It’s right there in the name of the show, so yeah, of course we’re gonna talk about downballot races on this week’s episode of “The Downballot”! Specifically, we drill down into the top contests for attorney general and state supreme court taking place all across the country this year. Democrats and liberals are playing defense in Montana, North Carolina, and Pennsylvania, but they have the chance to make gains in many states, including Michigan, Arizona, Ohio, and even Texas.
Co-hosts David Nir and David Beard also recap Tuesday’s runoffs in the Lone Star State, where a GOP congressman barely hung on against an odious “gunfluencer.” They also dissect a new Supreme Court ruling out of South Carolina that all but scraps a key weapon Black voters have used to attack gerrymandering. And they preview New Jersey’s first primaries in a post-“county line” world.
Subscribe to “The Downballot” wherever you listen to podcasts to make sure you never miss an episode. New episodes come out every Thursday morning!
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. You can subscribe to “The Downballot” wherever you listen to podcasts to make sure you never miss an episode.
Beard: Let’s dive into today’s episode. What are we talking about?
Nir: Well, we are recapping Texas runoffs, where a Republican congressman survived by the skin of his teeth, as did the GOP speaker of the state House, but there is still a major blood-letting going on in the state. Then we are discussing a new Supreme Court ruling that has once again undermined the cause of fighting against gerrymandering. And then we have more primaries coming up next week. We are previewing a top race in New Jersey as a table-setter for the month of June.
Then on our deep dive, we are discussing some of our absolute favorite types of races here at “The Downballot.” We are covering the most important contests for state Attorney General and state Supreme Court across the country. These are the sorts of races that you need to learn about so that you can tell all your friends about them. We have a ton to cover on this episode, so let’s get rolling.
Nir: Well, we wrapped up May with a few runoffs down in Texas, and we need to recap some of the top results.
Beard: Yes. Now, the Tuesday after Memorial Day is probably not the best day to hold an election, but Texas has never been accused of making voting easy, so here we are nonetheless. Now in Texas’s 23rd district, that’s a district that stretches from El Paso to San Antonio, Representative Tony Gonzales is an incumbent Republican. He really, really narrowly defeated his primary opponent, gun influencer — whatever that is — Brandon Herrera, by just 407 votes. That’s less than a 1.5% margin.
Herrera is really, really far out there, very far right. He’s mocked veteran suicide. He’s mocked the Holocaust, even Barron Trump. You know you’re getting too far out there when you’re mocking Trumps because that’s the one thing that’s supposed to be off-limits. But despite that, he almost knocked Gonzales off, but Gonzales held on.
Nir: Yeah, Donald Trump didn’t weigh in on this race. Maybe if Herrera had managed to shut up about his son, he would have, because that clearly would’ve been a difference-maker.
Beard: And Gonzales had called him a neo-Nazi. He’d bashed the other congressional members of the Freedom Caucus who’d come out and supported Herrera. Gonzales said, “It’s my absolute honor to be in Congress, but I served with some real scumbags,” which I can’t disagree with, but that’s his own party, so you think he’d be a little nicer about it.
Now, Gonzales’s side heavily, heavily outspent Herrera’s, so it’s very easy to imagine a less crazy far-right person primarying Gonzales next time, and him either losing in the primary or retiring ahead of 2026.
Nir: I could see someone just as crazy as Herrera, if not Herrera himself, doing it. I mean 407 votes. Now, yeah, like you said, right after Memorial Day turnout is very low; a weird electorate, not the usual electorate that you see for a primary. But Gonzales represents a pretty conservative district that Republicans helped gerrymander to make it redder. So he’s very likely to win in November. But after that, I’d be pretty surprised if he comes back for a further term beyond that one.
Beard: Honestly, if Herrera had just not attacked Barron Trump, there’s every chance Trump might’ve endorsed him and he would’ve won. So I could very easily imagine either Herrera or someone else winning this in 2026.
Nir: So the other big set of races in Texas were a whole batch of Republican runoffs for the statehouse. A whole bunch of Republican incumbents were in jeopardy because of various vendettas by major figures in their own party, particularly Attorney General Ken Paxton and Governor Greg Abbott. But somehow Speaker Dade Phelan managed to survive in a huge surprise; he defeated fellow Republican David Covey by also just under 1.5 points.
