Augusta to Honolulu

NEW YORK—Little-noticed state legislative races can be the horseshoe that brings down the kingdom. In New York state, Democrats have been pushing a bill called the Women’s Equality Act, a 10-point bill that includes one point to expand the legality of late-term abortion. The Democratic Assembly easily passed the bill, and Gov. Andrew Cuomo says he would sign it. But pro-life forces in the state Senate have in the last year kept the measure tabled—by one vote. Two Democrats have joined with Republicans to stop the measure, and the bill has become a hot topic on the campaign trail.

A two-seat gain in November would give Republicans in the New York Senate outright majority control and the ability to block legislation coming through a likely Democratic governor and Democratic Assembly. Republicans and outside conservative groups think the Senate majority is within reach, and are spending big on a few key races. Meanwhile Democrats are working toward the same kind of flip in barely Republican chambers like the Iowa House and the Pennsylvania Senate.

The stakes are high, even if state legislative elections don’t get national headlines. With Congress at a standstill, donors are giving more to state races where legislatures are enacting policy. The National Institute on Money in State Politics estimates that state-level campaign contributions in this cycle will top the last cycle’s contributions, which were already a record-breaking $2.1 billion. “With gridlock dominating Washington, true progressive reform depends on the states,” said the Democratic Legislative Campaign Committee in a fundraising pitch.

Republicans are in a powerful position at the state level, holding most state chambers. They are likely to gain more seats given the historical trend that the sitting president’s party loses legislative seats in midterm elections. In the last midterm in 2010, Republicans gained 725 legislative seats nationwide according to the National Conference of State Legislatures, the biggest sweep in 50 years. The takeover came right when many legislatures were redistricting, allowing Republicans in some cases to preserve their majorities by drawing more favorable district lines after decades of Democratic-controlled redistricting.

Now Republicans hold 59 of 98 legislative chambers (Nebraska has a unicameral, nonpartisan legislature), and they’re working toward gaining 16 more chambers this fall. Matt Walter, the president of the Republican State Leadership Committee, attributes the rosy forecast in part to Republicans’ recruitment of more women and minority candidates. The legislative politics experts at the National Conference of State Legislatures, Tim Storey and Morgan Cullen, said the only problem Republicans might have this cycle is that “the low-hanging fruit is gone.” After the 2010 sweep, gains will have to come from more solidly Democratic districts.

Abortion has become a big topic in state campaigns alongside more traditional state campaign fodder like the minimum wage and taxes. The 2010 Republican takeover of state legislatures boosted pro-life efforts in a way Republicans in Congress never have. Since 2010, Republicans in state legislatures have enacted more than 200 measures regulating abortions, according to the pro-abortion Guttmacher Institute. Texas, for one, has recently instituted surgical regulations for abortion centers, shuttering all but seven of the centers there.

In one of the New York Senate races where Republicans are working for an upset, Republican Assemblywoman Sue Serino is challenging incumbent Democratic Sen. Terry Gipson over his support for the abortion bill. Gipson defended himself by saying that the measure merely codified Roe v. Wade, a standard talking point Democrats have used about the bill. But the bill, in addition to legalizing abortion at any point in a pregnancy for the health of the mother, removes criminal penalties around abortion (like counting the murder of a pregnant woman as a double homicide).

Though state legislatures are now policymakers and campaign money takers, federal courts have dulled some of their power. Most recently, the Supreme Court rejected seven petitions on state-level traditional marriage laws or constitutional amendments, leaving federal rulings against the laws in place. Though in several cases states had declined to defend their own laws, federalism advocates are watching the marriage cases intently.

Justice Anthony Kennedy based his decision striking down the Defense of Marriage Act on the right of states to make their own marriage laws–but then he was likely one of the justices who refused to hear states’ cases against gay marriage. States have won some power back in healthcare: In 2012, the Supreme Court said Obamacare’s Medicaid provision infringed on states’ power. But more recently the D.C. Circuit Court of Appeals looks ready to deal another blow to states in a case about healthcare subsidies for those who buy insurance on a federal exchange.

“There’s an ebb and flow over time,” said Scott Gaylord, a law professor at Elon University School of Law, about the relationship between state and federal power. He said the federal government’s role has grown since the New Deal, although he said the Supreme Court under Chief Justice William Rehnquist tried to re-establish states’ roles. “The courts have taken a larger role in resolving those disputes.”

Some of the states’ laws regulating abortions are likely to come before the Supreme Court soon. In the meantime, state legislatures are continuing seismic changes in laws regulating not just abortion but immigration and voting rights. “You know the saying, ‘There oughta be a law.’ Now we hear more of the mantra, ‘There oughta be a constitutional right,’” said Gaylord. “People hear ‘immigration,’ ‘same-sex marriage,’ and they don’t think about state power.”