Tomorrow’s midterm elections in the United States will see voters cast ballots to elect members of the House of Representatives and a third of the membership of the Senate. James Cleaver analyses the state of the campaign, explains the potential consequences should Republicans regain control of either chamber (or both), and draws our attention to some of the key individual contests.

The United States will hold its midterm elections tomorrow. At the federal level, all 435 seats in the House of Representatives and 35 out of 100 Senate seats are being contested. There are also a large number of significant state-level races taking place across the country.

Understandably, much attention has been paid to what these elections might mean for President Joe Biden’s legislative agenda or for attempts to reinstate abortion rights across the country following the Supreme Court’s decision to overturn Roe v. Wade. Yet these midterms will have other constitutional ramifications, from the health of the United States’ democracy to the composition of its judiciary.

House of Representatives

The most visible work of the House of Representatives in the current Congress has been undertaken by the Select Committee to Investigate the January 6^th Attack on the United States Capitol. The committee has reviewed documents, interviewed witnesses, and held nine public hearings about the events leading up to and including 6 January. Most recently, it has subpoenaed former President Donald Trump, although he is unlikely to ever testify.

Should the Republicans flip the five seats necessary to gain control of the House, the committee will very likely be shut down. Republicans have promised to set up their own committees to investigate the Biden administration if they win the House. One likely area of focus will be whether the President has been compromised by the business dealings of his son, Hunter Biden.

The termination of the committee would not mean that investigations into the attack on the Capitol would cease: the Department of Justice is conducting its own separate probe. But the end of the committee would see less public scrutiny of the riot. Although this public scrutiny has not decisively swung public opinion among independents (people that are not registered members of either main party, who remain divided) or Republicans against the former President’s actions, it may have contributed to concerns about the future of democracy being a key issue in this election.

The Senate

Control of the Senate is also on a knife-edge. The chamber is divided between 50 Democrats (including 2 Independents who caucus with the Democrats) and 50 Republicans, with Vice President Kamala Harris’s vote used to break any ties. Should the Republicans win a majority in the Senate, current Minority Leader Senator Mitch McConnell would control the chamber’s timetable.

This could have considerable constitutional consequences for the courts, as the Senate approves (or rejects) the president’s judicial nominations. Indeed, an underappreciated aspect of Biden’s first two years in the White House is the extent to which he has begun to reshape the American judiciary.

In addition to confirming more judges than Trump at this stage of his presidency, Biden has also diversified the judiciary. According to figures from the American Constitution Society, 75% of Biden’s confirmed lifetime judges are women (compared with 42% under Barack Obama and 24% under Trump). Similarly, 65% of Biden’s confirmed judicial appointments are have an ethnic minority background, compared to 36% under Obama and 16% under Trump.

A Republican Senate could prevent the President’s nominees from receiving a hearing, as happened controversially with Supreme Court nominee Merrick Garland in 2016. However, a more probable outcome is that Biden would compromise with Republican leaders on the numbers and judicial philosophies of his picks, as the Minority Whip, Senator John Thune, has already indicated. Given the judiciary’s prominent role in determining the legality and scope of policies in the United States, control of the Senate will have long-term repercussions.

Election deniers

The most concerning element of these elections is the presence of ‘election deniers’ on the ballot – Republican candidates who baselessly refuse to recognise President Biden’s victory in 2020. In a risky move, Democrat-aligned donors have supported election deniers over more moderate Republicans in some primaries, reasoning that this will provide Democrats with easier opponents in November.

Analysis by the Washington Post has calculated that of the 291 Republican election deniers standing for congressional or state office, 171 are favoured to win, and 48 have a good chance of success. These include candidates for the Senate (including Herschel Walker in Georgia and Mehmet Oz in Pennsylvania) and for the House (such as Representative Marjorie Taylor Greene).

Equally worrying for the health of democracy in the United States is the possibility of election deniers winning state-level positions that would give them responsibility for administering elections. This danger is epitomised by Mark Finchem, the Republican Secretary of State candidate in the crucial battleground state of Arizona, who attended the ‘Stop the Steal’ march on 6 January before the storming of the Capitol. The position of Secretary of State is on the ballot in 27 states in 2022.

The results of these races may prove pivotal in determining the outcome of a close or contested presidential election in 2024, when former President Donald Trump is expected to run again. Indeed, there are reports that Trump intends to challenge the midterms’ results as a rehearsal for 2024.

With the next presidential election in mind, senators in Washington D.C. have produced a draft bipartisan bill to address procedural concerns surrounding the transition period between a presidential election and a president’s swearing in ceremony. However, due to the failure of broader legislative attempts to address the ‘democratic backsliding’ experienced in many states, American democracy remains vulnerable to voter suppression and electoral manipulation.

How is it shaping up?

