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The Downballot: How progressives are kicking ass on ballot measures, with Kelly Hall (transcript) [1]

['Daily Kos Staff']

Date: 2023-06-29  

Ballot measures surged into the spotlight last year thanks to abortion rights, but they've long been a critical tool for enacting positive change. Joining us on this week's episode of "The Downballot" is Kelly Hall, the executive director of the Fairness Project, which has helped pass progressive ballot measures across the country for nearly a decade. Hall tells us how ballot campaigns differ from traditional campaigns, and why stakeholders often spend years debating when and whether to get behind a measure. She also explains why progressive issues often fare better than progressive candidates, and how the Sheriffs' Association and Chobani yogurt helped make Medicaid expansion a reality in deep-red Idaho.

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Co-hosts David Nir and David Beard, meanwhile, dissect this week's momentous Supreme Court decision that smacked down a radical right-wing argument that would have greenlit GOP gerrymandering and voter suppression nationwide, including why they're cautiously optimistic that a potential "ticking time bomb" in the ruling won't go off (at least, not to great effect). They also explain why Republicans shouldn't get too excited about landing a supposedly coveted recruit for Montana's Senate race. Finally, they discuss Sarah McBride's path-breaking entry into Delaware's House race, where a victory would make her the first openly trans member of Congress.

Subscribe to "The Downballot" on Apple Podcasts to make sure you never miss a show!

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.

Beard: It's late June, so that means more Supreme Court rulings coming out, right?

Nir: Yes, we are going to be dissecting, in great detail, the Supreme Court ruling out of North Carolina that rejected some extremely radical GOP claims and investigate whether or not there is a ticking time bomb hidden inside that ruling. We also need to talk about Montana's Senate race, where DC Republicans are thrilled to have landed the guy they think is their top recruit, but why he might have a primary against a Club for Growth-backed nutcase.

And then finally, some bona fide good news in Delaware where the nation's first openly trans state senator just launched a campaign to become the nation's first openly trans member of Congress. After that, we are going to be joined by Kelly Hall from The Fairness Project, an organization devoted to supporting progressive ballot measures in states across the country.

It is a fascinating conversation. We have another excellent episode, so let's dive in. So, Beard, I feel like we've fallen into the habit of starting our weekly hits with this very vague, holistic assessment of what the political news in the last week has felt like. And I think I'm going to go with not-terrible for the last week.

Beard: Yeah, not-terrible to decent. I feel that's a good description. The Supreme Court just makes things weird because you're always, "What are they doing?"

Nir: Yeah, let's talk about what they're doing. So, I am certain that all of our listeners heard all about the Supreme Court's big ruling on Tuesday that rejected this wildly, wildly radical GOP theory that argued that state courts can't impose any limits whatsoever on state legislatures when it comes to passing laws regarding federal elections, and that includes redistricting. Now, the brief background, which I do feel is important to reiterate here, is that the North Carolina Supreme Court had struck down the GOP's congressional map because it concluded that map was a partisan gerrymander, which it unquestionably was.

And it also said that partisan gerrymandering violates the state constitution. Republicans, in response, claimed that the U.S. Constitution forbids state courts from policing state legislatures regarding any laws concerning federal elections at all. This is known as the, quote-unquote "independent state legislature theory," and it flies in the face of centuries of understanding of both state and federal constitutional law, which I'm convinced is a key reason why the court ruled the way that it did and completely rejected this version of the independent state legislature theory.

Beard: Yeah, it's so far into the sort of textualists like, "Here's what the sentence says, and if you just take this sentence, it means X without the context of the Constitution and how governments have run in America for literally its entire existence," that it took willful bad faith to treat it as a real argument.

Nir: Absolutely. It felt like total semantic gamesmanship and the kind of gamesmanship that John Roberts really seems to frown upon, the whole "He's not a chump," thing. What Dahlia Lithwick said: "Lie to me better." And they lied to him very, very poorly in this case. So the good news is that the decent part of this week is the court rejecting at least this version of the independent state legislature theory, this maximalist ludicrous Republican fantasy version. And here's why I can really only say the week was non-terrible at best, is that the court's actual written opinion seemed to embrace a milder version of the argument.