Covey had actually led Phelan 46 to 43 in the first round of voting, which was way back in early March. So this really did feel like an upset, but almost all of the other Republican incumbents in the House who were on the ballot on Tuesday were not as lucky as Phelan. Six of the other seven lost. That’s on top of nine who lost outright in March in the first round of voting.
Beard: Now, the interesting thing here is that there were two different operations underway going after some of these incumbent Republicans. There was Governor Greg Abbott, who was spending a lot of money targeting Republicans who opposed his plan to give taxpayer money to private schools, causing it to fail. Attorney General Ken Paxton was on a revenge tour against the Republicans who had voted to impeach him on corruption charges last year. There was a lot of overlap between those two groups, but it wasn’t universal.
Now, Abbott was already declaring victory for his school voucher plan claiming on Tuesday night that the legislature now has enough votes to pass school choice because of all of these primary defeats of Republicans. Of course, there are elections in November and it’s not clear the exact makeup of how many Democrats might defeat some of these Republicans to make that not the case.
Nir: Yeah, it’s absolutely not surprising to me at all that Greg Abbott was counting his chickens immediately on runoff night. It’s not entirely clear whether Democrats can flip enough seats held by pro-voucher Republicans to thwart the Abbott voucher agenda, but it’s certainly possible, especially if Democrats have a good year in Texas, which is also possible.
So yeah, let’s maybe wait until this thing called “elections” happens. As for Paxton, he immediately threatened any Republican who might vote for Phelan to return as Speaker next year. Phelan was largely in Paxton’s crosshairs as opposed to Abbott’s. Phelan had overseen the impeachment vote, but he also wasn’t especially aggressive in pushing Abbott’s voucher plan either. So I’m sure Abbott wouldn’t mind seeing him replaced.
It’s an open question as to what’s going to happen next year. It certainly seems like Phelan does have a lot of supporters in the statehouse, but this is one of just many state legislatures across the country where Republicans are in bitter disarray and there’s huge infighting over who should actually lead them. I think we’re going to see many more messy battles come January,
Beard: And to be clear, Phelan is no moderate. This is not a case of the moderate caucus in the Texas Republican Party.
Nir: Yeah, that’s funny.
Beard: Growing or losing, there’s not really a moderate caucus at all. Phelan is very much his own man. He has his own opinions about Paxton: he is this corrupt guy, and so we should impeach him. He didn’t feel like he should push through the school voucher plan over a lot of Republican’s objections. And for that, Abbott and particularly Paxton, don’t like him because he won’t do what they say, and so that’s why he might not be Speaker again.
Nir: Moving on from Tuesday’s runoffs, we need to discuss the recent big Supreme Court ruling out of South Carolina. To catch you up on this one, the Supreme Court overturned a lower court ruling that said that South Carolina Republicans had engaged in illegal racial gerrymandering in drawing their new congressional map. So by way of background, Republicans had moved tens of thousands of Black voters from the 1st district, which had seen competitive elections in both 2018 and 2020 to the dark blue 6th district, and they did so knowing that Black voters overwhelmingly vote Democratic.
But thanks to prior Supreme Court precedents that were actually pushed by conservatives decades ago, it’s generally impermissible to divide voters by race this way. So something has changed in the past few decades, and I’ll tell you what it was. This new opinion was authored by Sam Alito, who of course has been in the news lately for the insurrectionist flags that just somehow seemed to keep getting flown at his various homes, but he can’t do anything about it. I mean, God, you really got to feel for this guy. I find this happens to me all the time. You too, right?
Beard: Yeah. I hate it when others in my household fly insurrectionist flags. It’s such a common problem.
Nir: So Alito, who totally is not an insurrectionist, and his fellow conservatives did something really extreme with this ruling, which is that they rejected the findings of fact by the trial court, and this is very rare. Speaking in broad terms, courts make two types of assessments. They determine the facts of the case, and then they apply the law to those facts.
Normally, an appellate court sticks to reviewing the law, and there’s good reason for that. It’s the trial court judges who are actually in the courtroom. They’re the ones hearing testimony from witnesses, judging credibility, and taking in all the million intangible things that simply can’t be conveyed by a transcript or a written opinion.
But Alito said nope. He said the court was wrong in how it adduced the facts. He said that legislatures must be entitled to a presumption of good faith when they draw maps, which essentially makes it impossible for anyone to ever prove racial gerrymandering again. If legislators are entitled to a presumption of good faith, then as election law expert Rick Hasen put it, you basically need smoking gun evidence to have any chance of overturning that.