Midterm elections have traditionally seen a swing away from the president’s party, and there are signs that this dynamic will be repeated on 8 November. Joe Biden’s approval ratings, despite rising after legislative successes on Capitol Hill over the summer months, are still low by historical standards. And inflation remains high, at levels not seen since the early 1980s.

Despite these factors, Republican majorities in the House and Senate are not guaranteed. One model gives the Democrats about a one-in-five chance of retaining control of both chambers of Congress, which, while not the most likely outcome, reflects how the traditional fundamentals of the president’s approval ratings and the economy’s performance are not the only factors at play.

One reason for increased Democratic optimism is the outcome of the most recent redistricting cycle. Redistricting – the process by which the boundaries of electoral districts are drawn – has been taking place since the 2020 election. In contrast to the previous cycle of redistricting after 2010, which was dominated by Republicans, the United States now has its fairest set of electoral maps in many years (although a slight Democratic disadvantage persists).

Analysis of the new maps by Nate Cohn, of the New York Times, estimates that there are now 215 House districts that voted for Biden in 2020 by more than the median district, and 220 that voted for Trump in 2020 by more than the median district. In contrast, in 2012, there were only 195 districts where Barack Obama performed better than the national average. While this change reduces the margin by which Democrats need to win the national popular vote in order to obtain a majority in the House, it also reflects the increasing polarisation of American politics. The number of competitive districts across the country has declined, as Republicans and Democrats have gerrymandered an increasing number of seats in states largely controlled by their party.

Democrats have also been boosted by the quality of Republican candidates, who were propelled to primary victories by Trump’s endorsement, in several key Senate races. In Georgia, the anti-abortionist Herschel Walker has been dogged by allegations that he paid a former partner to have an abortion. A recent report claimed that scientific experiments overseen by Mehmet Oz (Pennsylvania) involved the deaths of hundreds of animals. Blake Masters (Arizona) and J.D. Vance (Ohio) have both come under fire for old social media posts. Mitch McConnell, who has increasingly distanced himself from Trump since 6 January, has voiced concerns that such candidates could cost Republicans control of the upper chamber.

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organisation to overturn Roe v. Wade and remove access to an abortion as a protected constitutional right has also transformed the dynamics of this election. Democrats have made support for codifying abortion rights central to their pitch in November, and have been buoyed by improved polling numbers and stronger-than-expected performances in special elections since the summer. 

However, recent polling has seen the national picture begin to tilt back towards the Republicans. Concerns about the economy and inflation, issues on which the Republicans hold a perceived competency advantage, are seen as more pressing than Democrat-friendly issues such as abortion and gun control. While interest is high among both Republicans and Democrats, an ‘enthusiasm gap’ is emerging that favours the former.

Which races to watch out for

Of the competitive House districts, two races stand out. California’s 22^nd District pits the Republican incumbent David Valadao against Democrat Rudy Salas. This contest could see one of the two remaining Republican representatives who voted to impeach Donald Trump after 6 January lose their seat (the other, Dan Newhouse, is predicted to win comfortably).

Another election to watch involves Alaska’s single House seat. In 2020, Alaskans voted to switch from a first-past-the-post system to ranked-choice voting (Maine is the only other state to use this system). This reform resulted in Alaska electing its first Democrat since 1972, Mary Peltola, to the House in a special election earlier this year. She is expected to face a strong challenge from Sarah Palin, the former Alaskan governor who was John McCain’s running mate in 2008.

Control of the Senate rests on seven key elections: in Arizona, Georgia, Nevada, North Carolina, Ohio, Pennsylvania and Wisconsin. The campaigns in Georgia and Pennsylvania have been particularly vitriolic, while Nevada, arguably the tightest race, represents the Republicans’ best opportunity to gain a Senate seat. Without Nevada, Democrats will almost certainly lack the Senate votes necessary to override that chamber’s filibuster and codify abortion rights nationwide, assuming they also retain control of the House.

While this blogpost has primarily focused on national-level races, there are also many important down-ballot races and initiatives whose results will have consequences for the administration of future elections, abortion and voting rights, and the composition of states’ supreme courts. The chief law enforcement officer for each state, the state attorney general, who has significant influence over state and federal law enforcement, is on the ballot in 30 states. Additionally, there are a range of ballot initiatives across the states, covering abortion, cannabis legalisation, election law and gambling, among other issues.

Conclusion

These midterm elections could have significant constitutional consequences for the United States, particularly for the health of its democracy. The response to the Supreme Court’s decision in Dobbs should mean that Democrats will not lose as many seats as first feared. However, given recent polling and rising concerns about the state of the American economy, Republicans appear poised to regain control of at least one chamber of Congress.

About the author

James Cleaver is a Research Assistant at the Constitution Unit.