(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . The Downballot: Blockbuster 2024 Supreme Court preview (transcript) [1] ['Daily Kos Staff', 'Backgroundurl Avatar_Large', 'Nickname', 'Joined', 'Created_At', 'Story Count', 'N_Stories', 'Comment Count', 'N_Comments', 'Popular Tags'] Date: 2023-03-30 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. David Beard: Now, considering it's the spring of an off-year, we've got a pretty big election night coming up, don't we? David Nir: We finally do. On Tuesday we have the pivotal Supreme Court race in Wisconsin, so we are going to be previewing that one, as well as the race for the vacant state Senate seat that could determine whether Republicans keep their supermajority in that chamber. There is also the Chicago mayor's race, that's the third big contest on the ballot. We'll be talking about all of those and there's one more mayor's race that won't be taking place till later this fall where we got big news; that's in America's fourth-largest city, Houston. Then we are going to be returning to one of our very favorite topics on the Downballot; that is state Supreme court races. We have a fantastic guest; Carah Ong Whaley is with the University of Virginia's Center for Politics. I'm sure that you know their Crystal Ball website, and she is going to be running down all of the most important Supreme Court races that are on the ballot in 2024. We have an excellent episode, so let's get rolling. Beard, it is finally here: the pivotal Wisconsin Supreme Court election on April 4th, this Tuesday, coming right at you. David Beard: Potentially the most important election of 2023. David Nir: Very much so. The strange thing about it, despite its huge importance, obviously as all of our listeners know, the court has a four to three conservative majority. A conservative seat is up, it's an open seat, and Progressives could take their own four to three majority if they went on Tuesday. Despite how monstrously important this race is, we haven't seen a single public poll. It's really, really hard to believe. The only hard piece of data, well, there are two hard pieces of data that we have to go on. The first is that we know in the primary that the Progressive candidates, there were two of them combined for 54% of the vote and the two conservatives combined for 46% of the vote. The thing is we don't know whether that's going to be predictive at all of the electorate for the general election on Tuesday. The other piece of hard data that we know for certain is that progressive judge Janet Protasiewicz, has completely, completely destroyed her conservative rival, Dan Kelly, on fundraising. We just had fundraising reports for the period from Feb seven to March 20, and during that time period, Protasiewicz outraged Kelly, $12 million to $2 million. It's a truly astonishing divide. Now, $8 million of Protasiewicz's money came from the Wisconsin Democratic Party, which can make unlimited transfers. And Wisconsin Democratic Party benefited from some very big million-dollar donations from a few billionaires including Illinois Governor J.B. Pritzker and George Soros. But why haven't Republicans been taking in this kind of money and giving it to Dan Kelly? It's still really hard to say. He has had millions of dollars spent on his behalf by the conservative Uihlein family, but as we have mentioned many, many times on the show and undoubtedly will mention again in the future, candidates always get far, far better advertising rates than outside groups. In Wisconsin, it seems that Protasiewicz is spending only about a third as much as these outside groups like the Uline backed Super PAC. So, she has dominated the airwaves, Progressives overall have dominated the airwaves, but it's Wisconsin. Most elections there are decided by tiny, tiny margins, and we just really are flying blind here in the absence of polling or any other hard data that we can rely on, and that's very strange for such an important race. David Beard: Yeah, you'd think if nothing else, this would be a good opportunity for a news organization that knows they're going to be polling Wisconsin in 2024 for the Presidential race and the Senate race to put an extra poll in the field, get some good data in terms of how to poll the state, see how well they do. And if they mess up, it won't be as obvious as if you're polling in October of 2024, and you can adjust if you need to. But no one's taken that opportunity, so we are flying blind inside of polling. Obviously the data that you mentioned is better for us than for Republicans, but it's by no means a guarantee, so we'll just have to wait and see. David Nir: Yeah, I guess that's pretty funny the notion of getting kind of a freebie poll here. I do think that if the Milwaukee Journal Sentinel let's say, ran a poll, it would get enormous attention. Of course, it's expensive to run a poll, but I don't know; you could do an online poll with an online pollster or a robo-pollster wouldn't really cost that much. And there are still a few days left until Election Day, so maybe we'll see one at the last minute. But as always in a situation like this, you just have to keep fighting like it's a total tossup and not take anything for granted, and there's no doubt that Democrats and progressives in Wisconsin are approaching the race in exactly that way. There is of course one other really important race on the ballot in Wisconsin that we have mentioned before as well; that is the race for the vacant 8th state Senate district in the northern Milwaukee suburbs. This is a Republican-held seat