And as a result, it immediately sparked this big debate among legal experts on Twitter and off, a whole lot of op-eds in just the last few days on just how big of a threat this new ruling is with this, quote-unquote "milder" version of this theory that the Supreme Court has now accepted. So this is going to get a little dense and technical, but I really think it's important to dig into this. So this is the relevant language from the Supreme Court's ruling. In this case, it's called Moore v. Harper. This is the opinion that they released on Tuesday. And I'm going to repeat it verbatim and then I'll try to translate it from the lawyer-ese.

So here's the quote, "We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections." That is a ton of jargon right there. But the key phrase is that state courts, quote, may not transgress the ordinary bounds of judicial review. What that means in practice is that if the United States Supreme Court thinks that a state court has issued an improper decision curtailing the power of state legislatures to make laws regarding federal elections, then SCOTUS has the power to step in and smack down that state court decision.

And that's it. The Supreme Court offered no explanation of what, quote, the ordinary bounds of judicial review are or what might constitute, quote-unquote, transgressing them. It didn't even say whether the North Carolina Supreme Court had, in fact, transgressed those bounds here. So it's a very, very open-ended doctrine that the court has now put out there for all of the rest of us to deal with.

Beard: And I think the best way to think about this is just that John Roberts and Brett Kavanaugh said that they can do whatever they want in these cases. When they feel something is beyond what they've decided or what the bounds of a state court can do, they gave themself the ability to still intervene and be like, "Well, in this case, they overwent this boundary."

And in the other situations when they don't want to get involved, they can be like, "Well, it's not the federal court's role to get involved." So really, it's that John Roberts and Brett Kavanaugh want to keep being involved when they want to be involved, but be able to not be involved when they don't want to be. So in that way, it hasn't changed that much. They're still going to do what they want whenever they can get five votes for it.

Nir: And that's exactly the nature of the split here, is that you have some legal scholars who are worried that the Supreme Court is really champing at the bit to second guess liberal-leaning state supreme courts whenever they rule on these federal election cases. And that could potentially unleash havoc. Some other scholars, though, are less concerned and they have said that despite this seemingly vague guidance, the state supreme courts are now on notice. And these justices, for the most part, who sit on these state supreme courts, they're pretty smart people. They're paying very, very close attention to Moore v. Harper.

So they probably do have a pretty good sense of the kinds of rulings that the Supreme Court doesn't want to see them issue. And it may well be that that category of ruling is actually pretty limited in scope. Now, I want to be clear, it still sucks if liberal state courts feel constrained to mete out the justice they think is appropriate simply because they fear that an arch-conservative U.S. Supreme Court is going to strike their rulings down. That's not good news. But as we said the other week when we were talking about the Voting Rights Act and the Supreme Court, avoiding the worst-case scenario, that can still be good news. And that is what I think we have here.

Beard: And I think the case that everyone expects to be the next big state supreme court case that's going to happen is the Wisconsin new progressive majority; there's a good chance they're going to strike down the Wisconsin maps as an improper gerrymander. And I think those types of rulings, I would, just me personally, would be surprised if that's the sort of thing the Supreme Court is going to jump in on. Plenty of other states have done that. I think it would be more like treading new ground to protect voting rights. If it's something that states have done consistently, that's probably fine. If it's some new right or new expansion, even if it's a good idea, that would be where I would think that the Supreme Court is going to be less happy to see supreme courts go into new ground.

Nir: And there are, obviously, like you said, cases of state supreme courts finding partisan gerrymanders and striking them down. Pennsylvania is the other really good example that the Supreme Court left that in place. And I would bet that when, because I really don't think it's an if, I think it's when the Wisconsin Supreme Court strikes down the GOP gerrymanders there, in their opinion, they're probably going to include a section about why this ruling doesn't transgress the bounds of ordinary judicial review. So they're going to be smart to this. And the fact still remains, as you were alluding before, the Supreme Court usually doesn't disturb state court rulings that involve only state laws, but usually is the keyword there. The Supreme Court has always had at least some power to do so. Now, usually, prior to Moore v. Harper, this power was found under the 14th Amendment, the guarantee of equal protection of the laws.

But while some scholars have said that, had the Supreme Court continued to emphasize its power under the 14th Amendment, that would be preferable. Yeah, it definitely would've been preferable. I'm not really sure how much this changes the status quo. And look, I try to be as cynical as humanly possible when it comes to the Supreme Court and that viewpoint has almost always paid off. Just think about all the people out there who insisted for years that the Supreme Court would never overturn Roe, and well, guess what, it did. And I was always worried that it was going to do exactly that. So I don't want to suggest optimism here, but I've spent a lot of time the last few days reading different legal analyses from a lot of very, very smart people. And I think I come down on the side of the folks who are in the less concerned camp in terms of the implications of Moore v. Harper. And, of course, I hope I'm not wrong.

