Wisconsin’s legislative maps are bizarre, but are they illegal?

Posted on November 19, 2023 by ProPublica

by Megan O’Matz, graphics by Lucas Waldron

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Any number of odd, zigzag examples can be used to make the case that legislative districts in Wisconsin are excessively gerrymandered.

There’s the pistol-shaped 31st Assembly District, held by a Republican, that was drawn with a western border that splits the Democratic city of Beloit in two.

There’s suburban Milwaukee’s 14th Assembly District, which stretches south, then east, then southwest, then east and again south, isolating Democrats and thereby limiting the Democratic vote in neighboring districts held by Republicans.

And in the northwest corner of the state, there’s the 73rd Assembly District, which resembles a Tyrannosaurus rex after a remap wiped out a reliable bloc of Democrats and added more rural conservative areas. The result: After 50 years of Democratic control, a Republican won in 2022.

Yet when the Wisconsin Supreme Court hears arguments next week in a widely watched lawsuit arguing that the existing maps fail to meet standards set out in the state constitution, that kind of political engineering will not be the focus.

Instead, much of the debate will center on exactly how to interpret the word “contiguous.” And the map shapes that are likely to get attention have elicited comparisons to Swiss cheese.

Fifty-five of the state’s 99 Assembly districts and 21 of 33 in the Senate contain “disconnected pieces of territory,” according to the most recent petition filed with the state Supreme Court by 19 Wisconsin voters. The suit seeks to have the state’s maps declared unfair and redrawn.

Some sections of the state’s maps “look like a 2-year-old drew them,” said Democratic Rep. Jodi Emerson, who represents the city of Eau Claire in northwestern Wisconsin.

In the interior of her district, the 91st, sits a free-floating chunk that actually belongs to the turf of the adjacent lawmaker, Republican Karen Hurd.

That may seem odd, but what is often left unsaid in discussions of Wisconsin maps is that the islands are not random parcels created by mapmakers to advantage Republicans at the behest of a Republican legislature. Rather, the irregular blobs largely follow municipal maps that reflect the history of Wisconsin cities and villages adding to their tax base by annexing bits of land in nearby areas. The practice often leaves towns with irregular maps and legislative districts with holes and satellites.

The plaintiffs, who are Democratic voters, claim that the legislative district boundaries violate Article IV, Section 4 of the state constitution, which says Assembly members must be elected from districts consisting of “contiguous territory.”

But the same section of Article IV also requires that Assembly districts “be bounded by county, precinct, town or ward lines.”

Senate districts, which are each made up of three Assembly districts, are governed by Section 5. It says they must consist of “convenient contiguous territory.”

So, which trumps which? Contiguity or municipal lines?

"This is the only case I’m aware of where contiguity has been the focus of a challenge,” said University of Colorado Law Professor Doug Spencer, an expert in redistricting. “This could give the new Supreme Court in Wisconsin a way to overturn the maps on neutral grounds."

Much is at stake. The case could decide the future of Wisconsin state politics, with possible ramifications for such hot-button issues as abortion and voting rights.

One election law expert, after reviewing the constitution, saw the Senate language as more straightforward to challenge. Section 5 does not mention a need for Senate maps to be bounded by any kind of government or municipal lines. It only mentions contiguity.

That language is “more of a slam dunk” for the plaintiffs, said Michael McDonald of the University of Florida’s political science department, where he studies mapping issues.

GOP legislators who oppose the suit argue in one legal brief that insisting all parts of a district must physically touch flouts prior court rulings and “is absurd and unworkable.”

Marooned on a Voting Island

The U.S. Supreme Court ruled in 1964 that state legislative districts should have roughly equal populations, while federal law prohibits drawing lines that dilute the voting power of minorities. In addition to those parameters, states have adopted their own principles, which frequently include keeping districts contiguous.

The rationale behind contiguity is to create local districts where lawmakers live near and share common concerns with their constituents.

Contiguous means “you can draw a district without ever having to lift up your pencil,” Spencer explained.

But that’s not Wisconsin’s method.

According to the legal complaint, the majority of Wisconsin’s Assembly districts are noncontiguous — each consisting of between two and 40 disconnected pieces of territory. Two-thirds of the state’s Senate districts are noncontiguous — each with between two and 34 disconnected pieces.

Consider just a few of the Assembly districts referenced in the case.

High Stakes on the Highest Court

Wisconsin’s maps have long been a contentious political topic, even becoming an issue earlier this year in a fiercely competitive race for a seat on the state Supreme Court, a contest that attracted tens of millions of dollars in campaign donations and outside spending.

The liberal-leaning candidate, Janet Protasiewicz, won, tipping the balance of the court to the left for the first time in 15 years. During the race, she expressed her support for legal abortion and her concern that the legislative maps were “rigged.”

One day after Protasiewicz’s Aug. 1 swearing-in ceremony, the group of Democratic voters filed suit, challenging the maps as “extreme partisan gerrymanders.” The high court declined to hear arguments about how the maps created a political advantage and, instead, narrowed the case to two arcane issues. One was “contiguity.” The other was “separation of powers,” centering on whether the prior Supreme Court overstepped its authority last year when it adopted the Legislature's maps despite a veto by the state’s Democratic governor, Tony Evers.

When Protasiewicz and the liberal majority decided in favor of hearing the case, conservatives on the court didn’t hide their displeasure.

“Redistricting should not be an annual event,” griped Chief Justice Annette Kingsland Ziegler in a written dissent. She added that the decision to focus solely on contiguity and separation of powers, which are state Constitutional issues, was “an attempt to dodge appellate review.”

Another justice, Rebecca Grassl Bradley, expressed her dismay with the case by liberally citing Lewis Carroll’s “Alice’s Adventures in Wonderland” and its sequel.

“Through the Looking Glass we go,” she wrote of what she considered to be a purely political, madcap exercise.

As the court date approaches, Republican legislators have been calling for Protasiewicz’s impeachment, claiming she’s biased. But she has said she won’t prejudge the issue and won’t recuse herself.

So far, Republicans haven’t acted on the impeachment threat. But even talk of such an extreme measure shows how significant the maps’ case is.

If redrawn, districts could become more competitive and less safe for incumbents — perhaps changing the power balance in the state capital. Republicans could lose complete control of the Legislature or, even if they retain power, lose their opportunity to gain a supermajority that would allow them to override Evers’ vetoes. A weakened state GOP could also be less helpful in 2024 to any Republicans who seek to again dispute presidential election results in Wisconsin, a swing state.

John Johnson, a Marquette University researcher who studies redistricting, noted that, ironically, it was Democrats who favored noncontiguous districts three decades ago.

Back then, maps drawn under the oversight of a Democratic legislature had created islands. Wisconsin Republicans at the time favored the dictionary definition, embracing “literal contiguity,” according to a key 1992 federal redistricting case that has been cited in the current controversy.

A federal three-judge panel, considering broader issues, didn’t endorse the islands but tolerated them, noting that the distance in the Democratic plan between the towns and the islands was slight.

The court held that “compactness and contiguity are desirable features in a redistricting plan,” but “only up to a point.”

Reaching “perfect contiguity and compactness,” the judges feared, would require “breaking up counties, towns, villages, wards and even neighborhoods.”

Campaign Action

The Downballot: HAIL MOLECH! Massive Dem win in New Hampshire + redistricting (transcript)

Posted on September 24, 2023 by The Downballot

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.

Embedded Content

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.

Wisconsin Republicans ask newly elected liberal justice to not hear redistricting case

Posted on August 24, 2023 by Associated Press

Republicans who control the Wisconsin Legislature asked that the newest Democratic-backed justice on the state Supreme Court recuse herself from lawsuits seeking to overturn GOP-drawn electoral maps, arguing that she has prejudged the cases.

Republicans argue in their motions filed with the Wisconsin Supreme Court on Tuesday and made public Wednesday that Justice Janet Protasiewicz can't fairly hear the cases because during her campaign for the seat earlier this year she called the Republican-drawn maps “unfair” and “rigged” and said there needs to be “a fresh look at the gerrymandering question.”

“Justice Protasiewicz’s campaign statements reveal that her thumb is very much on the scale in this case,” Republicans argue in their motion with the court.

Protasiewicz, who was backed by Democrats in her winning election in April, never said how she would rule on a redistricting lawsuit. She never committed to recusing herself from hearing the case. Her win gave liberals a 4-3 majority on the court.

Protasiewicz did promise to recuse herself from any case brought by the Wisconsin Democratic Party because it donated nearly $10 million to her campaign. There are two pending redistricting lawsuits, neither of which was brought by the Democratic Party.

However, the Republican-led Legislature argues that because Democrats would benefit from a redrawing of the maps, Protasiewicz must recuse herself from hearing the case. Staying on the case would violate Republicans' constitutional due process rights, they argue.

