On the afternoon of June 27, Gretchen Whitmer was walking into a fundraiser when she got the text from a friend: “I cannot believe about Kennedy,” it read. Over the next few hours, the former prosecutor running to be Michigan’s next Democratic governor caught up on the news that Supreme Court Justice Anthony Kennedy was retiring. “The enormity of it swept over me during the course of this event,” Whitmer says.
In the weeks that followed she released a plan to protect women’s reproductive rights by, among other proposals, repealing the state’s law criminalizing abortion that could be enforced if Roe v. Wade is overturned. “If the Supreme Court takes action, we in Michigan have no protections or ability to choose,” she says. “And so we’ve got to change the law, and that means we’ve got to win this governor’s race.”
For Democrats, the loss of Kennedy’s swing vote represents a major shift in the country’s legal landscape. In the likely event that Trump’s nominee Brett Kavanaugh is confirmed later this year—his confirmation hearing will start the day after Labor Day—the Supreme Court will shift to a solid 5-4 conservative majority.
In what was already a critical election cycle, Kavanaugh’s nomination raises the stakes for Democrats in gubernatorial races, positioning them as something of a last line of defense for a host of liberal causes that could be threatened by a more conservative court, including abortion access, collective bargaining, and voting rights.
This election year is also a critical first step in giving the party a chance to shape the next decade’s congressional maps and reverse Democrats’ monumental losses at the state level. The party lost an opportunity in several states to influence the 2011 redistricting that followed the 2010 census. In most states the congressional map is drawn by the state legislature after the census and approved by the governor in time for the next federal election. The governors elected to four-year terms in 2018 will by and large have a say in the congressional maps drawn after the 2020 census.
While Democrats have been focused on regaining power in Washington, the power they wield at the state level is even more diminished. Since President Barack Obama’s inauguration in January 2009, they have lost 12 governorships and more than 900 state legislature seats, putting them in their weakest position since the 1920s. Republicans, meanwhile, have moved to pass more restrictive voter ID laws, curb union power, and pass more than 400 laws restricting abortion.
“One of the problems within the Democratic Party has been an overfocus on just the federal races or the presidential, and we haven’t paid enough attention to what’s happening at the state level,” says Elisabeth Pearson, executive director of the Democratic Governors Association. Pearson says Democrats have been more enthusiastic about state and local elections since the 2016 presidential election.
Some big names are stepping up. Groups such as the National Democratic Redistricting Committee, headed by former U.S. Attorney General Eric Holder, have taken an active role in 10 governors’ races where the top executive has a role in deciding what congressional maps look like. Obama is also a big supporter of the redistricting effort. “If we don’t elect leaders who support fairer elections, then we could see a repeat of what happened 10 years ago,” he says in a video backing the group.
For Democrats, the landscape is looking better than it has in years. The party—which is defending nine governor seats this year, while Republicans are defending 26—is set to have “a really good cycle,” says Jennifer Duffy, a senior editor at Cook Political Report focused on governors’ races. They’re “playing in places they really shouldn’t be playing in, like Kansas, like Georgia,” she says. The map is so bleak for Republicans that even a net loss of four to five seats might be seen as a win, she says.
Republicans are most likely to lose the open seats they’re defending in Florida, Kansas, Maine, Michigan, Nevada, Ohio, and New Mexico, which Cook rates as a toss-up or better for Democrats. Unpopular incumbent Republican Governor Bruce Rauner’s race in Illinois is leaning toward his Democratic challenger, billionaire J.B. Pritzker. In Iowa, Republican Governor Kim Reynolds—who recently signed into law a bill banning abortion after a fetal heartbeat is detected—is facing off against businessman Fred Hubbell for a full term, after taking over for Governor Terry Branstad when he became the U.S. ambassador to China last year.
Phil Cox, a former executive director of the Republican Governors Association from 2011 to 2014, says Republicans lack the sort of grassroots enthusiasm that fueled their gains during eight years of Obama. “Republicans enjoyed an intensity advantage from 2009 at least through 2016,” he says. “That intensity advantage has now flipped.”
While this will be a “challenging year” for Republicans, Cox says he doesn’t think the Supreme Court—specifically the concern that a more conservative court would undermine abortion rights—will be a deciding factor. Cox says he’s yet to see an election where Democrats didn’t try to employ abortion “scare tactics,” and this election won’t be any different. “The difference is you have a Supreme Court vacancy, which may add a little bit more fuel to the fire around these issues—but these battles have largely been fought and decided at the state level,” he says.
In Illinois, Democrats’ best chance of picking up a Republican seat, Rauner is still recovering from the fallout of a three-year budget impasse with the state legislature, even as he claims Pritzker would raise taxes. Rauner has also been a vocal opponent of unions. He was the initial plaintiff in what eventually became Janus v. AFSCME—or, as he once called the union, “Af-Scammy”—the Supreme Court’s June 2018 ruling that declared public unions can’t force nonunion members who benefit from collective bargaining to pay fees. “Supporting the right to collectively bargain has become increasingly important, not just for labor union members, but to people who don’t belong to labor unions who have benefited so much from the work that labor unions do,” Pritzker says.
For labor unions such as the American Federation of Teachers, Kavanaugh represents another addition to the ideologically anti-union, pro-business wing of the court that includes Justices Neil Gorsuch and Samuel Alito, says Randi Weingarten, the group’s president. “What drives Kavanaugh is what drives Gorsuch is what drives Alito, which is to contort the Constitution in every way possible to entrench the power of those who are already wealthy,” she says.
Governors can help unions by securing their right to reach out to workers and organize, she says. The teachers’ union hasn’t weighed in on the New York Democratic primary, but Weingarten points to Democratic Governor Andrew Cuomo’s recent actions as an example of what governors can do to back unions. “He has done a lot to level the playing field in the aftermath of Janus,” she says. In April, while the case was being considered, Cuomo signed a law allowing unions to withhold full benefits from people who decide not to join. In June he signed an executive order shielding public worker contact information from anti-union groups.
Meanwhile, the threat of Roe being overturned comes during an upswing in women-led activism, from the #MeToo movement to a record number of women running for office, boosted by female votes. In several races, female candidates have made codifying abortion protections a central part of their campaign. Kavanaugh has said that he believes the court’s 1973 ruling on abortion is “settled law,” but many Democrats see that as a shaky defense, and several Democratic challengers have promised to pass laws that would ensure abortion access even if the federal protections under Roe are overturned.
Emily’s List, the organization that helps elect Democratic women who support reproductive rights, has endorsed more than a dozen female gubernatorial candidates and has already spent more on those races during the 2018 primaries than it has in any past election cycle.
“We had a couple of conversations with our candidates and how they were going to talk about it, but the truth is they were already there,” says Stephanie Schriock, president of Emily’s List. “This is a dangerous, dangerous situation, and young women are very concerned about this, which is why I think we’re seeing higher turnout among younger women and a lot of energy around these women candidates who are willing to talk about this issue.”