And these Republican lawmakers, they might be crazy, but they aren’t stupid, and they read these Supreme Court opinions and they know exactly what they should shut up about or not send emails about, and they’re going to make it almost impossible for anyone to ever find the kind of extremely burdensome evidence that you would need to prove a racial gerrymandering case ever again.
So the idea of a racial gerrymandering claim that you can’t divide voters by race is something that conservatives on the court had really come up with decades ago. And Rick Hasen noted something interesting about the history of these cases. He pointed out that in the 1980s, it was white Republicans who were trying to undo newly created Black districts in the South that the DOJ was pushing states to create, under the DOJ’s interpretation of the Voting Rights Act.
But over the ensuing decades, Republicans took power throughout the South and they started using race as a proxy for partisanship, just like in this South Carolina case, in order to curtail Black voting power by cracking and packing Black voters to minimize their ability to elect Black Democrats. So Black voters started bringing racial gerrymandering cases and they had some success in knocking down some of these districts where Republicans had really cherry-picked and drawn lines based on voters race.
So it’s really a very obvious and naked turnaround on the part of Alito and his fellow conservatives because this tool, these racial gerrymandering claims, were once very helpful to Republicans in striking down majority-black districts. Now it’s been turned against them. And so the far-right conservatives on the Supreme Court want to scrap it. It really couldn’t be more obvious, and it is yet another tool in the toolbox, that advocates for Black voting rights and for voting rights for people of color are simply going to be almost unable to use.
Beard: Yeah, and what we’ve seen pretty consistently with the Supreme Court is that it is not terribly interested in a lot of legal details and running through the exact way something should be done. It’s interested in outcomes. The conservatives on the court want certain outcomes. They clearly wanted a specific outcome in this case to let Republicans have a freer hand to gerrymander and not have these restrictions around race.
And so they got to where they wanted to go by going into stuff like you talked about the facts of the trial court as opposed to the law because they wanted to get to the outcome. So they got to the outcome they wanted, even if it was a really ugly way to get there.
Now, one last topic we wanted to cover for our weekly hits. We’re going to have a full June primary preview with Daily Kos Elections editor Jeff Singer next week. But there was one June 4th race that we wanted to highlight ahead of that, and that’s New Jersey’s 8th district where incumbent Democratic representative Rob Menendez is facing off against Hoboken Mayor Ravi Bhalla.
Now, Bhalla is hoping that the ongoing trial against Senator Bob Menendez is going to drag down his son. Bhalla has said that voters should fire the “entitled son of corrupt Bob Goldbars Menendez.” In response to that, the younger Menendez ran an ad saying, “My opponent wants to run against my father because he is scared to run against me. That’s on him.” So there’s a lot of back and forth about, are you running against Bob Menendez? Are you running against Robert Menendez?
Of course, so Rob Menendez became a congressman, at least in part due to the fact that his father was Senator Bob Menendez. So now the fact that it’s a downside is also going to affect him, in the way that it was an upside before. One other note is that there’s a third candidate on the ballot, businessman Kyle Jasey. So conceivably, we could see one of these candidates win with less than 50% support, more likely Menendez who might be able to squeak through if some of the opposition votes are divided between the two candidates.
Nir: And also, of course, we have talked a lot on the show about New Jersey’s county line where party-endorsed candidates would receive favorable placement on primary ballots. Of course, as “Downballot” listeners very well know, the county line is no more, as of Tuesday’s primary, so that’s going to affect Democratic primaries all up and down the ballot. And it’s possible that it could have an impact here because Menendez ordinarily would’ve had that favorable placement.
In fact, he was on track. He got endorsed by all of the county Democratic parties in the 8th district, which is a deep blue district. So whoever wins the Democratic primary is definitely going to win in November. So it’ll be a really, really interesting test.
The lawsuit to bring an end to the line was chiefly brought by Andy Kim in the Senate race, but of course, he no longer has any top-tier opponents. So it’ll be really interesting if the major test case for it against an incumbent winds up happening in the district held by the son of the guy that Kim was looking to boot from Congress.
Beard: And if you remember, for everyone outside of New Jersey who maybe isn’t super familiar with how the line worked or how it looked, Menendez would’ve been in this grouping with Joe Biden, with Andy Kim, with all these other incumbent Democrats in this line that the county party endorses and then Bhalla would’ve been in a different section without any of those fellow incumbents or very well-known names now like Andy Kim. So the fact that the line isn’t there and they’re just both listed for an office is a huge, huge difference, and we’ll see if that knocks Menendez off come next week.