Republican Assembly Speaker Robin Vos has said that if Protasiewicz does not recuse herself from the redistricting case, he would look into pursuing her impeachment. Republicans have a two-thirds majority in the state Senate, which would be enough votes to remove Protasiewicz from office should the Assembly vote to impeach. However, her replacement would be named by Democratic Gov. Tony Evers.

Protasiewicz began her 10-year term in August. That week, two similar redistricting lawsuits were filed. The Legislature is seeking to intervene in both lawsuits and have Protasiewicz recuse herself from both.

Protasiewicz did not respond to a request for comment left with a court spokesperson.

Attorneys who brought the two redistricting cases had no immediate comment.

Wisconsin’s Assembly districts rank among the most gerrymandered nationally, with Republicans routinely winning far more seats than would be expected based on their average share of the vote, according to an Associated Press analysis.

Both lawsuits ask that all 132 state lawmakers be up for election that year in newly drawn districts. In Senate districts that are midway through a four-year term in 2024, there would be a special election, with the winners serving two years. The regular four-year cycle would resume again in 2026.

One lawsuit was filed on behalf of voters who support Democrats by Law Forward, a Madison-based liberal law firm, the Stafford Rosenbaum law firm, Election Law Clinic at Harvard Law School, Campaign Legal Center, and the Arnold & Porter law firm.

The other case was brought by voters who support Democratic candidates and several members of the Citizen Mathematicians and Scientists. That group of professors and research scientists submitted proposed legislative maps in 2022, before the state Supreme Court adopted the Republican-drawn ones.

The Downballot: Monster flip in Virginia + reredistricting preview (transcript)

Posted on January 15, 2023 by The Downballot

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.

Embedded Content

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.

Voting Rights Roundup: Alaska court upholds new top-four primary and ranked-choice general election

Posted on August 7, 2021 by Stephen Wolf

Leading Off

● Alaska: A state trial court has upheld the constitutionality of Alaska's new law that created a "top-four" primary followed by a general election using ranked-choice voting (aka instant-runoff voting). The ruling rejected arguments by the plaintiffs, who consisted of the right-wing Alaskan Independence Party and members of the Libertarian and Republican parties, that the law approved by voters in a 2020 ballot initiative violated political parties' rights under the state constitution to freely associate.

One of the plaintiffs, former Libertarian legislative candidate Scott Kohlhaas, said he and the other plaintiffs would likely appeal. However, Alaskan Independence Party chairman Bob Bird expressed skepticism that they have much of a chance at success before the state Supreme Court, which has a 4-1 majority of justices appointed by Republican governors.

Consequently, Alaska remains on track to become the first state in the country to implement a "top-four" primary with ranked-choice voting in the general election after Maine in 2016 became the first state to adopt ranked-choice voting overall; Maine's law differs in that it maintained traditional party primaries. By contrast, Alaska's variant of this system will require all the candidates for congressional, legislative, and statewide races to face off on one primary ballot, where contenders will have the option to identify themselves with a party label or be listed as "undeclared" or "nonpartisan."

Campaign Action

The top four vote-getters regardless of party will advance to the general election, where voters will be able to rank their choices using instant-runoff voting. The law will also institute ranked-choice voting in presidential elections, though traditional party primaries will remain in effect for those races. The law further sets up new financial disclosure requirements for state-level candidates.

The implementation of the new top-four ranked-choice voting system may play a key role in next year's Senate election, where Republican Sen. Lisa Murkowski is facing a tough challenge from the right by former state cabinet official Kelly Tshibaka after she voted to convict Donald Trump in his second impeachment trial earlier this year. Tshibaka has been endorsed by the state GOP and Trump himself, but rather than face the constraint of needing to win a Republican primary dominated by Trump diehards to advance to the general election, Murkowski is all but assured of making it to the general election ballot under the top-four system.

However, the new voting system is hardly a guarantee that Murkowski will win another term in this conservative state. If Democratic voters consolidate around a Democratic candidate whom they rank ahead of Murkowski, the incumbent could end up getting squeezed out of the ranked-choice process in the general election; if she is many voters' second choice but few voters' first choice, she could be eliminated before a Democrat and Tshibaka. Thus, Murkowski will likely need some measure of initial support from Democratic and independent voters in addition to more moderate Republicans if she's to make it to the final round of the ranked-choice voting process.

Redistricting

● 2020 Census: Mark your calendars: The U.S. Census Bureau will release the population data essential for redistricting at a press conference on the afternoon of Aug. 12. The deadline was originally set for April 1, but it was delayed because of the disruptions from the pandemic.

● Colorado: Colorado's state Supreme Court has agreed to extend the deadline for the new independent congressional redistricting commission to complete its work because of the delay in the release of the Census Bureau data needed to conduct redistricting until Aug. 16; the commission now plans to pass a final map by Oct. 1 instead of Sept. 1. Commissioners previously unveiled a preliminary map in June drawn using data estimates.

Voting Access Expansions

● Guam: Democratic Gov. Lou Leon Guerrero has signed a law that permanently adopts in-person absentee voting after the Democratic-run legislature temporarily adopted it last year due to the pandemic, effectively allowing voters to vote early in-person.

● Maine: Democratic Gov. Janet Mills has signed a law that will allow voters to register online beginning in 2023. With Maine's adoption of online registration, every state where Democrats control the state government has passed such laws. Only seven states that require voters to register have not allowed full online registration, all of which are run by Republicans, and Texas is home to roughly three-fourths of the people living in those states, who constitute roughly one in eight Americans.

● Massachusetts: Republican Gov. Charlie Baker has signed a bill passed by the Democratic-run legislature with bipartisan support to extend pandemic-era voting access measures through Dec. 15 so that they will remain in place for upcoming local elections (such as Boston's mayoral contest) while lawmakers decide whether to make them permanent. The provisions in question include expanded early voting and no-excuse mail voting.

Voter Suppression

● Georgia: Republican legislators have taken the first step toward a potential state takeover of election administration in Fulton County after key GOP lawmakers signaled their support for a "performance review" of the county, which could eventually lead to the GOP-run State Board of Elections temporarily replacing the officials in charge of elections in the county. Fulton County is a Democratic stronghold with a large Black population that is home to Atlanta and one in ten state residents, making it Georgia's largest county.

An eventual state takeover is possible under a law Republicans passed earlier this year that contained several new voting restrictions, which prompted a national backlash of condemnation and numerous lawsuits that argued it was a way to make voting harder for key Democratic-leaning groups and enable GOP officials to overturn election results after Trump's attempt to do so with the 2020 elections failed. Georgia is just one of several states where Republican lawmakers have passed legislation to give partisan GOP officials more control over election administration ahead of the 2022 midterms and 2024 presidential election.

● Texas: Democratic Party organizations and civil rights advocates have reached a settlement with Republican officials in Texas that will see the latter permanently implement a limited online voter registration system after a federal court last year ruled that Texas was violating federal law and ordered the state to establish partial online registration. The court found that Texas had violated the 1993 National Voter Registration Act, commonly known as the "motor voter" law, by failing to offer online registration updates for eligible voters renewing their driver's license or updating their address with the DMV online, and roughly one million voters have registered online since the court's ruling.

Morning Digest: Texas progressive kicks off primary rematch against conservative House Democrat

Posted on August 6, 2021 by Daily Kos Elections

The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, Stephen Wolf, Carolyn Fiddler, and Matt Booker, with additional contributions from David Jarman, Steve Singiser, Daniel Donner, James Lambert, David Beard, and Arjun Jaikumar.

Leading Off

● TX-28: Immigration attorney Jessica Cisneros announced Thursday that she would seek a rematch against Texas Rep. Henry Cuellar, a conservative Democrat who defeated her 52-48 in a very expensive 2020 primary. The current version of the 28th District, which includes Laredo, has been reliably blue turf for some time, but like other heavily Latino seats in South Texas' Rio Grande Valley, it lurched hard toward Trump last year: Joe Biden won 52-47 in a seat that Hillary Clinton had carried 58-38, though Cuellar won his general election 58-39 against an unheralded Republican foe.

Cuellar is a longtime force in local politics who has spent his decades in public life frustrating fellow Democrats, and his nine terms in Congress have been no different. In 2014, for instance, the congressman joined with Republicans on legislation to make it easier to deport child migrants. During the first two years of the Trump administration, FiveThirtyEight found that Cuellar voted with the administration nearly 70% of the time, more than any other Democrat in either chamber.

Cuellar, who is the extremely rare Democrat to have ever been endorsed by the radical anti-tax Club for Growth, is also no stranger to crossing party lines. In 2000, he supported George W. Bush's presidential campaign, and in 2018 he came to the aid of a home state colleague, John Carter, during the Republican's competitive re-election fight in the 31st District.

Campaign Action

While Cuellar inflamed national Democrats, though, he went over a decade without attracting a serious primary foe until Cisneros decided to challenge him from the left last cycle, but she quickly proved she could raise a serious amount of money for what turned out to be a pricey and nasty race. Cisneros went after Cuellar for his conservative voting record, with one ad declaring, "Not only did Cuellar vote for Trump's wall twice, but he's taken over $100,000 from corporations that build facilities and cages to detain families." EMILY's List also spent $1 million to back her, while many labor groups were in Cisneros' corner as well.

