The Thicket at State Legislatures

Half the States will Have Veto-Proof Majorities

By Karen Shanton

Following our own advice, we recently analyzed the number of states with veto-proof legislatures (states in which one party controls enough votes to override a gubernatorial veto). When the smoke cleared, we found that fully half the country is poised for a veto-proof legislature in 2013. Twenty-one state legislatures were veto-proof heading into November. With Democrats losing veto power in one state and gaining it in two, Republicans losing veto power in three states and gaining it in six, and all other states holding steady, a whopping 25 states will have veto-proof legislatures when legislative sessions start up in the New Year.

The biggest shift was in Arkansas. Party control in the Arkansas General Assembly flipped in the election, with Democratic majorities in both chambers giving way to Republican majorities. Arkansas is one of seven states – along with Alabama, Indiana, Kentucky, Pennsylvania, Tennessee and West Virginia – that require only a simple majority vote to overturn a gubernatorial veto. So, with a 60 percent GOP edge in the state Senate and a razor-thin 51 percent in the House, the Arkansas General Assembly switched from a blue veto-proof body to a red veto-proof body.

This swap was particularly significant because it made Arkansas one of just three states in the nation with both a veto-proof legislature and a divided government (a government in which the governor and the majority party in at least one legislative chamber come from different parties). Though Republicans now control the Arkansas State Capitol, Democratic Governor Mike Beebe still holds the Governor’s Mansion. Missouri’s Democratic governor, Jay Nixon, is in the same boat as Arkansas Governor Beebe, facing a newly-veto-proof Republican legislature. In Rhode Island, Republican-turned-independent Governor Lincoln Chafee will continue to work with an overwhelmingly blue legislature.

These numbers are not static. Veto-proof legislatures can come and go with vacancies, as California may prove in 2013. They can also vary with the allegiances of independents, as is the case this year in Georgia and perennially in the independent-heavy Vermont House. (The numbers cited above assume that independents will align with the majority party in these states.) Rule changes can also snap veto-proof legislatures in and out of existence. Pennsylvania Republicans held majorities in both chambers of the General Assembly in 2003 but this edge didn’t win them veto power until a couple of years later – when the veto override requirement was reduced from two-thirds to a simple majority.

However, they provide us with a snapshot of the current state of the nation. When set alongside historical data, this snapshot hints at a country that’s shifting toward political extremes. The total number of veto-proof legislatures is at its highest level in at least a decade but a strikingly small number – just 12 percent – of these legislatures are in states with divided governments. By contrast, there were only 14 veto-proof legislatures in 2003 and half of them were in states with divided governments. The number of veto-proof legislatures could bounce back down in the future (and the number of divided governments might bounce back up). But – for now, at least – the polarization that is so prominent in national politics seems to be echoed at the state level.

(See here for an update to this post.)

State	Votes required to override a veto*	Post-election majority	Gov
AL	Majority of elected body	3/5 R	R
AR	Majority elected	R majority	D
CA	2/3 elected	2/3 D†	D
DE	3/5 elected	3/5 D	D
GA	2/3 elected	2/3 R‡	R
HI	2/3 elected	3/4 D	D
ID	2/3 present	3/4 R	R
IL	3/5 elected	3/5 D†	D
IN	Majority elected	2/3 R	R
KS	2/3 membership	2/3 R	R
MD	3/5 elected	2/3 D	D
MA	2/3 present	3/4 D	D
MO	2/3 elected	2/3 R†	D
NC	3/5 elected	3/5 R†	R
ND	2/3 elected	2/3 R	R
OH	3/5 elected	3/5 R†	R
OK	2/3 elected	2/3 R†	R
PA	Majority	R majority	R
RI	3/5 present	3/4 D	I
SD	2/3 elected	3/4 R	R
TN	Constitutional majority	2/3 R	R
UT	2/3 elected	3/4 R	R
VT	2/3 present	2/3 D‡	D
WV	Majority elected	D majority	D
WY	2/3 elected	3/4 R	R
*For vetoes of ‘typical’ bills. Some states set different thresholds for overriding vetoes of special bills (e.g. revenue bills). †Gained a veto-proof majority ‡Assumes that some independents caucus with the majority party Sources: NCSL StateVote and the Book of the States

What Constitutes a Supermajority?