Beard: No, I agree. I think I'm on that same side. And obviously, the important thing is we'll see what those next cases are, and it'll take place on a case-by-case basis. And for the indefinite future, we are stuck with the Supreme Court and we'll just have to hope they stick to some level of reasonableness.

Nir: And a lot of the commentary features concerns about the Supreme Court stepping in, especially on the shadow docket close to the November 2024 elections. But like you said, Beard, there are going to be some major state court cases that Republicans try to attack on these grounds well before then, and Wisconsin is the best example. I bet there's other stuff that they'll try to complain about in Pennsylvania or maybe Michigan. So I think we are going to see some test runs of this before it gets too late. Is the Supreme Court capable of fomenting great chaos in October of 2024? Of course, but let's at least see what happens over the next half a year or year before we get truly worried about what they might do.

Beard: And I'll just add at the end, thinking specifically about 2024, the court obviously has a very conservative majority, a very Republican majority. I don't really think it has a Trumpist MAGA majority. We've seen John Roberts is clearly no fan of Donald Trump and MAGA-ism. Kavanaugh and less so Coney Barrett have also distanced themselves from the sort of Trumpist MAGA extremism. So obviously while there are some justices who are big fans of that Alito and Thomas, first and foremost, I don't think we're going to see these justices come together and change laws to make Trump president because I don't think John Roberts and Brett Kavanaugh particularly want Donald Trump to be president. If there's another Republican nominee, they could be a lot more friendlier to that in 2024. So we'll have to see.

Nir: So, enough about the Supreme Court. Let's talk about some actual elections. Beard, I know you want to hit Montana.

Beard: Yes. Montana obviously one of the most important states for the Senate in 2024, where incumbent Democratic Senator Jon Tester is up for reelection. He's won all three of his races narrowly. And of course, Republicans are trying to get their ducks in a row to take him on and provide a strong opponent. Now, DC Republicans think that they found someone good. They're getting behind former Navy SEAL Tim Sheehy, but he's not going to be the only candidate, it looks like.

While he's announced, GOP Representative Matt Rosendale has not announced, but he's been telling friends and allies that he's also going to run for Senate. Rosendale, of course, lost to Tester in 2018 in the previous Senate election by 3.5 points. But he starts out with a huge name-recognition advantage against Sheehy. Rosendale has obviously run statewide before, and a PPP poll from early this month showed Rosendale with a massive 64 to 10 lead on Sheehy in the GOP primary.

Now Sheehy will, of course, have a ton of money if DC Republicans are behind him. He'll be able to get his name recognition up. Will it be able to overcome sort of the longstanding support that really conservative Republicans in Montana have for Rosendale? That remains to be seen. And, of course, the Democrats have a role here too. They've already started attacking Sheehy as an out-of-state transplant, noting that he moved to Montana in 2014.

Of course, that was nine years ago. In some states, that would be plenty of time to think of yourself as an in-state resident. Nevada, of course, is an example where there's a lot more transients, but Montana is not that kind of state. Montana is a state where being there for 10 years means that you're still new to Montana. People expect Montanans who have been there 30 years, had their families be there, et cetera.

Democrats six years ago attacked Rosendale for being an out-of-state transplant when he had moved his family there way back in 2002. So Tester, of course, is a long-standing Montanan, very well-established. So it's going to be a very competitive race. And we'll see how this GOP primary develops.

Nir: And the parallels between Sheehy and Rosendale actually run even deeper than that. Sheehy's from Minnesota, Rosendale is from Maryland, but Rosendale also tried to hold himself out as this cattle rancher. And it turned out that that was pretty much a phony image. And Tester ran as slamming him as all hat no cattle, which is pretty perfect.

And Sheehy has been trying to present himself as a cowboy too, except he's a total rich guy presenting himself that way just also seems pretty fraudulent. And even if he is somehow the nominee, he definitely has flaws that Democrats can exploit, like you were saying. But we should spend a moment talking about why Democrats definitely want Rosendale to be the nominee.