The congressman, meanwhile, ran a race that could have easily passed for a GOP campaign against the woman his team derided as "the Socialist Cisneros." He argued that Cisneros' support for environmental protection policies would destroy local oil industry jobs, and he aired a commercial arguing that she "supports allowing minors to have an abortion without parents' knowledge."

Cuellar and his allies also tried to portray Cisneros, who was born and raised in South Texas and returned home after briefly practicing law in New York, as an outsider; one particularly ugly mailer from a pro-Cuellar group charged that the challenger was "bringing New York flavor to Texas," complete with pictures of "NYC Pizza" and "NYC Bagel."

Cuellar benefited from spending from the U.S. Chamber of Commerce, and, remarkably, the Koch network, the first Democrat ever to do so. Republican voters also likely pushed him across the finish line in what turned out to be a tight race: Texas does not have party registration, which left GOP voters who didn't participate in Donald Trump's uncompetitive primary free to vote in the Democratic race.

Cisneros kicked off her new campaign Thursday arguing that not only did Cuellar remain too conservative, he'd also done a poor job aiding his constituents during the pandemic: She specifically took him to task for helping obtain coronavirus testing kits for the district last year that turned out to be defective.

Cisneros' entry into the race attracted far more attention than her launch did two years ago, but that's not the only way that the 2022 primary will be different from last cycle's fight. Perhaps most importantly, no one knows what this constituency will look like after the GOP legislature finishes redistricting, much less whether map makers will try to make it more Republican. And even if the new 28th District doesn't change much, Trump's gains last year could leave some Democrats nervous about losing Cuellar as their nominee.

One other factor is that while the 2020 race was a duel between Cuellar and Cisneros, next year's race could be more crowded. One other contender, educator Tannya Benavides, kicked off her own campaign in mid-June: While Benavides brought in just over $10,000 over the next few weeks, her presence on the ballot could make it tougher for anyone to win the majority of the vote they'd need to avoid a primary runoff.

Cuellar, for his part, raised $240,000 during the second quarter of 2021 and ended June with $1.7 million in the bank. That's considerably less than the $3 million he had available at this point in the 2020 cycle, but it does give him a big head start ahead of his rematch with Cisneros.

Redistricting

● Redistricting: Mark your calendars: The U.S. Census Bureau will release the population data essential for redistricting at a press conference on the afternoon of Aug. 12. The deadline was originally set for April 1, but it was delayed because of disruptions from the pandemic.

Senate

● GA-Sen: CNN reports that Senate Minority Leader Mitch McConnell is one of the many prominent Republicans who is worried that former football star Herschel Walker will jeopardize Team Red's chances against Democratic incumbent Raphael Warnock should he run, and that he's hoping one prominent name will reconsider his plans to stay out of the race. Former Sen. David Perdue took his name out of contention back in February, but CNN writes that McConnell "has suggested to allies" that he'd like for Perdue to switch course.

Perdue met with McConnell last month in D.C., and while we don't know exactly what was discussed, it's a good bet this contest came up. Perdue himself ignored questions at the time inquiring if he'd run again, and CNN says he also attended a party donor dinner on that trip and "indicated he had nothing to say about whether he would launch another Senate campaign."

The story also says that McConnell would like it if another former GOP senator, Kelly Loeffler, ran as well. Loeffler, unlike her ex-colleague, has shown some public interest, but it's not clear if she's willing to take on Walker if he gets in. An unnamed source did tell CNN that Loeffler would "likely" run should Walker, whom Donald Trump has been aggressively trying to recruit, ultimately stay out, though that would hardly solve McConnell's immediate dilemma.

A trio of notable Peach State Republicans are already in, and McConnell reportedly will be meeting with at least some of them. The top fundraiser so far is banking executive Latham Saddler, who raised $1.4 million and ended June with $1.1 million to spend. State Agriculture Commissioner Gary Black, meanwhile, brought in just over $700,000 during his opening weeks and had $680,000 in the bank. Businessman Kelvin King, finally, took in $380,000 from donors, self-funded an additional $300,000, and had $570,000 on-hand.

So far, Black has been the only one to attack Walker, though he hasn't yet brought up the allegations that his would-be rival threatened to kill his ex-wife in 2005. Instead, the commissioner released a digital ad this week making fun of a video where Walker, a longtime Texas resident, got out of a car sporting what appeared to be his new Georgia license plate. (The Atlanta Journal-Constitution says that plate is suspended.) "For fun, my ride's a tractor," said Black, "And I've had Georgia plates all my life."

Whoever emerges with the GOP nod will be in for an expensive race against Warnock, who remains a strong fundraiser months after his January special election win. The senator brought in $6.9 million during the second quarter, and he had $10.5 million on-hand.

Governors

● AL-Gov: Gov. Kay Ivey raised $525,000 during July ahead of a potential Republican primary challenge from state Auditor Jim Zeigler, and she had $1.7 million on-hand. Zeigler, who says he'll announce if he'll run on Aug. 21, did set up a fundraising committee this week, though he says state law required him to do that because his GoFundMe campaign fundraiser brought in more than $1,000.

● CA-Gov: SurveyUSA's first poll of the Sept. 14 recall election shows two very unexpected outcomes: a majority of voters are ready to oust Gov. Gavin Newsom, but a fellow Democrat leads in the race to replace him.

While almost every other poll has found at least a plurality of voters saying they'll vote against firing Newsom, SurveyUSA has a 51-40 majority in favor of the pro-recall yes side. Recent numbers from UC Berkeley and Core Decision Analytics showed the anti-recall side ahead 50-47 and 49-42, respectively―closer than Democrats might feel comfortable with, but nowhere near as bad as what these newest numbers show.

Perhaps even more surprisingly, SurveyUSA finds Democrat Kevin Paffrath, a financial analyst who is best known for his YouTube videos about personal finance, leading conservative radio host Larry Elder 27-23 in the race to replace Newsom. Both the aforementioned polls found Elder ahead of other Republicans, with Paffrath, who has no establishment support, taking a mere 3% of the vote.

We always caution that you should never let one poll determine your outlook of a race, and that's especially true when that poll has such startling results. We'll almost certainly get more numbers here before too long, though, which will give us a better idea of the state of next month's race.

● HI-Gov: Honolulu City Councilwoman Andria Tupola, a Republican, announced Wednesday that she would not run for governor next year. Tupola was Team Red’s 2018 nominee against Democratic Gov. David Ige, a contest she lost 63-34.

Tupola is the only Republican who has been mentioned as a possible candidate for this office so far, which Republicans have not won since 2006.

● IL-Gov: Kirk Dillard, who heads the board of directors for the Regional Transportation Agency, said on Wednesday that he was considering seeking the GOP nomination to take on Democratic Gov. J.B. Pritzker next year. Dillard was the runner-up in the 2010 and 2014 Republican primaries for this seat, losing both races by narrow margins.

● NH-Gov: John DiStaso of WMUR writes that some New Hampshire Democrats are urging Executive Councilor Cinde Warmington to run for governor next year. There’s no quote from Warmington about her 2022 plans, though DiStaso also relays that she’s focused on her current job, which is not a no.

Warmington is the lone Democrat on the five-member Executive Council, a body that is key for certain legislation along with approving executive and judicial appointments. Currently, Democrats do not yet have a notable candidate for this seat, though Rep. Chris Pappas and 2020 nominee Dan Feltes have not ruled out bids.

● NY-Gov: Following Tuesday’s bombshell release of the state attorney general's investigation report concluding that Democratic Gov. Andrew Cuomo sexually harassed 11 women, five New York district attorneys have confirmed that they’re investigating sexual harassment allegations against the governor, with two of them saying that they’ve already opened criminal investigations. Cuomo may have more immediate worries, though, as the Associated Press reports that 86 of the 150 members of the state Assembly say they support opening impeachment proceedings.

If a majority of the lower chamber votes to impeach him, Cuomo’s powers would be temporarily transferred to a fellow Democrat, Lt. Gov. Kathy Hochul; the governor would only regain his powers if he manages to avoid conviction in the Senate. It will likely be a little while, though, before impeachment can start. The Democratic-run Assembly has given Cuomo until Aug. 13 to submit evidence in his defense, and two members of the Judiciary Committee, Tom Abinanti and Phil Steck, tell the AP they expect the chamber’s investigation to end in “weeks or a month.”

The pair said that plenty of their colleagues want Cuomo impeached much faster following the release of Attorney General Tish James’s report. However, they argued that the Assembly needs time to build a strong argument for the Senate, which is also controlled by Democrats and would ultimately decide Cuomo’s fate.

