Hell yeah! Election season is here, and it's already off to an amazing start with Democrats' huge flip of a critical seat in the Virginia state Senate, which kicks off this week's episode of The Downballot. Co-hosts David Nir and David Beard dissect what Aaron Rouse's victory means for November (abortion is still issue number one!) when every seat in the legislature will be on the ballot. They also discuss big goings-on in two U.S. Senate races: California, where Rep. Katie Porter just became the first Democrat to kick off a bid despite Sen. Dianne Feinstein's lack of a decision about her own future, and Michigan, which just saw veteran Democratic Sen. Debbie Stabenow announce her retirement.

The Davids also delve back into a topic that frequently came up last year: redistricting. “Didn't every state just draw new maps?” you might ask. Yes! But many have to do so again thanks to court rulings. Unfortunately, this gives Republicans in North Carolina and Ohio the opportunity to gerrymander once more, though there's an outside chance some Southern states could be required to draw new congressional districts where Black voters can elect their candidates of choice.

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 wherever you listen to podcasts, and leave us a five-star rating and review.

David Beard:

What are we going to be talking about this week, Nir?

David Nir:

Well, we kicked off the brand-new year with a freaking awesome special election flip in the Virginia state Senate. We are going to dive deep into that. We also want to talk about the United States Senate. We have some action in two key states, California and Michigan. We also need to talk about what's going on at the legislative level in Michigan; of course, we flipped both chambers of the legislature last year and Democrats are now moving forward with a fantastic progressive agenda, so we're going to talk about the implications of that. Then finally, we are going to discuss an old favorite topic: redistricting. Redistricting isn't done. Even though every state drew new maps in 2022, many have to do so again thanks to court orders in 2023. So we are going to preview what we can expect as new lines are drawn once more in the reredistricting process. Please stay with us.

David Beard:

Even though it's not even halfway through January, we already have an election for 2023 to talk about. Down in Virginia, we had a state Senate special that was pretty competitive, so tell us about that one.

David Nir:

Beard, man, I am so stoked. This was such a great way to kick off 2023. It was already a great year with all the Kevin McCarthy nonsense, but we flipped a state Senate seat in Virginia in a Republican-held district. Democrat Aaron Rouse, who's a Virginia Beach city councilman, beat Republican Kevin Adams by just about 1 point. And this was a district held by Republican state Sen. Jen Kiggans. Unfortunately, in November, she beat Congresswoman Elaine Luria in the 2nd District, but it also meant she had to give up her state Senate seat. And this was very competitive turf. This was a district that Joe Biden won by 10 points in 2020, but the following year, Republican Glenn Youngkin in the race for governor carried this district in the Virginia Beach area by 4 points.

And in 2019, this was an open seat. Jen Kiggans, the new congresswoman, she won this district by 1 point in the regular November general election, a time when Democrats were quite pumped up. Trump was in the White House, and in fact on that night, Democrats actually flipped the Virginia state Senate in 2019, but they didn't take this seat. So Democrats did better in a special election in the middle of January coming straight off the holidays than they did at a normal election when everyone is accustomed to voting.

Aaron Rouse—he is a former NFL player, also perhaps more importantly, a former Virginia Tech football star, and he is also adamantly pro-choice, and this is really the crux of the election. Going into this race, Democrats had just a 21-19 advantage in the state Senate, and the problem is that one of those 21 Democrats is someone we've mentioned before on this show, Joe Morrissey, who is a total scumbag. He has been just scandal-ridden his entire career, but on top of all that, he calls himself "pro-life" and there's always a possibility that he would screw over his party and decide to join with Republicans to pass some sort of abortion ban, which Republicans, including Gov. Youngkin, have been really eager to pass.

And if Morrissey were to do that, well then that 21-19 majority turns to 20-20, it's a tie, and then the far-right lieutenant governor Republican Winsome Sears would be able to break a tie in favor of an abortion ban. That can't happen now. Now the Democratic majority is 22-18, and no matter what Joe Morrissey tries to do, no matter what stunts he tries to pull, it doesn't matter: Democrats have a solid 21 vote pro-choice majority, and that includes Aaron Rouse.

I should also add this district actually is going to be much bluer come November when every member of the legislature is up for reelection, both in the House and the state Senate. This district was held under the old lines, like I said, Biden plus 10. The new lines are more like Biden plus 20, so Rouse definitely should be the favorite for reelection. He is going to almost certainly be facing Adams in a rematch. We will be talking about the overall picture for both the state House where Republicans have a narrow advantage; Democrats are going to be trying to undo that. And the state Senate where, of course Democrats have this four-seat advantage and they will be trying to defend that in an upcoming episode. But man, I love starting a new year with a flip of a major, major seat.