that became vacant a few months ago when a veteran GOP lawmaker decided to resign. Republicans, as you our listeners know, won an ill-gotten supermajority in the state Senate in 2022 thanks to extreme partisan gerrymanders that were signed off on by the state Supreme Court, incidentally. And with this supermajority, they are eager to start impeaching Democrats because it only takes a simple majority in the Assembly. They have almost a supermajority in the Assembly — that's the lower chamber — to impeach an official, and then it takes a two-thirds supermajority in the Senate to actually remove them from office. Republicans have been quite open about their interest in doing so, and in fact the Republican who is running in this special election, Dan Knodl said just the other day that he would, quote, "Certainly consider impeaching Janet Protasiewicz." She isn't even on the Supreme Court yet and he wants to impeach her. He had these comments where he claimed that because of crime in Milwaukee where Protasiewicz is currently on the bench, that's a reason why she should possibly be impeached because "The judges there have failed," that's the term that he used. But the thing is there's 47 judges on the bench in Milwaukee County and the only one he mentioned by name happens to be the one who is running for the state Supreme Court next week. So, that's total bullshit. Knodl, by the way, also got badly outraised by his Democratic opponent during that same timeframe from early February to mid-March. Jodi Habush Sinykin out raced him, $840,000 to $260,000. This district, though, as we've mentioned, it's pretty conservative and favored Donald Trump by five points. The one good piece of news is that this area has been moving to the left in recent years, like a lot of other suburban turf. It'll still be a really difficult race for Democrats to win, but if they do, then they can take away this GOP supermajority and stop their plans in their tracks. But I'm frankly quite worried that if Republicans do win that one, that they really will decide to unleash their impeachment powers. They could impeach the Governor, Tony Evers, they can impeach any progressive member of the State Supreme Court. They could impeach all of them. There really is nothing stopping them, and I think that things could get really dangerous really fast. David Beard: Absolutely, and as we've seen, the Wisconsin Republican Party does not believe that there should be any limits on their power. And as long as they have the state legislature, they think they should be able to do whatever they want and they're more than willing to do whatever they have to get anyone out of their way. And that includes the Governor, that includes the Supreme Court. We've seen them refuse to confirm officials that Evers has nominated, and then have the currently conservative Supreme Court refuse to kick out Republicans whose terms have expired from various boards. So, there's all sorts of stuff that they've already been doing, and this would just be another step that it would not shock me either that they would take. Now potentially the one piece of good news here is that since this is taking place on the same day as the Supreme Court race; if we do have a good night in the Supreme Court race, it could be true that some coattails might benefit the state Senate Democrat if we're winning by a comfortable margin. Obviously that's optimistic, but since we did go 54-46 in the primary, if something similar were to happen that could maybe help a little bit down ballot as well. The other big race of Tuesday night is in Chicago where the mayoral runoff is taking place that pits a conservative Democrat and former Chicago Public Schools CEO, Paul Vallas, against progressive Cook County Commissioner Brandon Johnson. Now Vallas led in the first round comfortably, but short of 50%. And polls have shown Johnson closing the gap on him throughout this runoff period. Though I think if you took the aggregate of the polls, it would still show Vallas with a narrow lead. So, I think he should still be considered probably a narrow favorite, but at this point, either candidate winning would not surprise me as we go into election day. Now, Johnson's been endorsed by a who's who of the Progressive left during the runoff, including Senators Bernie Sanders and Elizabeth Warren, and fourth-place finisher Representative Chuy Garcia. And somewhat surprisingly, Assistant Democratic Leader, Jim Clyburn of South Carolina, who is definitely not ideologically aligned with the rest of Johnson's endorsers, but there's a good chance of the fact that Johnson is the African American candidate in the race was a contributing factor to Clyburn endorsing him. Now, in a bit of a surprise of his own Vallas secured Illinois Senator Dick Durbin's, late endorsement, who's generally seen as pretty progressive, as well as former Governor Pat Quinn and former Secretary of State Jesse White, all Democrats who have held of course statewide office. Now, as a final note on this race, in the first round, Johnson improved his results as the ballots went along and were counted, particularly the late-counted mail ballots. So, if the runoff race is close, we may not know the result for a while, as there's a good chance Johnson will again approve as the late-counted mail ballots come in. David Nir: There are also a few other mayoral elections on tap on Tuesday night in Denver, in Colorado Springs, and in Lincoln, Nebraska. We are going to be covering all of these races in our live blog at Daily Kos Elections. Just go to elections.dailykos.com. On