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The onslaught of voters pushing Democrats to a lopsided Election Day that flipped control of Congress also brought in a new wave of state attorneys general – a post sometimes overlooked even though it wields the power to challenge federal policies while pursuing high-dollar lawsuits against the country’s biggest companies.
Texas, Ohio and Iowa rejected Republicans, and the Democrat challenger in Kansas seems poised to claim victory once all votes are counted. For Foley & Lardner attorney Stephen Cobb, whose practice is entirely focused on helping companies navigate issues raised by state AGs, the bellwether was the Georgia governor race. Should Keisha Lance Bottoms be declared the winner by 9:30 p.m., he had told friends earlier in the day, “we’re in for a big night.”
Georgia hadn’t elected a Democrat as governor, AG or secretary of state since Thurbert Baker won re-election as AG in 2006. All three went blue Tuesday, including new AG Tanya Miller.
“I think the candidates made a big difference,” Cobb said of Georgia’s about-face. “That started at the top with the Senate race… Tanya is also an incredibly capable attorney and elected official, so I think the outstanding quality of the candidates and the message they put forward carried the day.”
So what does this new, blue blood mean? AGs have the option to carry out their legal causes alone but routinely team with like-minded colleagues, as both Democrats and Republicans have their own associations through which they can find partners for regulatory actions, like consumer-protection and antitrust lawsuits and environmental cases.
“I don’t necessarily expect that to change on partisan makeup, but based on how they campaigned and the areas of concern they expressed, I can see an expansion of regulatory powers going forward,” Cobb said.
“The areas of continuing and ongoing concern for states AGs have included tech, social media, fintech and financial services generally, as you’ve seen the federal government continue to cut back on regulatory services in the (Consumer Financial Protection Bureau) and the DOJ.
“You’ll see AGs willing to step more into the gap that’s been created.”
AG-elect Miller is a member of the state House of Representatives and former federal prosecutor in New York who was the preferred candidate of plaintiffs lawyers, as Democrats usually, but not always, are. Her opponent, fellow lawmaker Brian Strickland, outraised her, but that didn’t matter on Election Day.
Other newcomers include Nathan Johnson of Texas – a state that surprisingly switched its political identity overnight. He replaces Republican Ken Paxton, who attached himself to the MAHA agenda by filing a lawsuit claiming prenatal use of Tylenol causes autism while also suing Pfizer over its COVID-19 vaccine.
Paxton hired the firm Keller Postman to file the Tylenol lawsuit, and private lawyers working on contingency fees made more than half-a-billion dollars representing the State while Paxton was in office. He was trounced by a Democrat in his bid for U.S. Senate, and now Johnson inherits Paxton’s litigation.
Though Johnson, who defeated a GOP candidate boasting to be “a steadfast ally of President Trump,” campaigned on consumer protection, among other things, it remains to be seen if he will take up the anti-Tylenol cause inspired by Robert F. Kennedy Jr., President Trump’s Secretary of Health and Human Services.
Johnson, a state senator, practices business and bankruptcy law. Iowans, meanwhile, elected a plaintiffs attorney, Nate Willems, preferring him to incumbent Republican Brenna Bird.
Willems, a labor lawyer and former state legislator, has pledged to take his experiences to the AG’s office to create a Wage Enforcement Unit and also utilize the Consumer Protection Division more than Bird has. In Ohio, outgoing Republican AG Andy Wilson congratulated Democrat John Kulewicz today, pledging to provide him “with the support he needs to hit the ground running come January. Let’s go!” Kulewicz was a longtime lawyer now serving on a city council and defeated state Auditor Keith Faber to become Ohio’s first Democrat AG since Richard Cordray, who left the office in 2008 to head the CFPB under President Obama.
While Democrats flipped as many as five AG offices, Republicans gained none. Though Florida Attorney General James Uthmeier is the former chief of staff to popular Gov. Ron DeSantis, he won his first election after being appointed AG by only two points.
South Carolina’s new AG, Republican David Stumbo, enjoyed an easier path while his predecessor Alan Wilson won the governor’s office. Stumbo has been a criminal prosecutor for the past 14 years and defeated a personal-injury lawyer who accepted no donations.
There will be only 10 AG races in 2028. Republicans in Indiana, Missouri, Montana, Pennsylvania, Utah and West Virginia will be hoping the momentum has turned by then.
“I think, especially for state AGs, all politics is local,” said Cobb, whose firm is hosting a webinar on the AG results on Thursday.
“As they continue focusing on kitchen-table issues affecting constituents, more support is likely."