David Beard:

Yeah, it's great to kick off 2023 like this and continue the relative success of 2022. I think a couple of points that we can take away from this special: one, I think we've seen continually now that as coalitions have changed and the Democratic Party has become more and more the home of more educated voters who tend to vote in these specials, the drop off that we used to see ... particularly when there was a Democrat in the White House. Obviously when we had Trump or later in the Bush years, there was always great Dem enthusiasm. But what we're seeing is even with a Democratic president, Democratic turnout is holding up reasonably well in special elections. In large part, I think because we have a lot more better-educated voters who make an effort to make sure that they go and vote in these special elections. So that's good news for us. As these special elections go along, we don't have as much to fear from them as we once did under a Democratic president.

I also think this is obviously a big swing area of Virginia as a whole, particularly as we've seen northern Virginia get bluer and bluer. The swing area of the state has really become the Richmond suburbs and the southeast Virginia/Virginia Beach area. So the fact that we are able to take this seat, put up a good margin compared to what it could've been had we had a bad result, I think that portends well for the fall 2023 elections. Like you said, we're going to talk about that a lot between now and then, but the Senate and the House are both up and so I think this is a good starting point to kick off victories in hopefully both those chambers.

David Nir:

I also want to circle back to the number one topic of 2022, which is also going to be the number one topic of 2023, and that is abortion. I talked about Joe Morrissey, but I want to make it clear, Aaron Rouse campaigned heavily on abortion rights. He ran ads about it, and Adams, the Republican, he tried to sidestep the issue, as Republicans did throughout 2022. So I think it still bears repeating: We are in a post-Dobbs world, and we talked about this after the midterms; the pundit conventional wisdom was, "Oh, well it'll fade." I'm certain that it hasn't, and it certainly didn't fade in November and I don't think it's faded now, come January. I think this is going to remain potent for a long time to come.

David Beard:

2024 has already started when it comes to Senate races, we had a couple of big developments in the past week and we're going to hit both of those. I'm going to start us off with California Senate where incumbent Sen. Dianne Feinstein has not officially said that she's not going to seek reelection in 2024. But due to her advanced age—she's 89 now and somewhat declining health—that's led many to anticipate that she's not going to run again, that that decision is essentially inevitable. So there are many Democrats that are making moves toward running in 2024.

One of the big names that went ahead and made that move, and officially announced that she was running for Senate, is Rep. Katie Porter. She announced her Senate bid on Tuesday and she also said later in the day that she was in, whether or not Sen. Feinstein ran again. Which again is not expected to be the case, but is one of those brash moves where I think others are waiting for Feinstein to say that she won't seek reelection before announcing and giving that sense of respect and deferral. Katie Porter is saying, "I'm in, I'm running for Senate, whether or not the senator decides to run for reelection or not, that doesn't matter. I'm in."

What that does do, that gives her a little bit of a head start. She gets to go, she gets to start campaigning and raising money. She doesn't have to wait on the senator to make an official announcement, but it's also possible that some people may see that as somewhat of a sign of disrespect. Now, I mentioned that there are a lot of people looking at this race. Another prominent candidate is Rep. Barbara Lee, a longtime, very progressive member of Congress from the Bay Area. She reportedly told the Congressional Black Caucus that she was going to run, but to a reporter, she later said that she'd make an official announcement "when it's appropriate." So she's clearly somebody who is likely going to wait until Feinstein officially announces that she's retiring before making any sort of public announcement or campaign launch.

Rep. Adam Schiff is another person who's widely expected to run. And some of his folks criticized Rep. Porter for her announcement because of the floods that are currently taking place in California, saying that it wasn't an appropriate time to make this sort of announcement and start raising money when many people in California are being affected by this natural disaster. This is just the start of what's probably going to be a very long, very messy campaign once all these candidates get in. But we'll just have to wait and see how it develops as we head towards the 2024 California primary, which will give us two candidates of course, because of their top two system. And then likely even more mess if those top two candidates are Democrats and we'll have that very strange idea of two Democrats competing in a general election with no Republican candidate.

David Nir:

That's exactly what happened the last time California had an open Senate seat, back in 2016 when Kamala Harris beat Loretta Sanchez, and those Dem-on-Dem statewide races in California can be weird and difficult to handicap. Porter released a poll of her own, showing that she would be leading in a hypothetical primary and also leading Adam Schiff in a one-on-one general election. But the reason why she's leading Adam Schiff is, believe it or not, because she's doing much better with Republicans.

