With the election of Donald Trump as president, we anticipate increased activism by Democratic state attorneys general in the form of legal challenges to his administration and the exercise of independent state authority in investigations and enforcement. Further, in states where there is overall Democratic control of the appropriations process, legislatures likely will provide funding for these activities and, at least as to investigations and litigation, plaintiffs’ lawyers likely will redouble their efforts to represent states on a contingent fee basis.
State attorneys general are either elected, appointed by their governor or, in the case of Maine and Tennessee, selected by their legislature or state supreme court. They are generally their state’s chief legal officer and, in most cases, also its chief law enforcement officer. In that position, they exercise significant authority by the “stroke of a pen.”
With Trump’s election and the US Senate’s change of control from Democratic to Republican, the Republican party will have control of at least the Executive Branch and the appointments process for Trump’s own administration, as well as the federal judiciary.
As the attorneys general of the party out of federal executive power have done since at least the Reagan administration in the early 1980s, Democratic attorneys general can be expected to challenge the federal administration’s actions and, if the past is prologue, have some success. By way of example, Republican attorneys general successfully challenged rules and litigation positions taken by the incumbent Biden administration and thereby tempered many of the administration’s capabilities.
State attorneys general are able to bring actions on behalf of their citizens—parens patriae—and often are granted “special solicitude” by the federal courts when determining standing to bring a lawsuit. Similarly, many states have powerful statutory enforcement authority and sophisticated state courts with the capacity to manage large-scale litigation. Accordingly, even if federal avenues are foreclosed, roughly equivalent state remedies are available.
Because attorneys general exercise independent authority, the partisan split among states is not particularly relevant. More importantly, of the 50 states, only five have divided executive power. In the remaining 45, there are so-called “triplexes” – i.e., one party controls the governorship, the attorney general, and the secretary of state. The five states that are so-called “non-triplexes” are Kansas, Kentucky, Nevada, Pennsylvania, and Vermont.
Subject to official certification processes, the outcomes of the races for attorney general are as follows:
Incumbent Todd Rokita (R), a former member of the US House of Representatives, won a second term, defeating Destiny Scott Wells (D), former servicemember and Indianapolis municipal official.
The Maine attorney general is selected by the legislature. Aaron Frey (D), a private practitioner and former member of the Maine House, is serving his third two-year term. Whether Frey, another Democrat, or a Republican is selected is dependent on party control of the two houses of the state legislature, and they will select an attorney general when they first convene in December. Control and margins in the legislature’s two houses remains uncalled.
Incumbent Andrew Bailey (R) defeated challenger Elad Gross (D) to win his first full term. Bailey is the former chief counsel to the state’s governor and had been appointed to fill the vacancy created when his predecessor was elected to the US Senate.
Incumbent Austin Knudsen (R), former Speaker of the Montana House, was elected to a second term, defeating challenger Ben Alke (D), a private practitioner.
The New Hampshire attorney general is appointed by the governor and confirmed by the state’s Executive Council. John Formella (R) serves by appointment of outgoing Governor John Sununu (R) for a four-year term expiring in March 2025. Whether he or someone else is appointed by incoming Governor Kelly Ayotte (R) remains to be seen. Formella previously served as chief counsel to the governor.
Jeff Jackson (D), a sitting member of the US House of Representatives, has been elected, defeating Dan Bishop (R), also a member, to fill the open seat created by incumbent Josh Stein (D), who was elected governor.
Speaker of the Oregon House Dan Rayfield (D) was elected attorney general to fill the open seat created by the retirement of three-term Attorney General Ellen Rosenblum (D). He defeated Will Lathrop (R), a former local Oregon prosecutor.
Dave Sunday (R), a local prosecutor and military veteran, won the open seat created by the decision of incumbent Michelle Henry (D) not to seek the elected position after she was appointed to fill the 2022 vacancy created when former attorney general Josh Shapiro (D) was elected governor. Sunday defeated State Auditor Eugene DePasquale.
Derek Brown (R), chair of the Utah Republican party, was elected to fill the open seat created by the decision of incumbent Sean Reyes (R) not to seek reelection. Brown has practiced at several large law firms and has served as a law clerk on the US Court of Appeals for the Third Circuit and as a member of the senior staff of US Senator Mike Lee (R-UT). He defeated Rudy Bautista (D), an attorney in private practice.
Incumbent Attorney General Charity Clark (D) was elected to a second two-year term. Clark previously had served in senior positions in the Vermont attorney general’s office and was policy advisor to then Governor Howard Dean (D-VT). She defeated challenger Ture Nelson (R), an investigator for the Federal Motor Carrier Safety Administration and municipal official in Vermont.
Nick Brown (D) was elected to fill the open seat created when incumbent Bob Ferguson (D) was elected governor. Brown is the former US Attorney for the Western District of Washington (Seattle) and chief counsel to Governor Jay Inslee (D). He defeated Pete Serrano (R), an attorney for the US Department of Energy and a law enforcement officer.
State Auditor John McCuskey (R) was elected attorney general to fill the open seat created by the election to governor of incumbent Patrick Morrissey (R). McCuskey defeated private practitioner Teresa Toriseva (D).
The full impact of these races should be considered in connection with the outcomes of the national election for president and control of the US Senate and House of Representatives. State attorneys general also may have significant roles in litigation associated with these federal elections.
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