Tuesday night, we'll also be following them blow by blow on Twitter, that's at DK Elections, and of course we will be recapping them on the show next week. David Beard: Now we do have one piece of news that's not about next Tuesday's election, and that is in America's fourth-largest city and the largest city in Texas, Houston, where veteran Democratic Representative Sheila Jackson Lee upended the race for mayor by announcing her entry into what's already been a crowded field, looking to succeed term-limited incumbent Sylvester Turner this fall. Now Jackson Lee has represented the Houston area and Congress since 1995, so she's very, very well established in the city. But there were already a ton of candidates in the race, the most notable of which is state Senator John Whitmire, a Democrat who's been running since 2021. He's got a $10 million war chest. He's definitely to the right of Jackson Lee ideologically and has support of some of the more conservative elements in the area. Now, this race will be taking place in November with a good chance to have a runoff the following month if no candidate takes majority. All the serious candidates are Democrats; no Republican has been elected Mayor of Houston here since 1981. So, this is definitely a race we'll be keeping an eye on for the rest of the year. David Nir: One interesting thing about this race is that Jackson Lee doesn't necessarily have to give up her seat in Congress in order to run. But there's a weird wrinkle here, which is in Texas, they don't schedule runoffs until they're shown to be necessary, so after election day. And typically they happen about six weeks after the initial election. The problem is that Texas has an incredibly early filing deadline for the ballot for 2024. They always do. And it's very likely that the filing deadline for 2024 would actually come before the Houston mayoral runoff. So I think Jackson Lee would actually have to make some kind of decision before that all comes to a head, because if she's not going to run again, you got to give the opportunity to other people to file. But if she does decide to file for reelection while there's a runoff underway, what does that say about her belief in her own chances? Look, this is entirely speculative. We have no idea what she's going to do. She hasn't talked about her plans for ‘24. I'm sure she would say she's just focused on 2023 and the Houston Mayor's race, but that is the kind of bureaucratic issue you got to keep an eye on in terms of whether someone can keep their seat or not. David Beard: And of course, the results of the first round could factor into her decision-making here. If she gets 48% of the vote in the first round, she may act very differently than if she gets 32 and is in second place or something. So we'll just have to wait and see, but it is a good flag for sure. David Nir: That does it for our weekly hits. Coming up, we are going to be discussing Supreme Court races with Carah Ong Whaley of the University of Virginia's Center for Politics. We are going to be focusing, in particular, not on 2023, you've heard us talk about Wisconsin enough, but on the many, many races taking place in 2024. They are all contests that progressives need to know about. And we have a ton of information coming your way. Today, we are talking with Dr. Carah Ong Whaley, who is the Academics Program Officer at the Center for Politics at the University of Virginia. She's also the co-host of the Politics' Everything Podcast. Carah, thank you so much for joining us today. Carah Ong Whaley: Thank you to the collective Davids for letting me join the show. It's really exciting to be with you both. Normally I'm in the host seat and now I'm in the being-grilled seat. So I hope you'll both equally jump in on the conversation because you probably have more to say than I do. David Nir: Well, we are certainly delighted to be turning the tables on you. Not long ago we spoke with one of your colleagues, Kyle Kondik, who told us how he came to the world of election analysis from journalism and political campaigns. And I know you came up through the world of academia. We'd love to hear a little bit about how you ended up involved with Sabato's Crystal Ball. Carah Ong Whaley: Yes, thank you. So the short answer and the common theme, probably for both Kyle and I, is that Larry Sabato has been a mentor for a long time, and I was his head TA when I was in graduate school at the University of Virginia. And I've co-authored a book on American government with him for the last decade now. Time has flown by and so when a position became available to work with him and Kyle, Miles, and everyone else at the Center for Politics, I jumped on it. And so it's really exciting. I had had a radio show when I was at UC Santa Barbara and a podcast when I was at James Madison University, which was my previous position. And I floated the idea of having a podcast here at the Center for Politics and Kyle and everyone loved the idea. So that's how we got started and we would love to have you all on our show anytime. David Nir: Well, we'll have to make it happen. So tell us about this book that you co-authored with Larry Sabato. Carah Ong Whaley: Well, there's a textbook that I have been doing with him since grad school, so it's a textbook that's used in college, primarily college classrooms, but I think also a lot of honors or advanced placement classes in high schools also use it. And it's been the bestselling American government textbook for quite a long time. It's published through Pearson. And now that I'm on the team, I'm