By Karen Shanton

Illustration from The Michigan Broadcaster

Following major gains by Democrats in California and Illinois and Republicans throughout the South and Midwest, many post-election headlines trumpeted the arrival of new legislative supermajorities. One thing that has been obscured in some of this coverage is that 'supermajority' is a nuanced concept. Despite the name, figuring out where Republicans and Democrats hold supermajorities isn't nearly as simple as counting where they're in the majority.

'Majority' always means 'more than half.' 'Supermajority,' on the other hand, can mean any number of things – from 'three-fifths' to 'two-thirds' to 'three-fourths.' To a Nebraska legislator looking to refer a constitutional amendment to the ballot, a supermajority is three-fifths. An Arkansan who wants to appropriate money for something other than education, highways or debt reduction needs a three-fourths supermajority. A legislature is 'veto-proof' (one party controls enough votes to override a gubernatorial veto) when a single party controls three-fifths of the vote in Illinois or two-thirds in Georgia; a simple majority will do the trick in Kentucky. Arizona legislatures can overturn most vetoes with a two-thirds supermajority but tax bill vetoes require three-fourths of the vote.

To make things even more complicated, supermajorities aren't always calculated from the same pool of votes. Vermont legislators can overturn a gubernatorial veto as long as two-thirds of the members present agree to the override. Legislators in North Dakota have to muster the votes of two-thirds of members elected while Michiganders need two-thirds of members elected and serving.

And, unlike majorities, supermajorities are context-dependent. You can tell me whether Florida Republicans hold a majority even if you don't know why I want to know. The same isn't true of supermajorities. If we're talking about referring a constitutional amendment to the ballot, Republicans hold a supermajority in Florida. If we're talking about overriding a veto, they don't. So, the answer to the question, "Do Republicans have a supermajority in Florida?" could be either yes or no, depending on the context.

What this suggests is that it doesn't really make sense to ask, "Does one party hold a supermajority in that state?" or "How many state legislatures have supermajorities?" Instead, we should focus on something more specific, such as "Does one party have the power to refer a constitutional amendment to the ballot in that state?" or "How many state legislatures are veto-proof?" This distinction might be worth keeping in mind when the next article about new legislative supermajorities pops up in your RSS reader.

Black Friday sale at NCSL!

No big screen TVs, but you don’t have to stand in line overnight for some great Black Friday deals at the NCSL Bookstore. From Friday through Sunday, take 50 percent off all items in the NCSL Bookstore (excludes Mason’s Manual and StateConnect).

Order as usual and use the promo code THANKS at checkout in order to receive the discount.  

Happy shopping!

Leadership intrigue...and more cool maps

by Tim Storey

Many legislative leaders are now being selected for next year's sessions. I hope to do a full rundown soon highlighting many of them. The leadership race with probably the most intrigue is playing out in the New York Senate. It appeared on election day that Democrats might have regained control of the body that was held 32 R - 30 D before the election. The New York Senate expanded to 63 members in this post-redistricting election, so Democrats needed to win 32 seats to claim the majority.

Two New York Senate races are still undetermined.  Not knowing election results soon after the election is becoming a tradition in New York as is a battle royale for the leaders post. Democrats lead in the two outstanding races and could emerge with a clear numerical majority. However, Brooklyn Democrat Simcha Felder has announce that he will caucus with the Republicans and support current Senate Majority Leader Dean Skelos, a Republican, to continue as the chamber's leader. In addition, Senator Skelos might get other Democrats to back him. Here's a pretty good overview from National Journal's Hotline as of Thursday afternoon, Nov. 15th. It looks like it will take a while for this to sort itself out.

In another chamber with close partisan numbers, the Arkansas House voted today to withdraw the title of Speaker-designate from Democratic Representative Darrin Williams. Republicans won 51 seats in the 100 member body in this election. In a second vote, the House, by a secret ballot vote of 53 to 45, chose Republican Davy Carter as the Speaker-designate over Republican Terry Rice. It appears that Carter received the votes of all or most of the chamber's Democrats to win. A run down of the House leadership election is at Arkansas' Talk Business website.

