ELECTION 2016 Moving Ahead Legislatures cruised through the anything but ho-hum election largely unchanged. BY TIM STOREY

fter a tumultuous and bitter remain in the driver’s seat of state policy- presidential campaign, with two making for at least two more years. Repub- of the most disliked candidates licans even nudged up the tally of legisla- A in recent history, voters sent a tures under their complete control from 30 powerful message to politicians: Major to 32—the most in party history. And now change must come to Washington. And, they have a completely Republican govern- they were willing to give Donald Trump, ment in Washington to work with as well. who often declared it was time to “drain the swamp,” the chance to do just that. Their The Numbers, Please message to state legislatures, however, was Even though Trump claimed a solid win more like: Stay the course! in the Electoral College, Hillary Clinton Clearly, many voters were fed up with appears to have narrowly edged him in the politics, mad at politicians and disgusted popular vote tally. It was a very, very close with the campaign, which one focus group election at the top of the ticket. Reflecting described as “garbage,” says Amy Wal- that, Trump had meager coattails in leg- ter, national editor for The Cook Political islative races. Republicans netted about Report and frequent panelist for Fox, PBS 40 seats nationwide, marking the second and NBC. smallest gain in legislatures by a winning But how wide and how deep that anger president’s party since 1900. It should be goes is unclear. Voters left the overall parti- noted that on eight occasions, presidential san landscape in state legislatures relatively candidates had no proverbial coattails and divided legislatures fell to three, marking unchanged. Only eight chambers shifted lost legislative seats despite winning the the lowest number of split legislatures since party control—well below the average flip White House. 1944. of 12 per election cycle. And the turnover At press time, the partisan control of All told, that’s 48 states because of New rate of legislative seats was just about aver- the New York Senate was undetermined, York’s undecided race and Nebraska’s non- age, at 25 percent. Furthermore, party con- because the race between John Brooks (D) partisan, single-chamber legislature. Repub- trol of states, legislatures, chambers and and incumbent Michael Venditto (R) was licans now have the majority in 66 cham- seats hardly moved. too close to call and a recount looked inev- bers, Democrats in 30 and the Connecticut In sum, it was a low-change, almost itable. Excluding that district, Democrats Senate is tied at 18-18. Legislative seat totals average election in the states. and Republicans each won 31 seats in the tell the same story. When sessions gavel in, That was undoubtedly a relief for GOP chamber. The partisan tallies below do not more than 4,160 Republican legislators will legislative leaders who only weeks before reflect the Empire State Senate, though take the oath of office, holding 57.1 percent Election Day feared major losses. States most observers of Albany politics expect of all seats. That’s the most the party has have been under historically high GOP that the chamber will continue to be led by held since the 1920 election. dominance for the past two years and, a coalition of Republicans and a splinter Michael Steele, former head of the despite playing mostly defense throughout group of Democrats known as the Inde- Republican National Committee, believes the long campaign season, the party will pendent Democratic Conference. it’s important for his party to keep win- When sessions open in 2017, Republi- ning in the states. “You can only sustain

Tim Storey is the director of State Services at NCSL. cans will control both legislative chambers national success from the bottom,” he says. Daniel Diorio, a policy specialist at NCSL, contributed to in 32 states, and Democrats will control “Until 2010, the emphasis was always the this article. both chambers in 13 states. The number of other way around.”

DECEMBER 2016 10 STATE LEGISLATURES ELECTION 2016 BEFORE Control of Legislative Chambers Before the election, Republicans controlled both legislative chambers in 30 states, Democrats controlled both chambers in 12 states and control was split in seven states.

Republican Democrat Split Nonpartisan Popular Democratic Party

RI DC PR VI GU MP AS

Source: NCSL

AFTER Control of Legislative Chambers Republicans now control both legislative chambers in 32 states, while Democrats control both in 13 states. Control is split between chambers in only three states, the lowest number in almost 70 years. New York election results were still undecided as of Nov. 14, 2016.