Nir: There are several other primaries in New Jersey taking place on Tuesday night, including in the race to succeed Andy Kim in the 3rd district. There are also primaries in other states including Montana, where there is an open seat, thanks to Matt Rosendale finally deciding to completely bail on Congress altogether. We will be recapping those next week, and as David Beard said, we will also be previewing the many, many additional primaries coming up in the rest of June with Jeff Singer next week.
That does it for our weekly hits. Coming up after the break, we are taking a deep dive far down the ballot into some of our favorite sorts of races. We are talking about attorneys general and state Supreme Courts who know that these are favorite topics here at “The Downballot.” But they don’t get enough recognition, so we are going to be rounding up all of the top races that should be on your radar this year.
Nir: Today for our deep dive on “The Downballot,” we are talking about statewide elections below the top of the ticket that don’t get as much attention as they deserve. Specifically, we are going to round up the top elections in 2024 for Attorneys General and state Supreme Court. Now, you might notice there’s one category missing that we often talk a lot about at Daily Kos Elections, and that is Secretaries of State.
As you know, most elections for state office take place in midterm years. There are far fewer that happen simultaneously with presidential elections. And while there are a few Secretary of State elections on the ballot this year, none of them look like they’re going to be particularly competitive in November. However, for Attorneys General, we have two major open seats in two super important swing states. So we are going to dive right in to talking about Pennsylvania.
Now in Pennsylvania, we have an open seat because of the Democratic governor — that’s Josh Shapiro, who of course won in 2022 in huge fashion over far-right Republican lunatic Doug Mastriano. When he left the post of Attorney General to become governor, he appointed one of his deputies, Michelle Henry, in his place. But Henry declined to run for a full term, so that created the open seat that we have now, and Pennsylvania had primaries last month.
The Democrat who emerged as his party’s nominee is a former statewide elected official, Eugene DePasquale. He used to be the state auditor. He also ran an expensive race for the US House after being termed out after two terms in the auditor’s role.
Beard: Now the Republican nominee is York County District Attorney Dave Sunday. York County is a midsize county, sort of west of the main Philadelphia suburban counties, but certainly a little bit of a voter base. Now, Democrats are on a three-cycle winning streak for this office. They won it in 2012, 2016, even though Trump won the state, and then again in 2020, so they’ll be looking to win it for a fourth straight term.
Nir: This is one of the most high-profile AG positions in the country, in part because of Pennsylvania’s large size and also simply because Pennsylvania is a swing state. Shapiro really surged in prominence following the November 2020 elections when Donald Trump unleashed his Kraken trying to overturn the outcome of the election, and Shapiro heavily defended the state’s elections in court.
He had also tangled a lot with Trump in the years before, but he got to stand up as a defender of democracy and also just made Donald Trump lose many, many times in court. He totally humiliated him. So it’s very possible that the current incumbent, who is Henry, who is not seeking another term might play a similar role after this November, but Democrats very, very badly want to keep this job so that Republicans can’t pull this kind of crap and potentially find an ally in the Attorney General’s office after future elections.
Beard: And DePasquale is a good candidate. Obviously, he has won statewide before. That’s what you want for an office like that. So I think that probably gives him a bit of a leg up, but this will certainly be very, very competitive into November.
Now, the other big Attorney General race that we’re going to be focused on is in North Carolina. It’s another open seat. Josh Stein is running for governor. That’s the Democratic incumbent. So that leaves two Representatives who are going to be duking it out for the office. For the Democrats, that’s Representative Jeff Jackson, and for the Republicans, Representative Dan Bishop. Now Jackson is a freshman from the Charlotte area who won under the fair maps that North Carolina briefly had in 2022. He has since been redistricted out of a seat that he couldn’t ever possibly win, and so he decided to instead run for Attorney General, a statewide office that can’t be gerrymandered.
Meanwhile, Dan Bishop is a far-right House Freedom Caucus member, really beloved by the Trumpist wing of the party. He’ll be the standard bearer for all of that craziness. It should certainly be a very competitive race. Democrats have held the seat for quite a while. Stein, of course, has won it twice, and before that, Roy Cooper was the Attorney General for a number of years. So there’s been a long streak of Democratic Attorneys General, which we’ll be hoping to of course see continue with Jackson in November.
