We did it! And it's all thanks to Molech! We're devoting this week's episode of "The Downballot" to giving praise to the dark god himself after New Hampshire Democrat Hal Rafter won a critical special election over Republican Jim Guzofski, the loony toons pastor who once ranted that liberals make "blood sacrifices to their god Molech." Democrats are now just one seat away from erasing the GOP's majority in the state House and should feel good about their chances in the Granite State next year. Republicans, meanwhile, can only stew bitterly that they lack the grassroots fundraising energy provided by Daily Kos, which endorsed Rafter and raised the bulk of his campaign funds via small donations.

We're also joined by Daily Kos Elections' own Stephen Wolf to update us on the ongoing litigation over Alabama's congressional map. In an unusual move, the court's appointed expert invited the public to submit their own proposals as he prepares replacement maps, so Wolf took him up on the offer and drew two plans of his own. Wolf describes those plans in detail and sings the praises of Dave's Redistricting App, the invaluable free tool that has allowed ordinary citizens to participate in the redistricting process in ways never before possible.

This transcript has been lightly edited for clarity.

David Beard: Hello, and welcome. I'm David Beard, contributing editor for Daily Kos Elections.

David Nir: And I'm David Nir, political director of Daily Kos. “The Downballot” is a weekly podcast dedicated to the many elections that take place below the presidency, from Senate to city council. Please subscribe to “The Downballot” on Apple Podcasts and leave us a five-star rating and review.

Just a quick note to “Downballot” listeners that I'll be off for the next three weeks, but I know that I'm leaving you in very good hands with David Beard and our frequent guest host, Joe Sudbay.

Beard: We will persevere as best we can while you're gone, and I'll try not to get too comfortable with Joe as my co-host over the next few weeks.

Let's dive into today's episode and what we're going to be covering.

Nir: Well, I think I'm going out with a banger here because we are starting off with a massive, massive win in New Hampshire. Super excited about it. In less exciting news, we're going to be talking about the Texas Senate acquitting the extremely corrupt attorney general, Ken Paxton, and then some developments on the abortion rights ballot measure front in both Nevada and Ohio.

Our guest this week is Daily Kos Elections' own Stephen Wolf, who is joining us to talk about the redistricting case that is pending in Alabama and the maps that he submitted to the court-appointed expert who is currently drawing new districts for the state. It is a very fascinating discussion and an unusual opportunity. We have a terrific episode. Let's get rolling.

Beard, hail Molech, baby.

Beard: Oh, yes. I'm on board. Let's do it.

Nir: Democrat Hal Rafter, our buddy in New Hampshire, won a huge victory on Tuesday night, really huge in every sense of the word. He flipped a very swingy Republican-held seat in the New Hampshire State House by a dominant, dominant 56 to 44 margin. Rafter, of course, is the computer programmer and former official in his town who had run for this seat last year and lost by a very narrow margin.

He defeated Republican Jim Guzofski, who is the absolutely batshit pastor we have very much enjoyed talking about on “The Downballot” previously. He's the one who said COVID vaccines cause COVID. But most importantly, he's the dude who also said that abortion-rights supporters, like myself, like yourself, Mr. Beard, are motivated by blood sacrifices to Molech.

Beard: Who let them know? Who let the secret slip? We need an investigation.

Nir: Well, you know what, though? We still won. Even armed with that secret knowledge, there was nothing they could do about it. And now they're in really bad shape. As a result of this pickup, Republicans now have just a 198 to 197 margin in this chamber. And on November 7, mark your calendars, November 7, there will be a special election for a safely blue vacant seat. If Democrats win that one, then boom, the House is tied.

Beard: Yes. Well, looking forward to it.

Nir: Well, it's really hard to overstate how much I'm looking forward to this one as well, and just how remarkable this term of events is. Republicans had complete control over New Hampshire state government following the 2020 census, and we know what that means. It means that they were able to gerrymander the maps however they liked, and that's exactly what they did. They passed some pretty extreme gerrymanders in both the state House and the state Senate that they were obviously certain would lock in majorities for them for probably years to come.

But funny how 2022 really did not go the GOP's way in so, so many ways. And obviously, everyone knows about Democrats gaining seats in the Senate, about Republicans only barely winning back the House despite predictions they would flip 40 seats. But there are all these under-the-radar things that went really poorly for Republicans, including losing 12 seats in the New Hampshire House despite their gerrymandered map. It went a little bit under the radar in part because New Hampshire is a small state, and also because they didn't actually lose control of the House but they came really, really close, and now Democrats are just one seat away from tying the chamber. This is not a chamber that Democrats were supposed to be competitive in.

Beard: Yeah, it's just another sign that... Particularly what we saw in these northern states. I think New Hampshire can in some ways be compared to what we saw in Michigan and Minnesota and Wisconsin, where these areas are really not as friendly as much as they were to Trumpism and what the Republican Party has increasingly become. So we saw that in 2022, even despite… we saw in other states was more of a not-as-good reaction, but in these competitive states, there really was a backlash to Trumpism.