Now, many Republicans would probably undervote; they would skip the race if it were between two Democrats, we've seen that before. But Katie Porter is this huge liberal icon, but so is Adam Schiff, perhaps even more so thanks to all of Trump's attacks during the impeachment. So again, it's going to be pretty tricky to figure out who might actually pick up those independent or Republican votes if we do have a Dem-on-Dem race. But there is so much game left to be played until we get to that point, so I don't even want to begin to guess how this one is going to unfold.

David Beard:

Yeah, this definitely feels like the first mile of a marathon. It's going to be a very long, very complicated race.

David Nir:

Well, we have another Senate seat that definitely is going to be open in 2024 that we need to talk about, and that is in Michigan where veteran Democrat Debbie Stabenow announced her retirement after four terms. And as you would expect in a swing state like this, there are tons of candidates on both sides who are reportedly considering, who actually have said they're considering, who have been mentioned by the proverbial Great Mentioner, just names that get floated in newspaper articles without any quote attached to them whatsoever. Some of the best known Democrats whose names have come up so far are Congresswomen Elissa Slotkin, Debbie Dingell, and Haley Stevens; Lt. Gov. Garlin Gilchrist also hasn't ruled out a campaign. He would be Michigan's first Black senator if he were to prevail.

For Republicans, they also have a bunch of names. Maybe the most prominent is actually freshman Congressman John James, who like Garlin Gilchrist, would also be the state's first Black senator. However, James, who ran twice for this seat unsuccessfully before, only just barely squeaked into the House in November after being expected by just about everyone, including the party organizations, to absolutely dominate. I think he won by maybe just like 1% or so. So he might prefer to actually spend some time getting familiar with his district and trying to secure reelection as opposed to immediately seeking a promotion when he kind of entered office in a pretty shaky way. Again, this is one where there is so much left to unfold, but unlike in California, we have traditional primaries in Michigan. Those typically take place in August of the election year, which is very, very late. So it could be quite a long time before we have nominees in that race too.

It's so hard to know what Michigan is going to do in a general election. Trump obviously won it in 2016. It was absolutely heartbreaking. More than heartbreaking. It was devastating. But Biden came back and won it by 3 points in 2020. And then Gov. Gretchen Whitmer, the Democratic incumbent, she won reelection last fall by an 11-point margin. So is Michigan really a solidly blue-leaning state or is it a swing state? Does it matter if it's a state-level election or a federal election? I guess we'll really have to see, but I am sure that Republicans will try really, really hard to win this seat, especially since they have a very favorable map overall where Democrats are in defense throughout most of the country. And of course we will be talking about the 2024 Senate playing field extensively in upcoming episodes.

David Beard:

And of course, we all know that the top of the ticket affects the Senate races when it's a presidential year. So that's obviously going to be a factor, particularly now that this is going to be an open seat. How Michigan goes at the presidential level will definitely have an effect on this Senate race. Though we've certainly also seen circumstances where really strong or really weak candidates can change that dynamic and you could have a Republican win, even if Biden is reelected or vice versa if there's some other scenario. So that's a big factor that we're going to have to watch as we go on. But candidate quality as we saw in 2022, even in a presidential year that's coming in 2024, candidate quality really matters. So we're going to have to see who comes out of these primaries.

David Nir:

It absolutely does. And I was thinking as you were saying that, Beard, Democrats don't really have any weak candidates. I mean, yeah, sure, I suppose someone could emerge and sneak through that we're not expecting, but all the names that have surfaced so far and beyond just those that I rattled off earlier, they would all be good in one way or another. Republicans have so many disaster candidates, any one of whom could win a primary. I mean, what if Tudor Dixon, the candidate who lost to Whitmer by double-digits in November, decides to run again? Anything is possible with them.

David Beard:

Yeah. And we've seen as the Republican Party continues to fail in these races that they think they should be doing better in, it largely chalks up to the fact that they nominate bad candidates. Democrats have nominated really strong candidates in recent years, and as a result, Democrats do better than you would expect on a race-by-race basis because of our good candidates. So we can only hope that continues. As long as the Republican Party is like this, we have to take advantage of the fact that we have such better candidates than they do.

David Nir:

I'm totally loving it. And speaking of better candidates leading to great success, there is a great success that is on the way in Michigan—still talking about Michigan—that we just have to talk about because it directly stems from one of the best Democratic victories of 2022.

