How could we not discuss the Supreme Court's evisceration of abortion rights on this week's episode of The Downballot? Co-hosts David Nir and David Beard talk about why Democratic leaders must articulate a clear plan for the election outcomes they need—specifically, a Senate majority that will reform the filibuster—and what they intend to do if voters deliver, as well as the importance of waiting for more data before we draw conclusions about what the Dobbs ruling means for November. We also dissect one early data point—a surprisingly close special election for a red House district in Nebraska—and recap several of Tuesday's key primaries.
We're also joined by Pennsylvania election law attorney Adam Bonin, a longtime Daily Kos contributor who knows the ins and outs of every race in the Keystone State. Adam recounts a recent shock victory for voting rights he helped bring about at the Supreme Court; explains why a trio of state Supreme Court races all the way back in 2015 paved the way for un-gerrymandered legislative maps in 2022 and updates us on Democrat John Fetterman's campaign to flip the state's open Senate seat.
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. If you haven't yet, we would be very grateful if you would leave us a five star rating and review on Apple Podcasts or wherever you listen to podcasts.
David Beard:
What are we going to be covering on today's show here?
David Nir:
We are, of course, going to be discussing the Supreme Court's ruling, overturning the right to abortion, what it might mean for the November general elections, and also what we think Democrats ought to be saying and doing in response electorally. But we also have a few primaries that we want to recap from a very big primary night on Tuesday. And then we are going to be talking about the jumbo swing state of Pennsylvania, which once again is hosting a number of hotly competitive races. We are discussing the Keystone State with longtime Pennsylvania election attorney and political commentator, as well as Daily Kos contributor, Adam Bonin. We have a big show for you. So please get ready.
David Nir:
We obviously have to start off this week by talking about the Supreme Court's devastating decision in the Dobbs v. Jackson Women's Health case, overturning Roe v. Wade and the right to an abortion. And it seems like everyone has an opinion on what this means for November. The problem is that the hotter the issue, the hotter the takes, and there's no hotter issue or more important issue than this one right now. A lot of people want to believe that this ruling will motivate Democratic voters, but we really need to wait until we have some hard data in hand before making any assessments. We need to see more polling. We need to see the results of more special elections. And also even once we do see more data, we also have to remember that as scalding as this feels right now, things may feel different in November. Voters may feel different four months from now.
And while the Supreme Court's decision may be motivating to some folks, I know a lot of others who are feeling really dejected right now, especially because of the response of the White House and congressional Democrats, which has really been quite supine. The White House has said no to expanding the court, no to curtailing the filibuster, no to setting up abortion clinics on federal lands. In fact, it really seems like there's very little the White House has said that it is willing to do, and they don't actually have to do any of these things right now. But they do have to say that they're considering everything, that nothing is off the table, that they're not ruling anything out. But instead, we have people like Health Secretary Becerra, who said, "We're not interested in going rogue."
And really to call a plan, to put abortion clinics on federal lands, which is backed by Elizabeth Warren, going rogue is just wildly off base to me. One thing that a lot of folks have said, it feels like we're just being told to vote harder when we already did vote harder. We did that in 2020, and we elected Democrats into office. Now, we're of course extremely mindful of the limitations on Democratic power due to the structure of the Senate, due to obstinate voices in the Senate. But it was New York Congresswoman Alexandria Ocasio-Cortez who offered the greatest clarity. And I would like to quote two tweets of hers in a longer thread. Here's what she said.
"For the moments when we do insist on elections, we must be precise with what we need and what we will do with that power. How many seats does the party need to codify Roe? Dems must say that. Not just go vote or give us $6 to win. That is demoralizing, losing unfocused nonsense." And she went on. "Dem leaders must tell voters the plan. What's the actual need? Which specific seats are we focused on? What votes do we need and where? What states and races and what's the return? What is Biden/Congress actually willing and able to do at 52 or 60 seats? Be honest. Details motivate."
David Nir:
And I couldn't agree more with that. Details motivate. We have been doing exactly this at Daily Kos. We have said for the longest time that we need a Senate majority that is Manchin and Sinema proof. In other words, a Senate majority of at least 52 Democrats giving us 50, who will support curtailing the filibuster and we've laid out a path to get there. Democratic leaders need to do the same thing. They don't need to trash talk Joe Manchin and Kirsten Sinema like we do every day of the week, but they need to inspire folks by showing that there is a real plan here.