PPP, of course, is a Democratic firm, and they took that poll showing him with that huge lead. He is a far-right extremist. He's definitely not the kind of candidate that national Republicans want to see. He has a lot more in common with the disaster candidates that we saw all across the country last cycle. And he has one other big advantage, which is that no matter how much money Sheehy spends on himself or gets from DC Republicans, the Club For Growth loves Rosendale. And I bet that they would spend heavily to help him be the nominee.

Beard: Yes, there's of course a reason why DC Republicans are behind Sheehy and now are not rooting for a Rosendale rerun, but we'll see if they're actually able to get something done. We've seen DC Republicans, when they tried to stop the uber-conservative Club For Growth candidate, have a pretty poor record in these primaries. So we'll see if they're actually able to get Sheehy anywhere close to over the line, assuming Rosendale does in fact run.

Nir: Let's talk about one more race this week, Beard. And this time we're talking about a candidate who got in, who we have every reason to be excited about.

Beard: Yes. One of the more exciting congressional announcements you'll find, Democratic state Senator Sarah McBride launched a bid for the Delaware sole U.S. House seat that's now open with, of course, Lisa Blunt Rochester running for Senate. And if successful, this would make McBride the first openly trans person to ever serve in Congress.

And of course, McBride took notice of her uniqueness that her voice would bring to the halls of Congress as the first openly trans person. But said quote, "I'm not running to be a trans member of Congress. I'm running to be Delaware's member of Congress who's focused on making progress on all of the issues that matter to Delawareans of every background," end quote. And that's something that we've seen with a lot of first candidates. Of course, it becomes very prominent to be the first Black candidate or the first Hispanic candidate, first woman, but ultimately what voters want is somebody who's going to represent them.

And while that's an important factor, ultimately as she should, McBride is focusing on the needs of everyday Delawareans. Now that doesn't mean McBride has a clean shot to the Democratic nomination. State Housing Authority Director Eugene Young, told supporters that if the seat were open, as it now is, that he would plan to run for the congressional seat. Young narrowly lost the 2016 primary for mayor of Wilmington, and if he were to win the nomination and the election, would be the second black person to represent Delaware in Congress after Blunt Rochester.

And then state Treasurer Colleen Davis also told Bloomberg that she wasn't ruling out running for House, Senate or governor, but she hasn't really clarified which one that she was focusing on. So it's really unclear where Davis might end up. But while there's also been speculation that some other prominent state senators might run, particularly majority leader Brian Townsend and majority whip Elizabeth Lockman, they both endorsed McBride. So she does have those two supporters and doesn't have to worry about those fellow state senators running against her.

Nir: One thing also to note about McBride is that not only is she a trailblazer, she was the first openly trans person elected to a state senate anywhere in the country. She is also very tight with the political establishment in Delaware. She is close to the Bidens. She had worked for Beau Biden, who is the president's late son when he was state Attorney General. She's also close to former governor Jack Markell. And Joe Biden even wrote the foreword to McBride's memoir.

So she might not get a straight shot at the nomination, but Delaware is one of these small states where being tied into the political powers that be, especially since it's so heavily Democratic-leaning, can really make a big difference. And I think that McBride could very well be the favorite for the nomination. And if she wins the nomination, then she will be the heavy favorite in November. And obviously given the completely unhinged and dangerous and terrifying attacks that really almost the entire Republican Party has embraced now on trans people, I think that her victory would just send a huge, huge message.

Beard: As you said, McBride has a lot of establishment support. Of course, if Young runs, he's going to have a base, particularly in Wilmington. But I think even in that case, McBride is definitely going to be the favorite. Of course, there's a long way to go and of course would easily win the general if she were to win the primary. And I agree, having an openly trans person in Congress forces everyone involved in these debates to acknowledge the reality of trans people that they exist, that they are with us every day. They are our friends and neighbors. They're not some sort of vilified other, which is what Republicans and Conservatives always try to paint them as. And so having here in Congress I think would be a huge benefit.

Nir: That does it for our weekly hits. Coming up, we are going to be talking about ballot measures across the country with Kelly Hall from The Fairness Project. Please stay with us.

Nir: Joining us today on "The Downballot" is Kelly Hall, who is the executive director of The Fairness Project, an organization dedicated to passing progressive ballot measures in states across the country. Kelly, thank you so much for coming on the show.

Kelly Hall: Absolutely. My pleasure to be with you.

Nir: So please start us off just by telling us about your organization. What is The Fairness Project? How did it come to be, and what specifically do you focus on?