Nir: I’ve got to say, I’m a huge Jeff Jackson fan on a personal basis. He puts out this phenomenal newsletter totally for free. It’s extremely well written and it gives insight both into his life as a member of Congress on the Hill and just the kind of day-to-day stuff that he deals with and sees, often stuff that doesn’t make it into media reports. And he really shares things in a very clear and understandable way.
And then he also devotes some coverage to his race for Attorney General. So if you like our style of coverage on “The Downballot” of elections, you’d love his newsletter. And if you like congressional goings-on, you’d also love his newsletter. Definitely recommend it.
On a less fanboyish level, I will say that I think it’s very possible that Republicans could live to regret redistricting Jackson out of his seat. I’m sure Democrats would have found a strong nominee regardless, but Jackson really cleared the field. He did have some opponents in the primary. They really did not run impressive campaigns.
And Bishop, meanwhile, isn’t just a far-right nut job. He’s the guy… Beard, I know I hardly need to remind you of this… who was the architect of North Carolina’s infamous bathroom bill, the anti-trans “bathroom bill” that led to Governor Pat McCrory losing in 2016 to Roy Cooper, who of course as you noted was Stein’s predecessor.
So I wonder if that kind of extremism might come back to haunt him. Also, we haven’t yet really mentioned abortion, but you know abortion is going to play a big role, especially in North Carolina where Republicans did pass an abortion ban, thanks to that turncoat Democrat in the legislature. And Bishop, of course, is as crazy and extreme as they come on abortion.
Beard: Yeah, it seems like every Attorney General or state Supreme Court race that’s in a red or purple state, we have a big like… And also abortion is a huge factor in this race for, of course, understandable reasons because for anybody who lives in North Carolina or Arizona that we’re going to talk about, or Montana, which we’re going to talk about, this is the main way to affect abortion rights in the state is some of these races. So that’s of course going to come up again and again.
It is funny to think about how Bishop led to McCrory’s defeat in 2016. He could very well lead to Jackson now becoming Attorney General if he loses that race. So maybe in a weird way, he is a bad luck charm for Republicans when you go to these competitive races and hopefully, it’ll work out well for Jeff Jackson.
Nir: I should also mention that DePasquale in Pennsylvania has been emphasizing abortion as well. Their abortion rights are under much less threat. You have a Democratic governor, of course, who we just mentioned, Shapiro, who is not up for reelection until 2026. The statehouse is currently under Democratic control and also the state Supreme Court has a wide democratic majority.
But it’s Pennsylvania. Republicans used to hold the governorship not all that long ago. They had a hammerlock in the legislature for years and years. They controlled the state Supreme Court, so you could imagine things going sideways for abortion rights in Pennsylvania. So yeah, that is going to be a top topic in every race, whether it’s a slightly blue-leaning state or a straight-up swing state or a red-leaning state, it’s going to be everywhere.
Beard: Yeah, absolutely. And I think that’s also a good reason to transition to the other races that we wanted to talk about, which is state Supreme Court races. And we’re going to stay in North Carolina where there’s a very important state Supreme Court race. Allison Riggs is an appointed justice on the North Carolina Supreme Court, appointed by Governor Cooper. She’s going to be running for a full term. Her Republican opponent is Court of Appeals judge Jefferson Griffin, which I think is the most Republican judge name I’ve ever heard. Maybe for the South, I guess that’s it. But Jefferson Griffin is just such a Republican judge name. It’s wild.
So he’s the GOP candidate, with Democrats holding the seat. If Riggs wins, that would maintain a five to two minority on the court, but it would keep the Democrats at their current two seats, and then obviously open up for gains when the Republican seats come up in future years. So it’s very, very important to hold its seat not to go down to six to one.
Nir: Yeah, we have talked before on the show about the path back for Democrats in North Carolina. With the current far-right Supreme Court green-lighting gerrymandering, and with Republicans holding a hammerlock on the legislature, you got to win the governorship and you got to try to chart a path back to the majority on the state Supreme Court.
We talked about a five-year plan — not that kind of five-year plan, the good kind. Democrats could conceivably win a majority by 2028. We laid out this plan last year in case you’re doing the math. So yeah, that was five years ahead. That is of the utmost importance because retaking that Supreme Court would allow the court to once again outlaw gerrymandering and create a fair and level playing field for the state legislature.