David Nir:
What's going to happen come January, what will be different? What will you do if we in fact do vote harder. Tell us, and we’ll do it. But you have to tell us.
David Beard:
I agree with everything that you've said about this. And I totally share the disappointment with the Democratic response. This was a decision that we expected to probably be coming for more than a year. This was a decision that we almost certainly knew was coming since it leaked a number of weeks ago. And yet the Democratic response, not just the Biden administration's lack of any action, but even the political response was just like ‘go vote.’ As you said, there was no sense of here is what we need to do. Here is the terribleness that we need to fight back against. There was no sense of anger. There was no sense of frustration that so many people shared by this decision. And the emails, the press releases just did not have that.
David Beard:
It was very much like this was just another day in politics when it really, really wasn't. One of the things that I think is important to emphasize is really the wide range of outcomes we could see because of the totally unprecedented nature of this decision. No one knows how this is going to play out because the Supreme Court has never overturned a decision like Roe v. Wade before that affects so many millions of people. It's hard to sit here and say how this will affect the 2022 elections, because we don't know to be honest, other than I think that it definitely will in some form or fashion. Could it turn into a really sort of electorally positive benefit for Democrats in terms of turning out Democratic voters, in terms of persuading pro-choice Republican leaning voters to vote for Democrats to push back against this? Very possibly, but that's no guarantee, and that's not something that's going to be done without a ton of work either.
David Beard:
So anybody who's trying to sell you on how this is going to turn out is selling you a bill of goods. I do think like Ocasio-Cortez said, coalescing around a specific goal around the election is really important. I think the idea that as I think Senator Brian Schatz has tweeted, "If you give us 52 democratic senators, we will codify Roe," is like a very clear message that you can take to the public and say this is what we need it. Does it suck that we have 50 Democratic senators and can't codify Roe? Yes, but at least if you say 52 senators would do it, that is something everybody can get around and is at least theoretically possible, like hold our Senate seats that we have. Pick up Pennsylvania, pick up Wisconsin or another seat and we can actually do it. And when people believe that there's a path, that there is a way that we could actually pass a codification of Roe through Congress in January, there are a ton of people who go out and go all out to make that happen.
David Beard:
I also want to flag the enormous potential impact this could have on a number of state races, particularly governors races, state legislative races, and then even State Supreme Court races and attorney general races. All of these offices have different effects on abortion law in different states and in different ways. And so everyone in the state now that abortion rights has been returned to the states for now, it is very, very important who your governor is, whether or not the state legislature is pro-choice or anti-choice, whether or not the State Supreme Court would uphold or write the privacy based on the State Constitution of your state. All of these things really matter for abortion rights in your state. And there's one that's actually coming up very soon. Kansas has a Constitutional amendment on the ballot on August 2nd about whether or not the state constitution protects the right to an abortion as the Supreme Court has currently upheld in that state.
David Beard:
So that is a race, that is a ballot initiative that is taking place in less than six weeks that will determine the abortion rights for potentially many, many people in Kansas. And there are other races that are less clear cut obviously than a ballot initiative, but other races at the state level that are really going to matter this November about these rights.
David Nir:
The one piece of the puzzle that we also have to include is the US House. Because even if we pull off this feat of electing 52 Democratic Senator, we have to hold the House in order to codify Roe V. Wade. And we kicked this off talking about what kind of hard data do we have? Well, we had one potentially interesting data point come to us this week and we don't want to read too much into it. But what happened in the special election in Nebraska's 1st congressional district was genuinely shocking.
David Nir:
This was a race to fill the vacant seat left open by former Republican Congressman Jeff Fortenberry, who had to resign after he was convicted of lying to investigators about concealing a scheme to receive illegal campaign funds from a foreign national. This is a district that Trump would have won by a 54-43 margin. In a year like 2022 when Democrats have been struggling in the national environment that is quite pro GOP, we would've easily expected the special election results to look like the Trump results or even worse. In other words, a bigger Republican blowout and the exact opposite is what happened. Republican State Senator Mike Flood beat fellow State Senator Patty Pansing Brooks by just 53-47 margin. Now, of course he won, but that six-point win is five points worse than Donald Trump's margin. It's not at all what we thought would happen.
