The Arizona GOP put Proposition 137 on the ballot in June, amid widespread outrage over the state supreme court’s April decision to uphold a Civil War-era abortion ban. Within weeks of that ruling, the progressive group Progress Arizona launched a campaign to unseat two of the justices who sided with the majority and are up for retention this fall, Clint Bolick and Kathryn King, providing an outlet for voters put off by the decision and the court’s ideological makeup.

Prop 137, if it passes on Nov. 5, would nullify Bolick and King’s retention races that are taking place on the same day, as well as cancel future elections. 

The proposal is “a power grab,” said Abigail Jackson, digital director of Progress Arizona. “This was responding to the energy and the anger we saw around that decision. The extremist legislators who pushed the proposal forward did it with the intention of protecting these judges.” 

She added, “It is designed to take away our voices.”

Jake Faleschini, program director for the Alliance for Justice, a national organization that works to build progressive strength in the judiciary, points to a string of changes the GOP has pushed nationwide to consolidate power in state courts. In Arizona, Republicans last decade expanded the state supreme court and secured a strong conservative majority. 

“At the end of the day, they want policy outcomes from the courts and they are willing to change the rules to achieve that,” Faleschini told Bolts.

“What we are seeing now is a bit of an awakening from the left around just how important these courts are for maintaining our rights,” he said. “As these rights have been taken away by the [U.S.] Supreme Court, some of the state supreme courts are no longer there as willing participants in proactively protecting their rights.”

Supporters of Prop 137 say it is designed to insulate judges from such blowback against their rulings so they don’t have to pander to win votes. Republican Senator David Gowan, one of the measure’s chief sponsors, says he’s worried about national groups flooding state elections.

“This proposition makes it difficult for nefarious outsiders to manipulate our judicial process,” Gowan told Bolts. “We see a lot of dollars pour in from out of state to unseat judges who can’t defend themselves because they aren’t politicians.” 

Gowan, a conservative who used to be state Speaker, has a history of proposals that would override election results. He proposed a bill in 2021 to allow lawmakers to attribute Arizona’s electoral votes to whichever presidential candidate they choose, regardless of how people vote. 

This year’s Prop 137 would cancel retention elections for supreme court justices, judges on the state’s court of Appeals, and superior court judges in counties above 250,000 residents.

Currently, all judges first make it on the court through an appointment by the governor, though the state has some guardrails for who governors can choose: They must select their nominee from a shortlist of candidates assembled by a 16-member panel, though that panel’s members are also chosen by the governor. 

Once judges are on the court, they face regular performance reviews, as well as retention elections every four to six years that give the public some say; these races are ‘up-or-down’ questions, in which Arizona judges never face an opponent. As long as they win these retention tests, judges can stay on the court—up until the mandatory retirement age of 70. 

The system was approved by Arizona voters in 1974, with support from Sandra Day O’Connor, who at the time was a Republican state senator. After she retired from the U.S. Supreme Court in 2006, O’Connor worked to bring Arizona’s system to other states.

This year, the Arizona Judges Association, a professional organization that represents hundreds of judges, advocated for the measure to end retention elections. Jonathan Paton, a former GOP lawmaker who lobbies on their behalf, told lawmakers that scrapping retention elections would improve accountability because it’s too difficult for voters to make informed decisions on judges.

“I represent the Judges Association, and I don’t know who most of these people are that appear on the ballot,” Paton testified in the legislature. “So, do we think that the average voter knows?”

Paton is married to Court of Appeals Judge Angela Paton, who is also up for retention this fall and has been targeted by a progressive group. If Prop 137 passes, it would also nullify the results of her election. 

But many Arizona jurists don’t want the public to be cut out of the process of deciding who runs the courts, and the debate over Prop 137 created large rifts within the legal community. 

Retired Chief Justice Ruth McGregor, a former president of the Arizona Judges Association, spoke against Prop 137 at the launch event of Keep Courts Accountable, a political action committee formed in August to convince voters to reject the amendment. Former Chief Justice Scott Bales and former Justice John Pelander spoke at the event as well. 

Reached for comment, Paton would not say whether the Arizona Judges Association still backs the reform. The association’s website was taken offline in the last month. Paton also told Bolts that, as a lobbyist for judges, he cannot reply to questions about an active ballot measure.

“Without the vote of the people, the judges would have no accountability,” Felicia Rotellini, who chairs the Keep Courts Accountable PAC, told Bolts. “If there is no accountability to the people, then there is a motivation to lean towards their own ideological preferences, their personal preferences, their political preferences.”

“We will lose part of our democracy,” said Rotellini, who is also a former head of the state Democratic Party.

Arizona is among the 31 states that hold elections for their justices. Ending that practice would make it an outlier in the West, where many states adopted judicial elections during the Progressive Era as part of a broader wave to end corruption and cronyism. The 19 states that have no judicial elections are heavily concentrated in the northeast of the country.

In Arizona, a commission of laypeople and legal experts periodically reviews judges’ performance to determine if they meet the standards for the bench, based on surveys collected from attorneys, fellow judges and people who have appeared before them in court. The scores are shared with voters before each election to help voters decide whether to keep them based on standards of merit, such as legal ability and integrity, rather than political issues.

If Prop 137 is approved, judges would only go before the voters if they fail their performance review, a rarity in Arizona, or if they are convicted of certain crimes, declare bankruptcy, or foreclose upon a mortgage. Gowan is making the case that this reform would help voters make decisions that are a lot more informed.

“The judicial retention portion of the ballot, that’s two pages long,” he said. “If we take the high performing judges off the ballot, it allows the people to see the low-performing judges, and they are no longer able to hide in the crowd, because those are the ones we want to knock out.”