David Beard:

Yes. In case you somehow weren't with us in 2022 and missed this, Democrats took control of both the Michigan state House and state Senate last year, giving them the first trifecta in the state along with Gov. Whitmer for the first time in decades. Which means that they're going to be able to pass legislation without any support of Republican members in either chamber, which is great news because they're going to be able to do some really, really good things for Michigan.

Now, obviously, we don't usually get a lot into the weeds of various state-level legislation here, but it's good to see the positive actual outcomes that result when we elect Democrats in a state like Michigan, then they're actually able to take power. So Michigan Democratic legislative leaders released a list of bills that they're going to take up first and hopefully pass quickly, and that includes some really great legislation including LGBT anti-discrimination protections, and restoring the prevailing wage, which is something that ensures that state workers on construction projects are paid a good wage.

And then ending right to work. Right to work is something that we've talked about a little bit. When a state is "right to work," it allows someone who's in a job that would be unionized to not pay anything to the union that represents them on legal issues and on collective bargaining and all of this stuff. And conservatives like to frame it as this freedom idea. But what it really does is weaken the unions because unions are forced to represent all of the workers whether they pay anything or not. And so in states that don't have “right to work,” all workers represented by the union have to pay a fair share fee, specifically just on that legal and bargaining representation. And so when right to work is in effect, the union has to pay to represent all these workers who aren't a part of it without any compensation.

And so getting rid of right to work is both fair in terms of what people are getting for this fair share fee that they pay. It gives the unions a stronger footing in terms of bargaining, and then also in terms of fighting for workers' rights at the political level. And that's why Republicans always go after it. They want to weaken the unions because the unions fight back against the Republicans’ attacks on workers. And so we've seen Republicans go after and pass right to work whenever they take over a state. And now that Democrats have taken over Michigan, one of the strongest union states in the country, they're going to be able to end right to work, strengthen unions, strengthen workers' rights, and make a level playing field once again.

We're also seeing that the Democrats are going to repeal the abortion criminalization statute, even though it's not in effect. Obviously, it's good to officially repeal it and make sure no changes in the judicial system or anything in Michigan or the Constitution would result in somehow that ever coming into effect. And they're also going to enact some progressive tax changes. So just good policy after good policy that we're hopefully going to see passed really soon here in Michigan.

David Nir:

Well, that does it for our weekly hits. Coming up, we are going to be discussing redistricting. I know you're thinking, "Didn't we just finish up with redistricting last year?" Absolutely not. A whole bunch of states have to draw maps once more, and we are going to be taking a deep dive to find out what we can expect in the new reredistricting process this year. Stay with us.

So Beard, we got to talk about redistricting. Even though every single state in the nation redrew its congressional map and almost every single state in the nation redrew their legislative maps, a whole bunch have to do it all over again in almost every case because of some sort of court ruling saying that, "You did something wrong. You passed an illegal map. You didn't follow proper procedures. There is something that you have to do over." And we are therefore going to see a whole bunch of new maps across the country, both at the congressional level and at the legislative level. And some we know for certain are coming; others, we are still waiting on the outcome of various lawsuits. But at the top of the list is a state that we definitely know will be drawing a new congressional map and also one new legislative map. And that is your home state, David Beard.

David Beard:

Yes. Redistricting is really a never-ending process for some states, and North Carolina has definitely been one of those over the years. Though as we'll talk about, once this final process happens, they may stick with those maps for the rest of the decade. The North Carolina Supreme Court struck down both the congressional map and the state Senate map, and for the congressional map, they used a court ordered map in 2022 that was only in effect for 2022. So the state legislature will have to draw a new map for 2024.

Unfortunately, the Republican state legislature in North Carolina is who draws the map. The governor, who is a Democrat, doesn't have any role in redistricting in North Carolina. And so the only check on the legislature is the court system and the court that struck down that gerrymandered map was a Democratic-majority North Carolina Supreme Court. And due to the 2022 elections, it's now a Republican-majority state Supreme Court. So it's very unlikely that that court will strike down a gerrymandered map from the state legislature. So they will largely have carte blanche to draw whatever they want and be as aggressive as they want.

The results from 2022 ended up electing seven Democrats and seven Republicans from a 14-district map. That could easily be 9-5, 10-4. Obviously there are some Voting Rights Act considerations around African American districts in North Carolina, but beyond that, the state legislature can be as aggressive as they would like, which is really not good news for Democratic incumbents in North Carolina.