David Nir:
In fact, making that result even more dramatic is that Flood out spent Pansing Brooks 10 to 1 on the airwaves, and there was really no outside spending here. Democrats certainly didn't think that this one was going to be close. Is it possible that a very late surge of Democratic voters or moderate Republican voters angry about the Supreme Court decided to show up at the polls? It's possible. I want to believe that's the case, but we definitely cannot say that with any certainty and we will need to see, like I said, a whole bunch more data before we make any conclusions like that.
David Beard:
Absolutely. And I think one of the things that we've probably both seen over the years is that there's an enormous amount of conjecture in politics because there are so rarely hard data points. We spend months and months with pundits speculating about this or that. We have polls, which can be accurate and helpful, but can also be very, very wrong. And then once every two years, there's a midterm or presidential election.
David Beard:
Now, of course there are elections in between those, special elections, off year elections, and the like, and so those are really good data points to pull from when you're trying to see what's actually happening on the ground. When you are far away from a general election, that could sort of give you a broader outlook.
David Beard:
And so I think this is, as you said, it's one data point. You don't want to get ahead of yourself on something like this, but a special election is a better data point than what you're going to hear on some cable news network. It's a better data point than a random poll that you might see on Twitter. It is real voters going to vote and outperforming what you would expect on the Democratic side without, like, sort of an obvious reason beyond potentially this decision. There wasn't like a particular issue with the Republican candidate or an unusually strong Democratic candidate. She seemed like a very good generic candidate, but broadly, you would expect it to reflect sort of the national mood. And the fact that Democrats outperformed here is just really, really surprising.
David Nir:
We could obviously go on about this forever, but there are other elections we have to discuss. Tuesday had an enormous primary night, a whole bunch of states, including some very big ones, held primaries. And we're going to recap some of the most notable results. If you want to read more about these, please subscribe to our newsletter dailykos.com/morningdigest.
David Nir:
But to wit, in Illinois's 6th Congressional District, this is a Democratic-leaning seat in the Chicago suburbs. There was an incumbent versus an incumbent race between two Democrats, Sean Casten, and Marie Newman. Casten wound up winning in a total landslide, 68 to 29. I wasn't expecting that wide of a result, but Newman had faced an ethics investigation and she was on the receiving end of attack ads over that. So that may have contributed to those results.
David Nir:
In Chicago's safely blue 7th District, veteran Congressman Danny Davis, who has tried to leave Congress on a number of occasions, came very, very close to doing so. He defeated community activist Kina Collins, by just a 52-45 margin. Davis is definitely going to want to consider retirement once again. He's in his eighties and surely a slightly stronger campaign next time could finally send him to an unwilling retirement if he doesn't go willingly.
David Nir:
In Downstate Illinois, Democrats created a very red district in the 15th that wound up pairing two Republican members of Congress, freshman Mary Miller versus long-time quasi-pragmatist, Rodney Davis. Not surprisingly Miller wound up defeating Davis, 58 to 42. She had Donald Trump's endorsement. You also might have heard about her comments that she made at a Trump rally just before the election where she thanked Trump for the Supreme Court ruling because it protected quote, "White life." She later claimed she had meant to say right to life. Yeah, right. I'm sure you did.
David Beard:
We also had the runoffs for the two Republican congressional primaries down in Mississippi that took place this week. In MS-03, representative Michael Guest only very narrowly, by a couple of hundred votes, led his opponent, Navy pilot Michael Cassidy, in the first round, along with a third candidate who took a small number of votes. Guest really turned on the campaign here in these three weeks, between the first round and the runoff here, where before he hadn't really run much of a campaign. He had expected to coast to reelection. Here, he ran advertising. There was outside advertising help, and he really blew out Cassidy in the runoff here, winning 67% to 33%.