Hall: Sure. So we are an all-ballot-measures, all-the-time organization. And sometimes that needs a little bit of explanation for folks because only 23 states in this country have citizen-initiated ballot measures. So if you're not living in one of those states, you maybe haven't had the privilege of having somebody come up to you with a clipboard and say, can you please sign to put a minimum wage increase on the ballot?

Or can you please sign to put Medicaid expansion on the ballot? But in many states around the country, particularly in the Midwest, the Mountain West, we do have these opportunities to pass laws directly at the ballot box by deciding on questions that come after all of our candidate opportunities to vote when we go into the ballot box. And so The Fairness Project exists to help progressive advocates in states around the country who use this tool to pass meaningful change to the benefit of working families.

So that means that we are showing up in coalition with folks who care about raising wages, expanding paid leave, passing protections for reproductive rights, expanding healthcare, and providing expertise around just ballot measure nerdery. How do you do this? How do you get the polling right, getting on the ballot right? How to communicate to the right sets of voters. And so we're very proud to partner with a wide variety of community groups in helping them achieve their needs in that way.

We're born out of the labor movement. We're born out of a view from a set of really inspiring and visionary healthcare workers in California who were using ballot measures to raise wages in their own communities and said, we should contribute some of our dues into a standalone organization that helps make this pathway possible around the country. And so that's the birth story of The Fairness Project, and we're very proud to carry on that legacy of workers and working families doing for themselves when politicians won't.

Beard: So to stick with the big picture for a little bit longer — and then we'll start getting into some specific ballot measures — why are ballot measures and this whole process sort of a good way to make policy? Why do progressives use this and move these measures this way rather than using elected officials, elected legislatures to sort of handle the governing of states and the country?

Hall: I am a real ballot measure advocate, but I'm not out here on this podcast trying to tell people that there's no role for legislatures. I think legislatures should be doing their jobs a little bit better than they are. And when they are failing to represent their constituencies, that's where the real opportunity for ballot measures arises. And unfortunately, we're seeing that in all too many places around the country where either due to gerrymandering or extremists winning primaries, we have a lot of state legislatures that are reflecting views that are way more extreme than the average voter, even in red and purple states. And so it means that the basic bread and butter issues of wages, of paid leave, of affordable housing, of abortion rights are not getting an actual bipartisan, moderate conversation. They're really out on the fringes of policymaking.

And so ballot measures are the stopgap, the backstop to dysfunction in our political system. They enable voters to say, "Look, I don't need to be involved in every single law that's going to get passed, but if you guys are not going to get it together on the very basic things then we're going to do this ourselves." And that is what we're seeing happen in a whole bunch of red and purple states. And I think most listeners will probably agree that dysfunction is accelerating in state houses, and so the use of ballot measures to try to get stuff done in spite of that is accelerating too.

Nir: So you mentioned a moment ago that you provide know-how and nerdery in terms of just figuring out how to get things done. So of course everyone is familiar with typical candidate campaigns, traditional campaigns. How do ballot measure campaigns differ from those sorts of campaigns and what have you learned in the decade or so that you've been working on these?

Hall: Sure. So I think there's two main differences. There's probably thousands, but we'll stick to two differences between ballot measure campaigns and candidate campaigns. One is, in candidate-world, there's always a presumption that there's going to be a Democrat and a Republican at least in every race, and it's just a matter of who it should be. There's a lot of work that goes into thinking about "should we do a ballot measure on a particular topic in a particular state." How should it be crafted? What is the right wording? Is now the time to push for minimum wage? Is now the time to push for abortion rights? Is now the time to push for decriminalization of marijuana? Where is the electorate? And so there's a lot of pre-work, this sort of incubation work, that often starts two years ahead of when you actually see a question on the ballot in the voting booth, that is about a coalition of local organizations thinking through those questions and thinking how a ballot measure might enter into their strategy.

And we're very privileged to do that work alongside them, but it is meaty, thoughtful work. Then I'm not saying that it's not a meaty exercise and thoughtful exercise to recruit candidates, but it's a different, should-we-or-shouldn't-we question in the ballot measure world? The other main difference is that ballot measures really enable you to isolate a particular issue outside of the partisan framework. So you can have conversations with people across the political spectrum. Do you want to expand Medicaid, for example in your state? Rather than saying, "Do you want to vote for Joe Biden, and through doing that, get an expansion of Medicaid?" Which requires people to set down their identities as Republicans or Trump voters or whatever brought them to that identity. You have to have a lot bigger conversation about why their political party is not aligned with their bread-and-butter needs.