Nir: Yeah, absolutely. And it goes well beyond just this one race. New Hampshire Democrats genuinely have good reason to be feeling really good right now. Rafter, like I said, he won by 12 points, but this is a district that Donald Trump actually carried by a fraction of a point. So that was another big overperformance of the presidential baseline, something we like to talk about a lot at Daily Kos Elections and on “The Downballot.” And it's actually the fourth such showing by Democrats in the Granite State this year in four races. And it's not just the special elections for the state House; there were really strong results for Democrats in the city of Manchester on Tuesday night as well.

Manchester is the largest city in the state and it's having a race for mayor this year. And there was an all-party primary with four candidates on the ballot: three Democrats, one Republican. And Democrat Kevin Cavanaugh and Republican Jay Ruais advanced to the November general election. But I think the news for Republicans was pretty grim there as well because the three Democrats combined for 58% of the vote, and Ruais, the Republican, got just 42%. And that's the biggest spread we've seen in a Manchester primary in quite some time. And the primary results — I was just looking back at this, this week — tend to very closely resemble the general election results. So what Republicans would have to do, they would have to somehow turn around a 16-point deficit by November. And usually, the results have only moved maybe a point or two at the most from the primary to the general election.

The other thing I want to add is that New Hampshire doesn't really have any statewide elected posts, aside from governor. And because Manchester is the biggest city, winning the mayoralty there is often a stepping stone to higher office. And in fact, the current incumbent, Joyce Craig, is one of two prominent Democrats who is running for the open governorship next year that I think that Democrats have a really good chance at flipping.

So it would be awesome to see Democrats with the governorship, and then continue their hold on the city of Manchester, and install Cavanaugh and have him become the next possible Democrat to run for a higher office. I don't know. I really like the way things are shaping up for our friends to the north.

Beard: Yeah. And as part of a pattern we've seen of Democratic overperformances, both in New Hampshire and across the country, I think there's been some increasing chatter about the consistency of these special election results. And I think you can't take them as like, "This number equals Democrats will do exactly X well next year," or anything like that, but it's certainly an indicator of Democratic enthusiasm of the fact that Democrats have not fallen off the way that we saw Democrats fall off in the wake of Obama's two elections, where the special election turnouts really dipped in the Obama years when Democrats were not motivated outside of his elections. So it's certainly good news. It has been so far. And we'll keep looking at special-election results as they come and hope that this good news continues.

Nir: I think your point, Beard, about enthusiasm is really well taken because there's one final thing that I absolutely have to note about this race, which is the role that the Daily Kos community played in Hal Rafter's win. We endorsed Rafter early on in his campaign, and his last fundraising report prior to the election showed that he raised $47,000, which is actually quite a ton for a state House race in New Hampshire. The Daily Kos community was responsible for $34,000 of that total. Well, that's almost three-quarters of his total. And we're talking small donations. The average was less than $14 apiece. That is kind of mind-blowing to me. And this was such a good race for grassroots donors to get involved in.

The total voter turnout was about 2,800, and that is actually quite high for a special election like this, but obviously, 2,800 people in raw numbers, that's really, really small. And that just means that if you're a grassroots donor giving 10, 15, 20 dollars, you are getting tremendous bang for your buck. Your money is going a really long way in a race like this. That's why I love getting involved in state legislative races. To me, the smaller, the better.

And the cherry on top, Beard, is that Republicans were really angry about this. They had so little to attack Rafter over, that they actually sent out a mailer instead attacking us, attacking Daily Kos. They did a mailer complaining about the post that I wrote announcing Daily Kos's endorsement of Hal Rafter. And the headline of the post was something about we could nuke the GOP majority in the New Hampshire House. And they did this mailer where they had a picture of a mushroom cloud calling out the fact that we said we want to nuke the GOP majority.

It was like something from the cutting room floor from “Oppenheimer.” And they called Daily Kos a, quote, unquote, "national hate site" and linked to the post with the—they had a little URL on the bottom as tinyurl.com/gopnuke. I'm like, "You're actually making us look kind of awesome here."

But really, they have nothing like our energy and enthusiasm. They just don't have this small-dollar grassroots machine that we do. And we know that for an absolute fact because Guzofski, his total fundraising was $450, not leaving off any zeros. Less than 1% of Hal Rafter, and Daily Kos was responsible for the vast majority of Rafter's fundraising. It was freaking awesome.

Beard: Yeah. Well, there is one Republican that has a small-dollar base. It's Donald Trump, but it all goes to his legal expenses. So that's where all the Republican money enthusiasm is currently heading towards. But yeah, I mean, I think there's nothing more than grasping at straws when you see the Republican side sending out a mailer attacking Daily Kos's headline writing, really, really unrelated to the daily cares of people in the state of New Hampshire. But I think it's just more evidence that Daily Kos is a site that really looks to make a difference in these races. I think we did here. And I think it's great that we find places where the community can give and really make an impact.

