This Week in Statehouse Action: Be Sirius edition

I know a lot of folks believe that the “dog days of summer” are basically, like, just August, but did you know they’ve already come and gone? 

“Dog days” are so called because they refer to the period of time – a little longer than a month, early July through mid-ish August – when the Dog Star, aka Sirius, rises in conjunction (or close to it) with the sun.

And a long time ago, when things like astrological phenomena were ill-understood, folks thought that the combination of the brightest star in the night sky rising with the brightest luminary of the day was responsible for the extreme summertime heat (obvs this didn’t apply to the southern hemisphere, but I’m willing to bet I don’t have a ton of readers in that part of the world so maybe we can let it slide…?).

Now, of course, we know this to be super incorrect, but it makes some sort of rudimentary sense, no?

Speaking of sense – if that’s what you want, you’ll have to make it yourself.

Dog Days Are Over? 

A couple of weeks ago in this space I celebrated the swearing in of Janet Protasiewicz as Wisconsin’s newest state Supreme Court justice.

Now – for the first time since 2008 – Wisconsin’s highest court has a progressive majority (4-3).

And state Republicans – who enjoyed unchecked control over state government from 2010 through 2018 – are NOT taking it well.

• Before Protasiewicz was even elected, GOP lawmakers surfaced the idea of impeaching her for … um, winning a free and fair election?

Because that suggestion was incredibly stupid and/or incredibly undemocratic, impeachment talk dissipated between the election and Protasiewicz’s swearing in.

But Republicans in Wisconsin’s legislature just cannot abide any threats to their control, so impeachment talk is back, baby!

And this time it’s coming straight from the mouth of Wisconsin Assembly Speaker Robin Vos.

Vos isn’t just screaming ARGLE BARGLE IMPEACHMENT, though. He’s much more clever than that:

• Say you’re a conservative and the state’s highest court just got itself a progressive majority that’s unlikely to rule the way you’d like on certain cases. What do you do?

  • You pressure the new progressive justice to recuse herself from those cases, is what.

  • And then you threaten her with impeachment if she doesn’t bow to your demands.

This isn’t a conservative cure-all, by any means.

• Protasiewicz’s recusal would likely result in tied rulings in the most controversial cases, and in law, a tie goes to the loser, so to speak (the lower court’s ruling in the case stands).

In the near term, Vos’s threats are mostly tied to a new lawsuit seeking to overturn Wisconsin’s super-gerrymandered legislative maps.

• A progressive majority is likely to toss the GOP’s truly excellent gerrymanders, which could result in fair Assembly and Senate maps in a state that’s fairly evenly divided politically.

• Fair maps mean a more evenly divided legislature, and that’s a real threat to Vos’ and his GOP cohorts’ grip on power.

Another important case coming before the court soon? Abortion rights.

Wisconsin’s Democratic attorney general has sued to block a 174-year-old law banning abortions in the state, and Protasiewicz will likely be the difference between women having a right to bodily autonomy in the Badger State or not.

• Seeing as Protasiewicz actually made reproductive rights a centerpiece of her campaign, she’s unlikely to recuse herself from a case Wisconsinites (arguably) mostly elected her to rule on.

Based on Wisconsin Republicans’ history of abuses of power (remember when they worked to strip the incoming Democratic governor and attorney general of as many powers as they could just because they were Democrats who had the temerity to get themselves elected?), there’s absolutely no reason to think that Vos won’t make good on his impeachment threat.

And since Republicans have the Assembly majority required to impeach and the Senate supermajority required to convict, there’s no reason to think that their impeachment efforts won’t be successful.

But Wisconsin Republicans may – may – run into some problems:

• According to an official memo from the Wisconsin Legislative Council (which is essentially the bipartisan policy research arm of the legislature), “The Assembly may impeach an elected official by a majority vote based on specific reasons: corrupt conduct in office or for the commission of a crime or misdemeanor.”

• Wisconsin Republicans have another option for removing Protasiewicz known as “address;” the standard for removal is lower than with impeachment (“misconduct”), but removal requires a supermajority vote in both legislative chambers, and Assembly Republicans are just shy of the ⅔ they need.

But! I can almost hear you saying. Doesn’t the Democratic governor get to appoint Protasiewicz’s replacement if she’s removed?

Yes, but Republicans can pretty easily rig themselves a 3-3 state Supreme Court for a good long time.

Here’s how:

• According to the state constitution, “No judicial officer shall exercise his office, after he shall have been impeached, until his acquittal.”

