The far-right justices on Wisconsin's Supreme Court just can't handle the fact that liberals now have the majority for the first time in 15 years, so they're in the throes of an ongoing meltdown—and their tears are delicious. On this week's episode of "The Downballot," co-hosts David Nir and David Beard drink up all the schadenfreude they can handle as they puncture conservative claims that their progressive colleagues are "partisan hacks" (try looking in the mirror) or are breaking the law (try reading the state constitution). Elections do indeed have consequences!
The Davids also explain why the resignation of a Democratic justice on the North Carolina Supreme Court is actually good news … for Democrats. They then dive into an exciting new effort by reproductive rights activists in Colorado to place a measure on the ballot that would repeal the state's ban on public funding for abortions. And finally, they recap a very enjoyable special election that just saw a conservative Iowa county oust its election administrator for being an election conspiracy theorist.
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: What are we going to be covering on this week's episode, Nir?
Nir: Oh, man. There is an ongoing train wreck of a meltdown (to mix my metaphors) among conservatives on the Wisconsin Supreme Court. The tears are salty and delicious and we will be drinking them up. Then, we are going to talk about another Supreme Court, the one in North Carolina, where a Democratic justice just announced that he would resign, but it actually is not bad news.
Then, we're going to be heading out to Colorado where reproductive rights activists are moving forward with a ballot measure that would repeal the state's ban on allowing public funds to be used to provide abortion services. And finally, we are wrapping up with a fantastic story out of a conservative county in Iowa where voters just ousted the guy who runs their elections because he's an election conspiracy theorist in a huge landslide. A very fun episode of "The Downballot" coming up on our last show before the Labor Day break. Let's get rolling. So Beard, have you ever seen the Robert Redford movie The Candidate?
Beard: I actually have not.
Nir: Oh man, it is so good. You've got to see it. It's really one of my favorite movies about elections specifically. So the premise of the movie is that California Democrats are hunting for a sacrificial lamb to run against the popular incumbent Republican senator, and that tells you just how long ago this movie was made; it's from 1972. These days, obviously, it would be Republicans who would need to be lucky to find a sacrificial lamb for any statewide race in California.
Beard: Yeah, that's definitely flipped from the modern day.
Nir: Yeah, so half a century ago. Anyhow, the Democrats land on Robert Redford's character, Bill McKay. And Bill McKay is this basically unknown do-gooder lawyer except he has this one useful quality and it's that his father is a former governor, so he's got the name recognition, just not for himself. And so, Bill McKay agrees to run, but he has no political experience. He's completely overwhelmed and he tells his top advisor that he has no idea what to do.
And this consultant doesn't say anything in response. All that he does is, he hands Robert Redford a matchbook that has two words written on the inside in all caps, and it just says "YOU LOSE." And you could probably figure out where this is going. The idea here is that Robert Redford can't possibly win, so it doesn't matter what he does. The message is meant to be liberating. Well, I think that the conservatives on the Wisconsin Supreme Court probably this weekend should go on Amazon and rent The Candidate and watch it and really internalize that message. And I did check, you can indeed find it on Amazon, because it doesn't matter what they do; they lose.
Beard: Yeah, I think maybe the problem is more that they do understand that and they're having a huge temper tantrum about it.
Nir: You know what? You're exactly right. Ever since Janet Protasiewicz was sworn in on August 1st, the court's two far-right members, which include the Chief Justice, Annette Ziegler, and one of the associate justices, Rebecca Bradley, have been just losing their shit because they've lost, because liberals now have their first majority since 2008, and it's just been one long continuous, extremely public meltdown on the part of these two justices. So voting rights advocates recently filed a suit challenging the GOP's gerrymandered legislative maps, and the court majority agreed to consider whether to hear it: a very preliminary step, but basically allowing the case to proceed.
Bradley wrote this dissenting opinion, so this is an official court opinion, and she went completely hog-wild on her colleagues. She claimed that they allowed the case to move forward in order to confer "an electoral advantage for Democrat candidates." Yes, in the same descent, she even then referred to it as the "Democrat Party." I mean, this is the most embarrassing juvenile slur that Republican politicians like to use, and this is coming from a supposed justice of a state supreme court seriously.
Beard: Yeah. If they're trying to project some sort of responsible, above the fray-ness while criticizing the progressive majority for being out of bounds, they're doing a really terrible job of it because they just sound like Republican Party hacks the whole time.