Now, in much less exciting news, we've got to go to the state of Texas, where the Texas Senate acquitted scandal-plagued Attorney General Ken Paxton on all of the charges that the Texas House had impeached him over. There were 16 articles in total, largely centered around Paxton abusing his office and unethically helping a key political donor, real estate developer Nate Paul. Of the votes on these 16 articles, the highest vote-getter in terms of conviction was 14 votes. A number of the articles got 14 votes, which included all 12 Democrats and 2 Republicans. The other 16 Republicans voted to acquit on all of the charges. That's 30 members. There's actually 31 members of the Texas Senate. The 31st is actually Ken Paxton's wife, Angela Paxton, who was actually barred from voting, but she made it clear that she would've voted to acquit had she been able to vote on this issue.

Nir: And they needed two-thirds to convict and remove from office, right?

Beard: Yes. It wasn't just a case where they needed one or two more Republicans to get to 16 votes. They needed to get to 21 votes because even though Angela Paxton wasn't voting, the number 31 was still the number that was determining the two-thirds, so they needed 21 out of 31 members to vote to convict. It wasn't particularly close. You needed half of the Republican caucus and you got two out of 16.

Nir: I’ve got to admit, at first, I was really shocked to read that Paxton had been acquitted because so many Republicans in the state House had voted to impeach him. But I guess the actual shocking thing was not the acquittal, but the impeachment in the first place.

Beard: Yeah, I think there are a couple of things going on here more than just the fact that Ken Paxton is super corrupt. We'll talk about the other charges that he's facing outside of the impeachment process in a second. But I think really the Texas House and the Texas Senate are on two different sides of the Republican Party in Texas. The Texas House still has a lot of the more old-school traditional establishment Republicanism, maybe the Bush-ism of the '90s and 2000s — where, led by Lieutenant Governor Dan Patrick, the Texas Senate is very much of the new Trumpist Paxton branch. Very extreme, not really concerned with things like corruption, and a lot of the senators in the Texas Senate have followed that lead.

Now, we did get a little bit of insight into the deliberations that took place there, and it really didn't surprise me. Democratic senator Nathan Johnson described the eight hours of deliberations among the 30 senators as a seemingly sincere process. And then he said, quote, "And then it collapsed," end quote. Johnson said that it became clear that there wasn't going to be the 21 votes to convict. And after that became clear, Republican senators who seemingly were more open and considering to the idea of conviction, largely peeled away not wanting to take a difficult vote if the outcome was going to be acquittal either way, which ultimately, as we saw, led to only two Republicans standing up, taking the hard vote to actually convict him on certain articles.

Nir: And I think it's even worse than that because Axios reported that Paxton allies were threatening primary challenges to any Republicans who voted to cross him, who voted to convict him in the Senate. And maybe for all we know, Republicans who previously voted to impeach him in the House. I mean, that just feels like straight-up jury tampering. And of course, there's nothing illegal about it because impeachment is a political process. It's not a legal process. But man, I mean, how are you going to be able to have a fair and impartial trial if the jurors are being threatened with the end of their political careers?

Beard: And it reminded me so much of the article I recently read in The Atlantic, which had an excerpt from a book being written about Mitt Romney, where he talks about his discussions with GOP senators who agreed with him on a lot of his criticisms about Trump, but A) refused to say any of it publicly. And then B) when impeachment came around, particularly the second impeachment around January 6th, were scared to actually stand up and take a hard vote.

They wanted to protect their political careers. And on one human level, it's understandable, it's their career, but ultimately you're elected to represent your constituents to do the right thing to try to govern the country. And that's taking the hard votes. And we've seen the GOP both in the U.S. Senate and now in the Texas Senate largely refuse to do that.

Nir: I guess what blows me away is that just like with Trump, they could have gotten rid of Paxton. Imagine if Mitch McConnell had provided just enough votes to tank Trump and prevent him from ever running from office again. He still would've been a very annoying problem for them and would've commanded a lot of media attention. But he would've been, in a lot of ways, a spent force. A lot of Trump's power derives from the fact that he's still running for president and never stopped running for president.

And same with Paxton. I understand those threats, and I understand he's well-connected and he has powerful allies, but surely if he's out of office and also, as I know we need to discuss, facing criminal charges like actual go-to jail criminal charges, then he couldn't possibly be as big of a threat then, could he?

Beard: Yeah, that's what I don't understand about this process is there seems to be terrible fear of the power that these people hold right now without a consideration that if you convict them, they no longer hold that power. I'm sure the Republican Party in Texas could do just fine without Ken Paxton. Even the Trumpist wing of the party could do just fine without Ken Paxton. They don't need him, but there's a sense that you can't cross somebody who's been a team player or who is on the Trumpist side. There's a loyalty test there that's more important than almost anything else, seemingly.

Again, there's a little bit of a cultish aspect to it where how could you cross either the leader Trump or somebody Trump tells you should stay in office, how could you possibly vote against that? But I do want to mention that Paxton still faces charges outside the impeachment process, including a long-running securities fraud case. He was indicted earlier this year for making false statements to banks, and there's an ongoing FBI investigation into his relationship with the aforementioned real estate developer, Paul.