When we can really step out of that and say, "Just talk to us about the minimum wage. Do you at least think that people in Oklahoma should be making more than $7.25 an hour?" That opens up a different universe of conversations, a different set of messages that can resonate a different way of communicating about some of the issues that are associated with Democrats and are associated with progressives, but actually engender a lot of support from people across the political spectrum.

Nir: I remember seeing someone on Twitter say that after the Kansas ballot measure went down in flames last year on abortion that Joe Biden should run for reelection as a ballot measure.

Hall: I think that that is a very funny observation and may serve him well. I think-

Beard: So that means the Fairness Project's going to be in charge of the Biden ballot measure reelection then, right?

Hall: You are not pushing me into making any breaking news here, but I do think it's worth noting when candidates can... There's often this question of how does ballot measure interact with the candidate space? Does it help Democrats to have this issue on the ballot? There's not a ton of super-scientific research into that. What we can say is that when they run also on supporting the ballot measure, it does help. So just having minimum wage on the ballot, we don't know the answer to that, but having it on the ballot and a candidate saying, "Yes, I support issue two." Or, "I am in favor of this." This thing that you are also being motivated by can help. And so I think it's not enough that we just say to candidates, "Hey, that it'll be helpful to you to have it on the ballot." They also have to do their part and say to voters, "We're with you on this thing that you're doing yourselves."

Beard: Now I want to get into some of the specific ballot measures that your organization has worked on. And before 2022, two major areas of focus were raising the minimum wage and Medicaid expansion. And you had a number of successes, particularly in some deep red states, Missouri and Arkansas both passed increases in the minimum wage. Idaho, Utah, and Oklahoma all passed Medicaid expansion through these ballot measures. So tell us some of your either favorite stories from some of these campaigns, what you were proudest of, what the closest races were. Give us some on-the-ground stories.

Hall: Yeah, I love this question because we don't get very many stories of progressive wins out of these states. And there's a lot of fantastic organizing work that is happening on the ground that ballot measures help to fuel because it's hard to get a regular voter, even if they're a Democrat or independent, in Idaho to understand why they should keep showing up to the ballot box if their candidates are never going to win or if they're never going to be in the majority. And so there is a lot of fantastic round-the-clock cycle after cycle organizing that works in these states to pass ballot measures instead of having that infrastructure built behind any party apparatus. The work in Idaho on Medicaid expansion began with a couple of organizers in a green RV driving all around Idaho saying that they were going to collect every single one of these petitions from volunteers.

They collected petitions in every single county in the state of Idaho. It was only after they had really gotten the ball rolling that the hospital association and the clinics and the usual who's who of healthcare sat up and paid attention and believed this could be possible. And Idaho is one where we then had really an odd bedfellows coalition come together that included these original progressive advocates, but also had the Sheriffs Association saying that expanding Medicaid would reduce drug overdoses and reduce their enforcement environment and would help county finances. And we had Chobani yogurt, which is a huge employer in Idaho saying, "We've got a whole bunch of part-time workers that could benefit from this." And so the sorts of coalitions that can come together around an issue that is not so divisive in a partisan sense and everyone can bring to it here is my unique perspective, then enables a lot of different voters to see themselves in that campaign.

And we won with 62% of the vote in Idaho on Obamacare. I mean, it is a radical shift. I worked in the Obama administration helping to implement the Affordable Care Act before I was at the Fairness Project, to have shifted in just so few a number of years from people shouting at rallies, "Get the government out of my Medicare." And thinking that Medicaid expansion was the onset of socialism to a set of folks in Idaho wearing MAGA for Medicaid hats because they were able to see themselves both as Trump voters and supporters of Medicaid. It's like an extraordinary shift that really shows you what's possible in some of these conversations. And there's stories just like that in all the other states we've worked in. So you've just got to open your mind to who you're willing to work with in order to get some of these priorities done.

Nir: I absolutely love that story. After we record every episode, I sit down and I write the show notes summarizing some of the highlights, and I already know that one of the notes is going to say how the sheriffs and Chobani yogurt passed Medicaid expansion in one of the reddest states of the country.

Hall: They were both on board, yeah.