Deputy Senate Majority Leader Mike Gianaris said that should the Assembly vote to impeach, his chamber could begin Cuomo’s trial weeks later. As we’ve written before, members of New York’s highest court, known as the Court of Appeals, would also sit as jurors. Democratic Majority Leader Andrea Stewart-Cousins would not participate, however, because she is second in the line of succession after the lieutenant governor. As a result, the jury would consist of seven judges—all of whom are Cuomo appointees—and 62 senators, with a two-thirds majority, or 46 votes, needed to convict the governor and remove him from office.

Cuomo could avoid all this by resigning, but he’s continued to proclaim his innocence and refuse to quit. The governor was similarly defiant in March as more and more allegations surfaced about his behavior and other alleged abuses in office, but while he had enough allies back then to hang on, his situation has very much deteriorated following James’ Tuesday press conference. Several longtime Cuomo backers, including state party chair Jay Jacobs and the state’s influential unions, have turned against him, and the New York Times notes that he has very few prominent defenders left.

Indeed, Cuomo’s most high-profile advocate at this point may be disgraced Trump attorney Rudy Giuliani, who characteristically compared Cuomo’s situation to the multitude of allegations leveled at his old client. Giuliani’s son, former White House staffer Andrew Giuliani, announced earlier this year that he’d run against Cuomo.

House

● FL-20: State Sen. Bobby Powell said Wednesday that he would support state Rep. Bobby DuBose rather than compete in November's special Democratic primary. The filing deadline is Aug. 10.

● MO-07: GOP Rep. Billy Long kicked off a Senate bid earlier this week, and several Republicans have already been mentioned or expressed interest in replacing the six-term congressman in this 70-28 Trump seat.

State Sen. Mike Moon, former state Sen. Jay Wasson, and physician Sam Alexander all indicated they were considering getting in. State Sen. Lincoln Hough, whom the Missouri Independent mentioned as a possible candidate on Wednesday, also did not rule out a bid. State Rep. Cody Smith and former state Sen. Gary Nodler likewise did not rule out bids, but both sound unlikely to run.

State Sen. Bill White, former state House Speaker Elijah Haahr, Greene County Presiding Commissioner Bob Dixon, and former state Sen. Ron Richard all said they would not enter the contest, while former U.S. Attorney Tim Garrison was mentioned as a possible candidate by St. Louis Public Radio’s Jason Rosenbaum.

Mayors

● Cleveland, OH Mayor: EMILY’s List has endorsed Democratic state Sen. Sandra Williams for mayor of Cleveland.

Morning Digest: Our new Minnesota data shows a divergent election for Biden and Senate Democrats

Posted on May 17, 2021 by Daily Kos Elections

Leading Off

● Pres-by-LD: Daily Kos Elections is pleased to present new data from Minnesota breaking down the 2020 presidential results for every district in the state House and Senate—which, unusually, are held by opposite parties.

Democrats went into last year's election hoping to net the two seats they'd need to retake the upper chamber after four years in the minority, but despite winning more Senate votes statewide, Team Blue only flipped a single seat. More painfully still, Joe Biden carried 37 of the Senate's 67 seats, a comfortable majority similar in proportion to his share of the statewide vote, which he won 53-45.

Compounding the Democrats' poor showing, two of the party's sitting senators, Tom Bakk and David Tomassoni, announced weeks after the election that they would become independents, which earned the duo committee chairmanships from the GOP majority. This state of affairs has given Republicans and their new allies a 36-31 edge in the chamber.

Altogether, six Republicans sit in Biden seats. The bluest of this bunch is SD-26 in the Rochester area in the southern part of the state, where GOP state Sen. Carla Nelson hung on by a 51-49 maring even as Biden was carrying her constituency 54-44. By contrast, Kent Eken is the one Democratic member of the Senate who represents Trump turf: Eken won SD-04 in the northwest part of the state 55-45 while Trump took it 50-48. Tomassoni, for his part, holds a Trump seat, while Bakk's district went for Biden.

Campaign Action

It's also possible that, but for the presence of a third-party candidate on the ballot in the 27th District in the southern part of the state, Democrats would have won back the Senate. Veteran Democratic Sen. Dan Sparks lost to Republican Gene Dornink 49-44, but Tyler Becvar of the Legal Marijuana Now Party captured 7% of the vote, greater than the margin between the two leaders.

While the cannabis legalization movement is generally associated with the political left, many candidates who ostensibly ran under a pro-weed banner in Minnesota last year received Republican help or espoused right-wing views—including Becvar. But Sparks' seat would have been a very difficult hold regardless: Trump won it 55-43, so it's very possible some of those votes for Becvar would have gone to Dornink instead.

Democrats were able to maintain their majority in the Minnesota House, but their edge slipped from 75-59 to 70-64. Biden took 72 districts to Trump's 62, and though crossover voting benefited Republicans overall, the GOP's advantage wasn't as large as it was in the Senate on a proportional basis: Six House Republicans won Biden seats, while four Democrats took Trump districts.

The Democrat with the reddest turf is Paul Marquart, who earned his 10th term 53-47 even as Trump was romping to a 58-39 victory in his HD-04B. (In Minnesota, two state House districts are nested within one Senate district, and Marquart represents half of Eken's aforementioned 4th Senate District.) Marquart's Republican counterpart is Keith Franke, who had lost re-election in 2018 but reclaimed HD-54A by a 51-48 margin despite Biden's 54-43 victory in his suburban Twin Cities constituency.

Minnesota is one of just two states where the same party doesn't hold both houses of the legislature; the other is Alaska, where Republicans have nominal majorities in each chamber but the House is run by a coalition of Democrats, Republicans, and independents.

This state of affairs makes it extremely unlikely that the Minnesota legislature and Democratic Gov. Tim Walz will agree on new congressional and legislative maps. This deadlock would mean that the courts would take over redistricting, which is exactly what happened a decade ago—and each of the last several decades.

Once new maps are implemented, each party will immediately have another chance to try to win both chambers. The entire House is on the ballot every two years, while the Senate is up in years ending in 0, 2, and 6, meaning that senators who won election in 2020 are currently serving two-year terms but will run for four-year terms next year. (This system, known as "2-4-4," is used in eight states.)

P.S. You can find all of our district-level data at this bookmarkable permalink.

Senate

● GA-Sen: Rep. Buddy Carter appears to have gotten his hands on a cellphone number that his fellow Republicans have had a hard time getting ahold of: The southwest Georgia congressman says he's had "a number of conversations" with former NFL star Herschel Walker, who's been encouraged by Donald Trump to run for Senate but hasn't been in communication with top GOP operatives about his intentions.

Carter, however, says that Walker, who lives in Texas, told him that he'll make some sort of decision "around the first of the summer." (Since "summer" isn't a month, we'll mark that down as June 20, the summer solstice.) Like all Peach State Republicans, Carter is eagerly awaiting a final announcement from Walker, who's largely frozen the Senate field. Carter himself says he's already prepped a campaign team for his own Senate bid but that he's "waiting on Herschel" before entering the race.

● PA-Sen: Republican Reps. Guy Reschenthaler and Mike Kelly have published a joint op-ed endorsing Army veteran Sean Parnell in his bid for the Senate, making them the first members of Congress from Pennsylvania to take sides in next year's GOP primary.

Governors

● IL-Gov: Republican state Sen. Jason Barickman says he's considering a bid against Democratic Gov. J.B. Pritzker next year and says a decision will come "later this summer" after the conclusion of the current legislative session. Barickman also suggested that the outcome of redistricting, which Democrats will control in Illinois, could affect his thinking.

● MI-Gov: A new poll from Target Insyght for MIRS News finds Democratic Gov. Gretchen Whitmer up 48-42 on outgoing Detroit police Chief James Craig, who is considering seeking the Republican nomination. The same survey (which is our first of the race) also finds Whitmer beating Army veteran John James by a wider 49-39 margin. James was the GOP's Senate nominee in both 2018 and 2020, though he hasn't yet publicly expressed any interest in a possible gubernatorial bid.

● NY-Gov: Rep. Elise Stefanik easily won election as House GOP conference chair on Friday to replace the ousted Liz Cheney, defeating Texas Rep. Chip Roy 134-46 in a secret ballot. If Stefanik sticks to her word, we can cross her off the list of potential Republican gubernatorial candidates for next year since she said she wouldn't run for governor if she won the race for chair.

● VA-Gov: Former Republican Rep. Denver Riggleman, who'd been threatening to run for governor as an independent, says he's less likely to do so now that the GOP has tapped finance executive Glenn Youngkin as its nominee. "If Amanda Chase or Pete Snyder won," he told CBS's Aaron Navarro, "I would have more heavily considered it." Riggleman has until the June 8 filing deadline for independents to decide.

House

● FL-13: Democratic state Rep. Michele Rayner, who'd reportedly been considering a bid for Florida's open 13th District, now confirms that she is in fact looking at the race. Another Democrat, term-limited St. Petersburg Mayor Rick Kriseman, has also made it clear that he's weighing a campaign; his earlier comments had us slotting him into the "hasn't ruled it out" category, which we regard as a notch below on the level-of-interest scale.