So, all of those things are continuing. Who knows, the securities fraud case has gone on for years. It's not clear when exactly that might get resolved, but these things are almost certainly going to drag out for the rest of Paxton's current term, which runs into 2026. If he runs for reelection in 2026, they will probably be a problem for him. I obviously don't know what the 2026 outlook will be like so many years from now, how Democrats will be doing in Texas at that point. But I think Paxton, if he runs for reelection, will almost certainly be the most vulnerable statewide Republican out of the broader group of statewide Republicans.

Nir: Well, Beard, now it's time for us as usual on “The Downballot” to talk about abortion. Activists in Nevada just launched a campaign to enshrine reproductive rights into the state constitution, including the right to an abortion. And as we have mentioned before, a number of states are also putting similar ballot measures before voters next year. But it's especially good to see it happening in Nevada, which of course is always a super-tight swing state. This measure could wind up helping boost Democratic fortunes, of course, in addition to being the right thing to do. But I don't want to just talk about the political implications because there's a really interesting backstory in Nevada regarding reproductive rights.

You'll often hear folks say that last time was the first time ever that voters got to vote in favor of abortion rights at the ballot box. And I've even made that mistake myself. But Nevada voters actually did so all the way back in 1990, and here's how that came about. Following Roe v. Wade, which of course was decided in 1973, the state passed a law codifying abortion protections. But as the years went by, the anti-abortion movement gained steam and supporters of reproductive freedom began to grow, concerned that abortion could be under threat in the state of Nevada.

At the time, Operation Rescue was blockading abortion clinics. The Supreme Court was upholding various restrictions on abortion at the state level. This is in the late '80s, and so the future of abortion rights was really looking like it could be threatened. And so these activists wondered, how best can we protect abortion in Nevada? And it turns out the state has this unique type of referendum that doesn't exist anywhere else in the country that is available to voters, and it's called an affirmation referendum.

Now, normally a referendum in the states that allow them involves asking voters if they want to repeal a law that the legislature has passed. But in Nevada, you can ask voters if they want to uphold a law that the legislature has already passed. And here's the key thing. If voters agree, then that law cannot be changed again except by another statewide vote. So, what these organizers did is they put a measure on the ballot — and there's a really great article in the Nevada Independent by Noelle Sims from just last month; we'll link you to it in the show notes that talks about the entire campaign, but right now got to skip ahead to the end. It was a really big gamble by supporters, though, I should say, because a loss would've opened the door to repealing Nevada's abortion rights laws and made the movement look weak. But the affirmation referendum actually won by a huge margin.

It was 63 to 37, in part because supporters appealed to voters in a very smart way, given Nevada's libertarian streak. They focused on the right to privacy as opposed to specifically a right to an abortion. It wound up being a huge win, but of course, it wasn't replicated anywhere else because no other state has this type of referendum. Now activists want to go a step further, and their amendment is actually quite a lot broader. It would protect a number of other freedoms in addition to the right to an abortion such as contraception, which of course has been a target of Republicans in a lot of ways, including all kinds of lies told about birth control pills. And there are also attacks on in vitro fertilization. So, the amendment would also protect infertility care.

One thing to note is that to amend the Nevada Constitution, voters have to approve the same amendment twice, even if it's on the ballot in 2024. The measure would also have to pass again in 2026 in order to become law. But what that also means is that it would make it incredibly hard to ever undo that amendment because opponents would also have to pass any repeal twice. This is a great move all around, and I'm of course really rooting for it to be successful.

Beard: And Nevada is not a state where reproductive rights is under immediate threat like we've seen in other places. But it's still great to do everything possible, particularly when there's all this momentum right now and energy around it to make reproductive rights as protected as possible, make those rights as expansive as possible because we don't know what Nevada is going to look like 10, 20 years down the road.

We don't know what the laws are going to look like. We don't know where the momentum is going to be, so the stronger that these protections can be made now with this vote and with an additional vote, then the better off everyone will be, and the more certain people can be that those rights are going to stick around.

Nir: Exactly. And hell, last year, one of the few notable pickups anywhere in the country — I mean, maybe really the only notable pickup anywhere in the country — was the Nevada Governorship for Republicans. Democrats right now still have pretty sizable majorities in the state legislature, but like you said, we just can't take that for granted. We're not talking about New York or California here, and hell, even in those states, I mean, California passed an abortion amendment last year. New York has language on the ballot that's supposed to protect abortion next year. You never want to take anything for granted. A lot of people took Roe v. Wade for granted, and look where we are now. So, this is smart politics and also just the right thing to do.

Beard: Absolutely. And speaking of reproductive rights initiatives, we do have one last issue, one we want to cover, and that's in Ohio where the upcoming initiative on November would protect abortion rights. And the ballot language has recently been under controversy after the GOP-controlled ballot board inserted some very pernicious language into the text of what voters see on the ballot itself to try to skew how they're going to vote, try to confuse them.

Of course, the GOP-controlled Ohio Supreme Court largely allowed that misleading language to stay in the text. Specifically, they allowed the ballot board to use "unborn child," quote unquote, instead of “fetus” in the language of the actual ballot while “fetus” is the word that's used throughout the actual text of the amendment. It's completely misleading. We've seen this for years, obviously, from the folks opposed to reproductive rights to use this phrase, "unborn child," so it's going to appear on the ballot.