Nir: Well, and that's exactly it. So the even more amazing thing, so Bradley gave this interview to the Milwaukee Journal-Sentinel and she said that her liberal colleagues were political hacks and politicians wearing robes. And it was so rich, Beard, because just last week, just last week, Bradley was seen attending the GOP presidential primary debate that happened to be in Milwaukee. And even better, she was photographed partying at a Koch event afterward: Americans for Prosperity. I mean, if we want to talk about political hacks and politicians wearing robes, I mean, hello, look in the mirror here.
Beard: Yeah, I think there's some real projection going on where Rebecca Bradley in particular is really just like a Republican political operative who happens to be on the Wisconsin Supreme Court, and she just hates the idea that there's a bunch of justices who are in the progressive majority now, and she just assumes they're all Democratic Party hacks doing whatever the Democratic Party wants, as opposed to believing that gerrymandering is wrong and unconstitutional. And so, she's just throwing out all this stuff at them, because she's assuming they're just like her because she's just a hack.
Nir: You absolutely nailed it. It is totally projection and it's also projection coming from the Chief Justice, Annette Ziegler. She is also totally red in the face. She has been the chief since 2021, and she is used to running the show, but the progressives, because they have the majority, have sidestepped her in a number of ways and she appears to be leaking internal court emails now to the press that she thinks make the liberals look bad, but all that Ziegler is doing is making herself look absurd. She has said, and these are all quotes, she has said that what the liberals are doing is an "unprecedented coup," an "illegal experiment," a "historical disgrace," a "hostile takeover." No, no, it's called an election.
Beard: Yeah. It's really reminding me of what Republicans have been doing more and more recently, which is just like using words that don't actually connect to any arguments. You can call something an illegal experiment and a historical disgrace, but if it's not connected to anything, they're just random words you're throwing out that you, I guess, think make yourself sound good. But there's not actually an argument there, she's just unhappy and throwing out words.
Nir: Yeah, and exactly. She keeps ranting that what the liberals have done is illegal. It violates the state constitution, but the state constitution is really clear on this point, and the thing that she's objecting to is a power that the Constitution specifically grants to the Supreme Court. The Supreme Court is in this provision of the Constitution, those exact words, not the chief justice, not any justice acting alone: the Supreme Court. And the Supreme Court is run based on majority rule, and guess who's in the majority?
Now, I do think that the liberals need to start being more proactive about getting their version of events out there before conservatives do, because it seems like Ziegler and Bradley just keep running to the media, or in Bradley's case, she's on Twitter and she is a poster, I mean, in the worst sense of the word. And so, they are butthurt and they go complaining to the press, and then that becomes the day one story.
And then, only later have we been seeing the liberal pushback. And I really think it would behoove the liberals to get out there first. And I understand why they don't want to, because they don't want this to be some partisan tit-for-tat, but the conservatives are going to get down and dirty no matter what. And so, the liberals need to get their version of events out there, and I will say they are not taking shit. Justice Rebecca Dallet, one of the liberals, wrote in response to Ziegler's latest outburst this week. I just freaking love this. I'm going to read an excerpt from her email:
"You stand in the company of equals and your vote does not count extra, let alone prevail against four other votes. Whether you like it or not is irrelevant. Your frantic emails and public statements notwithstanding, your power has been limited in accordance with the Constitution, which allows a majority to rule and to develop procedures you must respect."
Or, in short, you lose.
Beard: Well, I have nothing to add to that statement that you just gave, so I think we're going to move on to our next topic, which is still a Supreme Court, but the North Carolina Supreme Court, which unfortunately is facing the reverse. Obviously, conservatives now control the North Carolina Supreme Court after the progressives controlled it for the past few years.
But the news recently is that North Carolina Supreme Court Justice Mike Morgan announced that he would be stepping down in September. Now, Morgan had already announced that he was going to be retiring. He was up for reelection in 2024, and so, that doesn't actually change when the election's going to be held. It's still going to be in 2024, but Democratic Governor Roy Cooper will be able to appoint a replacement for Morgan to serve out the rest of his term.
Now, Morgan was one of two remaining Democratic justices after the GOP took control of the court last November. So it's very important that Democrats keep control of this seat if they have any hope of taking back control of the court down the road later this decade. So you're already down to two seats. Obviously, you don't want to go back down to one seat just before you start going on offensive opportunities later in the decade to try to go back and gain control again of the majority.