And in a note unrelated to legislative leaders, here are some cool maps from a professor named Mark Newman at the University of Michigan depicting the presidential results from last week.  They unfortunately do not include Alaska and Hawaii which is a big oversight...no pun intended. However, they do show county results that are really interesting to compare to this amazing precinct results map from 2008 from Stanford.

 

State Solons go to Washington

By Alex Fitzsimmons and Jeff Hurley

 

Nebraska Senator-elect Deb Fischer. Photo credit: Glamour

While President Barack Obama and Governor Mitt Romney stole most of the headlines on Election Day, hundreds of candidates with state legislative experience ran for federal office in down-ballot races.

Senator-elect and former president of the Hawaii Senate Maizie Hirono. Photo credit:Maui Feed

When the new Congress is sworn in, there will be 33 fresh-faced congressmen with state legislative experience, accounting for about one-third of the entire freshmen class. A handful of elections have yet to be finalized, but when the dust settles, just under half of all members of the 113th Congress will have served in state legislatures.

Four candidates with state legislative experience on their resumes won election to the U.S. Senate. Senator-elect Deb Fischer (R-Neb.) will head directly to Congress' upper chamber after her service in the Nebraska Unicameral. Sen. Fischer also recently served a three-year term on NCSL's Executive Committee. Joining her will be Senators-elect Tammy Baldwin (D-Wisc.), Mazie Hirono (D-Hawaii), and Chris Murphy (D-Conn.), each of whom followed a path from their state legislature to the U.S. House of Representatives before last Tuesday's election.

As NCSL reported before the election, there are 228 former state legislators serving in the U.S. House, and 42 serving in the U.S. Senate. In the new Congress, there will be 219 former state legislators in the U.S. House, and 42 in the U.S. Senate. The proportion of former state legislators serving in the U.S. House will continue to hover around 50 percent, as it has for the last several decades. Come January, some of the names and faces will change, but state legislators will retain a strong presence in the 113th Congress.

Women Elected to Congress in Record Numbers, not so Much in State Legislatures

By Katie Ziegler

 

Colorado women legislators gather on the Capitol steps in March 2012. Photo credit: Special to the Denver Post

This was a banner election for women at the congressional level. Twenty women will serve in the United States Senate next year, and at least 77 women will serve in the House (a couple of races are still too close to call—keep an eye on the Center for American Women and Politics for updates). Many of these races were in the national media spotlight, and several of the women elected represent noteworthy demographic "firsts." It was hard to escape the pundit corps' speculation about how the "women's vote" would affect the presidential election. So, was this a "year of the woman" at the state legislative level, too?

 

Our preliminary data collection points to "no." While there are still some races too close, the proportion of women serving in state legislatures in 2013 will be about 24 percent. This is a slight increase from the 2012 session's 23.7 percent, but it is not the substantial jump in numbers that women's advocates had hoped to see.

Colorado has retained its position as the state with the highest percentage of female lawmakers at 42 percent of total membership. The South Carolina General Assembly will once again have women serving in both chambers after four years without any women in the Senate. Most states had small gains or losses in their numbers of female legislators, with the exception of New Hampshire. The control of the New Hampshire House switched from Republican to Democratic, and the election of over 100 new members to that chamber's 400 included more than 40 women. Visit the Women in State Legislatures: 2013 page for complete information; it will be updated as results are finalized.

Why is there such slow growth in the number of women in state legislatures? One explanation is the number of female candidates. Overall, the number of women running for state legislatures this year was not much different from 2010. If we had seen significant growth in the number of women running, that may have translated to a greater increase in the number of women elected. Several groups have focused on recruiting and training women to run for office in recent years. The women who participated in those programs may not have chosen to throw their hats in the ring this year, or they may have aimed at an office besides the statehouse. As we learn more about women in the 2012 elections, you'll read about it here on The Thicket.

Stay Tuned on Control of Arkansas House and New York Senate

By Karl Kurtz

Based on preliminary election returns, we have put the Arkansas House in the Republican column and the New York Senate on the Democratic ledger. Both of these would be switches in party control. But both of them hang by a thread.

From Arkansas blogger Jason Tolbert:

Right now, Republicans have the lead with 51 seats in the House, but it is not quite over.  The fight for the 51st seat as well as the Speaker’s chair continues.