also contributing to the biannual elections book as well. So that's exciting. David Beard: Great. Now you've also started contributing to the Crystal Ball with some articles, and you recently published a really comprehensive rundown of State Supreme Court races in the upcoming 2024 cycle. Now, we've talked a fair amount about State Supreme Court races on this podcast a lot last year, obviously when there were a number of important races. But I want to take a step back for a second and really look at a 30,000-foot view. Could you sort of walk us through how we came to this place where these Supreme Court races are getting so much attention and in some cases having tens of millions of dollars poured into them? Carah Ong Whaley: Yes. The short answer is: money follows power. So I'll take the first part of that statement, which is the power question. Since the Supreme Court decided, under Rucho v. Common Cause in 2019, that gerrymandering was a non-justiciable political question, that's really shifted questions about voting rights and elections to state Supreme Courts. And so that's moved political questions out of the federal courts and down to the Supreme Courts. And then, as I'm sure you all covered in last year's elections, that there are other policy issues that the Supreme Court has either taken up, and in ways that are opposed by some states ... or basically decided that states should be the locus of power, especially issues like reproductive rights and the Dobbs decision, marriage equality, and education policy. I didn't talk about this in the most recent Crystal Ball piece, but Kentucky had a really important case that was decided last year when it took up education opportunity. And so state courts are just increasingly deciding issues of importance in people's daily lives. They also, Supreme Courts, also take up criminal justice cases and immunity. And really it seems, as I'm sure you all have followed, that 2020 was really a critical year, especially because of the pandemic. And that in that year state Supreme Courts took on so many decisions regarding ballot access and then election results. And then there's also governors making a lot of emergency order declarations because of the pandemic; that really put state Supreme Courts in the spotlight. And then with 2020, we not only had the pandemic and the presidential election, we also had the 2020 census, which led to reapportionment and redistricting cycles. And so that's also raised the importance of the state courts. So that's the power part of that statement and the significant change in the power structure with Supreme Courts taking more of a role deciding these issues. But then there's also the ‘money follows’ part, and really the Brennan Center for Justice is really the go-to source on money because they track all of the spending that's occurring in in-state Supreme Court races. But really since Citizens, the Supreme Court Citizens United decision, we've just seen an explosion of national special interest groups that are expanding their presence in state Supreme Court races. And that's really upping the ante with the state Supreme Court race that's going to happen in Wisconsin next week. Kantar Media has shown that there's over $28 million reported political ad orders and already $8 million has been spent. There are projections that basically that race is going to cost $26 million, which is the most, it's going to be the highest spending election in the state's history and probably nationally. I think one of the biggest challenges with the Citizens United question and the rise of outside groups in spending and being the main source of fundraising and spending in state Supreme Court elections is that the money is really, the sources of the money are really opaque. And so it's really difficult to know who's actually spending the money and who's behind it. But in some of the key Supreme Court races, especially Michigan and Wisconsin, we've seen outside groups spending far more than the candidates themselves. So that's really what's driving the increases there. David Nir: Yeah, I saw a wild statistic in a new article in the New Yorker just a few days ago. Pat Roggensack, who's the conservative justice who's retiring from the Wisconsin Supreme Court, she was first elected to the bench in 2003. 20 years ago the outside spending in her campaign, according to this article, was $27,000. And I guess it just blows my mind a little bit. If you read Robert Caro, LBJ really understood the whole money follows power regarding congressional elections all the way back in the 1930s. And it's taken almost a century since then for this same phenomenon to really unfold with state Supreme Court races and you identified all these recent triggers for that. But I guess I still find it surprising that these courts have always been powerful, and yet it's only really quite recently that we have seen this huge, ramped up investment in these kinds of races. Carah Ong Whaley: So I looked, in the piece I actually just plotted spending for both partisan elections and nonpartisan Supreme Court elections. And really it has — I only looked at the last two decades, so I don't know that I can say much beyond the last two decades on that question — but they really have since the 2000 elections, since the 2000 presidential elections, spending has been pretty consistently high in both states with partisan and nonpartisan elections. I didn't look at states with retention elections because in many of those races, outside groups are not really getting involved as heavily. But really I