So just to be clear, Morgan resigning isn't really bad news from our perspective, it's actually potentially good news because Morgan would've had to step down a few years after his next term if he had run for reelection, due to age limits. Having someone in the seat who has some benefits of incumbency and who can serve the full term if they win that election is probably, on the whole, good news for progressives looking to take back the Supreme Court.
Now, for the appointment itself, speculation has centered around either one of the four Democratic Court of Appeals judges. The Court of Appeals is the lower court just below the North Carolina Supreme Court, and it's also statewide elected positions in North Carolina. Or even there's been speculation around former Chief Justice and former Senate nominee, Cheri Beasley, who lost her seat of course on the Supreme Court in 2020 by just 400 votes. Now, whoever Cooper appoints will hopefully gain some advantage from the incumbency and be able to consolidate Democratic and progressive support as they move into campaigning for a full term in 2024.
Now, to circle back to another branch of government in North Carolina, not the Supreme Court, Morgan, the Justice who's retiring and now resigning had recently expressed interest in running for governor a couple of months ago, which surprised a lot of people as the Democratic field in North Carolina had largely been cleared for Attorney General Josh Stein. Cooper, of course, is term-limited and can't run for another term as governor. Now, potentially to help ward off such a primary from Morgan, Cooper this week officially endorsed Stein to succeed him.
Now, I think Cooper's support had been assumed to be coming at some point on behalf of Stein, but the timing certainly seems directed at Morgan, who of course just announced this decision to resign and is clearly going to be deciding about whether or not to run for governor in the next few months. So we'll have to wait and see if this influences Morgan's decision to run for governor or not and what his announcement ends up being. The filing deadline is December 15th, so we'll have to have a decision by then.
Nir: There's also another possible way to read this, which our Daily Kos Elections colleague Stephen Wolf suggested, which is that Cooper has always been a very cautious politician, and when Beasley ran for Senate last cycle, she had some opposition in the primary that all eventually dropped out, but Cooper didn't endorse Beasley until it was clear that she had the nomination sewed up.
So maybe this is Cooper trying to keep Morgan out of the race, or maybe it's Cooper knowing that Morgan isn't even going to get into the race. But like you said, we will know in a few months time. And for a major statewide race like this, yes, the filing deadline isn't until mid-December, but Stein has been running for, I mean, pretty much all year. Honestly, he's been running since even before this year. Everyone knew he was going to run for governor for quite some time. So if Morgan gets in late, it's already late, but if he waits until December, he'll be giving himself very little time ahead of next year's Democratic primary.
Beard: Yeah, I think the expectation is that Stein was going to run for governor and be the Democratic nominee since he won reelection to the attorney general seat back in 2020. This is something that's been a long time coming. He's got the establishment support behind him. He's going to have a ton of money. So I think even if Morgan decides to take a crack at this, it's going to be very, very difficult. Of course, he was a Supreme Court justice, like a statewide position that he's been elected to in North Carolina. He would be the first black executive in North Carolina's history, so he certainly has some things going for him, absolutely. But Stein is probably a freight train at this point, so it's going to be hard to get in the way of that.
Nir: Well, this is "The Downballot," Beard, and so we have to of course talk about abortion because we do that every week. There is some really exciting news on that front out of Colorado. According to a report from Catie Cheshire in the publication Westword, reproductive rights advocates are gearing up to put a measure on the ballot in 2024 that would not only enshrine the right to abortion into the state constitution. But here's the really interesting thing: it would also repeal a ban on using public funds for abortions.
Back in 1984, Colorado voters passed a constitutional amendment by an extremely narrow margin, less than 1% that prohibited any public employee on their employer's health insurance to use that insurance to pay for an abortion. And also, as in a lot of states, it also meant that Colorado wouldn't pay for abortions for anyone on Medicaid. Now, Congress for decades and decades has been passing the Hyde Amendment that prohibits federal Medicaid funds from being used for basically all abortions. But according to Kaiser, also known as KFF, 16 states actually allocate public money of their own to fill in this gap so that women who are on Medicaid can receive abortion care. Most of these states are blue states, but there are actually, interestingly, a couple of more conservative states on that list, including Montana and Alaska.
So we're talking about a very large number of people, public employees plus anyone on Medicaid who would be impacted by this change. Organizers are not yet sure whether they would actually need one ballot measure or two separate measures. Various states have different rules about the number of subjects that a single ballot measure can actually cover, so they're going to figure that out at some point. They might need two separate ones, one to actually add abortion rights to the constitution, and another to repeal the ban on public funding.