It starts by keeping this seat getting back to a majority on the state Supreme Court, which Democrats had as recently as 2022 is really only going to be possible if we can keep it at five-two and not go down to six-one.
Beard: Now, just before we leave North Carolina, I did want to flag there are a ton of competitive downballot statewide races here, not just the Attorney General race and the state Supreme Court race. We’re not going to cover them right now, but there’s a competitive Lieutenant Governor race. There’s a competitive Commissioner of Labor race; there’s a competitive Superintendent of Public Instruction race. North Carolina has a lot of statewide offices and a lot of them are very competitive. So if you’re in North Carolina, keep your eyes peeled on all of those.
Nir: Sticking with state Supreme Courts, we’re going to run through several other states as well. We also mentioned on the show previously, Arizona, which has different sorts of elections. These are retention elections for two conservative justices on the state Supreme Court there. That just means voters get to vote either yes or no, keep this person on the court, or declare the seat vacant and let the governor, who is Democrat Katie Hobbs, appoint a replacement.
Now retention elections — these are almost always won by incumbents. It’s very rare for anything else to happen. However, in Arizona just a couple of years ago, a few lower court judges lost retention elections. So I wouldn’t want to rule out the possibility of either Clint Bolick or Kathryn Hackett King losing in November, specifically because they were part of the court majority that upheld Arizona’s Civil War era ban on almost all abortions.
Now, lawmakers, despite the fact that the legislature is run by Republicans, actually quickly convened and voted to repeal that ban. But I think that anger isn’t going to fade over this issue. Abortion is going to remain the top issue in the state, especially because there’s also going to be a ballot measure for an amendment to enshrine abortion rights in the state constitution. There was another abortion ban, less restrictive, but that the GOP passed in more recent years that would conceivably come back into play if this amendment doesn’t pass in November.
And Beard, I was reading an article that came out just on Wednesday about abortion and state Supreme Courts in the Los Angeles Times by Faith Pinho. There was a quote that I thought was interesting from a professor at UNLV, Rebecca Gill, who said, “Usually, I would never put a dime on betting in favor of someone losing a retention election,” speaking of Arizona. “But in this one, I’m actually kind of thinking it’s a little bit more plausible.”
Well, Professor Gill, I totally agree with you. I really do think it’s plausible. Progressives are starting to mobilize to focus on these races. I think one of the difficulties is that you do have so much going on in Arizona. You have the presidency, for which Arizona is now a swing state. You have the Senate race, Ruben Gallego versus Kari Lake. You have the fights over the state legislature where Republicans hold just a tiny advantage in both chambers.
So the real fight I think will be for attention, but I don’t think it’ll cost that much money to run good campaigns because it’s not like you have to fund a whole candidate and their staff and find someone to run. All you have to do is run negative ads, say vote no on retention, and end of story.
Beard: Yeah, I think there are two main things that you need for a retention election to potentially result in not retaining that person who’s in office. And that’s one, you need an issue that people care enough about, and two, it is heard enough about that even voters who are not tuned into politics are aware of it and what happened.
And I think abortion is something that definitely meets that threshold. We saw in previous decades that same-sex marriage was something that sort of permeated enough through regular voters who don’t pay attention to the day-to-day ins and outs of politics, that it became an issue in some retention elections in other states. So I think abortion definitely rises to that level.
And then you also need voters to be enough on the side against the judge in sufficient numbers to then obviously vote them down because you’re always going to lose some really low-information voters who just don’t know enough to do anything other than check retain because they’re like, “I don’t know, they’re judges, they’re in office, sure.” They’re always going to have some of those voters. And so you have to not just have 51% of voters who wouldn’t like their ruling on abortion and would consider voting them down, you need a much larger percentage.
But I think both of those things are here. I think reproductive rights are popular enough in Arizona, and I think it’s salient enough for Arizona voters that it’s going to be a real possibility.
Nir: Now, one thing we need to mention about Arizona is that all seven justices were appointed by Republican governors. So it is a very conservative court; on that abortion ruling in the 1860s abortion ban case, two of these conservative justices actually voted against. But it would obviously be a while — even if Bolick and King were to lose in November — before Democrats could actually install a more progressive majority on that court.
But again like we were saying with North Carolina, you got to start somewhere, and this is the year to start.