David Beard:
That was not what happened in the Gulf-based 4th district where representative Steve Palazzo lost his reelection campaign in the runoff to Jackson County sheriff Mike Ezell, 54% to 46%. Palazzo had only won 31% in the first round. So 46% is actually a pretty impressive improvement for him over the three weeks, but it was not enough to overcome Ezell's lead. And so we'll have a new representative from that district.
David Beard:
And then finally in Oklahoma, there was a Senate primary on the Republican side for the seat of Jim Inhofe, who is resigning at the end of the year, and their representative Markwayne Mullin and former state speaker T.W. Shannon advanced to a runoff, but Mullen received 44% of the vote in the first round while Shannon only got 18% of the vote. So Mullin is the strong, strong favorite to advance the general and then become a Senator in the new year.
David Nir:
That does it for our weekly hits. We are putting the major swing state of Pennsylvania front and center. Our guest after the break will be long time Pennsylvania election lawyer, Adam Bonin, who is also a contributor at Daily Kos. So please stay with us. We have a ton more to discuss.
David Nir:
Joining us today on The Down Ballot is Adam Bonin, a longtime elections lawyer from Pennsylvania, a political analyst, an early member of the blogosphere who has written for Daily Kos, and who has served as Daily Kos's lawyer as well. Adam, it is a pleasure to have you on the show.
Adam Bonin:
It's a pleasure to be here David's.
David Nir:
Adam, let's talk about your life as an election lawyer, you represent lots and lots of candidates, but you recently had a case that went all the way to the United States Supreme Court, which is kind of mind-blowing to me. So please tell us all about that case, how you got there and what happened.
Adam Bonin:
It's funny because I always tell my wife that I don't know what I'm going to be doing after any particular election, but I know I'm going to be getting some call within 24 hours of the close of the polls that's going to tell me where I need to be. And in this case, it was that Wednesday afternoon after the November general election. And it was an attorney, Zach Cohen in Lehigh County, Pennsylvania, based in Allentown. He was involved in an election to the local Court of Common Pleas. They were electing three judges to vacancies. So three Democrats and three Republicans won. It was clear that two Republicans had taken the first two slots, but it was a really tight race for the third. He was separated from his opponent. He was down 74 votes at that time.
Adam Bonin:
But there were 261 particular ballots in dispute there. These were what we refer to as undated ballots. These are voters who voted by mail, who turned in their ballots on time, and the ballots were timestamped as being in on time. But there's a space on the outside of the envelope where the voter is asked to sign the envelope and then date the envelope. And the question was, and it's one that's been recurring throughout Pennsylvania law, what do you do with people who've left out the date altogether?
Adam Bonin:
Now this issue came up after the 2020 election in a number of the counties where the County Boards of Elections voted to accept these ballots and the Trump campaign contested it. But in particular, in a state Senate race in southwestern Pennsylvania, between the Democratic incumbent, Jim Brewster, and his Republican opponent, Nicole Ziccarelli, and this case made its way through the Pennsylvania court, and the Pennsylvania Supreme Court ruled in a splintered 3-1-3 decision that these ballots must be counted in that election, but for a variety of reasons, shouldn't be counted in future elections. The pivotal vote was from Justice David Wecht, who said, "Number one, the election code says voters shall sign and date. And the only way to read this consistently is to say that shall is mandatory." It means that there have to be consequences. It's not just a nice thing to do.
Adam Bonin:
But he also noted, number one, that voters didn't have sufficient warning in 2020 as to the consequences of not dating the envelopes. Number two, that it was possible based on lived experience that either the counties could design better envelopes in the future or that the General Assembly would revisit, what seemed to him to be a immaterial requirement. And number three, and this is something that a majority of the court flagged, that there's a provision in federal law cause the called the materiality provision, which said that people should not be denied the right to vote, including the right to have their ballots being counted based on things which are immaterial to determining their qualifications. And four of the justices on the court agreed that, that probably applies here, although they didn't rule on it then.
David Nir:
So is the idea then that federal law might trump state law in interpreting what to do with these undated ballots?