One key thing to note is that Colorado is the rare state that requires a supermajority to amend its constitution in all cases. In fact, it's one of only two states that do so. In Colorado though, that figure that you need to hit is 55%. So it's not the 60% that Republicans just tried and failed to require in Ohio, or that's actually also the actual figure you need to hit in Florida. But Colorado's become reliably blue in recent years, like really blue. Joe Biden won by 14 points. And Beard, I was actually a bit surprised to see this when I was looking it up, but Biden is the first presidential candidate to carry Colorado by double digits since the Reagan landslide in 1984.
So the fact that organizers feel good not just about saying we want to put abortion rights into the Constitution, but also we want to allow public funds to be used to cover abortions; that says very good things to me. I don't think they would be considering this as always without doing a lot of polling and getting a really good vibe check on the Colorado electorate. And like we were talking about on a recent episode, look, I don't think Colorado is going to be in play in the presidential race in 2024, but frankly, I think any measures on the ballot that are in favor of expanding abortion rights or enshrining abortion rights, that can only help Democrats elsewhere on the ballot.
Beard: Yeah, and there will be competitive congressional elections in Colorado in CO-03 and CO-08, almost certainly. So that's something that could certainly, we could see some benefit from. I do want to take this and take a bigger picture for a second, because post-Roe, pre-Dobbs, that period of time when abortion was legal because of the right to privacy, there were a ton of these types of restrictions to make it difficult for people to get an abortion. Obviously, the Hyde Amendment is one of the most famous, barring any federal funds to go toward any sort of abortion services.
And one silver lining long-term, as we see this ongoing fight for abortion rights across the country, is my hope that we see less of this bullshit, basically. There's no reason that someone on Medicaid or someone who has health insurance through the state because they're a public employee — or any other reason like that — doesn't also have access to reproductive services and abortion. And the fact that now we're having to go through this fight and we're having to enshrine abortion's legality in all these state constitutions, hopefully, that will also lead towards stronger abortion protections and less of that bullshit, where some people have real difficulty getting abortions because of regulations like that.
Nir: Yeah, the Hyde Amendment and everything associated with that, it's not just anti-women, it's not just classist, it's also supremely racist because obviously, it impacts people of color to a disproportionate degree, but I agree with you. I feel like we do have a chance to create a better world on the other side of this, and there has already been incredible pain, incredible pain caused by this runaway United States Supreme Court, and I would never suggest it's worth it for a minute, but we're here now and we have to think about what that next world looks like. And it shouldn't just be a return to the Roe status quo, it has to be a post-Hyde world that we create.
And I'm looking at this map from Kaiser and there are a number of other states that could right now take action toward allowing public funds to be used for abortions. There are several blue states or swingy states that Democrats might recapture in the next few years that could be added to this list. There are only 16 states, like I said, that are currently providing public funds for abortion. So I definitely think that Colorado organizers are on the vanguard here, and I really hope that we see folks in other states pick up this mantle and really make a push to allow access to abortion that is not just in name only.
Beard: Yeah, and obviously, we haven't seen any elections to see what the public might vote on, specifically on the idea of public funds, but given the sea change in attitude we've seen post-Dobbs, I think it's a great idea to try it in Colorado and hopefully try it in other places as well.
Nir: Yeah, I definitely want to dig into polling on that. I'll be really looking forward to the next batch of public polling. Certainly, someone has to start asking about this, but I find it interesting that we're talking 30 years ago when Colorado had that vote and it only passed 50.4% of the vote — and it's always difficult to go back several decades, and compare their politics to ours — but that was also the year of the Reagan landslide, and yet it barely, barely passed this ban on public funds. So yeah, I think that large parts of the country would be in favor.
Beard: Yeah, absolutely. So we're going to finish up with a great story out of Iowa where there was a special election where another great result happened, but there's quite a backstory to this one, so I have to give you a little flavor before we get to the result. Now, Warren County is a GOP-leaning county in Iowa outside Des Moines that Donald Trump won 57-41 back in 2020. So solidly Republican County Auditor Traci VanderLinden was the last elected Democrat in the county. She resigned earlier this year for personal reasons and recommended to the county board that they appoint her deputy for the remainder of the term, Kimberly Sheets, that would let her serve until 2024.
Now, the all-GOP Board of Supervisors disregarded that advice and its fervent desire to put someone with an R next to their name in this position instead of a Democrat. So they appointed the only other person who applied other than Sheets, David Whipple, a construction superintendent. Whipple had no government experience, but what we did find is that he was very experienced with spouting election conspiracy theories on social media. There was one in which he wrote of the President, "Joe admits MASSIVE VOTER FRAUD" in all caps "during brain fart." He also had one where he shared a QAnon video just before the January 6th attack on the Capitol. He also followed up with one promoting a September 11th conspiracy theory. So he goes way back in his conspiracy theories.