In House District 52, Republican John Hutchison leads by only about 49 votes. According to the Secretary of State website, the race is 5,048 votes for Hutchison and 5,004 for his Democratic opponent L.J. Bryant.  In addition, the Craighead County Election Commission approved 13 out of 49 provisional ballots early this morning that put Hutchison up another 5 votes.  I am hearing there are also 4 military ballots that could come in....

But what is clear is that Hutchison’s seat is necessary for the Republicans to have a clear 51-seat majority in the 100-seat Arkansas House.  It is certainly expected that Bryant will call for a recount since that seat is critical.  He has three days to so.  If the recount is unsuccessful, Bryant has to pay for the cost, but I am sure he could get some help with that from Democratic supporters....

With the 51st seat up in a razor-thin lead, Democratic Speaker-designate Rep. Darrin Williams issued an interesting statement that signals he is not ready to give up his chair to the Republican’s choice of Rep. Terry Rice just yet or maybe even anytime soon.

And from the New York Times:

Democrats on Wednesday began preparing to lead the New York State Senate after shocking the political establishment with strong performances in a number of contests on Tuesday.

But Republicans said they believed that uncounted absentee ballots would allow them to retain their majority, and political experts warned that even if Democrats won a numerical majority, their membership was so fragmented that they might be unable to win a leadership election in the Senate.
 Republicans currently hold 33 of the 62 seats in the Senate. On Tuesday, Democrats had clearly won 31 seats and Republicans 30 in a chamber that will grow to 63 seats next year because of redistricting....

Sen. Stephen Saland is a former president of NCSL. Photo credit: Nathaniel Brooks for the New York Times

In the two remaining races, Democrats were ahead: In the Poughkeepsie area, the Democrat, Terry W. Gipson, led Senator Stephen M. Saland, a Republican, by about 1,600 votes. In the new, 63rd district in the capital region, the Democrat, Cecilia F. Tkaczyk, led the Republican, George A. Amedore Jr., a state assemblyman, by about 140 votes.

Sen. Saland's race was complicated by the fact that the Republican whom he defeated in a hard-fought primary, Neil DiCarlo, ran in the general election on the Conservative line and received 14 percent of the vote.

The Times story goes on to report on factions within the Democratic party and the possibility of some Democrats voting with Republicans to control the chamber.

A Significant Decline in Divided Government

By Karl Kurtz

Divided government refers to the condition of a state having a governor of one party and at least one chamber of the legislature of the opposite party. Here's the lineup of divided and unified governments post-2012 election compared to 2010:

	Post-2012	Post-2010
Unified Democratic	14	11
Unified Republican	23	18
Divided	12	20

The 2012 election saw a significant decline in the number of states with divided government. It's the lowest number of states with divided government since 1952, when there were eight. This rivals our previously reported factoid that we have the lowest number of legislatures with split control (three) since 1944.

Following portions of post modified at 4 p.m., MST, 7-Oct-2012.

Both of these statistics seem to reflect a growing polarization of states—almost all of them are either one party or the other, not mixed. But the number of states with divided government bounces around over time, as seen in the following chart:

The number of states with divided government peaked at 31 in 1988 and 1996. It has decline precipitously since 2004. Of course, a decrease in divided government necessarily means an increae in unified government. In the last two election cycles, Republicans have benefited more from this equation than Democrats.

Are these continuing trends? We'll probably have to wait for a few more elections to know for sure.

The President had Coattails, However Short, in 2012 State Legislative Elections

By Tim Storey and Karl Kurtz

In 20 of the past 28 presidential-cycle elections, the party winning the White House has gained seats in state legislatures. Thanks in large part to a Democratic gain of more than 100 seats in the New Hampshire House, it will be 21 of 29 winning years for the presidential party.

In the first state legislative election since redistricting, voters cast ballots in 44 states for men and women running for 6,034 state legislative seats.

Democrats appear to have regained control of seven chambers that they had lost in 2010, but Republicans claimed four chambers previously controlled by the Democrats.

The biggest surprise of the election night was the New Hampshire House where Democrats won a majority. The preliminary numbers for the Granite State House are 217-177 (six undecided). Going into the election Republicans had a 288-102 margin, so the Democrats appear to have picked up at least 115 seats.