Adam Bonin:
Yeah. And in fact, where this all started was I went to the County Board of Elections, Monday after Election Day, to make the argument. And at the time it was on the quality of the warnings on the envelope that they were insufficient, but also, we mentioned the materiality argument. We mentioned sort of the different ways that that precedent could be read. And that Board of Elections voted three to nothing to count the ballots. It's a bipartisan board, unanimous vote. The Republican opponent immediately appealed that to the local Court of Common Pleas where not only did the judge agree with us, but the judge, and I remember this, during the hearing said, "I see this thing about this federal materiality provision. You really should talk about that more. That seems really important and interesting."
Adam Bonin:
So we won there. The Republicans appealed that to the Commonwealth Court, which is Pennsylvania's intermediate appellate court, which hears governmental related appeals, including on election law issues. And they ruled against us there two to one, along the grounds of that 2020 decision that shall means shall and time has passed, and they meant that they shouldn't be counted in the future. And that's that. Justice Wojcik, a Democrat dissenting, flagged the materiality provision, the fundamental unfairness. He would've counted the ballots. We sought relief from the Pennsylvania Supreme Court and they decided not to get involved in this appeal or in other cases dealing with undated ballots emanating from the 2021 election.
Adam Bonin:
So at that point, we were done in the state courts, but there's another set of courts and the American Civil Liberties Union of Pennsylvania brought suit on behalf of five of these disenfranchised voters under the materiality provision. They filed suit in federal court saying that this applied, these voters were harmed by it, and that their ballot should count. We intervened in this case on their behalf, the Republican candidate got involved with the County Board of Elections.
Adam Bonin:
It’s interesting… this may just be a thing that lawyers are interested in, but it still boggles my mind that the County Board of Elections, which had voted to accept these ballots, supported the counting these ballots all the way up through the state courts. New year 2022, new Board of Elections, now they're opposing us. So, that was interesting. We lost before the District Court Judge Leeson, who did not think that the materiality provision applied. That case was then appealed to the United States Courts of Appeal for the third circuit. And there are things really got interesting because not only did the Commonwealth get involved on our behalf… the Attorney General's Office representing the Wolf Administration of the Department of State... everyone said that these ballots should be counted. United States Department of Justice Civil Rights Division also got involved with an Amicus Brief saying that the materiality provision applied, that there was a private right of action under it and that these ballots should be counted.
Adam Bonin:
We had argument the day after the May primary. Two days later, they issued an interim judgment indicating that they were ruling that these ballots should be counted. A week later, they released their opinion. It was unanimous in effect; two Democratic nominated judges and a Trump-nominated judge. And even the Trump-nominated judge said "yes, based on these facts, these ballots should count." And in particular, what he cited was the fact that even so-called wrong dates could be counted. You could put down your birthdate, they would count the ballot. You could put down a date in the future, they would count the ballot. You could put down July 4th, 1776, they would count that ballot. And the argument is if any string of numbers counts, then this clearly is not a material requirement.
David Nir:
You get this fantastic ruling from the Third Circuit Court of Appeals, essentially overturning what the state courts have said. But it feels these days, basically every time progressives get a good ruling from a lower federal court in an election law case, we always have to say, "well, but wait for the Supreme Court." But things didn't go the way that we usually expect them to go here.
Adam Bonin:
No, it's funny. Mike Schmidt once said "that Philadelphia is the one town where you can experience the thrill of victory and the agony of reading it in the newspaper that same day." And in this case about four hours after the court issued its opinion, our Republican challenger filed an emergency application for stay with the Supreme Court before Justice Alito. And of the many places that I have been in my life, there are a few scarier than having your client's election law victory in the hands of Justice Alito, who has made clear over and over again in his jurisprudence, how he feels about election law and in particular, how he feels about it's being administered in Pennsylvania.
Adam Bonin:
A few days later, he issued a temporary stay, so the court in the whole considered it. And we sat and waited and sat and waited and sat and waited. Thank goodness, the court ruled six to three against the grant of the stay. Three Justices dissented, Justice Alito writing an opinion, dissenting from the denial stay along with Justices Thomas and Gorsuch. For a variety of reasons, they felt like there shouldn't be a private right of action, that this was a material provision but that view did not carry the day. And as a result, we finally were able to move on to the counting of ballots.
David Nir:
So, you get this amazing ruling from the Supreme Court saying, "count the ballots." What happened when you counted them?
