Legislative Landscape U.S. October 2020


Sponsored By West Texas National Bank

In one short week, America will collectively breathe a sigh of relief as election ads will suddenly cease. As for the outcome of the election, it remains to be seen at this late stage where control will reside in D.C. and many states.

At the top of the ticket, there isn’t anything new to shed light on that you haven’t already heard in one of the most closely scrutinized races in history. After polling failures in 2016, there seems to be a long shadow of doubt cast on polling figures at the national and district level. In response to the dearth of polling at the state level in 2016 that would have revealed Trump’s advantage in key states such as Wisconsin, Michigan, and Pennsylvania, this cycle has seen a considerable increase in public polling in those key states along with all other swing states. The results of those polls heading into the election are not being ignored by campaigns on both sides as they allocate resources to competitive races and ditch spending in states and races that seem uncompetitive.

What we can deduce from those spending decisions is republican efforts have significantly increased in states that Trump carried handily in 2016, including deep red states like Georgia, North Carolina, and Texas. This is worrisome for those expecting another four years for President Trump. The competitive map has expanded since 2016 and Trump must win every rural state he carried in 2016 and pick up at least several swing states he previously carried as well. If the additional statewide polling is to be believed, the prospects of doing so are narrowing in the final days of the election.

What happens at the top of the ticket will have major implications for down-ballot voting that could determine whether democrats merely win the White House and retain a majority in the House, or if they will complete a trifecta by gaining a majority in the Senate. The democrats need a net gain of three seats to take over the majority if they win the White House and have the Vice President as the deciding vote. Since the death of Justice Ginsburg, competitive democratic senate candidates have been outraising their Republican opponents by a margin of nearly 3:1. All that additional money has placed more than a handful of Senate races into the toss-up column, which now amounts to eight senate races around the country.

Speaking of divided government, one thing to keep an eye on election night will be the number of state governments elected that constitute a trifecta, where the executive and both chambers of the legislature are controlled by the same party. As recently as 2010 the number of states with divided governments vastly outnumbered the states with trifectas. During the Obama presidency, divided government at the state level severely diminished and yielded to trifectas at the state level, mostly held by republicans. Heading into this election, there are 36 states with trifectas, 15 democratic and 21 republicans. If there is a trend, it is republicans losing ground on this count. In the 2018 mid-terms, republicans lost 4 trifectas and democrats gained 6. If there is a blue wave, it could mean that democratic state trifectas will soon outnumber republican state trifectas.

And what is the point of all this discussion about state trifectas you’re asking? Redistricting. The 2020 census and subsequent redistricting will take place after the election and the party in power at the state level will be drawing districts that could cement party control for the next decade, much as the Republican majorities did at the beginning of this decade. Although after this election it may be democrats with those entrenched advantages across the country. We’ll be watching this closely on election night to see what becomes of it.

In our right to repair roundup this month we once again turn our attention to Massachusetts and ballot question 1, titled the “right to repair law” or vehicle data access initiative. Thus far total spending in the state over this ballot question has eclipsed $35 million and is drawing national attention to the right to repair movement that goes beyond just automobiles. The New York Times ran an article earlier this week extending the focus of right to repair to include farm machinery yet again. This will be another election night focal point for us as we see whether Massachusetts state voters shut down expanding right to repair or open the door for further intrusion on private property rights. The outcome of the election on this ballot question could loom large in 2021 legislative sessions as legislators have thus far been hesitant to pass something no other state has done. The amount of money being spent on this issue in one state reflects how large the consequences are for expanding right to repair to include access to telematics and vehicle data, and the domino effect that will occur if one state passes such a measure.

If you are listening to this podcast, I’m sure you don’t need a reminder to vote. Instead, no matter the outcome, raise a glass on election night to the ongoing experiment of American democracy that is 244 years in the making and still going strong. Depending on the outcome of the election and your political persuasion, you might make it two glasses!

Podcast By Eric Wareham

ERIC WAREHAM is the vice president of government affairs for the Western Equipment Dealers Association. He is a graduate of the Willamette University College of Law and Augusta State University. Eric may be reached by writing to ewareham@westerneda.com.



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