Republican Democrat Split Nonpartisan Not decided Under New Management Despite GOP gains, Democrats had a few bright spots in the elections this year, especially in southwestern states where strong Latino turnout helped them capture three chambers. In Nevada, both chambers RI DC moved to the Democrats’ column. Silver PR State Democrats picked up one seat in the VI Senate to take the majority back, 11-10. In GU the Assembly, Democrats gained a 27-15 MP AS majority. Source: NCSL For the first time in Nevada’s history, both bodies of the Legislature will be led by African-Americans. Senator Aaron Ford was chosen by his peers to be the new majority leader, and the Assembly selected since Republicans had controlled the Ken- The new House speaker will be Jeff Hoover. Jason Frierson as the new speaker. tucky House. Democrats have run the Blue- Matt Walter, president of the Republi- In neighboring New Mexico, Democrats grass State House for the past 94 years. But can State Leadership Committee, described won back the House, which they lost in not anymore. Trump did extremely well in the GOP gains in Kentucky as a big prize 2014, and will now control the body 38-32. Kentucky, helping Republicans gain a siz- for the party, calling it “the culmination It had been far longer than two years able majority in the House—64 of 100 seats. of what we’ve seen growing in the states

STATE LEGISLATURES 11 DECEMBER 2016 ELECTION 2016 since at least 2010.” It was clear to him that Partisan Control of State Legislatures voters wanted “change and solutions from 40 their state capitols, where they supported Republican Democrat Split conservative leadership.” With their victory in the Kentucky 35 House, Republicans finalized a 26-year takeover of Southern legislatures. All 30 30 legislative chambers in the South are now in GOP hands, a complete reversal from 25 1992, when every chamber in the South was under Democratic control. Nearly two-thirds of all state legislators in the 20 South belong to the Republican party. Republicans also took over the Iowa 15 Senate for the first time in a decade, mak- States Number of ing it one of the 24 states where the party 10 now controls all of state government. Iowa was another state where Trump performed 5 well, and is the state with the highest per- centage of working-class white voters who were key to the president-elect’s success. 0 1912 1916 1972 1976 1952 1932 1924 1956 1936 1992 2012 1928 1996 1920 2016 1964 1944 1968 1984 1948 1988 1960 1904 1940 1980 1908 1900 2004 2008 Among the bigger surprises in the elec- 2000 tion was the flip of the Minnesota Sen- Election Years ate. Republicans will have a narrow 34-33 advantage when the chamber convenes. cut, where Republicans garnered an 18-18 The Delaware Senate will also be tied, The Minnesota Senate has become one tie in the Senate, which has been controlled but not until a vacancy occurs in early of the most competitive chambers in the by Democrats since 1996. Democrats look January when Senator Bethany Hall-Long nation in recent years, changing hands in to have the advantage in the chamber (D) must resign to become the First State’s three of the last four elections. because tie votes are broken by the lieu- new lieutenant governor. At that point, the Another stunner occurred in Connecti- tenant governor, a Democrat. chamber will be tied 10-10 until a special election is held within 45 days. In Washington, Democrats look like they have control of the Senate 25-24. But Senator Tim Sheldon (D) plans to side once again with Republicans in a coalition to run the body. NCSL counts the state as Democratic because there is a numeric majority of Democrats, but in actuality it is divided because of the coalition. In Alaska, Democrats will benefit from a coalition to lead the House despite hav- ing only 17 seats in the 40-member cham- ber. Two Republicans and two indepen- dents joined forces with the minority party to elect Representative Bryce Edgmon (D) as the new speaker. Although it was a disappointing year for the Democratic Party, Jessica Post, execu- tive director of the Democratic Legislative Campaign Committee, was pleased with the developments in Alaska and with other party gains in Arizona, Florida, Idaho, Kansas, Maine, New Hampshire, Texas and Wyoming. “These down-ballot victo-