David Nir:

I think in a worst-case scenario, there are really four Democrats who could be targeted, and that includes three freshmen—Don Davis, Jeff Jackson, Wiley Nickel—and also Kathy Manning. So you could potentially see all four of those districts become unwinnable red. That alone would really add to the hurdle that Democrats face in taking back the House in 2024. That said, no matter what North Carolina Republicans do, I still feel very optimistic about our chances of flipping the House in two years’ time, but this could really suck.

David Beard:

Yeah, absolutely. And I don't want to write off anybody particularly, because, as we've seen, there are situations where Republicans put up a terrible candidate. You've got a strong incumbent, and I think a lot of these incumbents, even though they're freshmen, are pretty strong, and they can really outperform the district by quite a lot. We saw, of course, in Ohio, which we're going to talk about in a minute, Marcy Kaptur way outperform the partisanship of her district against a terrible Republican candidate. And so it's totally possible something like that would happen, but you have to admit it's more the exception than the rule. If they go after all four of these seats really aggressively, it would be great if we could hold one or two, but it would be almost impossible to hold all four if they go all out to go after these seats.

David Nir:

So yeah, let's talk about Ohio. That state was an absolute shit show. Republican maps, both for Congress and the legislature, were repeatedly struck down by the state Supreme Court for violating the state constitution's ban on partisan gerrymandering. But once again, just like in North Carolina, that court had a 4-3 anti-gerrymandering majority. It was three Democrats plus one moderate Republican who was the chief justice. She stepped down, and Republicans now have an outright majority on that court. And so, even though Republican legislators managed to run out the clock and use unconstitutional maps in 2022, now they get a chance to draw maps again, just like in North Carolina, and the only possible check on them is the Supreme Court, and it's very unlikely that these very partisan Republican justices will do anything to stop a more aggressive gerrymander. And, what, Beard, would you say there are probably three Democrats who could be targeted by Republicans if they go hog wild once again? You have two freshmen, Emilia Sykes and Greg Landsman, and plus also Marcy Kaptur, who you were mentioning. It's certainly possible that Republicans could try to strike at all three.

David Beard:

I do think there is slightly more of a question in Ohio about how aggressive Republicans will be at the congressional level, whereas we've seen North Carolina Republicans repeatedly go all out in terms of this sort of gerrymandered aggressiveness. We do have the recent thing that we talked about last week where a slightly more moderate Republican speaker of the House was elected on the backs of Democratic votes. And so there may be a situation where maybe they don't go to the absolute partisan wall to try to pass a new map, given the uncertain situation in the House. But we'll have to see. There are absolutely three seats that were very competitive in 2022. If this same map were somehow used again, it would absolutely be competitive again.

I think the person with the best chance to either have a seat they could win or maybe be left alone is Greg Landsman in Ohio's first district. It's based in Cincinnati. There are some rules in the Ohio Constitution that are pretty straightforward about how many times you can split a county, and so they can't split the county that holds Cincinnati more than once. And so you do have to put all those Democratic voters somewhere.

I think in some ways it would be easier just to give him Cincinnati in the way that there's a big Columbus district where they make a huge Democratic vote sink, and the same with Cleveland, where they make a huge Democratic vote sink, and just put the Democrats into that district rather than try to split it up. But we'll see. I do think Kaptur held a very Republican seat this past cycle. It wouldn't surprise me if hers got maybe slightly even worse. And then, Sykes in northeast Ohio, it's obviously difficult to tell because there's a lot of voters moving in different directions there. So it's hard to know exactly how they might want to change it, but they could absolutely go after her if they really want to.

David Nir:

Regarding that 1st District, the one in Cincinnati now held by Greg Landsman, one point that's worth making is that most incumbent lawmakers don't want to take on new territory. Not just because it might put them at risk in a general election, but also because it might put them at risk in a primary. You could always get a challenge from someone who represents the new turf that you haven't previously represented, and we saw this in particular play out in Missouri, where the far-right faction of the Republican Party there really, really, really wanted a congressional map that created seven Republican districts and just one Democratic district. But they wound up passing a 6-2 map, just as they had before, because in large part, a lot of these Republican incumbent congressmen simply didn't want their districts to change all that much.

So that is something we actually have seen in Ohio as well in the previous decade. When Ohio was dropping a district due to reapportionment, they actually carved up a district that belonged to a Republican congressman, a guy named Steve Austria, simply because they wanted to make sure that they could elect all the other Republicans safely. So that might be the one saving grace. Basically, the desire to protect incumbents could outweigh the desire to screw over Democrats. North Carolina. Man, those Republicans just don't seem to care. They will go absolutely balls to the wall no matter what, and incumbent protection, just, I don't know, either it doesn't matter to them or they've just figured it out so brilliantly with these perfect 55% Republican districts. But they never really seem to have any of those fears.