Beard: Now moving to another state with some key state Supreme Court races, which is Michigan, where Democrats currently hold a four to three majority on the court. There are two seats up for election. Kyra Harris Bolden is a Democrat who was appointed to a seat by Governor Whitmer and she’s running for the remainder of the term she was appointed to. There’s another seat that’s for a full term; it’s held by a Republican. That Republican is retiring, not running for re-election, so it’s an open seat.
We have a Democratic candidate already, that’s Kimberly Thomas. The Republicans haven’t chosen a nominee yet, so that’s still to be determined. Obviously, if Democrats are able to pick up this seat, that would turn the court from a four-to-three Democratic majority to a five-to-two Democratic majority. It would certainly make the court a more stable Democratic majority. They could afford a loss of an individual justice on certain issues or if they were to lose a future race and still hopefully maintain that majority. So it’s definitely important to get up to that five to two majority.
Nir: So a couple of things worth noting about Michigan that differ from the states we’ve mentioned previously, North Carolina elections, straight up partisan. You have D and R labels on the ballot. In retention elections in Arizona, there are no partisan labels at all. Michigan is a weird hybrid because parties nominate candidates, but then on the general election ballot, there are no party labels. But what there is, is a designation on the ballot of who the incumbents are.
We saw this exact same thing happen in Georgia just the other week when Democrat John Barrow lost that race. One huge disadvantage he had is that the conservative incumbent got listed as the incumbent on the ballot, and that’s also going to be the case in Michigan. But that’s why it’s such a huge deal that this Republican justice, David Viviano, decided to retire because in this open seat race. Then it’s simply a matter of educating voters about who the Democrat is and who the Republican is.
And Michigan, obviously it’s a swing state but hopefully still a little bit blue-leaning, that ought to give Democrats a bit of an advantage in that race. Meanwhile, Kyra Harris Bolden, the Democratic incumbent, she will be identified as the incumbent. So hopefully, that gives Democrats the edge that they need in order to have a shot at moving the court to a five-two majority.
So we’re going to move on to Montana. This is yet a different situation still. The way that states conduct Supreme Court elections tends to vary a lot from one another. Montana races are strictly nonpartisan, at least on a formal basis, and that’s rather similar to what we saw in Wisconsin. But once again, like in Wisconsin, there are going to be some very clear ideological dividing lines. Now, unlike in Michigan where we can say very clearly the court is four to three Democratic, or in North Carolina, where we know it’s five to two Republican, pinning down the ideology of the Montana Supreme Court is actually a bit more difficult.
There are seven members, and on the surface, there are three justices who are generally considered liberals, two who are considered conservatives, and two who have often been swing votes. However, two of the liberals including the Chief Justice are retiring, and that means that if conservatives prevail in both of those races, they will have a four-seat majority on the court.
But like I say, Montana’s been a bit of an odd duck and it’s not always been obvious how cases are going to divide along ideological lines. In particular, Montana has one of the strongest judicial precedents in favor of a right to an abortion. It’s rooted in the state constitution’s right to privacy, which has much stronger language than anything you’re going to find in the federal constitution, for instance.
The Supreme Court has blocked a lot of GOP attempts to restrict abortion access based on its own precedent, and many of those cases have involved unanimous rulings. So even the conservatives have stuck with the majority to strike down GOP abortion restrictions. The question is would they continue to do so if they actually had four out-and-out conservatives on the court? Who’s to say let’s not find out?
There are actually primaries for both of these seats for the chief justice seat and the associate justice seat that are coming up on Tuesday. It’s very clear who the progressive and the conservative candidates are. In the chief justice race, Democrats are uniting behind a former federal magistrate judge, Jerry Lynch. The GOP establishment meanwhile is backing Broadwater County Attorney Cory Swanson. He’s the district attorney for that county.
In the other contest for Associate Justice, the two main candidates are both trial court judges. For Democrats, that’s Judge Katherine Bidegaray. And for Republicans, it’s Judge Dan Wilson. Again, these are officially nonpartisan races, but there is going to be a ton of money spent educating voters on exactly who stands where on the issues.
Beard: And one positive that might help these races a little bit is, of course, Jon Tester’s race higher up the ticket. They’re going to be driving Democratic turnout as much as possible. This won’t be like your average red state where no one’s campaigning because Republicans are going to win and you’re fighting against that tide to try to win that race.
Every Democrat who lives in Montana is going to be pushed out to vote for Tester, and hopefully, they will know to vote for the more liberal candidates for these races. And hopefully, that will help, in addition to, of course, discussions of reproductive rights and other issues that Montanans generally support. Montana, of course, is not a deep red state on some issues the way that other states we think of are. It is certainly red, but it has some libertarian leanings and some more freedom-y leanings that could be helpful.
