December. businesses and recruiting and retaining talented South Carolina In addition, this fall, the Americans for the Arts organization is launching its workers. Legislators can tell that story and remind other legisla- State Policy Pilot Program to: tors about the importance of the arts.” * Strengthen arts by advancing state policy. Ninety-three percent of Americans consider the arts essential * Expand states’ support and funding of arts education policy. to a well-rounded education, according to a 2005 Harris Poll. * Increase the availability of arts programs at the local level. And 79 percent agree that incorporating the arts into the cur- The group will be working with 10 states—Arizona, Arkansas, California, riculum is the first step. During the 2009-2010 school year, 94 Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Oklahoma percent of elementary schools offered music instruction and 83 and Wyoming—during the three-year pilot program. Collaborative teams con- sisting of representatives from a variety of state agencies, including the legis- The Offerings Inch Down lature, will receive customized technical assistance to write an action plan and manage a grant of $10,000 each year. The portion of public schools in school year 1999-2000 with instruction designated specifically for various arts subjects, compared to school year 2009-2010. “The arts is a significant factor in Elementary Schools keeping businesses and recruiting and retaining talented workers.”

—SOUTH CAROLINA SENATOR WES HAYES

percent offered visual art, such as drawing, painting and sculp- ture, according to the National Center for Education Statistics. And although “the percentages of students receiving music and visual arts instruction are quite high, there are literally millions of students who receive nothing,” says Sandra Ruppert, director of the Arts Education Partnership at the Council of Chief State School Officers. The students receiving little to no arts education tend to be concentrated in low-income areas and Secondary Schools include students with special needs and English language learners. Ruppert points out that, while students from poorer schools have the least high-quality exposure to the arts, “the research suggests those kids tend to benefit the most from arts education.”

Where’s the Money? Arts programs are often the first to be squeezed. “There are many signs that funding for the arts has declined steadily since passage of the No Child Left Behind Act in 2001,” says Narric Rome, vice president of Government Affairs and Arts Educa- tion at Americans for the Arts. “Financial pressures at the state and local levels have exacerbated the trend. The focus on tested Source: Arts Education in Public Elementary and Secondary Schools: subjects like reading, math and science has led to a narrowing of 1999–2000 and 2009–10 (NCES 2012–014). National Center for the curriculum.” Education Statistics, Institute of Education Sciences, U.S. Department A new report by the New York City Comptroller’s Office, for of Education, Washington, D.C. example, found that, despite requirements in state law, arts education in New York City’s public schools has become both ineq-