David Beard:

I do think because there are, on the whole, probably fewer swing voters in North Carolina than there are in Ohio, it is easier for them to be more aggressive because the numbers won't change that much. So if you think of the band of the range of outcomes in a lot of those North Carolina districts, they're a lot narrower than you were in some of these Ohio places, where we see a lot of swing voters. Obviously we've seen Republicans rack up some massive victories. We saw a relatively close Senate race. We saw Sherrod Brown win in 2018. So there is somewhat more swing voters, I think, in Ohio, than North Carolina, which is a factor.

And to go back to your point about how much does a Republican want to take on Democrats, in Hamilton County, which is the county that Cincinnati is in: the district that shares it with CD 1, where Landsman is the Democrat, is congressional district 8, held by Republican Warren Davidson. Now, he won comfortably, of course, in 2022. He won by about 19 points. Sure, he could take on a few Democrats, but the question is, how many Democrats does he really want to take on to try to make that seat a few points more Republican to potentially give himself a competitive race? Because right now it's a nothing race, and if it gets a few more points more Democrat, even if he'd still be favored, he might have to start raising a lot of money, doing a lot more campaigning, and he may not want to do that, which may mean that Landsman may have a slightly easier time, because they have to give any precincts in Hamilton County that go away from Landsman to CD 8, because they can only split it once.

David Nir:

Now, we should also talk about several legal challenges that are still underway, attacking Republican-drawn maps for violating the rights of Black voters. We talked about a couple of these cases last year. I want to highlight two in particular because they are very, very similar, from Alabama and Louisiana. In both of these cases, federal courts ruled that under the Voting Rights Act, the state was obligated to draw a second district where Black voters would be likely to elect their candidate of choice, who would almost certainly be a Black Democrat. In both Alabama and in Louisiana, there is a single Black district, and in both of these cases, plaintiffs sued and said there should be a second such district. And applying a set of criteria required by the Voting Rights Act, both courts held that, in both cases, the plaintiffs were right.

And I read both of these decisions. They were amazing decisions. Incredibly thoughtful. Very, very lengthy, dealing with absolutely every aspect of these cases with incredible thoroughness and seriousness. In some cases, these decisions were written by Trump-appointed judges, and in both of those two cases, the Supreme Court said, "It's a little too close to the election, so, we got to go with the existing GOP maps that only have one Black district apiece." And those rulings from the Supreme Court were just absolute garbage. There was plenty of time to draw new maps in both of those states. That's absolutely what should have happened. But these cases are still pending. So, what that means is that once there is a full trial on the merits, the case is adjudicated fully as opposed to in a preliminary fashion, then hopefully these courts will both rule the same way and, again, say, "Yes, like we said before, you need to draw a second Black district in both of these states." Of course, even if they do come to those conclusions, the Supreme Court could still overrule them on the merits.

Previously, they said, "No, we're putting this ruling on pause because there isn't enough time." But now, going forward, they could say, "We are simply overturning this ruling because you got it wrong." They absolutely didn't get it wrong. These judges wrote really tremendous rulings, as I said, but there is no way to know for sure. I'm not that optimistic about these cases standing up, but if they do, that would mean two more districts almost certain to elect Democrats in two otherwise dark red Southern states. And that would be a huge bonus for Democrats, but not just that, it would be a huge bonus for the cause of Black representation.

I mean, that's why the Voting Rights Act exists. It exists to further the cause of minority representation in this country. And the Voting Rights Act says you cannot try to dilute the strength of Black voters, of Latino voters, of other minority groups, language minority, other groups of voters of color. You cannot try to deprive them of the kind of representation they ought to have if you drew normal, sane, sensible maps, is more or less my layman's interpretation of what the VRA requires here, and I think that's basically right. So, we'll see what the Supreme Court does. Again, don't keep your fingers crossed on these, but that could be plus two to the upside for Democrats if those go the right way.

David Beard:

Yeah, and the Supreme Court heard this case. They specifically heard the Alabama case, which is Merrill v. Milligan. It will almost certainly control the Louisiana case that comes after it. That happened in October, so we could get a ruling anytime in the next few months. Obviously, people often take tea leaves from the oral arguments. It was largely not great for the side arguing for the additional Black districts in Alabama. It seemed like, unsurprisingly, the court really wanted an outcome that resulted in not an extra district. They sort of went around a lot of different ways to get there, whether to just make the requirements more difficult so that the plaintiffs wouldn't meet it, or to just strike down this whole aspect of the voting rights altogether. But either way, I think we would be really surprised if these Republican justices came and were like, "Actually, yes. There should be a second Black Democratic district," despite that being the obvious intent of the Voting Rights Act. And so, we're likely going to have to continue on with the districts as they are, is what I would expect.