Hopefully, folks are now sort of inured to this. They understand that this kind of language is just being used by opponents to try to cause conflict. And this won't change anybody's vote, but it's going to be there on the ballot. The Supreme Court did stop the board from using this very strange phrasing, quote, "citizens of the state," in the ballot language when it was about what the ballot amendment was prohibiting the state from doing.

The amendment, of course, prohibits the state of Ohio from restricting abortion rights. But the way that the ballot board phrased it, that was worded that citizens of the state were prohibited from restricting abortion rights, which was just an extremely confusing sentence. They did say that they just needed to clarify and make it clear that it was the state that was prohibited from restricting abortion rights. But they otherwise left a lot of the misleading language. Hopefully, that won't make a big difference when Ohio voters go to the polls in November.

Nir: I just want to note, it was only one Republican justice on that court who agreed that that citizens of the state language was nonsense. The other Republicans would've left it all intact. But I am hoping that this kind of thing sparks a bit of a backlash. We saw it with Issue 1 in August, just last month, the attempt to make it harder to pass ballot initiatives in Ohio in the first place. Voters seem to react really strongly to Republicans trying to rig things, and this just smells the same way. It stinks of rigging.

I'm sure that conservatives will take advantage of this, but they were going to scream about unborn children anyway. God, I really hope that voters don't go into the ballot box and see this language and there's some mushy middle out there that can be convinced by this totally false language instead. We'll see if people make an issue of it, but really, the bottom line here is that this is all nonsense. If this doesn't become law, then Ohio could wind up right back with a near-total ban on abortion. That's the stakes here, not the language that's on the ballot.

Beard: Yeah, and I suspect that this isn't going to make a big difference. As we've talked about, the salience of abortion rights is very high. People know what they believe about it. So, the specific text of the ballot amendment is probably not going to change very many minds. That said, it's still shitty that the Ohio Supreme Court allowed this to happen.

Nir: Well, that does it for our weekly hits. Coming up, we are going to be joined by Daily Kos Elections' own Stephen Wolf to talk about one of our favorite recent topics, the ongoing redistricting litigation in Alabama. Stephen, it turned out, made a contribution of his own to that case, and we are going to talk all about it after the break.

Joining us today on “The Downballot” is Daily Kos Elections' own Stephen Wolf here to talk about the Alabama redistricting case. Stephen, welcome back on the show.

Stephen Wolf: Thanks for having me back, guys.

Nir: Absolutely. We have talked about the Alabama redistricting litigation a lot on “The Downballot,” but I think that sometimes we can almost get a little bit too into the weeds without giving proper background first. So, I would like for us to take a step back and to ask you, Stephen, since redistricting is really your specialty, to explain what was the issue in this case here? Why did these plaintiffs bring a lawsuit in the first place, and what did the court say?

Wolf: Alabama for the last few decades has drawn a congressional map, where only one of its seven districts has a majority Black population and because of very racially polarized voting, white voters in all the other districts will defeat any candidate preferred by Black voters. In other words, it's one district that is heavily Black and heavily Democratic out of seven. The plaintiffs in this case, after Republicans passed a new congressional map with that same setup, in 2021, they brought this case, and a federal lower court in 2022 said that the map likely violated the Voting Rights Act and that it was going to block it and require a different one.

Nir: What was the plaintiff's theory of the case here? Why did they go to court? Why did they think that a court might actually intervene and step in and say, "No, this map is not kosher."

Wolf: The Voting Rights Act of 1965 has been interpreted by the federal courts for the last roughly four decades or so to require that districts be drawn in certain instances where a minority group or coalition of groups can elect their preferred candidates. In here, in Alabama, that means Black voters. In most of the state, if you draw a district that does not have a Black majority, white voters are going to vote en masse against the Black voters' candidate and elect a white Republican most likely.

When Alabama Republicans drew this congressional map with only one majority Black district, the plaintiffs went to the court and said, "Look, Alabama's population is about 28% Black, which is about two-sevenths. If you look at the population, how it's distributed throughout the state, a reasonably configured map could have two districts out of seven, where Black voters could either be a majority or quite close to it, and then thus be able to elect their preferred candidate." This case went to trial and the plaintiffs presented a mountain of evidence, and you ended up having a district court panel, where all three judges had originally been appointed by Republican presidents, nevertheless, unanimously ruled that this map did indeed violate the Voting Rights Act and that Alabama needed to try again.

Nir: In other words, what the Voting Rights Act says, to put it in an inverse way, is that if you have, say in this case, a group of Black voters who could constitute their own district, you can't just chop them up willy-nilly and spread them apart among multiple other districts to basically dilute the power of Black votes. That is what the plaintiffs accused the state of doing here, and the courts have agreed.

Wolf: Yeah, that's exactly right. What Republicans did was they took three different regions with large Black populations, that is the city of Birmingham, the city of Montgomery, and the rural Black belt region, which is in between the two. They linked them all together, packed Black voters and Democrats into one heavily Democratic district, and then dispersed Black voters throughout the rest of the state to make sure that none of the other districts was anywhere close to majority Black.