● GA-10: State Rep. Timothy Barr has entered the race for Georgia's open 10th Congressional District, making him the second notable Republican to join after former Rep. Paul Broun.

Mayors

● Atlanta, GA Mayor: Two more members of the Atlanta City Council, Andre Dickens and Antonio Brown, have announced that they're running in the November nonpartisan primary to succeed retiring incumbent Keisha Lance Bottoms.

Dickens is the co-founder of City Living Home Furnishings, which the Atlanta Journal-Constitution describes as "a multi-million dollar retail business with two locations." Dickens sold the business two years before he was elected to the City Council in 2013 by unseating an incumbent.

Brown, for his part, has been a prominent progressive critic of Bottoms since he was elected in a 2019 special election, an accomplishment that made him the body's first Black LGBTQ member. Brown, though, has been under federal indictment since July on fraud charges, allegations he denies.

Two other contenders, City Council President Felicia Moore and attorney Sharon Gay, have been running since before Bottoms announced her departure earlier this month, and a big name is publicly expressing interest for the first time. Former Mayor Kasim Reed recently told Channel 2's Dave Huddleston that he is thinking about running for his old job again, though political insiders have been chattering about a potential comeback for a while.

Reed had no trouble winning re-election the last time he was on the ballot in 2013, but a corruption investigation that resulted in indictments for six members of his staff generated plenty of bad headlines during the end of his tenure. (Term limits prohibited Reed from seeking a third consecutive term in 2017, but he's free to run again now that he's not the incumbent.) Huddleston asked Reed whether he was under investigation, to which the former mayor replied, "The Justice Department under [former Attorney General] Bill Barr has looked into every aspect of my life for more than three years and took no action."

Finally, former Rep. Kwanza Hall confirmed his interest on Thursday and said he would "make my decision soon." Hall, who was a city councilman at the time, took seventh place in the last mayoral contest, but he went on to win a 2020 all-Democratic runoff for the final month of the late Rep. John Lewis' term in the 116th Congress.

● New York City, NY Mayor: The Democratic firm Change Research's new survey of the June 22 Democratic primary finds Brooklyn Borough President Eric Adams leading 2020 presidential candidate Andrew Yang 19-16, with city Comptroller Scott Stringer at 9%. After the poll simulates the instant runoff process, Adams is left with a 53-47 edge over Yang. Change tells us that, while this was conducted as part of a larger survey for a client, the pollster paid for the horserace portion itself.

● St. Petersburg, FL Mayor: St. Pete Polls' new survey of the August nonpartisan primary for Florida Politics finds City Councilwoman Darden Rice and former Pinellas County Commissioner Ken Welch deadlocked 16-16, with former state Rep. Wengay Newton at 12%. All three leading contenders are Democrats, though Newton worked with Republicans on some issues in the legislature and backed former GOP Mayor Rick Baker's unsuccessful 2017 comeback campaign.

St. Pete Polls also finds Welch outpacing Rice 31-24 in a hypothetical November general.

Prosecutors

● Manhattan, NY District Attorney: Former State Chief Deputy Attorney General Alvin Bragg has earned the backing of the United Federation of Teachers, which is one of the major unions in New York City politics, in the eight-way June 22 Democratic primary. Bragg already had the support of two other influential labor groups: the healthcare workers union 1199 SEIU and 32BJ, which represents building and airport employees.

Redistricting

● Redistricting: Our friends at the Princeton Gerrymandering Project are hosting a new contest that will be of interest to many Digest readers:

The Princeton Gerrymandering Project at the Electoral Innovation Lab is proud to announce the launch of its Great American Map Off, a contest challenging the public to draw redistricting plans for seven crucial states—Wisconsin, Colorado, Ohio, Illinois, Florida, North Carolina, and New York—in anticipation of the 2021 redistricting cycle. Maps will be judged in the contest's four unique categories: partisan fairness, stealth gerrymander, competitiveness, and communities of interest. Participants can enter any or all categories, which are fully detailed within the contest rules on the group's website. The site also includes links for mapping tools and resources, including Representable, Dave's Redistricting, and All About Redistricting. The competition will formally open on May 15, 2021. All competitors should submit their prospective maps by the deadline of 11:59 PM ET on June 15, 2021. Prizes will be awarded.

Full details here. Let us know if you submit!

House Democrats just passed the most important democracy reforms since the 1965 Voting Rights Act

Posted on March 4, 2021 (Updated March 4, 2021) by Stephen Wolf

On Wednesday, House Democrats voted 220-210 to pass H.R. 1, the “For the People Act,” which is the most important set of voting and election reforms since the historic Voting Rights Act was adopted in 1965. These reforms, which House Democrats previously passed in 2019, face a challenging path to in the Senate given Democrats’ narrow majority and uncertainty over whether they can overcome a GOP filibuster, but their adoption is critical for preserving American democracy amid unprecedented attack by Republican extremists both in and outside Congress.

H.R. 1 would implement transformative changes to federal elections by (1) removing barriers to expanding access to voting and securing the integrity of the vote; (2) establishing public financing in House elections to level the playing field; and (3) banning congressional gerrymandering by requiring that every state create a nonpartisan redistricting commission subject to nonpartisan redistricting criteria.

Using Congress’ power to regulate Senate and House elections under the Elections Clause and enforce anti-discrimination laws under the 14th Amendment, the bill would:

Establish automatic voter registration at an array of state agencies;
Establish same-day voter registration;
Allow online voter registration;
Allow 16- and 17-year-olds to pre-register so they'll be on the rolls when they turn 18;
Allow state colleges and universities to serve as registration agencies;
Ban states from purging eligible voters' registration simply for infrequent voting;
Establish two weeks of in-person early voting, including availability on Sundays and outside of normal business hours;
Standardize hours within states for opening and closing polling places on Election Day, with exceptions to let cities set longer hours in municipal races;
Require paper ballots filled by hand or machines that use them as official records and let voters verify their choices;
Grant funds to states to upgrade their election security infrastructure;
Provide prepaid postage on mail ballots;
Allow voters to turn in their mail ballot in person if they choose;
Allow voters to track their absentee mail ballots;
Require states to establish nonpartisan redistricting commissions for congressional redistricting (possibly not until the 2030s round of redistricting);
Establish nonpartisan redistricting criteria such as a partisan fairness provision that courts can enforce starting immediately no matter what institution is drawing the maps;
End prison gerrymandering by counting prisoners at their last address (rather than where they're incarcerated) for the purposes of redistricting;
End felony disenfranchisement for those on parole, probation, or post-sentence, and require such citizens to be supplied with registration forms and informed their voting rights have been restored;
Provide public financing for House campaigns in the form of matching small donations at a six-for-one rate;
Expand campaign finance disclosure requirements to mitigate Citizens United;
Ban corporations from spending for campaign purposes unless the corporation has established a process for determining the political will of its shareholders; and
Make it a crime to mislead voters with the intention of preventing them from voting.

Ending Republicans’ ability to gerrymander is of the utmost importance after Republicans won the power to redistrict two-to-three times as many congressional districts as Democrats after the 2020 elections. If congressional Democrats don’t act, Republican dominance in redistricting may practically guarantee that Republicans retake the House in 2022 even if Democrats once again win more votes, an outcome that could lead to congressional Republicans more seriously trying to overturn a Democratic victory in the 2024 Electoral College vote than they did January, when two-thirds of the House caucus voted to overturn Biden's election.

If this bill becomes law, Republicans would lose that unfettered power to rig the House playing field to their advantage. Instead, reform proponents would gain the ability to challenge unfair maps in court over illegal partisan discrimination, and the bill would eventually require states to create independent redistricting commissions that would take the process out of the hands of self-interested legislators entirely.

Protecting the right to vote is just as paramount when Republican lawmakers across the country have introduced hundreds of bills to adopt new voting restrictions by furthering the lies Donald Trump told about the election that led directly to January's insurrection at the Capitol. With Republican legislatures likely to pass many of these bills into law—and the Supreme Court's conservative partisans poised to further undermine existing protections for voting rights—congressional action is an absolute must to protect the ability of voters to cast their ballots.

The most important remaining hurdle, however, is the legislative filibuster: The fate of these reforms will depend on Senate Democrats either abolishing or curtailing it. Progressive activists have relaunched a movement to eliminate the filibuster entirely, while some experts have suggested that Democrats could carve out an exception for voting rights legislation. Either way, Democrats will need to address the filibuster in some fashion, since Senate Republicans have made it clear they will not provide the support necessary to reach a 60-vote supermajority to pass H.R. 1 into law.