would say the funding levels have been high for at least two decades. David Nir: So of course we just mentioned Wisconsin and we've talked a ton about that race on this show this year, as you might imagine. But in 2024, there are going to be far more Supreme Court races on the ballot. In fact, in this roundup that you put together, you state that there are 32 states that are going to be holding Supreme Court elections for 73 seats. And that really is a ton. Now of course, not all of these races are going to be competitive. It's like any other level of the ballot. There's 33 Senate races a year; only, say, 10 or so of them are going to be competitive. But there are a whole bunch of states nonetheless, where there really will be contested Supreme Court elections in 2024. And we would love to drill down on the specifics of those to sort of preview these for our listeners. And we've talked about on the show that different kinds of elections, you alluded to them just a moment ago, some states hold partisan elections where candidates are actually identified by D and R labels on the ballot. Some are ostensibly nonpartisan like in Wisconsin, but in recent years the ideological lines are very clear. And then of course there are these retention elections where voters are simply asked whether they want to keep someone on the bench. Yes or no? There isn't actually a candidate opposing the incumbent. And those very rarely tend to go against sitting judges, but they certainly can be interesting as well. And so I thought we would start with the partisan contests and there are at least three states that we thought would merit drilling down into a little deeper: North Carolina, Ohio, and Texas. So we would love it if you could give us a preview of the current lay of the land in each of those states and what we can expect coming up next year. Carah Ong Whaley: Sure, absolutely. And feel free to contribute as well. I know we might have a chance to talk a little bit about the article I did on election denialism, and that's actually what set me off in looking at Supreme Court races because I was thinking about 2024 and realizing the role that Supreme Court justices played in the election challenge cases. And so that's actually what set me in the path to actually look what was going to be happening in the state Supreme Court races. I also didn't cover this because it's technically 2023 and Wisconsin is getting a lot of coverage, but Pennsylvania is also having a Supreme Court race. Their primary election … they have a closed partisan primary in May, and then a general election in November. In Pennsylvania right now, there is a position that opened up because of a justice who passed away. And so, it's currently six justices on the court, four Democrats, two Republicans. So whoever wins in November, it's not going to really change the partisan balance of the court in Pennsylvania, but Pennsylvania is an important state and if Republicans win there, it could bring the party closer to retaking a majority, which it lost about a decade ago. So maybe we'll start with North Carolina, if that's okay. We can just take them in alphabetical order. North Carolina's really interesting because Republicans reclaimed the majority on the North Carolina Supreme Court in 2022. And so, Republicans had really heralded that win, especially because they could help Republicans redraw the state congressional map. There's also a really important issue that the court has decided to rehear just in the last week. They're going to rehear the voter ID case, which the previous majority had overruled. And so now, they might enforce the constitutional requirement to show strict voter ID on election day. So North Carolina Supreme Court has actually, Republicans flipped two seats in 2020 as well, so it has gone from a six-one Democratic majority to a five-two Republican majority over the course of the last two election cycles. Just showing how contested those races are and how much attention has been on them. There's been years long struggles between the Republican-controlled legislature and the Democratic state Supreme Court. I think one of the more important things is the North Carolina NAACP v. Moore case in which the court ruled that a racially gerrymandered legislature couldn't propose amendments to the North Carolina State Constitution. That case, of course, made its way up to the state Supreme Court and is at the heart of the independent state legislatures theory. Interestingly, because the North Carolina Supreme Court has now changed party control in this last election that may give the United States Supreme Court the opportunity to not make a decision in the Moore v. Harper case, or not decide about the independent state legislature theory as the state Supreme Court's going to rehear that case. So there's the Democratic justice that's going to be up for reelection in 2024. And so, Justice Michael Morgan is up for reelection. There is a credible declared candidate, Jefferson Griffin, and that one is likely to be really closely contested and is really going to be worth watching to see whether Democrats can retain a seat on that court. David Nir: So it's one Democratic seat up in North Carolina in 2024, and if Democrats hold it, the Republican majority would still remain at five to two. But I'm wondering when Democrats would be able to take back the court at the soonest possible date. David Beard: I actually do know this one since North Carolina is my home state, of course. Unfortunately, it's not great news. The next time the Democrats could potentially take