What the plaintiffs did here was they devised a bunch of maps to present to the court and say, "Look, it's possible to draw two districts that are reasonably configured, that are sufficiently compact, and that are both majority Black and would let Black voters elect their preferred candidates." The way that they did this instead was they separated Birmingham and Montgomery and they kept part of the Black Belt with Birmingham in the 7th District and then in the second district, they drew Montgomery with much of the rest of the Black Belt and the city of Mobile, which is along the Gulf Coast and also has a large Black population. Once they did this, they were able to draw both these districts that were just over 50% Black and substantially Democratic enough that Black voters could reliably elect their preferred candidates.

Nir: Of course, as we've discussed on this show in the past, Republicans succeeded in getting the Supreme Court to block this order from taking effect in time for the 2022 elections. But then, we had that huge surprise ruling from the Supreme Court this year, where in a 5-4 decision, the court said, "Actually, no, the Alabama court got it right," sent the case back down to the lower court, and said, "Yeah, the state is going to need a new map."

Wolf: Yeah. Like you said, and like we've mentioned before, that ruling was very surprising because not only did they rule against Alabama, they completely upheld the lower court's ruling, which had directed the state to draw two districts that were majority Black or, quote, "something quite close to it," unquote. That's a very unambiguous order of what the court wanted the state to do.

But when Republicans went back to draw a new map this summer, they only drew one majority Black district and a second district that was just shy of 40% Black. Not 50%, but just shy of 40%. That second district, because of those demographics, it also had a white majority, was safely Republican in pretty much every election that you could look at over the last several years.

Nir: The defiance was just absolutely extraordinary. The thing that got me by far the most was when the Republican governor, Kay Ivey, put out this statement flat out saying that the legislature knows better than the federal courts, as though it's a knowledge competition, "Oh okay, you know better. Therefore, our order no longer applies to you." It was just straight-up defiance. Of course, the plaintiffs went back to the court and said, "Nuh-uh, this map is no good." The court agreed with them.

Wolf: Oftentimes, when we have Voting Rights Act litigation over redistricting like this, where Republicans are accused of violating the rights of Black or Latino voters in particular, what they'll try to do is draw a district that it might look on paper like it can elect that group's preferred candidate, but in practice it really doesn't. But here, that wasn't even at all the case.

The court said in its ruling blocking the new map that the state of Alabama ignored its directive. It was just clear that they had not even attempted to comply with the order. Because of that, it said it was not going to give them a third bite at the apple, and it was just going to appoint its own court expert who would solicit input from the parties and non-parties and draw its own map without giving the legislature another shot.

Beard: We're going to talk about the special master that was appointed in just a second, but tell us about what Republicans are doing in response going back to the Supreme Court.

Wolf: Republicans have appealed the court's order again to the Supreme Court hoping for a different outcome this time, but they're really trying to do two things. One, they're trying to just delay the process as long as they can to try to kick a new map to 2026, even if they lose. That's probably their most likely victory scenario, but even that is hardly guaranteed.

The second thing they're trying to do is raise a different argument to the Supreme Court on the merits to say that, "Oh, our map is still constitutional. The Voting Rights Act itself is the problem." What they're doing here is they're relying on part of conservative Justice Brett Kavanaugh's opinion, where he said, "The state didn't raise this argument at the time, but it's possible that the Voting Rights Act's use of race and redistricting might not be constitutional forever, even if it was constitutional at the time the act was preauthorized in 1982."

Nir: There was a really good piece this week from Dahlia Lithwick and Mark Joseph Stern in Slate talking about what Alabama's strategy, if you can even call it that, seems to be. What they pointed out was that what are the odds that Kavanaugh is going to say three months after ruling in favor of the Voting Rights Act in really strong terms, "Oh, no, it's just a few months later and the whole thing is unconstitutional"? Maybe down the line, he's ready to do that, but it can't be the case that he's ready to do that right now. If it is, I think all hell will break loose. But Republicans just seem to expect that the Supreme Court will do their bidding and it seems like they didn't have a plan B for when it decided not to.

Wolf: Yeah, I think that's exactly right. There was a writer who I thought put it very aptly, where they said that John Roberts will essentially tell Republicans, "You have to lie to me better." For instance, with the Census case where Trump tried to add a citizenship question, there was very clear damning evidence that it was done with discriminatory intent toward Latinos and helping Republicans politically, and they had clearly violated the law to try to do this.

The court ruled against the Trump administration, gave them a second chance, and the Trump administration couldn't even put together a coherent case. So, they lost at the Supreme Court. In this Alabama case, the facts are very clear. You had two Trump-appointed judges in the majority in this lower court ruling, and they're now asking Kavanaugh to essentially reverse himself just three months later. It just does not seem like that's a very likely outcome.

Nir: I think it was Dahlia Lithwick, at least who I've seen popularize that phrase about Roberts, the "lie better to me." I think it's spot on.