Nir: That's awesome. That's amazing. So of course, last year abortion became a huge focus in terms of ballot measures in the wake of the Dobbs decision. How was the Fairness Project involved in those measures in states across the nation, and what do you think the outlook is for similar measures?

Hall: Sure. I mean, going back to the original premise here of when ballot measures are most useful is the moments when actions of lawmakers are completely divorced from the preferences of voters. That is the state of abortion policy in the country right now. So the further the gulf is between what lawmakers are doing, which is passing extreme bans all over the place, and what voters are asking for, which is supporting abortion rights and a restore to Roe and anti-extremism, I think ballot measures end up being one of our most powerful tools, and especially citizen-initiated ballot measures where we can make proactive change in these red states where we don't see any other pathway.

And the first citizen-initiated ballot measure on reproductive rights in 50-plus years was in Michigan last cycle. The coalition of groups on the ground there, including ACLU, Michigan Voices, Planned Parenthood, had the vision long before the Dobbs decision that the Dobbs decision could go the way that they feared and that they would need to be geared up to make the most of that moment.

And so they were collecting signatures to qualify for the ballot long before the Dobbs decision came down. And they were able to just in those few short months between June and November master this enormous tens of millions of dollars into a campaign to win. And so the Fairness Project was proud to play a role alongside many, many organizations that were taking that fight on helping with polling, helping figure out who are the right voter universes to talk to, helping to figure out how partisan of a thing can you make this or not in a state like Michigan. But it really was driven by the foresight of Michigan groups who saw this coming down the pike.

And I think the role that we're playing now in the space is to help advocates and coalitions of groups in red and purple states around the country think about whether or not what happened in Michigan is a helpful blueprint for them, either as an inspiration for moving an abortion-related ballot measure forward like we're seeing happen in Ohio, for example, whether the language from Michigan is right for a particular state, I think it's a really state-by-state determination of what's the right strategy, what's the right framing, what is the right way of situating one of these things in our own laws with our own courts? But we are helping with all that incubation work in the 10 or so states that have the opportunity to move that forward but are also living with real or threatened abortion bans.

Beard: You mentioned Ohio, and of course Republicans in that state are attempting to end run the vote that's happening in November by placing a ballot measure in August, increasing the percentage required to pass this measure from 50% to 60%. This is part of a broader attack on the ballot measure process by Republicans, increasing the percentage, making signature gathering much more difficult, requiring those signatures to be gathered from a variety of different districts where you go to very, very Republican gerrymandered districts and somehow still have to get a large number of signatures out of those districts. So how is the Fairness Project dealing with and responding to these attacks?

Hall: Well, I promise I will answer that question, but I want to put a fine point on just how wild it is, what we're watching happen in Ohio. And it's not wild because Ohio is unique. We've seen the legislatures in South Dakota and Arkansas and Arizona and other states in the past cycle pull the same shenanigans. But what's happening in Ohio is that the legislature is saying very brazenly, out loud, that they are so confident that their voters disagree with them on abortion policy that instead of aligning their own actions to come into where the voters that they represent want them to be, instead of upholding their basic function as representatives in a representative democracy, they are instead going to change the rules of governance in the democracy and say, "We know that if voters have their way, they will vote against us. And so we need to make sure that if this question goes to a vote, that we put our thumb on the scale for our side and make sure that we only need to have the agreement of 40% of the voters or 39%."

That is madness. It is such a fundamental undermining not just of direct democracy, but a revelation about how broken the representative democracy part of Ohio is because lawmakers are going so far out of their way to make sure that they don't have to listen to their own constituents. So that happening in Ohio, I think, it is new in a certain way compared to what we've seen in terms of attacks on ballot measures and past cycles. Because now for the first time, now since Dobbs, they are saying, "We are doing this because we don't want voters to decide on abortion."

Previously, they at least had fig leaves around election security or making the constitution harder to amend or out-of-state moneyed interests or whatever their bullshit of the particular week was. Now they're really saying the quiet part out loud, which is, "We know that our voters don't agree with us and we're going to make sure that they don't have their say." That's fucked.

And so the response fortunately in Ohio has been loud and sophisticated, and there is an extraordinarily impressive campaign called One Person, One Vote that includes organizations from across the progressive spectrum, nonpartisan organizations, folks who care about raising the minimum wage, civil liberties, redistricting, decriminalizing marijuana. Everybody who's worried about losing direct democracy as a vehicle for change in Ohio has come together under this one banner. We are very proud at the Fairness Project to be supporting that effort, both financially and in terms of staff and technical assistance and whatever we can do because it is existential to direct democracy in Ohio that we not lose the fundamental premise of majority rule.