• So the Wisconsin Assembly could impeach Protasiewicz, effectively removing her from the court, and the Senate could drag its feet pretty much as long as it wants before actually holding the impeachment trial.

• If Protasiewicz isn’t actually removed from office, Evers can’t replace her.

• And Wisconsin Republicans get a 3-3 court that’s unable to make any of the progressive rulings they seem to fear so badly.

Hound Dog

I’m not prone to admitting this too often, but Virginia isn’t the only state with important elections this fall.

…I’ll wait for your vapors to fade

There’s a state Supreme Court race in Pennsylvania this November, too.

While the results won’t change the partisan control of the court (before Justice Max Baer’s death last year, Democrats had a 5-2 edge), allowing Republicans to get within striking distance of a majority is a dangerous thing.

Democrats only won a majority on the court in 2015, and since then, Pennsylvania’s highest court has made a series of important pro-democracy decisions, from striking down the GOP’s congressional gerrymander in 2018 and providing a crucial backstop to preventing another set of GOP-gerrymandered state legislative maps this decade to smacking down a slew of Trump’s post-election lawsuits in 2020. 

• It’s also worth noting that, like their counterparts in Wisconsin, Pennsylvania Republicans threatened Democratic justices with impeachment – but at least they waited until those justices actually made rulings they didn’t like!

State Superior Court Judge Daniel McCaffrey won the Democratic endorsement in the race; he faces Republican Carolyn Carluccio, a county court judge. 

• McCaffrey is a former prosecutor and is supported by Planned Parenthood and labor unions across the state.

• Shortly after winning her primary, Carluccio removed part of her campaign website that highlighted her anti-abortion stances. 

  • Her campaign site currently makes no mention of abortion, but early this year, Carluccio claimed that she received the endorsement of the PA Pro-Life Federation, a group that stridently opposes reproductive rights. 

Odd-year elections aren’t the norm in Pennsylvania, and that plus the fact that the outcome of this race won’t change majority control of the state Supreme Court could render this a low-turnout affair – and low-turnout elections can defy state trends (see: the 2013 Colorado recalls vs. elections in the same districts the very next year).

Sure hope I’m wrong, though.

Doggy Dogg World

Now that North Carolina Republicans have supermajorities in the state House and Senate and majority control of the state Supreme Court, pretty much nothing can stop them from doing whatever the heck they want.

The latest cocktail in the state GOP’s drunk-on-power order: Voter Suppression.

• This week, the legislature finalized passage of SB 747, an omnibus anti-voting bill, along party lines.

  • Here’s what makes it bad:

    • It eliminates the three-day grace period for accepting and counting mail-in ballots postmarked by Election Day.

    • It remakes the role of partisan poll observers to allow them freely move around polling locations, listen to conversations between voters and election officials, and take pictures – moves that may lead to voter intimidation.

    • It extends the deadline for challenging to mail-in ballots from Election Day to five business days after Election Day.

    • It changes the same-day voting (when you register to vote and cast your ballot at the same time during the early voting period) ballot verification process to make verifying such a ballot more difficult and throwing out that ballot much easier.

Democratic Gov. Roy Cooper will veto the measure, but the GOP supermajorities in the legislature will just overturn it.

Voting rights groups will sue over the new law, but the GOP-majority state Supreme Court will (almost certainly) find it perfectly constitutional.

sigh

Chasing Cars

It’s old news at this point, but we still need to discuss what happened in Ohio last week (...how, though? Is it just me or does it already feel like that was last month? Time, illusion, etc.).

And what went down is that Buckeye State voters took a metaphorical chair to statehouse Republicans’ attempt to rig future ballot amendment votes.

• You may recall that, a couple of weeks ago in this space, I went into some detail about how and why Issue 1 (the ballot measure that would have arbitrarily raised the threshold for passing constitutional amendments to 60%) was forced onto the ballot by GOP lawmakers for an (otherwise outlawed) August special election.

To the surprise of fairly few, the measure failed, and the threshold for passing all ballot measures in Ohio remains the same as winning any other election – a simple majority vote.

• And it failed quite respectably: 57%-43%, specifically.

The results are Good, Actually. Also important. Here’s why.

• Reproductive freedom advocates actually have a shot at enshrining abortion rights in the state constitution at the ballot box this fall (also Ohioans might legalize recreational marijuana in November!).

• Other ballot measures that allow Ohioans to enact policies their gerrymandered GOP legislature refuses to address have an honest shot at success.