Thanks to an apparent historic victory in Arkansas, Republicans gained control of the old South, turning the once solidly Democratic 11 states of the Confederacy upside down. [Map at right modified at 4:30 p.m., MST, 7-Oct-2012, after a sharp-eyed reader noticed that we should not have included Oklahoma as part of the traditional solid South.]

Arkansas was probably the biggest prize for the GOP at the state level. Republicans switched the Senate, and the House has a tentative 51-49 Republican majority, including one seat with a 44 vote margin that is subject to a recount. If the House numbers hold, this will be the first time since Reconstruction that Republicans have controlled the Razorback State.

Republicans won back the Wisconsin Senate while holding onto the Assembly. The Badger State Senate had only been in the hands of Democrats for a few months since recalls switched Senate seats back in the summer.

The Alaska Senate and the Oregon House were both tied headed into Tuesday. In 2012, the Republicans took the Alaska Senate and Democrats took the House in Oregon.

Democrats appear to have gained a narrow majority in the New York Senate. If this is the case, it is the second time since 1966 that Democrats have taken control of this chamber. Democrats now control both legislative chambers and the governor's mansion in the Empire State for only the second time since 1935, a feat they also accomplished from 2008 to 2010.

Democrats won back the Colorado House 37-28, giving the party control of the House, Senate and governor' office.

And Democrats have seized back control of both chambers in Minnesota and Maine. All four of those chambers went to Republicans in the wave election of 2010.

The 2012 state legislature partisan composition shows that the nation may have the lowest number of divided state legislatures in more than 30 years. Only Iowa, Kentucky, New Hampshire and Virginia have divided legislatures, but in Virginia, the lieutenant governor casts the tie-breaking vote, so it is fair to qualify Virginia as a unified Republican legislature leaving just three states with divided legislatures. The last time there were fewer divided legislatures was in 1928 when there were two.

The nation also gained one additional state legislative seat. The New York Senate grew from 62 to 63 as a result of a redistricting change, bringing the total number of state legislators to 7,383.

As of Wednesday afternoon, November 7^th, here are the big numbers:

Pre-election 2012: 26 Republican Legislatures, 15 Democrat and 8 that were split.

Post-election 2012: 26 Republican Legislatures, 19 Democrat and 4 split.

Nebraska has a nonpartisan, unicameral Legislature.

History-Making Ballot Measures Pass Throughout Country

By Jon Kuhl

Voters made history in dramatic fashion, passing groundbreaking measures to legalize marijuana use and approve same-sex marriage on a day when 174 ballot measures were considered by the electorates of 38 states. That was the most since 2006 when 204 measures were on ballots.

In many states, ballots were quite long on Election Day, with voters in Alabama, California and Florida deciding on 11 statewide measures ranging  from implementation of the Affordable Care Act to same-sex marriage.

Of the 42 citizen initiatives on the ballot, voters approved 17. They rejected 23, and two remain too close to call at press time. In the 2000–2010 decade, voters approved 44.9% of all initiatives on the ballot. Of the 40 that are decided so far, 42.5% have been approved. That’s slightly below average and is subject to change as the results on these last two measures firm up.

"With a few notable exceptions, voters had a more negative view of ballot measures than usual this year,” said Jennie Drage Bowser, elections policy analyst for the National Conference of State Legislatures (NCSL).  “Two big exceptions were the issues of same-sex marriage, where voters in three states broke new ground by voting to legalize it, and drug policy, with Colorado and Washington voters agreeing to legalize marijuana.”

There were 12 popular referenda on the ballot this year, the highest number since 1920 when there were also 12. The popular referendum, available in 23 states, allows citizens to put a new law on hold and let voters decide its ultimate fate. Six of the 12 popular referenda were approved. Nearly all of the legislative moves vetoed by voters centered on labor – in Idaho, Michigan and South Dakota, attempts by the legislature to reduce the influence of teachers’ unions were rejected by voters. This includes a rejection of Michigan’s Emergency Manager Law, a provision that would have allowed state-appointed emergency managers to terminate public employee contracts and collective bargaining agreements.

Of the 115 measures referred by state legislatures, voters approved 87 and rejected 25. Three remain undecided. Between 2000 and 2010, voters approved 85.7% of legislative referenda on the ballot. Setting aside the three undecided measures, voters have approved 77.7% of the 112 legislative referenda we have results for at this time.

