2009 Legislative Elections

The 2009 legislative elections could best be described as the proverbial calm before the storm. There were regular elections for only two legislative chambers—the New Jersey Assembly and the Virginia House of Delegates—in 2009 in contrast to 2010 when nearly all states will choose state legislators in advance of the 2011 redistricting free-for-all. In the two chambers that held 2009 elections, Republicans made modest gains giving GOP partisans optimism that 2010 will be a very good year for the party after losing legislative seats in the past three consecutive election cycles.

2010 Book of the States, Chapter 3

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Minor changes in 2009 at State Legislative Level

New Jersey and Virginia were the only states to hold regular elections in November 2009 for state legislative seats. In New Jersey, voters filled 80 State Assembly seats, and in Virginia, voters elected 100 members to the House of Delegates. These were the only two of the nation’s 99 state legislative chambers that had elections scheduled in the odd-numbered year. Nebraska is the country’s only unicameral legislature; it has only a state Senate. That, combined with the bicameral legislatures in the 49 other states, totals 99 state legislative chambers. 2009 was the low point of the decade for regular legislative elections with only 180 seats being contested—that’s 2.4 percent of the 7,382 legislative seats in the 50 states.

Party control did not change in either the New Jersey Assembly or the Virginia House of Delegates as a result of the 2009 elections, with Democrats keeping the Assembly in New Jersey and Republicans holding the Virginia House. Republicans did gain seats in both states. In Virginia, Republicans surged not only winning back the governor’s mansion for the first time in eight years but also adding six seats in the House of Delegates. The net gain of six GOP seats in the Virginia House brought the Republican majority to 59 versus 39 Democrats and two independents. Democrats have a 22-18 majority in the Virginia Senate following a special election in January 2010 that switched a GOP Senate seat to the Democratic column.

Like Virginia, New Jersey voters switched control of the governor’s office from Democrat to Republican. Republicans did not fare as well in legislative races netting only one seat in the New Jersey Assembly leaving the Democrats with a healthy 47-33 majority over Republicans. Democrats also control the New Jersey Senate by a 23-17 margin.

Partisan Breakdown after 2009 Elections

The overall partisan control of state legislatures did not change as a result of the 2009 off-year elections. Democrats have a majority of seats in both chambers of the legislature in 27 states. Republicans hold both chambers in 14 states. In eight states, the control is divided with neither party controlling both the senate and the house. That tallies 49 states because, in addition to being unicameral, Nebraska’s legislature is also nonpartisan. In terms of chambers, Democrats have a decided edge. They have a majority of seats in 60 chambers, while Republicans hold more seats in 36 chambers. Two chambers have an equal number of Republicans and Democrats—the Alaska Senate with 10 of each, and the Montana House with 50 each,

Despite gains by the GOP in 2009 in New Jersey and Virginia, Democrats still hold a comfortable majority of all U.S. state legislative seats—55.2 percent of the nation’s 7,382 state legislative seats. Republicans control 44.3 percent of all seats. Independents or third party members hold 22 legislative seats, or 0.3 percent. The remaining seats belong to the nonpartisan legislators in Nebraska or are vacant.

The last time Democrats had such a sizable advantage in control of legislatures was prior to the 1994 election when they held 59 percent of all seats. Republicans scored huge gains adding more than 500 seats in 1994 to bring legislatures into a decade-long stretch of relative parity. That period of partisan equality lasted until 2006 when Democrats made big gains across the country to surge over the 55 percent mark. Democrats padded their advantage in the 2008 elections. Democrats have added seats to their legislative total in each of the past three two-year election cycles. The last time either major party gained seats in four consecutive election cycles was from 1928 to 1936.

Overall Control of States

Both governors elected in 2009 were Republican and took over from Democratic governors. After the elections in New Jersey and Virginia, 24 states have Republican governors, while 26 states have Democratic governors. When combined with control of legislatures to consider overall partisan control, 2010 legislative sessions commenced with 24 states being divided—neither party having control of both legislative chambers and the governor. Democrats have control of state government in 16 states, while Republicans are in charge in nine states. In the first two-thirds of the last century, it was common to have one party control in most states. Since 1964, at least 20 states have had divided government following each election, and on average, 26 states have been divided over that period. Divided government seems to be a permanent fixture in the states.

2010 Elections

The November 2010 elections promise to be volatile with 6,115 legislative seats scheduled for regular elections in 46 states. That number is nearly 83 percent of all legislative districts. The only states not holding elections in 2010 are Louisiana, Mississippi, New Jersey and Virginia. In Kansas and New Mexico, no Senate seats are up—only the House seats will be filled. In 16 states, all Senate seats are up for grabs, and almost all the others, half the Senate seats will be elected. In addition to the abundance of legislative races, 37 states are also electing a governor. In at least 23 of those states, the incumbent governor is not running in 2010, almost guaranteeing that more than half the governors will be new in 2011, assuming that at least two incumbents seeking re-election are defeated in either the primary or general election.

Because Democrats have more legislative seats than they have held in more than 15 years, it will be challenging for them to increase their numbers in 2010, Republicans are hoping to reclaim ground lost in the past six years. Democrats have gained seats in each of the past three election cycles. The last time either party added seats in four consecutive election cycles was when the Democrats did it from 1930 to 1936.