Adam Bonin:
It was really something because people don't know how much tedium is involved in the actual ballot counting process, because you're sitting in this tiny little office room. It's myself, my client, his wife, some family members on the other side. And first they have to open all the ballots and we know that they're all undated, but they also have to check did the voters put the ballots into the inner security envelope? Or what we've referred to in Pennsylvania as naked ballots, which also can't be counted. Those that were in the security envelopes, they then have to open that envelope, unfold them, run them all through this giant machine that looks like a copy machine and you wait, wait, wait for the results. But the bottom line is we came into that day down 71 votes, and we left it up five. 32,669 to 32,664.
Adam Bonin:
At that point, our Republican opponent, David Ritter, was entitled to petition the local courts for a recount. He could have gone back to the Supreme Court and sought a formal writ of certiorari, instead he didn't. Instead, he said, "This is enough. I disagree with how the court's decided here, but the seat's been vacant long enough. Voters of Lehigh County as well as the judges themselves deserve a full bench and I'm done here." It was a really gracious move and the kind of thing that we don't see often enough in politics these days.
David Nir:
Now, this was a fairly rare occasion where a small number of ballots and a dispute actually resolved the result of the election, which is incredible. But one of the things to place this fight into the broader context of Republican attempts to suppress voters and a lot of this work, particularly around mail voting, which has become a lot more popular among Democrats than Republicans. So, a lot of these sort of ticky tacky things is part of a broader fight around voter suppression that Republicans are going after. So, can you talk a little bit about how that sort of been fighting in the courts on like a broader context?
Adam Bonin:
Sure. I mean and this is stuff that precedes Donald Trump. Routinely in Philadelphia on Election Day back before 2019, when voters needed to get court permission to get absentee ballots, their emergency absentee ballots on behalf of hospitalized voters. Republicans would oppose that. They would oppose every jot and tittle of the application and try to slow it down because they knew that was a way that Democrats were likely to be voting because it's in Philadelphia, so they're likely Democrats and it should be stopped. There were these fights all over the place in terms of strict adherence to instructions and how much it matters. There were rules in Georgia, in certain counties. This was also litigated under the materiality provision where counties were asking voters to provide their date of birth on the outer envelopes.
Adam Bonin:
This wasn't something that even state law asked for, but counties were just doing it. And it didn't have anything to do… the voters' eligibility was already known before Election Day, but it was something that certain counties were trying to do. But obviously what we had with mail-in voting is a form of voting, which is more popular among Democrats than Republicans. And therefore Republicans believe if we can put obstacles in the way of mail-in voting, it will net out in our favor.
David Nir:
And in terms of Pennsylvania, specifically one of the things that we saw in 2020 that I'm sure everybody remembers was the fact that the state took a very long time to count the mail ballots because they weren't allowed to start processing them ahead of time. Should we expect that same situation as Pennsylvania is one of the most important states in this upcoming 2022 election? Or has the situation improved at all?
Adam Bonin:
Nothing has improved on this. Nothing has been enacted in the wake of the 2020 election changing Pennsylvania's election law in any way. The only exception being... and it was just passed by both chambers of the legislature, but it is likely to be vetoed by the Governor... is a bill authored by Senator Doug Mastriano to increase the number of poll watchers in polling places and to allow out-of-county watchers to be permitted in.
David Nir:
I mean, this is essentially about busing Proud Boys into Philadelphia to intimidate Black voters, is it not?
Adam Bonin:
It is and inside polling places as well. Right now, obviously anyone can be outside of polling place. And Lord knows our plans in 2008 to 2012, 2016 in Philadelphia and 2020, were all built around the threat of what might happen outside of polling places. But the idea of actually putting the people into polling places as well where you often have elderly volunteers manning the table to check voters in it's a recipe for a disaster.
David Nir:
You mentioned the fact that the legislature has done nothing to improve the counting of mail ballots. You also talked about Doug Mastriano, who of course is the QAnon ally, who is now the GOP nominee for Governor. But the playing field for Pennsylvania's state legislature is going to be really different this year than in the past. For the first time in the longest time, we have maps that are truly un-gerrymandered, at least with the regard to the State House. But the way we got here was really interesting and unusual and different from the way things work in most states. And it requires a bit of background and we have to dial it back again to another set of judicial elections, which are really crucial in Pennsylvania and go all the way back to 2015. So, can you set the stage for us and explain how we got to this point of un-gerrymandered maps?