DECEMBER 2016 12 STATE LEGISLATURES ELECTION 2016 ries were a bright spot for Democrats in the 2016 elections,” she says. Women Stalled Below 25 Percent The brightest spot for the party may be Hawaii. Democrats now hold every seat in Election Day did not turn out to be the historic event for women many may have the Senate. It has been decades since either expected. Even at the state level, women’s representation will be virtually unchanged. A party was completely absent from a legisla- preliminary count shows that there will be around 1,824 women serving in the 50 states in 2017. That number is subject to change somewhat, as there are some contests still uncalled tive chamber in the U.S. and recounts pending. The overall share of female legislators will be 24.7 percent. Though a record number Governors, Too of women ran for state legislative seats this year, and it will be the highest number of The election did not offer much excite- women ever, it is a very small increase from the 2016 numbers of 1,805 women and 24.4 ment in gubernatorial races. Only 12 seats percent. were at stake nationwide and at least The national share of women legislators reached 24 percent following the 2008 half of them were safe for incumbents or election, and 20 percent in 1992. For women to reach 25 percent¬—one-quarter of all their parties. Still, it was a good night for legislators—is a symbolic milestone that will have to wait for another election. The states Republicans. with the highest percentages of women legislators are Arizona, Colorado, Nevada and Incumbent Gary Herbert (R) cruised to Vermont. At the lower end are Mississippi, Oklahoma, West Virginia and Wyoming. a second term in Utah, and former Micro- —Katie Ziegler soft executive Doug Burgum (R) won his first term in North Dakota. Lt. Governor press time. Absentee and overseas ballots dramatically as a result of the 2016 elec- Eric Holcomb (R) won the race to succeed had yet to be tallied. tion. Before the election, there were 22 Vice President-elect Mike Pence as gover- The bright spots for the Democrats were Republican states, eight Democratic and nor of Indiana. wins by incumbents in Oregon and Wash- 19 where the power was shared. With In three competitive states, Republicans ington and by John Carney in Delaware, New York and North Carolina still to be ultimately prevailed. Eric Greitens and which kept the state solidly in the D col- decided, Republicans now claim full con- Chris Sununu flipped Missouri and New umn. Tighter-than-expected races emerged trol in 24 states. Democrats are down to Hampshire, respectively, for the GOP, in Montana and West Virginia, but Demo- only six states, and one of those, Wash- even though pre-election polls showed crats prevailed in both states, keeping them ington, is actually divided because of the their Democratic opponents leading. And in the blue column as well. coalition that runs the Senate. In 17 states, Phil Scott (R) won the deep blue state of In the end, Republicans will wind up with power is divided. Vermont—no surprise to those who know either 33 or 34 governors. Thirty-four would American voters have mostly opted to the Green Mountain State has a history of match their 1922 peak, but either num- put Republicans in charge of state capitols electing Republican governors. ber would be the highest total since 1998. as well as Washington. One big question The only hiccup may turn out to be in remains: Will Republicans and Demo- North Carolina, where incumbent Pat Total Control crats be able to work together after such a McCrory (R) trailed Attorney General Overall control of states, combining the bruising campaign? Aaron Ford, Nevada’s Roy Cooper (D) by less than 5,000 votes at legislature and governor, did not change new Senate majority leader, is optimistic. “Notwithstanding the can- tankerous and tough tone of No Party for Presidents the campaign,” he says, “we The number of state legislative seats gained or lost by the president’s party are ready to focus on oppor- during his time in office. tunities to work with the other side to help expand the President Party Elections Seats Won or Lost middle class.” That is a goal Senator Dwight Eisenhower Republican 1952, 1954, 1956, 1958 -1,035 Ford says he shares with the Aaron Ford Nevada John Kennedy Democrat 1960, 1962 -414 state’s Republican governor, Lyndon Johnson Democrat 1964, 1966 -234 whom Ford calls a friend. Ricahard Nixon Republican 1968, 1970, 1972 -234 The governor has a vision for what he calls Gerald Ford Republican 1974 -628 Jimmy Carter Democrat 1976, 1978 -379 a “new Nevada,” and Ford says that his Ronald Reagan Republican 1980, 1982, 1984, 1986 +250 party and the Legislature are ready with George H. W. Bush Republican 1988, 1990 -21 a blueprint to work with the governor to Bill Clinton Democrat 1992, 1994, 1996, 1998 -612 make it a reality. George W. Bush Republican 2000, 2002, 2004, 2006 -108 And, that is sure to be the case in other Barack Obama Democrat 2008, 2010, 2012, 2014 -816 states as well. Good-bye 2016, lawmakers are moving ahead.