Nir: That is some old-school conspiracy theory-mongering, but let's emphasize one really important point here. The auditor, the position of auditor, that's the guy who runs the elections. And so, this guy, another poster was spouting conspiracies about elections. That's just what you want.
Beard: Yeah, it's like putting your crazy uncle in charge of the elections of an entire county and be like, "Oh, I'm sure that'll go fine. He has an R next to his name. It'll be fine." Now, while Whipple ordinarily would not have gone before voters until November of 2024, Iowa law gives voters 14 days to sign petitions to force a special election for any appointed county officials. And, of course, Democrats in this county after seeing this guy get appointed very quickly, got their shit together and collected the 2,400 signatures they needed, which was 10% of the votes cast in the most recent election for governor in the county. So this was no small order for Democrats in this county to organize this and get the special election on the ballot.
Now, once the special election was placed on the ballot and it became clear that Sheets was going to run against him for the auditor job, Whipple responded by putting his deputy, Kimberly Sheets, who was going to run against him, on leave because he said it would be awkward for the folks that worked for him to also work for the deputy who was running against him. Of course, we see this happen in counties all the time with people running against each other for positions. There was absolutely no need to put her on leave, but of course, he insisted.
Nir: Yeah, I mean, that's such a BS excuse. That seems like such obvious retaliation. I got to imagine that only made people even more sympathetic to Sheets.
Beard: Yeah, I'm sure that didn't help. And Sheets went on to win the special election that took place on Tuesday by a massive 67 to 33% margin, which is a 52-point swing from the presidential result from 2020. So it's just an absolutely huge margin shift, where clearly voters in this Iowa county; they may have voted for Donald Trump a few years ago, but this guy was way too crazy for them.
Nir: 52 points. I mean, that reminds me of some of those bonkers special elections we were seeing in 2017 like when Trump had just gotten into the White House and people were at their absolute angriest. It's only too bad this is not the kind of... At Daily Kos elections, we tracked the special elections so, so closely, but we focus on special elections for legislative office. We don't often see special elections for things like the county auditor post. And Beard, like you said, Democrats were able to use this very unusual law, but it's a really interesting law. I kind of like it, but yeah, 52 points. That would shift the average even higher in Democrats' favor this year than it's been. I mean, that can't feel good.
Beard: Yeah, that obviously doesn't go in that special election tracker that we have that's around legislative seats, but this one would really, really go to the top of the list in terms of margin. I do think it is a good law. There's been a lot of debate around the idea of special elections versus appointments and what's better to do in between when things would be really low turnout. And I do like this idea that there is an appointment, but voters get the opportunity to have their say if enough of them organized and sign a petition to make it happen.
Nir: And like you said, that threshold is actually pretty high. 10% of votes in the most recent election for governor in the county is not a small number. So if you actually are going to try to force a special election this way, you really have to put your work in. I'd want to think on this a little bit more before this gets the official "Downballot" endorsement for how to fill vacant seats, but it certainly is an interesting idea.
There's one other point that I wanted to emphasize before we wrap, which is that this wasn't just about Democrats taking revenge on this total turd. This guy would've been in charge of the election, presidential election, in November of 2024, if he had remained in his post. And yeah, okay, maybe Iowa won't be competitive, but that can't be the reason it's unacceptable to have election deniers running our elections. You don't want election deniers running any election anywhere. It's completely unacceptable. And for that reason alone, it is very good news that he will not have his hands on the voting equipment that is going to be used in next year's election. The amazing thing is he has not ruled out running again. I'd be like, "Okay, dude, you just lost two to one in a red county. Good luck."
Beard: Yeah, and this county is in Iowa's 1st congressional district, which is a potentially competitive district, so there could very well be a competitive race that it's really important that this county has a competent election official running this office. So great that Sheets won, and she's going to be the auditor until November of 2024 and hopefully can win a full term next year.
That's all from us this week. "The Downballot" comes out every Thursday everywhere you listen to podcasts. You can reach out to us by emailing thedownballot@dailykos.com. If you haven't already, please subscribe to "The Downballot" on Apple Podcast and leave us a five-star rating and review. Thanks to our editor Trever Jones, and we'll be back next week with a new episode.