Adam Bonin:
In 2015, we had the likely once-in-a-lifetime opportunity to fill three seats on the State Supreme Court at once. One of the Justices, Chief Justice Castille had aged off the bench and two of the Justices had resigned because of scandal. So, you had a court which had two Republicans and two Democrats remaining on it. Democrats understood the importance of this election from day one. I represented one of them, now Justice Kevin Dougherty, who at the time was a sitting judge. And it really was an all-out effort from everyone involved on the Democratic side of the aisle to win these three races. The most immediate thing that we knew about it was that the Chair of the Legislative Reapportionment Commission, which draws the maps for the State Legislature is named by the majority of the Supreme Court. That tiebreaker vote has always been crucial and would be crucial here. And so, we have these three seats up and Democrats go all out. They go all out on spending. It was a race in which Democrats and Democratic-affiliated groups including an independent expenditure group, massively outspent the Republicans.
Adam Bonin:
I remember talking to one Republican after the election and it was his sense that Republicans just believed that no matter what they spent, we were going to top it. And towards the end of the election, all they were trying to do was knock down one of the three Democrats, my client, in an effort to avoid a total disaster. But in the end, we won all three seats, Justice David Wecht, Christine Donohue, and Kevin Dougherty to lock in a five, two majority. Justices serve for 10 year terms, subject to retention until age 75. So, those three are up again in 2025, which is the next, next, next huge election in Pennsylvania, which is going to be a fight. But in the meantime, we had a Democratic majority court, which among other things in 2018 struck down our congressional map, looking at our state constitutional guarantee of free and equal elections and decided and recognized that it was a bulwark against partisan gerrymanders like that congressional map.
And they put in place for the state legislative election a real nonpartisan in Mark Nordenberg, former chancellor of the University of Pittsburgh, former dean of Pitt Law and a legal and political scholar who tried to play it fairly the whole way through.
David Beard:
With these new, more fair maps, democrats are looking at some real opportunities after years in the minority in both chambers of the legislature. So what kind of gains might we be looking at and where might Democrats have an opportunity even for a majority in one or two of the chambers?
Adam Bonin:
Sure. In full disclosure here, I represent both the House and Senate democratic campaign committees here in Pennsylvania. I'm talking about what I hope and expect my clients to be doing here, but House majority is in play this cycle. It absolutely is and especially with a voter base based on early polling and early activism, I think everyone believes is going to be energized and motivated by the court's awful decision in Dobbs last week on the state Senate. Just because of the nature of the body that only half of it is up every two years, that's likely a two cycle project to get to a majority. But there are competitive seats this year. There are going to be plenty of competitive seats two years from now simultaneous with the presidential election. There is the potential for a lot of good things to happen here in Pennsylvania over the next few years.
David Beard:
Speaking of the Dobbs decision at this stage, what each state's policy on abortion is extremely important. And in Pennsylvania right now, abortion continues to remain legal pretty much as it was before, but there's no guarantee of that continuing. And that's probably most important in the governor's race. That's an open seat race, right? So why don't you tell us about that race and what we're going to be seeing there?
Adam Bonin:
Sure. The Democratic nominee who was unopposed in his primaries, the Attorney General Josh Shapiro, who is a longtime client and friend, who has been doing great work in the AG’s office as he did before then as county commissioner of Montgomery County and in the state house. And the opponent, as everyone knows, is state Senator Doug Mastriano who really came out of nowhere in the past few years as Trumpy and MAGA, but with an explicitly and overtly religious edge as anyone in America. This is a true, true believer that America is a Christian nation and that it is the job of the government to restore that kind of rule in America. He won in that gubernatorial primary in blow away numbers. Very popular with a certain portion of the Republican base here in Pennsylvania.