Democrats in Congress must pass new election reforms to save democracy from an ever more radical GOP

Posted on February 24, 2021 (Updated February 25, 2021) by Stephen Wolf

Republicans around the country are plotting a new wave of voter suppression laws in reaction to their 2020 losses, but many of their proposals can be defanged if congressional Democrats take decisive action. Just last month, Democrats introduced sweeping bills that would enact the most transformative changes to our democracy since the 1965 Voting Rights Act and provide a critical bulwark against GOP efforts to suppress votes. These reforms include:

The “For the People Act”—also known as H.R. 1—which would adopt a historic expansion of voting access policies, ban congressional gerrymandering, and create a system of public financing for congressional elections;
Legislation that would grant statehood to Washington, D.C.; and
A bill to restore and expand the Voting Rights Act's protections after the Supreme Court's conservatives gutted the VRA in 2013.

These reforms are urgently needed. Last year saw Republicans almost win full control of the federal government despite receiving millions fewer votes than Democrats at all levels—from the Electoral College down to the Senate and House. Donald Trump then followed up on this near miss by trying to overturn the results in court and in Congress, and through inciting mob violence once it was clear he had lost.

The case of the House is instructive. Thanks to widespread GOP gerrymandering, Republicans very nearly retook the lower chamber last year and might very well have done so had Democrats not brought successful lawsuits over the last decade that resulted in new maps in Florida, North Carolina, Pennsylvania, and Virginia. But it might only be a temporary reprieve: Thanks to a strong performance at the legislative level, Republicans are poised to dominate redistricting across the country just as the Supreme Court's GOP hardliners threaten to turbocharge gerrymandering.

The Senate presents a different sort of problem. As our newly published data illustrates, Democratic senators have collectively won more votes and represented more Americans than Republicans continuously since 2000 but have only run the chamber half the time since. Had Senate Republicans won just over 1,000 votes more in New Hampshire in 2016, GOP minority rule would have continued in 2020 despite Democratic senators representing tens of millions more constituents. Of course, there’s also the Electoral College: A shift of just 40,000 votes in three key swing states could have seen Trump again win the presidency last year in spite of a second popular vote loss.

Republican minority rule isn't just a threat to our elected offices. It's already a reality on the U.S. Supreme Court, where five conservative justices have been confirmed by senates where the Republican majority had won fewer votes and represented fewer people than the Democratic minority. Three of those justices were also appointed by a president who lost the popular vote.

And that’s before we even get to January’s unparalleled attacks on democracy by Republican extremists. These included the far-right insurrection that saw a violent mob ransack the Capitol, leave several dead in their wake, nearly cost elected officials their lives, and led to Trump's impeachment for the second time after he and his allies in Congress incited the violence by telling lies about voter fraud and stolen elections.

Despite that violent coup attempt, two-thirds of House Republicans and several prominent GOP senators voted just hours later that day to overturn the Electoral College results in the hopes of stealing the election for Trump. Our democracy has been increasingly under siege by the far right for years, but these attempts to overthrow it both through mob violence and congressional action mark the lowest ebb in American civic health since the Civil War.

We can reverse this decline, however, by adopting the reforms currently before Congress. But to pass them would require unanimous support among Senate Democrats and a newfound willingness to curtail the filibuster in the face of certain Republican obstruction. If Democrats don't take advantage of their fleeting chance to pass transformational reforms to our democratic institutions and protect voting rights, our democracy may not survive much longer.

A failure to act could see Republicans regain a gerrymandered majority in the House in 2022 and another majority in the Senate next year despite once again failing to win more votes or represent more Americans than Democrats. A Republican-run Congress could even try to overturn democracy outright in 2024 by rejecting the outcome of the Electoral College, just as Trump and his many allies sought to do last month.

Democracy reform must be at the top of the agenda this year, because the future of our political system—and every other policy effort—depends upon it.

Morning Digest: Expected delay in census data release could wreak havoc with redistricting timelines

Posted on January 28, 2021 by Daily Kos Elections

Leading Off

● 2020 Census, Redistricting: On Wednesday, the Census Bureau revealed that the state-level population data from the 2020 census that is needed to determine how many congressional seats and Electoral College votes each state receives is not expected to be released until April 30, four months after the original deadline. This delay is the result of pandemic-related disruption to census operations last year and Donald Trump's so far unsuccessful attempt to manipulate census data for his own partisan ends.

Additionally, the census also announced that the more granular population data needed for states to actually draw new districts won't be released until at least after July 30, which is also a delay of at least four months from the original March 31 deadline. Consequently, these delays will create major disruptions for the upcoming 2020 round of congressional and legislative redistricting.

New York University Law School's Brennan Center for Justice released an in-depth report in 2020 looking at which states have deadlines that are in conflict with a potentially delayed data release schedule and what the impact of a delay may be. The most directly affected states are New Jersey and Virginia, which are the only two states that are set to hold legislative elections statewide in 2021 and would normally redraw all of their legislative districts this year.

Campaign Action

However, New Jersey Democrats passed a constitutional amendment in 2020 that will require legislative redistricting be delayed until the 2023 state elections if the census doesn't provide the necessary data by Feb. 15, 2021, which is now virtually guaranteed. In Virginia, primary elections are currently planned for June 8, but if redistricting data isn't released until August, it would be practically impossible to conduct redistricting, hold delayed candidate filing, and hold a delayed primary with enough time before November, meaning that the current legislative districts drawn in 2011 would likely remain in place for November's elections.

The situation isn't much better for several other states that have constitutionally mandated redistricting deadlines set to kick in this summer before they could feasibly draw new districts if data isn't released until late summer. Every state constitution requires a lengthy process for amendments that includes a required voter referendum, passage in multiple years, or both, and it's thus too late to amend these constitutions to alter those deadlines this year, increasing the likelihood of litigation over failure to meet key deadlines.

One major state in particular that could be thrown into turmoil due to a delayed release of census data is Illinois, whose constitution sets a deadline of June 30 for passing new legislative districts following a census year. If legislators fail to adopt new districts by the June 30 deadline, legislators would cede control over legislative redistricting to a bipartisan backup commission where the tiebreaking member is chosen in a 50-50 game of chance between the two parties. Democrats currently hold the legislature and have been expected to have total control over redistricting, but if the process reverts to the backup commission, Republicans would have even odds of controlling legislative redistricting in this blue state.

However in the case of Illinois, the situation pivotally would depend on which year would be categorized as the census year. Normally, that would be a year ending in zero—i.e. 2020—but the Brennan Center details how Illinois leaves open the possibility for 2021 to instead be considered the census year, which would give lawmakers until June 30, 2022 to draw new legislative districts (congressional redistricting does not use the same timeline or process as legislative redistricting). It's unclear how such a determination of the census year is made, and litigation over it is a strong possibility.

Meanwhile, nearly every state has different procedures and timelines for congressional redistricting than they do for legislative redistricting, and the delayed release of census data will be less disruptive nationally at the congressional level than it may be for state legislatures.

Senate

● FL-Sen: Oh, vom. Politico reports that former Democratic Rep. Alan Grayson is making calls about a possible challenge to Republican Sen. Marco Rubio, and when asked about it, Grayson's only response was, "Repeal Rubio. That's all I have to say." Anyone but Grayson—that's all we have to say.

● KS-Sen: Former Secretary of State Mike Pompeo, who last month did not rule out a bid for governor next year, just accepted a position at a conservative think tank in D.C., which is not the kind of gig you usually take if you're planning to run for office in your home state. It's certainly not impossible, though—we've seen politicians do brief stints as Washington lobbyists before staging comebacks—so don't count Pompeo out just yet.

● OH-Sen: Team Blue is hoping that Republican Sen. Rob Portman's surprise retirement will give them a better shot at prevailing in a state that has been trending the wrong way, and more Democrats are publicly and privately discussing running. One familiar name who told CNN he was considering the contest is Franklin County Recorder Danny O'Connor, who lost two close 2018 races in the conservative 12th Congressional District against Republican Troy Balderson.

State House Minority Leader Emilia Sykes, who would be the state's first Black senator, also said she was thinking about entering the Senate race. Sykes previously expressed interest last month in campaigning to succeed cabinet nominee Rep. Marcia Fudge, if there's a special election for the safely blue 11th District, and it's not clear if she's also considering running there.

Cleveland.com's Seth Richardson also relays that former state health director Amy Acton is considering running as a Democrat, though she hasn't said anything publicly. Acton attracted state and national attention during the opening months of the coronavirus crisis through her prominent place at Republican Gov. Mike DeWine's afternoon briefings, and Richardson writes that she impressed many through her "her frank discussion of the dangers of coronavirus and the need for mitigation." Acton, who was also the target of conservative attempts to undermine her, as well as antisemitic attacks, stepped down in June.

On the GOP side, 2018 nominee Jim Renacci said Tuesday he was interested in another Senate bid and would "be exploring my options to reenter public office over the next 60 days." Renacci, who previously served four terms in Congress, has spent the last several months talking about challenging DeWine for renomination in part over the governor's efforts to limit the spread of the pandemic. Republicans who remember his 53-47 loss to Democratic Sen. Sherrod Brown, though, probably won't want him as their standard bearer for either race.