Now we want to wrap up with a couple of redder states. First off is Ohio where there are three seats up. Now we’ve got a strange situation here. There are three different races and there are three incumbent justices, but they’re not each running in one race. We’ve got two incumbents running for the same seat. So the court is currently four to three Republican, and two of these seats are held by Democrats and one of the seats is held by a Republican. If the Democrats were to sweep all three seats, they would actually take a majority on the court.
In the first seat, we’ve got a Democratic incumbent, Michael Donnelly, who’s running for reelection. He’ll face a Republican; it’s pretty straightforward. In the second seat, we’ve got another Democratic incumbent, Melody Stewart, who will be facing off against Joseph Deters. Now, Deters is a GOP Supreme Court justice. He was appointed to the Supreme Court by Governor DeWine. But instead of running for his seat, which is that third seat, he’s running for the second seat because the first two seats are for full terms.
So Stewart, the Democratic incumbent justice, and Deters, the Republican-appointed justice, are both running for that second seat so they can have a full term, which then leaves that third seat, which is now technically an open seat because there’s no incumbent running for it. And that is just for a partial term. So for that third seat, it’ll be between Democrat Lisa Forbes and Republican Dan Hawkins.
Nir: Beard, didn’t we see something like this in North Carolina where we had two incumbent Supreme Court justices run against one another? I think Cheri Beasley, right? She lost reelection to a fellow incumbent a few years ago.
Beard: Yes, and that wasn’t about full terms. That was about specifically the position of Chief Justice, which is a different position in North Carolina. You run specifically for Chief Justice. And I believe they have some additional authority around appointing judges to certain cases and such. So yes, he took on Beasley for the Chief Justice position and did defeat her by about 400 votes, very unfortunately.
Nir: Yeah, that’s another thing to mention. We talked about with regard to Montana, the Chief Justice position being a separate election from Associate Justice. Of course, the chief does have certain rights and privileges, so those races take on even greater importance. But not every state Supreme Court elects Chief Justices specifically. Oftentimes, they are chosen by the members of the court, or there are other rules around who gets to be the Chief Justice based on seniority and other factors like that.
Beard, it’s also interesting to me that you mentioned Tester. I am wondering if you might have a similar situation in Ohio with Sherrod Brown being on the ballot and obviously going to do everything he can to get every last Democrat and potentially Democratic-leaning voter out for him. And there’s also likely to be a measure on the ballot to ban gerrymandering to finally put in place genuine independent redistricting in the state of Ohio. Of course, abortion was on the ballot last year. Hopefully, there’s a whole bunch of good motivating reasons that would get softer partisans to actually want to show up and also vote for Democrats in the Supreme Court elections.
Finally, we want to briefly mention Texas. This is another state where Republicans are absolutely dominant. No Democrat has won a statewide election of any sort in Texas since 1994. Republicans have a nine-to-zero majority on the state Supreme Court. But there are three Republican Justices who are up for election this year. And once again, if they’re going to lose, it’s going to be because of abortion.
I’m sure all “Downballot” listeners remember the horrifying story of Kate Cox, who was the pregnant woman who said that her pregnancy was posing a serious threat to her health and possibly her life and sought an emergency abortion, which a lower court ruled that she could have and then the Texas Supreme Court told her no. They overturned that ruling and she had to leave the state to have a very, very difficult abortion. That issue, if the Democrats challenging these Republican incumbents can put that front and center, who knows? Maybe they can throw a scare into them.
Beard: Obviously, these are a ton of really important races, as we mentioned. Things like abortion and gerrymandering will be key issues that a lot of these races are going to be confronting. There are also a lot of other downballot statewide races that we’re going to be focused on that will definitely hit in the months ahead as we get closer to November.
Nir: And just to note, these are by no means the only states holding Supreme Court elections this year. There are in fact a few dozen that will have races on the docket. There will be potentially competitive contests in other states as well, maybe in a place like Florida. There is also, believe it or not, a potentially competitive seat in Kentucky. So as these races continue to develop, we will of course revisit them, and we definitely plan to be talking about this subject much more for the rest of the year.
Beard: 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” and leave us a five-star rating and review. Thanks to our editor, Drew Roderick, and we’ll be back next week with a new episode.