Adam Bonin:
But I think a lot of Republicans in Pennsylvania, including a lot of Republican establishment figures, view him as an embarrassment. It really is... There is some scary stuff in what he has said and what he believes, but the thing that scares me about him beyond that is that he does know how to dial it down. There's a scene, I don't know if you guys remember the movie Broadcast News from the late eighties, in which there's a breaking news story involving Libyan war planes. And they're trying to get the anchor up to speed about Libya and about Gaddafi. What the reporter says to the anchor at the time is the thing you have to understand about Gaddafi is yes, he's crazy, but one on one, he knows how to seem presidential.
Adam Bonin:
And there's the thing about Mastriano. When you look at some of his ads, his ads in particular about ending COVID restrictions or his rhetoric this week in terms of, "Oh, voters don't really want to talk about Dobbs and Roe. They want talk about inflation and the economy." He knows how to dial it down, and it's going to be up to Democrats to tell people exactly what they'd be voting for if they voted for Doug Mastriano.
David Beard:
And in particular around abortion, this is really a race that very well could determine whether or not abortion remains legal in Pennsylvania, right? Mastriano has a very extreme anti-choice position and Shapiro has promised to continue to protect abortion rights in Pennsylvania.
Adam Bonin:
Yeah. 20 out of the past 24 years, we have had pro-choice governors in Pennsylvania, Democratic and Republican. Tom Corbett being the only exception to that strand. And Mastriano will sign whatever the Republican legislature gives him in terms of restrictions, including potentially an overall ban. There's no question about that. And then the only question would be the Pennsylvania Supreme Court, as to whether they believe that there were grounds under the Pennsylvania constitution, and its separate protections of privacy and equality as to whether that contained separate protection for women's reproductive freedoms, which go beyond what now exists on the federal level.
David Nir:
So of course, the other race that we absolutely have to mention is the battle for Pennsylvania's open Senate seat. I should note that Daily Kos just this week endorsed Democrat John Fetterman who won the Democratic nomination in a walk. But this is going to be another super expensive and nasty race and also has huge implications for restoring abortion rights, because Fetterman is a key to the possibility of electing a democratic majority to the Senate that supports filibuster reform. Fetterman is recovering from a stroke that he suffered just before the primary. Can you give us a little bit of an update on him and the race in general?
Adam Bonin:
I've been texting with Lieutenant Governor and we're friends. I've represented him in the past and he's listening to his doctors and he's recovering. I saw my primary care doctor a few weeks ago for my annual checkup. And I had mentioned, "Look, I had this scheduled all already, but since Fetterman said I wish I had listened to my doctors and I wish I hadn't been afraid to show up and hear bad news." And my doctor told me, "You know what? You're the third male patient of mine today to reference Fetterman's letter about wishing that he had gone to see his doctor more often." So I think his candor has been a good service to the people of Pennsylvania beyond everything else. But he is recovering. They've started to announce some events in the next few weeks. So he is going to get out there.
Adam Bonin:
The other thing that they've done recently is they've onboarded a campaign manager, Brendan McPhillips, who's worked with Fetterman in the past, who is an incredible talent and a real winner. I mean, we're talking about someone who was Andrew Gillum's campaign manager during his primary down in Florida, winning a very hard-fought race. Then moved on among other things, being Pete Buttigieg's director in Iowa in 2020, where obviously they shocked the world by getting that guy a win in Iowa. So he's got real talent, an in-state talent on his side and they're ready to go. I mean, he is recovering and getting ready for what's going to be an intense final four months of this campaign.
David Nir:
Well, we have been talking with Adam Bonin, Pennsylvania election law expert, and longtime contributor to Daily Kos about everything going on in Pennsylvania politics this year. Pennsylvania, of course, is always a top state for us. So I am sure we will have Adam on in the future both this year and in coming election cycles. Thank you so much for joining us.
Adam Bonin:
Always a pleasure, guys.
David Beard:
That's all from us this week. Thanks to Adam Bonin for joining us. The Downballot comes out every Thursday everywhere you listen to podcasts, and you can reach us by email at thedownballot@dailykos.com. And if you haven't already, please like and subscribe to The Downballot and leave us a five star rating review. Thanks to our producer Cara Zelaya and editor, Tim Einenkel. We'll be back next week with a new episode.