STATE LEGISLATURES 13 DECEMBER 2016 ELECTION 2016 Ballot Bonanza Voters took on the role of policymakers for a slew of issues, from capital punishment to taxes.

BY WENDY UNDERHILL

o crystal ball can reveal with certainty what issues legisla- tures will take up in the future; Nprognosticators would do better looking at the most recent crop of ballot measures. This year, marijuana and firearms got the lion’s share of the press coverage, but issues around taxes, labor, economic development, infrastructure, education and health care funding were all on the ballot, too. It’s no stretch to say those topics will also be on lawmakers’ agendas in coming sessions. Of note in Election 2016 was how the you have a legislative branch of govern- first responders, some seniors, surviving measures made it onto ballots: 72 were cit- ment.” spouses of military personnel or others from izens’ initiatives—more than twice as many Here’s what voters decided this year. property taxes. as in 2014, and the most since 2006. Legisla- tures, however, referred fewer than average Money Matters, a Lot Minimum Wage Popular issues to the voters to decide. Bonds did well. In fact, all 12 state bond Citizens in Arizona, Colorado, Maine and How did they fare? Voters said yes to a sig- measures passed. That means transportation Washington put minimum-wage increases nificantly greater number of ballot measures infrastructure will be upgraded in Maine and before the voters, and all were successful. this year than on average. For those sent Rhode Island. California and New Mexico In Arizona, Colorado and Maine, the wage to the ballot by citizens, 73 percent passed, will improve schools and libraries. goes to $12 per hour, phased in over sev- whereas the average over the last dozen years Tax increases did not fare as well, with eral years, while Washington’s tops out at has been 45 percent. Legislatively referred only a handful getting approval. Voters said $13.25. Colorado and Maine will index their measures always do better than citizen initia- no to measures that would have increased minimum wages in the next decade. tives, and that was true this year as well: 83 the annual minimum tax on corporations The Arizona and Washington minimum- percent were approved, higher than the aver- with sales of more than $25 million in Ore- wage measures also require paid sick leave, age of 75 percent. gon; eliminated the deductibility of federal which makes them the sixth and seventh From a legislative perspective, though, income taxes when calculating corporate states to adopt such policies. citizen initiatives are second best. “By the taxes in Louisiana; and upped the sales tax In 2014, five states set minimum wages time a bill comes to fruition [in the Legis- by 1 percent in Oklahoma. higher than the federal minimum of $7.25 lature], it has gone through a very thor- Washington’s proposed carbon emis- per hour. South Dakota was one of them. ough examination, both pol- sions tax also failed, as did Colorado’s stab The South Dakota Legislature tweaked it icy-wise and fiscally,” says at funding a state-based single-payer health by lowering the minimum wage for workers California Senate President plan. under the age of 18 to allow teens to get a Kevin de León (D). “Democ- Voters in Maine and California, however, foothold in the job market. South Dakota racy by the people sounds said yes to increasing taxes on the wealthy. voters rejected that change, so the state will good, but oftentimes there Maine added a 3 percent tax surcharge on return to a single minimum wage of $8.55 per are very severe unintended annual incomes over $200,000, and Califor- hour. Twenty-nine states now have higher consequences that do more Senate nia extended for 12 years a temporary tax minimums than the federal government. Kevin de León harm than good. That’s why California increase passed in 2012 for earners in the Right-to-work measures went both ways. $250K-or-more crowd. Alabama voters decided to include the right Wendy Underhill directs the elections and redistricting Voters in Florida, Louisiana and Vir- to work in their constitution, whereas Vir- team at NCSL. ginia approved measures to exempt disabled ginia voters turned down a similar measure.