Voters rejected all three proposed constitutional conventions that were on ballots this Election Day.

How Key Issues Fared:

Same-Sex Marriage
Same-sex marriage initiatives were on the ballots in four states this election. While close, all three ballot measures in Maryland, Washington and Maine passed and a constitutional amendment in Minnesota defining marriage as a union between one man and one woman was defeated. Since 1998, all but one of the 35 statewide votes held on same-sex marriage were to restrict marriage between one man and one woman. The exception was Arizona, where voters rejected a ban on same-sex marriage in 2006, but later approved one in 2008. With 32 states having restricted marriage to opposite sex couples, this is a big change in direction.

Marijuana
There were six marijuana-related initiatives on ballots this year. Colorado and Washington made drug-law history Tuesday when voters in both states approved measures to legalize and control recreational marijuana use. Voters in Oregon rejected a similar measure. Voters in Massachusetts approved the legalization of medical marijuana but the Arkansas electorate turned down a similar bill. Arkansas would have been the first southern state to adopt medical marijuana. Montana voters rubber-stamped the legislature’s move to impose additional regulations on an existing medical marijuana program.

Affordable Care Act
Four out of five states voted approved legislative measures blocking implementation of the Affordable Care Act. These states included Alabama, Missouri, Montana and Wyoming. Going in the opposite direction, Florida voters voted against exempting their state from the Affordable Care Act. Voters in Arizona, Missouri, Ohio and Oklahoma have approved similar measures during the past two years; Colorado voters rejected one in 2010.

Education
The so-called DREAM Act passed in Maryland. The measure provides in-state tuition rates for unauthorized immigrants who graduate from a high school within the state. Idaho and South Dakota voters have rejected the legislatures’ attempts to reduce the influence of teachers’ unions. These questions came in the form of four popular referenda – voter attempts to veto actions by the legislature. Voters approved California Governor Brown’s Proposition 30, temporarily raising both state sales and income taxes for high-income earners. The revenue will help fund K-12 education and community colleges and balance the state budget. California rejected a competing measure, Proposition 38.

Physician Assisted Suicide
In Massachusetts, voters were asked whether a doctor can be legally allowed to prescribe medication, at a terminally ill patient's request, to end that patient's life. With 93% of precincts reporting, it’s still too close to call.

Legislatures and Lawmakers
The Nebraska Legislature voted down two measures, one allowing members to serve one extra term beyond the current limit of two consecutive four-year terms, and another increasing legislator compensation. Voters in Alabama on the other hand voted in favor of a measure establishing a basic compensation plan for the Legislature tied to the median household income in the state. The measure restricts the Alabama Legislature from voting to raise their own compensation.

Taxes
Voters rejected most proposed tax cuts, including a new state revenue limitation in Florida and a 2/3 legislative vote for tax increases in Michigan. Most of those that were approved were symbolic, such as a prohibitionon taxing real estate transfers in Oregon (where they do not currently tax real estate transfers).

Arizona voters rejected a measure making a temporary sales tax increase permanent. It funded various education programs. South Dakota voters rejected a sales tax increase that would have been split 50/50 between K-12 education and Medicaid. Missouri voters appear to be rejecting a tobacco increase that would have sent revenue to education, while Oregon voters approved the idea of redirecting corporate “kicker,” a refund for corporate income tax revenue that is collected in excess of a state-imposed cap, to education. Instead of sending that money back to corporate taxpayers, any future refunds will go toward education.

Voter ID
Minnesota defeated a constitutional amendment requiring voters to show photo identification when they go to the polls. This is a change in direction for this issue, with voters having approved voter ID measures in Mississippi  in 2011 and Oklahoma in 2010.

Gambling
Legislators in Maryland and Rhode Island decided to let citizens decide on whether to expand casinos, and in both instances the measures passed.  A measure was also on the ballot to amend the Oregon Constitution to allow the operation of privately-owned, non-tribal casinos within the state. The measure in Oregon failed.

Citizens United/Campaign Finance
Voters in Colorado and Montana approved symbolic measures encouraging their congressional delegations to support legislation overturning the Supreme Court’s campaign finance Citizens United v. Federal Elections Commission ruling.

Miscellaneous
California rejected the repeal of the death penalty and Proposition 37, which would have mandated labeling on genetically modified food.