Beard: Let's set aside the Supreme Court and whatever it may do with these appeals for the moment and go back to the court-appointed expert, which is often called a “special master” by the court. The special master has to create three maps to offer to the three judges by September 25th and as part of that process, they allowed for outside submissions from interested parties who wanted to propose a potential redistricted map. Stephen, you, as part of a group working with Daily Kos, submitted a pair of maps to the court. So, walk us through.

Beard: Submitted a pair of maps to the court, so walk us through the process of actually creating these maps and then getting them officially legally submitting them to the court.

Wolf: We partnered with longtime pollsters at McCreary, who's an Alabama resident and is very familiar with the state's politics and geography. To draw the maps, we use the free online tool called Dave's Redistricting App, which can allow anyone essentially to draw a map and potentially to the standards that would need to be able to submit it in court. One thing I really like about Dave's Redistricting App is that it is free to the public, and so you don't need to pay thousands of dollars for the professional software that lawmakers will tend to use to be able to analyze or even propose your own map. That's something that was a real innovation for this decade's redistricting cycle.

Nir: Yeah, I think DRA is just an incredible tool and really I think we have to give a shout-out to Dave Bradlee and his team for developing it and putting it out there and putting work into it constantly because it is just a very sophisticated tool, so much so that almost everyone who submitted maps used DRA to do so in this case, including one of the other groups of plaintiffs in the case, the so-called Singleton plaintiffs. They're not the lead plaintiffs, but it's kind of funny. I was looking at their submission, I'm like, "That color scheme looks really familiar," and I said to you, Stephen, "I think this is from DRA," and you're like, "Oh, yeah, yeah, definitely. That's totally a DRA map."

Beard: As you were going through and making this map, what were some of the tough choices that you had to make? What were some of the differences between the maps that you submitted and the other groups that submitted maps and the different reasonings behind those choices?

Wolf: The main problem that our maps had to address was how to create a second district, which happened to, of course, be numbered the 2nd district, where Black voters could elect their preferred candidate. To address that, let me start off with what Republicans did that was invalid. Republicans had separated Birmingham and Montgomery in their latest map, but what they did was they connected Montgomery with a lot of very white rural and exurban areas that would drown out the Black voters in that district, so we needed to find some alternative that didn't do that. What we ended up doing, and what many of the other parties did was we used the city of Mobile on the Gulf Coast and connected that with Montgomery and the rest of the Black Belt region to create a fairly reasonably-shaped district where Black voters could indeed elect their preferred candidates.

Once we decided to use Mobile in this manner, the other question that ended up making the difference between the two of our maps was just how much of the Black Belt to put in one of the districts versus the other, and just how much of Birmingham to put in one of the districts versus a neighboring district. Our first map, which we called Plan A, attempted to put as much of the Black Belt region as possible in just the two heavily Black districts. But in our plan B, we wanted to put as much of the region as possible in just the 2nd district. The reason for that was because doing so let us confine the 7th district to just the Birmingham and Tuscaloosa areas, which also have sizable Black populations and in doing that, we could put almost the entirety of the city of Birmingham in just the 7th district, which most other plans would split to a much larger degree.

Nir: I found it so interesting, Stephen, that the Special Master decided to open the floor, really, to the public in this way because in a lot of redistricting cases, the courts don't necessarily express an interest in wanting to hear from the public. But you did have some experience in the past with a court that was quite open-minded about hearing from ordinary Americans talking about the case in Pennsylvania from several years ago, where the Supreme Court struck down the state's GOP gerrymandered congressional map and drew a new much fairer map that really changed political outcomes in Pennsylvania, and you submitted some proposals in that case that actually in a lot of ways wound up resembling the final map that the Pennsylvania Supreme Court adopted.

Wolf: Yeah. That's right. That case was a partisan gerrymandering lawsuit, which meant it had some pretty key differences with this Voting Rights Act lawsuit. One of those is that the court in Pennsylvania ended up redrawing the entire map and not taking any of it as a starting point. Whereas in Alabama, the court directed map makers to only make modifications necessary to remedy the Voting Rights Act violation and not redraw the entire state. In some ways, in Pennsylvania, that process was closer to, if you had an independent redistricting commission drawing the maps, and when states have commissions like that, they almost always will solicit input from the public, but there was also no requirement that the special master pay particular attention to any one proposal like ours. But when we looked at the map, he drew and analyzed all the various plans that people had submitted. One of the two that I had submitted came closest in terms of population to what the special master actually drew.

Nir: Beard, like you mentioned, the special master in this case, the Alabama case, has to come up with three different plans to propose to the court, and the court will presumably pick one of them, though it, I guess conceivably could make modifications or go back to the special master, and so there's a chance that the special master could choose from some of the plans that are before him and offer those to the court. We just don't know.

Beard: Yeah, we'll have to wait and see what the special master comes up with and then what the court decides based on their recommendations.

Now, before we let you go, Stephen, we want to discuss a couple of ongoing fights in states around their redistricting process, starting with Wisconsin. Their Republicans and the legislature are looking for any avenue to prevent the newly progressive Supreme Court from striking down the gerrymandered maps and requiring fair un-gerrymandered maps. So tell us what they've been doing as they search desperately for a way to stop this.