State GOP chair Jane Timken also confirmed Wednesday that she was "seriously considering" a Senate run. Timken, who won her post in early 2017 by unseating an incumbent with the Trump campaign's support, is also part of a prominent donor family in state party politics.

Two other Republicans who had shown some interest in getting in, Lt. Gov. Jon Husted and former Rep. Pat Tiberi, each said Wednesday that they wouldn't enter the race. Several unnamed Republicans also suggested to Cleveland.com's Andrew Tobias that others could stay out should Rep. Jim Jordan, a key Trump sycophant, get in, including 2012 nominee Josh Mandel. However, some unnamed observers pointed out that Jordan has talked about running statewide but never done it, and they predict that 2022 will be no different.

● VT-Sen: Democratic Sen. Patrick Leahy, who was hospitalized for a few hours on Tuesday after suffering what he described as muscle spasms, said on Wednesday that "of course" he'll continue to serve out the rest of his term but said he wouldn't make a decision about whether to seek a ninth term until the end of the year.

"You all know this, I never make up my mind until November or December the year before and I'm not going to now," said the 80-year-old Leahy. "Usually when we start skiing and snowshoeing then we talk about it." Leahy, who is currently the longest-serving member of the Senate, sounded ready to run again, saying "the latest polls show me winning easily."

● Retirement Watch: With Ohio Sen. Rob Portman's surprise announcement on Monday making him the third GOP senator to retire so far in this young election cycle, Republicans are nervously waiting to see how many more of their brethren might also call it quits. Among those on the watch list:

AL-Sen: Richard Shelby is 86 and has been in office since 1987. After last year's elections, Shelby promised a decision by January, but now he tells Roll Call's Bridget Bowman that he won't say anything more until after Donald Trump's second impeachment trial, which will not begin until Feb. 8. When asked about his plans this week by CNN, Shelby would only say, "I'll let you know." Bowman says the senator "is not expected to run for reelection."

AR-Sen: John Boozman, 70, said a year ago that he’s planning to run for a third term, and he repeated that intention this week to CNN. However, the senator has experienced some health problems that required heart surgery in 2014 and again in 2017, and he hasn’t yet announced a re-election bid.

IA-Sen: 87-year-old Chuck Grassley, who was first elected in 1980, said in February of last year that he'd come to a decision eight to 12 months before Election Day 2022, though now he seems to have moved his timetable up. In new remarks, he says he'll make an announcement in "several months." If Grassley were to run and win again, he'd be 95 years old at the end of what would be his eighth term.

ID-Sen: Mike Crapo, 69, also told CNN he plans to run for a fifth term but likewise hasn’t actually kicked off a campaign. He was treated for prostate cancer in 2000 and 2005.

MO-Sen: A spokesperson for Roy Blunt, 71, said in November that the senator would seek a third term, but now he's sounding less definitive. Blunt told Roll Call's Bowman that he's "planning on reelection, but I haven't made a final statement on that yet." In separate remarks about his plans to Politico, Blunt said, "I really have not been thinking much about it to tell you the truth. ... I keep thinking there will be a little breathing space, so far it’s not happening."

SD-Sen: John Thune, whose 60 years of age put him just below the senatorial average of 63, would only tell CNN that he'll make an announcement about a fourth term "at some point in the future." Trump exhorted Republicans to primary Thune late last year after the senator said that efforts to overturn the Electoral College "would go down like a shot dog."

WI-Sen: Ron Johnson, 65, pledged prior to his last election in 2016 that he would only serve one more term if he won, but now he's contemplating going back on his word. However, he still hasn't made up his mind about whether to break his promise and run for a third term, saying, "I don't think I have to for a while."

CNN also notes that Kansas’ Jerry Moran and South Dakota’s John Hoeven have not launched re-election bids yet, but both are in their mid-60s—relatively young by Senate standards—and joined the Senate in 2011.

Governors

● CA-Gov: Tech billionaire Chamath Palihapitiya has announced that he'll run to replace Democratic Gov. Gavin Newsom in the event a recall election moves forward, though he didn't specify which party banner, if any, he'd fly. Palihapitiya has given $1.3 million to Democratic candidates and causes over the last decade, along with one $5,000 donation to Ted Cruz in 2011.

● MD-Gov: Unnamed advisers to Baltimore County Executive John Olszewski, who previously did not rule out a run for governor, say Olszewski is now considering a bid for the Democratic nomination. Another Democrat, Howard County Executive Calvin Ball, is also not ruling out the race, according to Maryland Matters. Meanwhile, 2018 Democratic nominee Ben Jealous, who last year said he had not "closed the door on running for governor again," is staying involved in Maryland politics by taking the helm of a new marijuana reform initiative.

● SC-Gov: 2018 candidate John Warren recently refused to rule out a second GOP primary bid against incumbent Henry McMaster, and The State’s Maayan Schechter reports that he might not be the only Republican looking at this race.

Schechter writes that there’s “buzz” that state Senate Majority Leader Shane Massey could challenge the governor, and that he would not comment for her story. Massey has been a loud critic of McMaster’s response to the pandemic: Last month, Massey was one of several Republicans to prepare bills that would give legislators the final say over emergency orders.

Catherine Templeton, who also ran in 2018, said back in August that she was likely to run, though we haven’t heard anything from her since then. A runoff would take place if no one wins a majority in the first round of the primary, so McMaster couldn’t slip by with a plurality.

South Carolina has been a very tough state for Democrats especially in recent years, but a few local politicians have shown some interest in running. Former Rep. Joe Cunningham told Schechter he would consider his future "[o]ver the next few months.” Cunningham also expressed interest last year in seeking a rematch with Republican Nancy Mace, who narrowly unseated him in November, though redistricting could make that contest less attractive.

Columbia Mayor Steve Benjamin, who would be the state’s first Black governor, has also been mentioned as a prospective candidate for years, and he once again did not rule it out when asked. Benjamin and McMaster faced off in the open 2002 race for attorney general, a race McMaster won 55-44. Benjamin is up for re-election this year, and he hasn’t said if he’ll seek a fourth term.

State Sens. Marlon Kimpson and Mia McLeod also said they were thinking about a gubernatorial bid as did 2018 contender Marguerite Willis, an attorney who lost that year’s primary to James Smith 62-28. Schechter also lists former state Rep. Mandy Powers Norrell, who was Smith’s candidate for lieutenant governor, as considering, though there’s no quote from her.

● VA-Gov: A second rich dude, former private equity executive Glenn Youngkin, has entered Virginia's Republican primary for governor, just days after another finance guy, Pete Snyder, did the same. Snyder, by the way, has already released a TV ad, which the National Journal says is backed by a $250,000 buy, complaining about the slow pace of reopening schools and calling himself a "disruptor." It's not clear who he's trying to reach with this sort of advertisement, though, given that the GOP nomination will be decided by, at most, just a few thousand delegates at the party's May 1 convention.

House

● CA-21: Former Fresno City Councilman Chris Mathys, who was last seen taking a distant third in the GOP primary for New Mexico's 2nd Congressional District last year, has announced a challenge to Rep. David Valadao, one of the 10 House Republicans who voted to impeach Donald Trump earlier this month. Fresno isn't located in California's 21st Congressional District either, though it is closer than New Mexico.

● CA-39: Democrat Jay Chen, a Navy Reserve officer and local community college trustee, has announced a bid against freshman Republican Rep. Young Kim. Chen previously ran for California's 39th Congressional District in 2012, losing 58-42 to Republican Rep. Ed Royce, though the area was considerably redder back then: That same year, Mitt Romney carried the district 51-47, while in 2020, Joe Biden won it 54-44.

Chen also briefly ran here in 2018 after Royce retired, but to help avoid a disaster in the top-two primary, he took one for the team and dropped out in order to reduce the number of Democratic candidates and, thereby, the chance that a fractured voted would allow two Republicans to advance to the general election.

● PA-07: Republican Lisa Scheller, who lost to Democratic Rep. Susan Wild 52-48 last year in Pennsylvania's 7th Congressional District, has filed paperwork with the FEC in anticipation of another congressional bid, though it's not clear exactly where she might run. Redistricting is set to scramble Pennsylvania's map, and mindful of that, Scheller changed the name of her campaign committee from "Scheller for PA-07" to "Scheller for Congress, Inc." (no, we don't know why she thinks she's running a corporation). She's promised "a more formal announcement" about her plans over the summer.

● PA-10: Politico reports that, according to an unnamed source, the DCCC is trying to recruit 2020 nominee Eugene DePasquale for another go at Republican Rep. Scott Perry in Pennsylvania's 10th District. DePasquale, whose press list has understandably been largely dormant since November, recently put out a statement calling on his former opponent to resign after the New York Times reported that he played a central role in trying to overturn last year's presidential election.