David Nir:

There was also a similar ruling, actually, just in the past week, out of South Carolina, that held that the 1st Congressional District, this is a Republican seat along the coast, was an unconstitutional racial gerrymandered, meaning that Republican lawmakers overly relied on race when they drew that district. And what in fact they did was this was a seat that Democrats actually flipped in 2018. Republicans narrowly flipped it back in 2020 and after that, Republican lawmakers wanted to make it redder in order to protect the new incumbent, Nancy Mace. And they did just that, except they did so by deliberately moving Black voters from the 1st District to the neighboring 6th District where Black voters predominate. That is the state's one Democratic district. We'll see whether this ruling survives on appeal.

I honestly don't really expect too much change. Even if it does, because if Republicans have to draw a new map, they'll probably just be smarter the next time. We've seen that happen a number of cases where Republicans simply get busted for being just kind of stupid or overly aggressive or cocky about the way they drew maps in South Carolina.

They were really explicit about their target in terms of the percentage of Black voters they wanted in each district, and that just sets off alarm bells of overly relying on race in doing redistricting. And if you do something that's stupid then even a really hardcore Republican judge is kind of like, "Ugh, God, why did you give me this mess? I have to rule against you. You were just too dumb." And probably the next time they'll be a little bit smarter about this. But we'll see how aggressive they try to be. It'll still be a red-leaning district no matter what happens with this case, no matter what kind of new map we wind up seeing, if any.

But this is also an area, one of these better-educated suburban areas that seems to be trending Democrats’ way. So maybe further down the road, this is an opportunity for a pickup once again.

David Beard:

And of course, what they often do in cases like this is they pretend that they made these moves for partisan gain. The Republicans will say, "Oh, we were just doing this for partisan reasons and they just happened to all be Black people that we moved out of the district." What are the odds? When obviously there's also a very obvious clear racial element to this districting? One of the judges that ruled and wrote on this case said, and I quote, "If you see a turtle on top of a fence post, you know someone put it there." And I'm like, "That's pretty good because you can claim all sorts of things. But of course, ultimately someone put the turtle on the fence post. Somebody moved all these Black voters to the other district and you can claim it for all sorts of other things that were going on.”

David Nir:

The turtle got on top of the fence post for purely partisan reasons.

David Beard:

Of course. He was too partisan to not be on the fence post.

David Nir:

So there's one more state in this bucket that we need to talk about, and that's Florida. But the litigation that is ongoing there is in state court, and it relies on amendments to the state constitution that voters passed quite some time ago. These amendments try to crack down on partisan gerrymandering and they also prohibit undermining minority representation. And in fact, in 2016, litigants successfully used these amendments to get the state to draw a new congressional map.

In fact, one that was more favorable for Democrats because of course the map had been drawn by Republicans. The problem is that since that time, Florida's Supreme Court has undergone dramatic changes. Former Gov. Rick Scott appointed several members and the current Gov. Ron DeSantis has also appointed more justices to the court. The majority that wrote that previous decision that cracked down on partisan gerrymandering and also supported Black representation no longer exists.

And the map that Republicans passed last year which was drawn by DeSantis himself. He just told the legislature, "My way or the highway. You better pass this map." It was a really stunning self-aggrandization of power on the part of the governor and state lawmakers simply handed it over to DeSantis. They have just no self-respect. That map was an extreme partisan gerrymanderer, shredded a number of Democratic districts and also completely shattered a predominantly Black district in northern Florida that seemingly is protected by the state constitution, and in fact, a lower court originally ruled that it was, but that ruling was overturned on appeal, and I would expect the Florida Supreme Court to really basically ignore these amendments and say that they don't matter. They don't apply for whatever reason.

They'll wave their hands at it. The judicial reasoning doesn't really matter to them. So even though we had success a decade ago in overturning Florida's map, I'm not optimistic this time.