So I know that's a long response there, but the egregiousness of what is being put forward by the Ohio legislature and undermining the fundamental tenet of democracy there really needs as much attention on it as we can muster.

Nir: I couldn't agree more. And it's all of a piece with gerrymandering too, because what that says is Republicans don't care if they win a majority of the vote, as long as they win a majority of the seats. They are more than happy to exercise the powers of government without actually winning a mandate from the people. They no longer care about that. And like you said, Ohio is completely of a piece with that.

And also I think we have to mention the fact that just a few months ago, the Republican-run legislature in Ohio got rid of these super low turnout August summertime elections and then said, "Uh oh, whoa, these activists want to put on the abortion rights ballot measure this November; got to get an election up and running again in August so that we can try to bump the threshold from a majority to 60% just in time." So they're trying to rig things every which way, and again, I'm sure hoping for low turnout. But as we saw in Kansas that also tried to put the election in the middle of the summer when Republicans hoped that turnout would be low, that totally backfired.

Hall: That did backfire. I'm animated about ballot measures. I'm glad to hear you're animated about ballot measures. It is not a thing that most voters are animated about. They're not animated about what the rules are for how you qualify a ballot measure or how many votes you need to win by. So the really insidious thing that this legislature is doing in Ohio, and that I'm sure we'll see come out of the playbook in other states too, is to say, "We'd rather try to beat you on this really esoteric conversation about the rules of the game." Because regular people don't really pay attention to that the way they will when you say, "We want a right to abortion or we want a ban on abortion," a question like that is really attention-getting.

So they're trying to fight a proxy war on the abortion issue by turning it into not only a low-turnout election, but also putting it on this seemingly different topic, which is, what are the rules for future ballot measures? And so we have a job to do as we try to educate Ohio voters not only to say, "Hey guys, turns out there is an election on August 8th. Also, this thing is a bad thing for democracy generally. Also, here are the implications of that for the issues that you care about." You’ve got to hold somebody's attention for more than a sound bite to do that, and that's really difficult.

Nir: You mentioned that you thought there could be maybe around 10 states that possibly might have abortion rights ballot measures at some point. Which of the other ones, aside from Ohio, that are looking most likely in the next year or two?

Hall: So there are ten states that are in the middle of that Venn diagram where they can do constitutional amendments led by citizens and where they currently have major abortion restrictions. Most of them, aside from Ohio and Florida, are still in that thinking incubation phase where they have not yet announced their decisions, "Yes or no, we're going for 2024 or not." I do think you will see more of those announcements happening between now and Labor Day, because though there's still a long way between now and November 2024, there's a lot of work to do to collect signatures and get on the ballot and different states have different timelines.

So I'm not going to break local folks' news for them about which states I think are most likely because that's not my news to share. But I do think you'll see more red states come forward here in the next couple of months and we are excited to support them in doing that.

Nir: Well, we have been having a fascinating conversation about ballot measures all across the country with Kelly Hall, the Executive Director of The Fairness Project. Kelly, how can our listeners learn more about the Fairness Project and how can they get involved?

Hall: Well, they can learn more about us at thefairnessproject.org. That's our website and the homepage to every other way to get involved. If they live in Ohio, they should vote no on issue one on August 8th, and they should get involved in the One Person, One Vote campaign because that's so existential to any future ballot measure. You can find more information about that campaign on our website too. And keep an eye out for signature collection efforts coming to a state near you. Now is the time when people with clipboards are going to be trying to advance not just abortion rights, but increases to the minimum wage and paid family leave policies and ending predatory payday lending. And so give those signature collectors with clipboards a break and stop and sign your name so that we can try to put good progressive policies on the ballot.

Nir: Kelly, thank you so much for joining us on "The Downballot" today.

Hall: Thank you.

Beard: That's all from us this week. Thanks to Kelly Hall 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 producer, Walter Einenkel, and editor, Trever Jones. Next week we'll be re-airing one of our favorite interviews from earlier this year with professor Matthew Shugart, and then we'll be back in two weeks with a new episode. And in the meantime, please enjoy your 4th of July holiday.

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