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 34 | EDUCATION

The Wallace Foundation In South Carolina, lawmakers have embraced the importance of arts education since passing the Education Improvement Act “Engaging with the arts can help children develop broader perspectives of of 1984. Arts education has been included in a number of key the world by introducing them to different ways of understanding their own legislative initiatives since then. This year, for example, lawmak- experiences and those of others,” says Lucas Held, the communications director ers passed the “Read to Succeed” law that, among other things, at the Wallace Foundation. requires school districts to include state and local arts organiza- Since 2005, Wallace has been working with nonprofits and select school dis- tions when developing partnerships. In 2013, with support from tricts to overcome the decline in public school arts education that began in the Senator Hayes, the General Assembly also passed a $1 million late 1970s and engage more young people in the arts, during the school day and reoccurring appropriation to help fund the Arts in Basic Curricu- beyond. The foundation works with large, national “youth-serving” organiza- lum Project and other South Carolina Arts Commission grant- tions to develop an array of arts programs local affiliates can offer children when funded programs statewide. they are not in school. It has also published a report on how to engage teens in “The arts community can be a partner and a resource in cyberspace with digital art-making technology. increasing literacy,” says Ken May, executive director of the In addition, the Wallace Foundation has funded several efforts in urban areas South Carolina Arts Commission. “Everyone needs to take part to introduce more and stronger classroom arts instruction, and is supporting the in educating our children, including the arts community.” Boston Public Schools’ Arts Expansion Initiative and Dallas’ Thriving Minds effort. Both are national models of “coordinated approaches” to improving arts Support Comes in Many Forms education by knitting together the efforts of several groups, including school In addition to funding, there are several ways in which states districts, city agencies and cultural organizations. can support a high-quality arts education. A recent report from the Arts Education Partnership offers a snapshot of the different policies states have adopted to support arts education. • Core Academic Subject: 27 states define the arts as a “core” “Education, rather than income level, or “academic” subject, consistent with federal policy, which puts is the common dominator, and arts the arts on equal footing with other core subjects considered essential to a well-rounded education. education makes a difference, clearly.” • State Standards: 49 states and the District of Columbia define —MINNESOTA SENATOR RICHARD COHEN what elementary and secondary students should know and be able to do after receiving instruction in the arts. In addition, 44 uitable and underfunded. There’s been a 47 percent decline in states and the District of Columbia have adopted art standards spending on arts and cultural organizations, and an even steeper for early childhood education. decline in spending arts supplies and equipment over the past • Instructional Requirements: Most of the states that have seven years. And many schools have diverted supplemental arts adopted art standards also regulate instruction: 45 states define funding to other areas. instructional requirements for elementary and middle schools, The report also found that reductions in arts education have and 44 states do so for high schools. been greater in lower income neighborhoods. In July, New York • High School Graduation Requirements: 25 states and the Dis- City Mayor Bill de Blasio and School Chancellor Carmen Farina trict of Columbia include the arts in graduation requirements. announced their support of a $23 million initiative to expand arts • Assessment and Accountability: 17 states require assessments education in the city’s schools and training for arts teachers. of students learning the arts. Although arts engagement and funding vary considerably • Teacher Requirements: 43 states and the District of Columbia across states and communities, Minnesota and require classroom teachers to complete coursework or demon- South Carolina are two states bucking the trend. strate knowledge of the arts to receive certification or licensure, Minnesota Senator Richard Cohen (DFL), a and 34 states and the District of Columbia specify arts require- member of the President’s Committee on the ments for non-arts teachers. Arts and the Humanities, is a huge proponent of the arts. “Education, rather than income level, is Encore! the common denominator,” he says. “Arts educa- Senator Back in Denver, teacher Celesta Cairns credits Cole’s success tion makes a difference, clearly,” he says, citing Richard Cohen with the Very Young Composers program not only to her sup- research that links arts education to increases in Minnesota portive team of teachers, but also to her principal, who values student attendance and parent involvement, and and shelters time daily for arts education. decreases in discipline problems. “Participating in the arts offers an important additional com- As chairman of the Senate Finance Committee, Cohen made ponent to the rigorous academic day,” says Cairns. “There are sure the arts were included in the 2008 Clean Water, Land and no boundaries, no right or wrong, with art. It pushes up students’ Legacy Amendment that designates 0.375 percent of the state’s confidence and gives them the opportunity to think outside the sales tax for 25 years to fund the arts, arts education and access box. Sometimes there is no space for this kind of learning in the to the arts to preserve Minnesota’s history and cultural heritage. classroom.”

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 AS THEY SEE IT | 35

“Ferguson [Mo.] didn’t have a video camera, and we still don’t know what exactly happened—video and audio would have put it to rest. Meanwhile, the Ray Rice video said it all.” —New Jersey Senator Donald Norcross (D), who is sponsoring a bill that would require police officers to wear body cameras, at southjerseytimes.com. NATE BEELER, CAGLE CARTOONS

“If they are so certain that this is the correct way for Michigan to go, what do they have to lose by letting the people of the state of Michigan vote?” —Michigan Representative Vicki Barnett (D), criticizing legislative leaders for enacting a law that undermines two ballot proposals to outlaw wolf hunting, at mlive.com. The initiative gives state officials the power to name game species and set hunting seasons.

“This bill is not about racism. This bill is not about offensive mascots. It’s not about non-offensive mascots. It is about due process.” —Wisconsin Senator Mary Lazich (R), sponsor of a bill making it harder

ADAM ZYGLIS , CAGLE CARTOONS to force school districts to change their Native American mascots or logos, on Wisconsin Public Radio. She said previously, districts were considered

guilty simply because they had a Native American mascot, and that her bill “Not only is it our right in state legislatures to do this, it’s our obligation to do it. Somebody’s got to put a gives them a chance to defend themselves. ‘whoa’ on it.” —Montana Representative Krayton Kerns (R), on states’ efforts to nullify federal gun laws, at nbc.com. Kerns sponsored a bill to limit the role of local police in enforcing federal laws.

“This bill is very simple; it just requires colleges to adopt policies concerning sexual assault, domestic violence, gang violence and stalking. They should have already been doing that.” —California Senator Anthony Cannella (R), after passage of a bill that would define sexual consent as “an affirmative, conscious and voluntary agreement to engage in sexual activity,” as reported by AP.

“Two years ago I was just another lying politician. No one believed me. Even I wouldn’t have believed me, until the video came out.” —New Jersey Assemblyman Paul Moriarty (D), who was cleared of a 2012 DWI charge because a video camera in the officer’s car showed he passed

sobriety tests, at southjerseytimes.com. MIKE KEEFE, CAGLE CARTOONS

STATE LEGISLATURES | OCTOBER/NOVEMBER 2014 Pantone 1807 / RGB 155 17 30 Pantone 301 / RGB 20 80 126