David Beard:

Yeah. I think outside of FL-05, which is the Black opportunity district that was dismantled, I would be shocked if any of the other districts got ruled against by the conservative Florida Supreme Court. And I also honestly don't expect the Florida Supreme Court to do anything about FL-05 either. There has been a case filed in federal court under the Voting Rights Act about the dismantling of Florida's 5th District, and it sort of remains to be seen. No ruling has taken place yet in that case. The 5th District was a Black opportunity district where African American voters could elect a representative of their choice, and then it was just ultimately destroyed and turned into a couple of districts where Republican-leaning white voters could elect congressmen of their choice.

So we haven't seen that really just brazenly taken place in other states, so we don't know how the conservative-leaning court federal courts will respond to that. It may be a case where they see this as a good opportunity to prove their supposed neutral bonafides and be like, "Oh yeah, we didn't let Alabama and Louisiana create second Black districts and all these other cases we ruled for the conservatives, but we will reinstate this one district in Florida to prove that we're fair."

So it wouldn't shock me if that sort of outcome resulted, but that's probably quite a ways away. I don't even know if we'll have that in time for 2024 because that case seems to be going much slower than the other cases and the rest of the districts in Florida, I don't think anybody should count on.

David Nir:

So we mentioned at the top of this segment, a number of state legislative maps also have to be redrawn, and we've alluded to a couple of them, the North Carolina Senate, both chambers in the Ohio legislature. The South Carolina State House already redrew its map, so they are definitely going to have a new map for 2024. The most interesting one though is Montana. I said at the start that almost every state redrew its legislative maps in 2022. The one exception was the state of Montana. This one is completely, completely bizarre. The issue in Montana is a totally nonsensical state law.

The state has an evenly divided bipartisan redistricting commission that has the authority to draw maps. That commission has to submit those maps to state lawmakers at the first regular session of the legislature after census figures are available. The problem is that that session of the legislature always ends in April, which means that there was absolutely no chance of the commission finishing a map in time before the end of the session.

In fact, it's almost always impossible for that to happen, but it was definitely impossible in 2021 because census data was so heavily delayed, particularly because of COVID. So that means that because the legislature only has a regular session every other year in odd-numbered years, that the next session of the legislature that the commission can submit maps to state lawmakers for the review is not until 2023, and that means that elections with the new maps couldn't possibly be held until 2024.

The reason why this is also completely cockamamie and stupid is that the same law doesn't actually give state lawmakers the power to make changes to these maps. All they get to do is review them and submit comments to the commission, and the commission can take them into account, or it cannot take them into account. The commission gets the final say on this.

The legislature doesn't have any power over the maps. So basically there is this two-year delay for a purely ministerial process that very likely won't affect the final maps. And this isn't just some sort of ticky-tack complaint. The districts that Montana has that were used in 2022 are completely out of whack. The population is totally imbalanced. Some districts have way too many people. Some districts have way too few people. So it was very probably unconstitutional, this law in Montana to wait a whole extra two years.

The thing is, no one sued about it. No one has ever sued, and I think that a lawsuit would very likely succeed if someone actually ever brought one. Maybe in the next decade someone will, but it's too late now. The commission's work is underway. They'll probably have maps finished soon, and we'll have new maps, but they're going to be two years late.

David Beard:

Yeah. It's a reminder that there's a ton of things out there that are probably illegal or unconstitutional, but due to the way that our justice system works, they only actually get stopped or changed if somebody files a lawsuit, shows harm, gets a ruling, that actually changes the issue. Otherwise, these things just sort of continue on weird relics of badly written constitutions.

David Nir:

It really is a case of justice deferred as justice denied, because even if someone sues as we have seen in so many of these cases, like the ones we were just talking about in Louisiana and Alabama, these cases can take forever to play out in the courts. And Republicans know this. They know that delay benefits them, so they have no problem passing totally illegal maps because they'll benefit from them for at least one election. Maybe two, maybe three, maybe even more, maybe almost the whole decade. And if it eventually gets overturned, so what? You at least got three good elections out of it from the perspective of the GOP. Our approach to dealing with unconstitutional election maps is deeply flawed, as badly flawed as many of the maps themselves.

David Beard:

And as this may be the last full redistricting episode we have for a while, let me just put in one last call for a fair redistricting process nationwide, which Democrats do want to enact so that all states have fair redistricting maps and fair policies, but Republicans steadfastly oppose that. So we just need to take back the House, have a Senate that will get rid of the filibuster, and make fair redistricting happen.

David Nir:

And keep the White House.

David Beard:

Well, yes. Obviously, we need to keep the White House as well. That's all from us this week. 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 Podcast and leave us a five-star rating and review. Thanks to our producer, Cara Zelaya, editor Trever Jones. We'll be back next week with a new episode.