back control would be 2028 when there are three Republican seats up from the 2020 election. So we've got a ways to go, but obviously holding the second seat is better than losing it. David Nir: That's a great jumping off point to talk about the next state we wanted to discuss, which is Ohio. That was another state that had heavily contested elections in 2022. This is a state where republicans only have a narrow majority and that actually could be online in 2024. Carah Ong Whaley: Yes. Also, some important changes that have occurred in Ohio. Structurally, judicial elections were ostensibly nonpartisan. I call all the nonpartisan races ostensibly nonpartisan because no, the letters don't appear after the names, but with all of the funding and behind different candidates and looking at where justice's rule, it's pretty easy to figure out what their partisan liens are, their ideological bents are. But until 2021, Ohio had ostensibly nonpartisan elections, but the parties nominated candidates in the primary elections and the party designations for the candidates weren't on the ballot. That changed with the election of a Democratic justice in 2020, Jennifer Brunner. Her election is what cut the Republican majority down to four-three. And so, Ohio Republicans in the legislature passed a law making general elections partisan with labels on the ballot. So again, last year, Republicans really celebrated the win, especially because of redistricting and wanting more favorable maps for the Republican Party and a four-three Republican majority would be more amenable to the Republican Party's redistricting plans. Justice Joe Dieters, who was appointed by a Republican governor, Mike DeWine, is on the ballot in 2024 and he has a long history of service in the criminal legal system and he's known for his very tough-on-crime stance. I believe he's even in favor of bringing back capital punishment in Ohio, using capital punishment. But he's no stranger to elections, but he's also done well and done better than President Trump when he ran for election in 2020. So yep, Ohio's a big one to watch. In Ohio, there are also two Democratic justices that will be up. Mike Donnelly, who won in 2018. He was first elected in 2018. He won with 61% of the vote and Justice Melody Stewart, who won in 2018 against an incumbent justice. Both of those are Democratic candidates. And so again, I suspect that Ohio will see lots of funding and lots of contestation over those Ohio seats. David Nir: Now, one state that is definitely not up for grabs and won't be for a while, but I feel still we're talking about, is Texas. Now, Texas, of course, has been this white whale for Democrats for quite some time. They've been an incredible statewide losing streak. In fact, they haven't won a single statewide election since 1994 at any level of the ballot. That's the longest such streak in the nation. So, the Texas Supreme Court is nine-oh Republican, but that also means that if Texas ever does finally go Democrat's way, then control could change in a fairly short order. There are three Republican seats up next year. What do you see happening there? Carah Ong Whaley: So there are no declared candidates yet in those races, but I'm glad you wanted to talk about it. Even though all nine of the sitting justices on the court are Republicans, the current governor, Republican governor Greg Abbott, has appointed five of them. One of the things I noticed in looking at the previous elections of the three justices that are up — Jimmy Blacklock, John Devine and Jane Bland — is that they have garnered challenges from judges that are coming out of Harris County, Houston. And so, those races, they're not too far off. So in 2018, Blacklock only won with 53.2% of the vote, Devine won with 53.3% of the vote and Bland won with 55.2% of the vote. So I think it's really going to depend on are there justices with name recognition coming out of that Houston area where there's a stronger basis and that can really sort of bolster the Democratic candidates that might run. David Beard: And of course, 2018 was a good year for Democrats, but we've also seen Texas inch its way to the left even in not so good years for Democrats compared to the rest of the nation. So we don't know how 2024 is going to look. It's probably unlikely that Texas is going to be super competitive in 2024, but we don't know. Certainly as we go later into the decade, it's definitely worth keeping an eye on. Now I want to move us to some of the states with nonpartisan Supreme Court elections. These are states where often the results can differ, sometimes a lot, from the sort of conventional D versus R races that we're used to when the partisan identifications are on the ballot. I want to start with a couple of states in the upper Midwest that currently have a majority of progressive alliance justices, Michigan and Minnesota, they both have a number of seats up. So, tell us what's going on in those two states. Carah Ong Whaley: Yeah, Michigan, which has been at the center of attention for a couple of cycles now, I think is going to be very clearly at the center of attention in '24. The Supreme Court there is a 4-3 Democratic majority on the Supreme Court. So it's going to be one to watch closely. This is also an important one because it can have implications for election administration and election outcomes. This was actually the court races that really sparked my interest in doing a broader overview because in 2020, the Michigan Supreme Court refused to hear a challenge to the state's election results from former president