Perry, the Times said, introduced Donald Trump to a Justice Department attorney who proposed ousting acting Attorney General Jeffrey Rosen and directing the DOJ to pressure Georgia officials into altering their state's results. The congressman later confirmed the report. DePasquale wound up losing to Perry by a 53-47 margin last year but he insisted to Politico that the surge in Republican enthusiasm generated by Trump's presence on the ballot "will not be in play in 2022."

Legislatures

● Special Elections: Here's a recap of Tuesday's special election in Iowa:

IA-SD-41: Republican Adrian Dickey defeated Democrat Mary Stewart 55-45 to hold this seat for the GOP. An unusual complicating factor arose on Election Day when a major snowstorm hit southeastern Iowa, and Democrats were reportedly leading in mail ballots heading into Tuesday. This was enough to make Dickey himself nervous about the final outcome, but the red tilt of this district was enough for him to prevail.

While Stewart did worse than in her first bid for this seat, a 52-48 loss to Mariannette Miller-Meeks in 2018, she was able to once again improve upon Hillary Clinton's 57-38 loss here in 2016.

This chamber moves to a 32-18 advantage for Republicans with no other vacancies.

Mayors

● Detroit, MI Mayor: Incumbent Mike Duggan got his first notable opponent for the August nonpartisan primary on Tuesday when Anthony Adams, who served as deputy mayor in former Mayor Kwame Kilpatrick's administration, launched his campaign.

Adams, who is also a former school board president, argued that “there is a dramatic need for mayoral change in the city of Detroit." Adams also played down his ties to Kilpatrick, who resigned in disgrace in 2008, saying, "I am my own man and I'm running on my own record." Kilpatrick, who was later sentenced to 28 years in prison for corruption, was in the news last week after Donald Trump commuted his punishment, a decision that Duggan praised.

Meanwhile, school board member Sherry Gay-Dagnogo said this week that she planned to sit the contest out. The former state representative didn't quite rule out a bid, though, saying instead that she wouldn't run "[u]nless there is a massive cry for me to reconsider." The candidate filing deadline is April 20.

● New York City, NY Mayor: Businessman and 2020 presidential candidate Andrew Yang has released a survey of the June Democratic primary from Slingshot Strategies that gives him a 25-17 lead over Brooklyn Borough President Eric Adams, with City Comptroller Scott Stringer in third with 12%, though a hefty 32% of respondents are initially undecided. The survey then simulates the instant runoff process and shows Yang defeating Adams 61-39 on the 11th and final round of voting. This poll, which was in the field Jan. 15-19 and sampled 800 people, is the first survey we've seen since Yang joined the race earlier this month.

Meanwhile, Marine veteran Zach Iscol announced this week that he was dropping out of the race and would instead run to succeed Stringer as controller. Around that same time, though, businesswoman Barbara Kavovit, who was a regular on the "Real Housewives of New York City," kicked off her own campaign for the Democratic mayoral nomination.

● Seattle, WA Mayor: Colleen Echohawk, who leads the nonprofit Chief Seattle Club, announced Monday that she would run to succeed retiring Mayor Jenny Durkin this year. Echohawk, who is a member of both the Kithehaki Band of the Pawnee Nation and the Upper Athabascan people of Mentasta Lake, would be the first woman of color to lead Washington's largest city.

Echohawk has not run for office before, but she has been prominent in local government. In addition to serving on the Community Police Commission, she also founded the Coalition to End Urban Indigenous Homelessness and previously served on the Downtown Seattle Association's board.

Echohawk joins Lance Randall, the director of economic development of the nonprofit SEED, and architect Andrew Grant Houston in the August nonpartisan primary, though it remains to be seen if either of them have the connections to run a serious bid. The candidate filing deadline is in May.

Other Races

● New York City, NY Comptroller: The City's Rachel Holliday Smith takes a look at the June Democratic primary to succeed Scott Stringer, who is running for mayor, as New York City comptroller, a post that has plenty of influence over the nation's largest city. Democrats have controlled this office since 1946, and Team Blue's nominee should have no trouble holding it.

First, though, Smith discusses what the comptroller actually does. Among other things, the office is responsible for reviewing contracts, auditing and overseeing city agencies, and "[e]nsuring transparency and accountability in setting prevailing wage and vigorously enforcing prevailing wage and living wage laws." The comptroller is also one of only a trio of citywide elected offices: The other is public advocate, where Democratic incumbent Jumaane Williams doesn't face any serious opposition for re-election this year.

What the comptroller's post hasn't been, though, is a good springboard to the mayor's office. The last person to successfully make the jump was Democrat Abe Beame, who was elected mayor in 1973 on his second try and lost renomination four years later. Since then four other comptrollers have unsuccessfully campaigned for the city's top job, a streak Stringer will try to break this year.

Six notable Democrats are competing in the June primary, which will be decided through instant runoff voting. The two with the most cash by far are City Councilman Brad Lander and state Sen. Brian Benjamin, who have both brought in enough to qualify for matching funds (a system we explain here).

Benjamin, though, earned some unwelcome headlines earlier this month when The City reported that multiple donors said that they had not actually contributed any money to his campaign, and some even volunteered that they had never even heard of Benjamin. One of his unwilling donors said that he didn't blame Benjamin for what happened and instead said the problem rested with his former employer. Benjamin's team soon announced that they would give the New York City Election Campaign Finance Fund $5,750, which represented 23 donations of $250 each.

Assemblyman David Weprin, who unsuccessfully ran to succeed the disgraced Anthony Weiner in the 2011 special election for what was numbered the 9th Congressional District at the time, and state Sen. Kevin Parker have also been campaigning for a while. Neither of them have the resources that Lander or Benjamin do at the moment, though they could receive a big boost if they qualify for matching funds: The New York Times reports that Weprin has likely brought in enough, though the campaign finance board needs to confirm this before it dispenses any public money.

Two other Democrats also joined the race this week. Marine veteran Zach Iscol, a moderate who is close to Hillary Clinton, abandoned his mayoral bid to run here. Iscol will be able to transfer the cash he raised for his previous campaign to his new race, which could matter quite a bit: While he fell about $20,000 short of the minimum needed to qualify for public money for mayor, the Times reports that he's likely already hit the lower threshold needed for the comptroller contest.

The other new contender is Michelle Caruso-Cabrera, a former CNBC anchor who challenged Rep. Alexandria Ocasio-Cortez in last year's Democratic primary. Caruso-Cabrera, who ran well to the congresswoman's right, raised millions from AOC haters nationwide and self-funded over $1 million, but she lost by a lopsided 74-18 margin.

Data

● Pres-by-CD: Our project to calculate the 2020 presidential results for all 435 congressional districts nationwide hits Kentucky. You can find our detailed calculations here, a large-size map of the results here, and our permanent, bookmarkable link for all 435 districts here.

Donald Trump won the Bluegrass State 62-36, which was pretty similar to his 63-33 performance in 2016, and he once again carried five of Kentucky's six congressional districts. The one exception was, as before, Rep. John Yarmuth's 3rd District in Louisville, which is also the only Democratic-held seat in the commonwealth: Joe Biden took the seat 60-38, compared to 55-40 for Hillary Clinton four years earlier, a shift due in part to the decline in third-party voting.

The closest constituency was again the 6th District in the Lexington area, where Trump's margin shrunk a bit from 55-39 in 2016 to 54-44 in 2020. Republican Rep. Andy Barr won re-election in 2018 by beating Democrat Amy McGrath just 51-48 in a very expensive race, but Barr had a much easier time last year and prevailed 57-41.

Trump took at least 65% of the vote in the remaining four GOP-held seats. His strongest performance in the state was his 80-19 romp in veteran Rep. Hal Rogers' 5th District in rural eastern Kentucky, which makes this the Trumpiest of the 345 seats we've released numbers for so far. (The seat that got displaced for that title, though only just, was Texas' 13th District, which backed the top of the ticket 79-19.) Believe it or not, though, Trump's 2016 margin in this coal country constituency was slightly larger at 80-17.

The 83-year-old Rogers has decisively won re-election 20 times, but this area was extremely divided when he was first elected in 1980. The current version of the 5th District contains several ancestrally Democratic areas that favored Team Blue even in tough years, including Elliott County, which famously never supported a Republican presidential nominee from the time of its formation in 1869 through 2012—the longest streak of Democratic support in any county in the country. Those days are long gone, however, as Trump carried Elliott County with 70% in 2016 and 75% last year.

The 5th is also home to areas that were deep red even when Democrats were the dominant party statewide, as they were at the time Rogers was first elected. This includes Jackson and Leslie Counties, which have not once backed a Democrat for president since they were created in the 19th century. They're not likely to start anytime soon, either, as Trump won close to 90% in both.

Kentucky Democrats, thanks in large part to their downballot dominance in parts of the eastern part of the state, ran the state House nonstop from the early 1920s through the 2016 elections, which always gave them at least a seat at the table for redistricting. The GOP took firm control of the legislature for the first time ever when Trump first won the state, though, and they have more than enough votes to override any possible veto by Democratic Gov. Andy Beshear and pass their own maps for the first time.