DECEMBER 2016 14 STATE LEGISLATURES ELECTION 2016

BY THE NUMBERS South Dakota voters turned down a plan that ishing it, and approved a measure to speed Ballot Measures would have allowed unions in this right-to- up the execution process. Oklahoma citizens Election 2016 work state to collect fees from nonmembers. amended their state constitution to specify that capital punishment is neither cruel nor 35 Pot Is Hot; Tobacco Taxes Not unusual. And in Nebraska, the voters over- States with measures on the ballot. Four states approved the medical use of turned a new statute that banned capital marijuana: Arkansas, Florida, Montana punishment, making it once again an option 154 and North Dakota. Over half of the states in the Cornhusker State. Ballot measures nationwide. have now approved medicinal use. Voters in California, Maine, Massachu- By and for the People 84 setts and Nevada, where medical marijuana Proponents of more campaign finance Proposed constitutional amendments. is already legal, said yes to regulated recre- regulation were happy after the election, ational use of marijuana for adults as well. with four of five measures going their way. 67 Arizona was the lone state to turn down a South Dakota’s measure included disclosure Proposed statutory changes. similar initiative. With these newcomers, requirements, contribution limits and pub- eight states plus D.C. now allow adult use of lic financing of campaigns. Missouri passed 72 cannabis. Worth noting: All eight did so by contribution limits as well. California and Measures initiated by citizens. citizen initiatives. Washington each approved measures to Marijuana remains on the federal Sched- undo the Supreme Court’s Citizens United 45% vs. 73% ule I drug list, making it illegal. Whether ruling, which prevents governments from Average vs. this year’s approval rate of President-elect Trump will continue the cur- limiting political spending by corporations citizen initiatives. rent Department of Justice decision not to and unions. These Citizens United measures pursue marijuana charges in legalized states have no teeth, but do take the temperature 75 is not known. If not, a state-federal debate is of the polity on campaign finance issues. The Measures referred by legislatures. likely to follow. countervailing vote came from Washing- As for tobacco taxes, four states had ton, which rejected a proposal to allow state 75% vs. 83% increases on the ballot; however, only one money to be used by individuals via vouch- Average vs. this year’s approval rate of was successful. California voters agreed to ers to support the candidates of their choice. legislative referrals. increase the tax on cigarettes from 87 cents In other democracy news, South Dako- to $2.87 as well as increase the tax on e-cig- tans rejected a proposal to create a redis- 100% arettes. Similar measures, fell short in Colo- tricting commission made up of an equal Bond measures approved this year. rado, North Dakota and Missouri. number of Democrats, Republicans and independents. They also said no to adopt- $313 million Gun Control and Capital ing a nonpartisan election system, in which Amount contributed to ballot issues in Punishment all candidates run on the same ballot in the California, the highest in the nation. Firearms regulation has typically been primary (without party affiliation listed), handled via the legislative process, but in with the top two vote-getters advancing to recent years—this one included—voters the general election. have played the determining role. California voters said yes to requiring Stand Alones Measures to regulate firearms passed in bills be made available on the internet at Oregon voters agreed to make it harder three of the four states with them on the least 72 hours before lawmakers can pass to buy and sell the body parts of endangered ballot. California’s successful proposition them. Coloradans opted to create a pres- species, to direct lottery funds for outdoor requires a background check when buy- idential primary (to replace the caucuses education, and to require the legislature to ing ammunition. Washington’s measure is and conventions the state has used in recent fund dropout prevention programs. an “extreme risk protection order,” which times), and to allow unaffiliated voters to Colorado citizens approved an aid-in-dy- allows police or family to temporarily participate in the party primary of their ing proposal. South Dakotans agreed to cap restrict a person’s access to firearms when choice. And Maine became the first state to interest charges by payday lenders. Califor- immediate harm is likely. Nevada’s mea- adopt ranked-choice voting. In the future, nia voters decided to give bilingual educa- sure requires a background check before Mainers will list their choices for a position tion another chance and to allow parole for any firearm transfer, which is what Maine’s in ranked order. The lowest vote-getters nonviolent felons; but they weren’t willing would have done, but it failed. will be eliminated until someone wins with to require adult film performers to use con- Proponents of capital punishment had a a majority. No more plurality victories for doms when filming. good year. California voters rejected abol- candidates in the Pine Tree State. And with that, the voters have spoken.

STATE LEGISLATURES 15 DECEMBER 2016