Donald Trump's lawyers and Republican justices dissented from some of the decisions. So, I think that's what makes Michigan really important one to watch. Also, Michigan is a little bit different from some of the other states. They have their own judicial election system process where candidates are nominated by the parties and then they all run together on the same ballot and the top two finishers win. So last year in the elections, two incumbents, one a Democrat and one a Republican, won. So I think it's going to be really important to watch Michigan. Minnesota is also another important one to watch. Right now, the court is currently 5-2 Democrats, and there are two Democrats and two Republicans that are going to be up. Again with election outcomes and election administration, it's another state to watch closely. Given that it will align with the presidential election year, that will also make it an important one to watch. David Nir: You talked about Michigan having a different system for electing judges than most other states and Beard, you mentioned a moment ago that, as a result you can wind up with these results that seem to differ quite a bit from the usual partisan lean. One that seem to differ quite a bit from the usual partisan lean. One thing that Michigan does differently is that incumbent justices are listed very explicitly on the ballot as incumbents, and I've got to believe that plays a big role in allowing Republicans, in particular, to succeed there. Because as we saw at the top of the ticket, the Democratic governor Gretchen Whitmer won by a big margin, Democrats dominated in all the other statewide races. Except the Supreme Court races last year, Democrats and Republicans each went one-for-one. David Beard: Yeah, it's definitely the case that an incumbency marker on the ballot, particularly in races where there's a low amount of information out there, sometimes like judicial races, as opposed to a Senate race or obviously the presidential, people will see that incumbent as a marker and just vote for that person, rather than make sort of more educated understandings of what might be going on in those Supreme Court races. David Nir: So Carah, I want to ask you about a state that's definitely an odd duck and that is Montana, which has nonpartisan elections. You joked about these being ostensibly nonpartisan. I think maybe there's a little bit more of a tradition of independence in Montana elections, but that's obviously changed. We saw last year that conservatives made a concerted effort to knock off a swing justice there. It's a little difficult, though, to pin down the court's overall ideological nature. From what I've read and what I understand, there's generally three justices who are considered to be pretty solidly liberal, two who are very conservative, and two who are swing votes. But for the most part, this court has been very independent-minded and has issued a number of rulings, some unanimous, blocking legislation that the GOP legislature has passed. So what are the stakes for 2024? Carah Ong Whaley: Well, I think you've actually just outlined what the stakes are, and that is sort of the conflict between Republican lawmakers and the Supreme Court and the judicial system. So there are two justices that will be up for reelection and both of them either have... Well, Chief Justice Mike McGrath was previously registered as a Democrat and he's contributed to Democratic candidates so he's pretty aligned with the Democratic Party. Also on the ballot is Justice Dirk Sandefur. He won in a highly contested race in 2016. It was also the most expensive judicial contest in the state's history. There was a lot of outside groups that got involved in that race and he really won because of the backing of outside Democratic groups. So I expect both of these justices to be targeted, which makes it a race that I thought we should pay attention to. And we've seen Republican lawmakers in the legislature actually introduce bills that are currently under consideration that call for eliminating to Supreme Court Justice seats. In one of the proposals laid out, they're trying to actually eliminate the position that Justice Dirk Sandefur holds. So if that happens, it can also create a constitutional crisis in this state so, again, we'll see what happens as things develop and evolve there. David Beard: And now in Kentucky, there is a Supreme Court race up in 2024. That may not be particularly competitive. The Chief Justice is very conservative and you'd expect him to probably be reelected. But what's interesting there is that the Republican Party in the legislature started going after the State Supreme Court because of some unhappiness with some of what they've been doing. Carah Ong Whaley: Yes, so exactly right. The legislature has gone after the Supreme Court. There's also proposals currently in the legislature to make all races in the state partisan races. Chief Justice VanMeter actually spoke earlier this week to his hometown Rotary Club and really objected to that proposal. But one of the biggest issues has been that the Supreme Court allowed a state abortion ban to remain in place so that's probably going to make it a salient issue. And that decision came in spite of the fact that Kentucky voters rejected a ballot measure just in the last election cycle that would've amended the constitution to say there's no protection. I think I mentioned earlier on as we were discussing, but the Kentucky Supreme Court has also, in December of last year, made a decision on educational opportunity. It was an education