Wolf: Yeah. In Wisconsin, progressives took a majority on the state Supreme Court back in August, and this is the first time they've had one in 15 years. Almost immediately after, a pair of lawsuits were filed challenging the state's legislative maps as illegal partisan gerrymanders. There's a pretty broad consensus in the state that the court is most likely going to strike those down and draw fairer maps, if it can.

What Republicans are trying to do is twofold. One, they're threatening to impeach the new progressive justice who gave progressives the majority before she's even heard a single case. The second thing Wisconsin Republicans are doing is they just introduced and advanced a bill in the legislature that they claim would establish a nonpartisan redistricting process, but it's really just a charade intended to prevent the court from ruling on the maps.

What this bill does is it claims that it would set up a process like the state of Iowa has that is a somewhat nonpartisan process, but the biggest flaw with this system is that it's only statutory and that a single party, legislature and governor could repeal it anytime they wanted and pass their own maps.

Even if the process stays in place, there are still ways for a Republican legislature to get their preferred maps out of this setup, and the criteria it has for drawing maps are the ones that are tilted toward Republicans to begin with. Even if it worked as it claims it would, it still is not guaranteed to draw fair maps. What we've seen in response is Democrats have almost all opposed this and the governor is likely to veto it, and Republicans might try to override the veto, but they would need a few Democrats to cross over to do that.

Nir: Lastly, Stephen, we want to ask you about what's going on in Ohio where activists, as we've talked about before, are preparing to put a measure on the ballot next year that would establish bonafide independent redistricting in the state, not the sham nonpartisan B.S. that Wisconsin Republicans are trying to put forward right now. But of course, of course, Republicans are once again, doing their utmost to stop it, and the whole thing is being held up by the Attorney General there who is a Republican, so what is the status there?

Wolf: In Ohio to put a measure on the ballot, voters have to gather a few signatures at first, and then they'll submit a proposal to the Attorney General for them to look at, and the Attorney General is supposed to assess whether the proposed ballot summary that supporters have written accurately and fairly reflects the actual amendment that they've proposed. Once he's done that, a separate body of state officials will look at whether the proposal itself is constitutional, and if the proposal passes through both of those stages, it's only then that supporters can go about gathering the hundreds of thousands of signatures needed to actually qualify for the ballot.

Earlier this summer, when activists came out with his proposal, they gathered enough signatures to get the Attorney General to have to consider it. And what did he do? He turned right around and rejected it saying that several parts of it did not accurately and fairly reflect the underlying amendment. The supporters went back to the drawing board; they revised the text and submitted it back to the Attorney General. And he just again said that there are still problems with it and he rejected it.

It's not uncommon for the Attorney General to reject a proposed summary at least once, but usually it's something that proponents will go back and fix and then they'll get approval. But what Republicans have been doing in Ohio lately leads me to wonder whether the Attorney General is just trying to string things along and drag things out and cut into the time that would otherwise be allotted for them to gather voter signatures. Like you guys were talking about earlier in the show, Republicans in Ohio just gave an abortion rights measure a very misleading ballot summary, and there should be no expectation here that Republicans will try to act in good faith and ensure that this proposal gets on the ballot with fair language. They're just trying to string things along and undermine supporters of redistricting reform.

Nir: Stephen, do you think that we will see litigation one way or the other over the constitutionality of the proposed amendment? Because, as you said first, the ballot language has to pass muster; then another board has to determine whether the amendment itself is constitutional. Let's say they give it a thumbs up. Do you think that we'll see a lawsuit challenging it that would probably ultimately go before the Ohio Supreme Court?

Wolf: Yeah, I think that's all but guaranteed at this point. If we look at the abortion measure, again, there were multiple lawsuits trying to keep it off the ballot saying that it violated particular constitutional provisions. And, fortunately, the Ohio Supreme Court rejected that, but that's hardly guaranteed with redistricting. One reason for that I think, is because it's much more of a partisan issue where it directly threatens Republican power in the state, and Republicans in November's elections, gained a four-to-three majority of very hard-line Republicans after replacing a moderate former Republican justice who had sided with Democrats to strike down the previous Republican gerrymanders.

Nir: Well, obviously we are going to be following that set of developments very, very closely. Stephen Wolf, it has been fantastic having you back on the show. It's been a little bit too long. Before we let you go, please let The Downballot listeners know where they can find your work and where to find you on social media.

Wolf: Yeah, so I write on Daily Kos Elections, which I'm sure you all are familiar with, and on social media, you can find me on the site formerly known as Twitter @PoliticsWolf, and on Bluesky, you can find me at just Stephen Wolf, and my name has a P-H, no V.

Nir: Stephen, thank you so much.

Wolf: Thanks.

Beard: That's all from us this week. Thanks to Stephen Wolf for joining us. “The Downballot” comes out every Thursday everywhere you listen to podcasts. You can reach out to us by emailing thedownballot@dailykos.com. If you haven't already, please subscribe to “The Downballot” on Apple Podcasts and leave us a five-star rating and review. Thanks to our editor Trever Jones, and we'll be back next week with a new episode.