Another trend that bodes well for Republicans in 2010 is the fate of the president’s party in mid-term elections. Since 1900, the party holding the White House has lost legislative seats in 25 of the 27 mid-term election cycles. The only exceptions were in 1934 when Democrats gained more than 1,100 seats with Franklin Roosevelt in the White House and in 2002 when Republicans, under President George W. Bush, gained about 180 seats. The shift of only a few seats could alter party control in many state legislatures. In 12 states with 2010 elections, a switch of three or fewer seats will change senate control, and in 10 states, a shift of five or fewer seats will result in a new house majority. In Alaska, Montana, Tennessee and Wisconsin, both chambers fall within those margins, making them states to watch.

Regionally, the South continues to be a strong area for Republican legislative candidates. Since 1990, 20 percent of all Southern legislative seats have shifted from Democrat to Republican, and the two parties now hold roughly the same number of seats in the South. In 2008, the South was the only region where Republicans gained seats, making big gains in Tennessee and Oklahoma. The Democrats established the Northeast as their strongest region. Following the 2008 election, the Pennsylvania Senate was the only legislative chamber north of Virginia and east of Ohio in the hands of the GOP.

Redistricting

Because state legislatures are at the forefront of policymaking on many of the most important issues to Americans such as education, health care and transportation, every legislative election cycle is important. State legislators are elected to find solutions to some of the most vexing problems confronting America. And in almost every state, legislators must craft policies while balancing state budgets, placing a premium on creative and cost-effective policies. So, it matters which party is in control following each election because that party will take the lead in passing laws and charting the policy direction in key areas such as education and health care. In addition to determining which party will lead when tackling problems, the 2010 elections take on added importance because of the redistricting process that takes place every 10 years following the census. The process of using new census data to redraw political boundaries to make them equal in population is known as redistricting.  

The U.S. Constitution requires all legislative districts from local governments up to the U.S. House of Representatives be redrawn after a census is taken to ensure all districts have roughly the same number of people, Each member of a legislative body must represent approximately the same number of people as every other member—a concept known as one person, one vote. This means that each person’s vote, and voice, is equally represented when legislative debates take place and when legislative votes are taken on proposed laws.

In 44 states, the state legislature—usually with the consent of the governor—is responsible for drawing new U.S. House districts. Six states use a commission for this congressional redistricting. In 37 states, legislatures have the initial responsibility for drawing their own state house and state senate districts once new census data is delivered by the Census Bureau in early 2011. Thirteen states assign the task of state legislative redistricting to a commission. In five states, Connecticut, Illinois, Mississippi, Oklahoma and Texas, a commission is empaneled if the legislature fails to enact new district plans by a certain date.

The redistricting process is conducted under a large body of complex federal law that governs how legislatures and commissions can draw the lines. In addition, the process is often very partisan, with legislators and commissioners carefully examining the potential electoral consequences of various alternatives using historic political and election data to predict the outcome of potential elections in newly proposed districts. Drawing districts to favor a specific party is commonly referred to as gerrymandering after former Massachusetts Gov. Elbridge Gerry, whose name was attached to a Massachusetts State Senate plan drawn to favor his partisans in 1812.

If one party completely controls the entire redistricting process, that party will likely draw plans to give their candidates an advantage in as many districts as possible. Once the districts are enacted, they are unlikely to change for another 10 years unless found invalid by a court. That’s why the 2010 elections take on added significance. If one party gets an advantage in this election by winning a large number of legislative chambers and governors races, they can control redistricting. Redistricting can give a party a 10-year edge in elections,

Controlling the redistricting process will be especially important in the states that are either gaining or losing representation in Congress. Based on U.S. Census Bureau population estimates from 2009, 21 states are projected to either gain or lose seats in the U.S. House as a result of population shifts since 2000. The allocation of House seats to each state based on state population totals is the process known as reapportionment. Texas could be the biggest winner in reapportionment and gain as many as four new U.S. House seats. Some projections show Ohio losing two seats. If the Census Bureau’s 2009 state population estimates are confirmed by the 2010 census, the biggest surprise in the 2010 reapportionment could be that California does not gain a seat in Congress for the first time since it became a state in 1850. California will continue to have the largest congressional delegation with 53, followed by Texas as the second largest, possibly growing to 36 House members.
Figure C uses 2009 population estimates to show possible apportionment shifts that could emerge when the 2010 census is complete.

Along with New Jersey and Virginia, Louisiana and Mississippi also hold legislative elections in odd-numbered years. Louisiana and Mississippi conducted elections in 2007 with legislators in those states elected to four-year terms. Barring any party switches or special elections, party control in all four of the odd-year states is now set for the redistricting process that will begin in March 2011. In New Jersey, commissions draw both legislative and congressional plans. In Louisiana, Mississippi and Virginia, party control of redistricting is divided, so either a compromise will be forged, or the redistricting process will wind up in court.


About the Author

Tim Storey is a senior fellow in the Legislative Management Program of the Denver, Colo.-based National Conference of State Legislatures. He specializes in elections and redistricting, as well as legislative organization and management. He has staffed NCSL’s Redistricting and Elections Committee since 1990 and has authored numerous articles on elections and redistricting. Every two years, he leads NCSL’s StateVote project to track and analyze legislative election results. He graduated from Mars Hill College in North Carolina and received his master’s degree from the University of Colorado’s Graduate School of Public Affairs.