  • Some things that might appear on the Buckeye State ballot in 2024:

    • An actually independent redistricting commission (the ones voters approved in 2015 and 2018 are trash).

    • Raising the state’s minimum wage from $10.10 to $15 an hour.

• Voters clearly rejected the transphobic tactics Issue 1 proponents resorted to.

• Illinois GOP megadonor Richard Uihlein wasted $4 million trying to get Issue 1 passed.

• The “no” side’s margin over “yes” on Issue 1 improved on Biden’s 2020 performance in Ohio by 22 points. (Daily Kos Elections has a great breakdown of where and with whom this shift occurred.)

Issue 1’s failure is just the latest in a significant string of NOPES voters have handed to Republicans all across the country who are trying to undermine direct democracy.

But we shouldn’t expect Republicans to give up on these efforts.

As someone who cut her political teeth in a state that doesn’t give citizens the ability to propose and vote on new laws or constitutional amendments at the ballot box, I’m reluctant to assume that all of my readers are 100% up to speed on ballot initiatives. 

So here are some fun facts!

• Twenty-four states enable proactive policy initiatives.

• Two additional states (Maryland and New Mexico, if you’re wondering) enable citizens to nullify laws passed by their legislatures but not enact new ones.

• Eighteen states allow initiatives to amend state constitutions, and 23 states allow ballot initiatives to enact new laws.

Despite the fact that most of the banner ballot measures in recent years have been proposals to enact progressive change – raising the minimum wage, protecting abortion access, expanding voting rights, and establishing nonpartisan redistricting commissions are just the first ones that come to mind – direct democracy is a nonpartisan tool that’s popular with voters of all political stripes.

The nature of ballot measures is akin to that of other statewide elections – governor, U.S. Senate, and a handful of other offices, depending on the state – which makes them effectively immune to gerrymandering.

So it’s not super surprising that a lot of gerrymandered state legislative majorities — as of this writing, we’re just talking about Republicans – aren’t big fans of a mechanism that gives voters a way to bypass unresponsive lawmakers.

• That said, if Democrats had more power at the state legislative level, I’ve no doubt that voters would use ballot measures to enact conservative policies, too.

  • To wit: Colorado, where a whopping 65% of voters approved a measure reducing the state income tax rate in 2022.

But Democrats in Colorado didn’t respond to this successful ballot initiative by working to undermine direct democracy.

Republicans in many other states are, though.

• Anti-ballot initiative Republicans are generally approaching this effort in one (or more) of three ways: 

  • Preventing ballot initiatives from reaching the ballot

  • Raising barriers to ballot measure passage (e.g. Ohio on Tuesday)

  • Blocking or sabotaging implementation of successful ballot measures.

Honestly, going on about what GOP lawmakers have done in each of these areas in recent years is a whole newsletter unto itself, so let’s just look at current and ongoing Republican attempts to undermine direct democracy.

• In Arizona, a constitutional amendment to significantly change the nature of the signature-gathering that’s required to put measures on the ballot will come before voters in 2024.

  • Current law requires ballot measure proponents to gather a number of signatures statewide equal to 10% of the vote in the most recent gubernatorial election. If passed, this 10% threshold will apply to each of Arizona’s legislative districts (House and Senate seats are nested here).

    • The measure is intended to neuter the influence of increasingly-blue Maricopa County, where 62% of the state’s population resides.

• Also in 2024, North Dakota voters will be asked to approve a constitutional amendment requiring citizen-initiated measures to win twice at the ballot box – first at the next primary, and then again in the general election.

  • The lawmakers who placed this amendment on the ballot exempted themselves from this onerous requirement – legislature-initiated measures would only have to succeed in the next general election.

    • The amendment would also significantly increase the number of signatures citizens are required to gather to place a measure on the ballot.

We’re certain to see more of these proposals before the 2024 elections, so stay tuned.

In addition to the proposed limitations listed above, GOP lawmakers in two states passed new laws this year making direct democracy more difficult.

• In Arkansas, the signatures required to place measures on the ballot now have to be collected from 50 of the state’s 75 counties (an increase from 15).

  • Natural State voters soundly rejected a similar proposal as part of a constitutional amendment in 2020.

• In Montana, citizens wishing to place a measure on the ballot must now pay a filing fee $3.700.

  • Also, if a measure failed within the prior four years, it can’t be placed on the ballot again.

So!

Thank you, as ever, for hanging in.

Stay cool during these waning days of summer.

And take care of yourself.

You’re important. 

We need you.