bill that was narrowly passed in Kentucky's General Assembly and then vetoed by Republican General Assembly, vetoed by Democratic Governor Andy Beshear. But then, the legislature overruled that veto. So the Supreme Court ruled that education opportunity accounts, which would allow essentially for quote-unquote school choice or allowing funds to be set up for people to use tax dollars for private schools or going to other school districts. The Kentucky Supreme Court ruled that unconstitutional in December of 2022. So, again, I think Kentucky will be another Supreme Court race to watch because of the importance of these issues that are percolating underneath. David Nir: So there's one more state we would like to talk about. In Oklahoma, believe it or not, the State Supreme Court recently found a limited right to abortion under the constitution. Very unexpected in a lot of ways, given how conservative that state is. In Oklahoma, though, they use retention elections and there are three Democratic-appointed justices who are going to be up in 2024. What do you see happening there? Carah Ong Whaley: Given that incumbency rates and retention elections are pretty much 100% across the country, I doubt... Well, I mean, who knows? I don't actually like to be in the business of prediction, but I find it highly implausible that they would be ousted. But I guess it could happen if enough outside groups get involved. I think in this recent case, they did... Previously, the right to abortion would say that it could only take place in case of a medical emergency. And so the ruling that they just issued in this last week, it was a close ruling, 5-4 along party lines, along partisan and ideological lines, but it really focused on the words preserve and save the mother's health. And they did decline to rule whether abortions were protected outside of these circumstances. So I think, of course, reproductive rights advocates were cheering this small amount of progress for women, but it wasn't really that radical of a decision, but certainly those justices could come under fire. David Nir: Now I'm thinking back quite a ways. In 2010, I remember that in Iowa, three state Supreme Court justices there did lose retention elections, specifically because they were targeted for having voted to rule that same-sex marriage was legal in the state. Carah Ong Whaley: Yes. David Nir: So I do feel like in these rare cases, especially when you have a real hot button issue, that maybe we shouldn't take these retention elections for granted. Carah Ong Whaley: I mean, I think they should all be. I mean, I think every election should be serious, that we should take them all seriously. I think it's a question of how are our outside groups, are the campaigns going to make them a seriouser point of issue? And I think that was obviously the case in Iowa over the marriage issue. And I think I was trying to say in my response that on this abortion, on this case of abortion, it was only really a minor clarification about what the constitution allows. So it wasn't that radical of a decision so I'm not sure if it's enough to really come up to that level of being targeted in the same way that those Iowa justices are. But in an ideal world, voters are really paying attention and using that retention vote to make decisions about whether justices should continue to serve. Because in those states that use retention elections, that's the only mechanism they have in the Supreme Courts because the nomination is all done through some sort of combined commission, legislature, gubernatorial decision-making process that doesn't really allow voters a say in who's making the decisions that really affect their everyday lives. So I think your point, David, is really important one. David Nir: Carah, I have loved hearing about all of these races from you. They really never get the amount of attention they deserve. Before we let you go, we would love it if you would tell our listeners where they can follow your work and also how they can listen to your podcast. Carah Ong Whaley: Well, thank you, David Nir and David Beard, so much for having me on the show. This has been a real pleasure and it was fun to be in the hot seat. I hope you both will come on Politics is Everything and join Kyle and I for some elections discussions. We'd love to have you both on Politics is Everything. For your listeners, you can follow us at @Center4Politics, on Twitter. That's the best place to get all of our resources. Our crystal ball is at center4politics.org/crystalball, and my personal Twitter account is at @CarahOng. So thank you both so much for the opportunity and we'll continue to follow this and hope to continue the conversation. David Nir: Yeah. We look forward to having you back on to discuss more of these races as we get closer to the date. David Beard: That's all from us this week. Thanks to Carah Ong Whaley 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 Podcast and leave us a five-star rating and review. David Nir: Thanks to our editor Trever Jones and a special thanks to our producer, Cara Zelaya, whose final show is this week. Cara was instrumental in the creation and launch of the Downballot and we truly could not have done any of this without her. She will be missed, but we wish her the absolute best in her future endeavors. David Beard: We'll be back next week with a new episode. [END] --- [1] Url: https://elections.dailykos.com/stories/2023/3/30/2161079/-The-Downballot-Blockbuster-2024-Supreme-Court-preview-transcript Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/