But Prop 137 would also modify the performance review process by injecting legislators into it: The majority party in each chamber would appoint a member to the otherwise nonpartisan commission charged with assessing judges for impartiality, temperament and expertise. 

According to Bales, the former chief justice who spoke at the launch of the PAC that opposes Prop 137, the change would “make judges more susceptible to criticisms from the legislature, and perhaps a little less susceptible to the kind of public input you get through the [election process].” 

Prop 137 would also give legislators authority to order investigations against judges suspected of “a pattern of malfeasance,” though the proposal does not define what activities would warrant such an inquiry. 

Bates worries this would empower legislators to attack judges they disagree with. “What I think this really is, is a blank check for any individual legislator who has a grievance against a judge or wants to get some political milage out of asserting a grievance against a judge,” he said.

The effort to end judicial terms in Arizona comes as reformers at the federal level are pushing for the inverse change of rolling back lifetime judicial appointments. Following revelations that U.S. Justices Clarence Thomas and Samuel Alitto accepted millions of dollars in undisclosed gifts from individuals with cases before the court, groups like Alliance for Justice are making the case that federal judges are not accountable enough and that the federal system needs stronger guardrails, such as term limits and an enforceable code of ethics.  

If Prop 137 passes, Arizona judges would look a lot more like the federal bench, Falschini said. They “would have zero accountability to the people, just like federal judges.” 

Bolick, one of the two justices up for retention this fall, published an opinion article in May in the Arizona Republic, arguing that it’s the campaign to oust him that’s responsible for politicizing the judiciary and diluting the state’s emphasis on merit.

Progressives, he wrote, are “weaponizing judicial retention” and “cynically harnessing anger over our recent abortion decision to replace us with justices who will rubber-stamp their ideological agenda.”

The latest efforts over Bolick’s reelection and Prop 137 are an escalation of fights that took off last decade, though. Republicans, led by former Governor Doug Ducey, changed the norms around court appointments, helping ensure courts would lean conservative. Their maneuvers allowed Ducey to appoint five of the seven justices currently sitting on the all-Republican court.

In 2016, Republicans expanded the state supreme court by adding two seats, enabling Ducey to appoint two new judges despite unanimous opposition from sitting justices.

Then, in 2019, Ducey upended the nominating commission to ensure he’d be able to nominate his preferred candidate. Earlier that year, the commission had refused to include Bill Montgomery, Maricopa County’s conservative prosecutor, on its shortlist for a judicial vacancy. Ducey then replaced some of the commission’s members, paving the way for the new panel to recommend Montgomery and for the governor to place him on the supreme court. 

Although no Arizona justice has ever lost a retention race, progressives in 2022 mounted an unusually solid effort to oust Montgomery, questioning his ideology and ethics. The justice also received relatively low performance scores in his evaluations, but was ultimately retained. 

But in Maricopa County, the largest county in the state, voters chose to not to retain three local judges, an unusual result. One of the ousted judges, Stephen Hopkins, was the only judge that year to fail to meet the performance standards of the review process. 

In March of this year, GOP lawmakers passed a resolution to end judicial elections through the state Senate; that was right before the supreme court’s decision on abortion. The House took up the bill months later, amid the surge of pro-choice activism against Bolick and King. The vote to advance the measure was strictly along party lines in both chambers, with all Republicans supporting it. 

State Senator Shawnna Bolick, a Republican who is married to Clint Bolick, voted in favor of the resolution that would end her spouse’s future elections. 

Democrats in 2022 also flipped the governor’s mansion, and this November they have a shot at gaining the legislature and controlling the state’s government for the first time since the 1960s. 

Republicans have reacted with frustration as they’ve lost their advantage in the state, and have pursued other steps to use this year’s ballot to limit the will of voters, including a measure to make it prohibitively difficult to qualify a citizen’s initiative. In Maricopa County, GOP candidates who have spread conspiracy theories that the 2020 election was stolen are trying to win control over the elections systems. 

And if voters pass Prop 137 this fall, it would void the results of the concurrent retention races, including Bolick and King’s. 

But if they reject the amendment while ousting one or both of Bolick or King, Democratic Governor Katie Hobbs would have the power to nominate their replacements. 

Regardless, Hobbs will soon get her first appointment to the court. Justice Robert Brutinel, who was appointed to the court by Republican Governor Jan Brewer in 2010 and who dissented in the court’s decision to revive the abortion ban, announced on Tuesday that he is retiring.

For Faleschini, Prop 137 is about freezing the court’s conservative majority in place. “It’s not that they are looking for a change to the system to make it more fair and impartial,” he said. “They are seeking changes to make sure that the types of political justices they want on courts can stay.”

He added, “Republicans are concerned they will not win a statewide election again in a very long time. They think the only power they can hold onto is through the supreme court.”

The post Arizona GOP Asks Voters to Nullify the Judicial Elections They’ll Be Voting On appeared first on Bolts.

Alongside the new bans on abortion, laws have popped up to encourage people to snitch on their neighbors and empower prosecutors to file criminal charges. So-called personhood laws are exposing more people to heightened punishment, plus endangering access to other procedures like IVF. The Republican Party has proposed scaling that up further by codifying ‘personhood’ at the federal level.

But pregnancy was policed long before the Dobbs decision came down. Even under Roe, many women faced arrest and prosecution due to allegations over how they handled their pregnancy.

Grace Howard meticulously lays out this history in her new book The Pregnancy Police: Conceiving Crime, Arresting Personhood. An associate professor of justice studies at San José State University, Howard has studied over 1,000 pregnancy-related arrests since 1973, a period that saw the rapid growth of the war on drugs. Her book reconstructs how legal statutes and surveillance tools were used to punish not just abortions, but also stillbirths and miscarriages.

As part of our “Ask Bolts” series, we invited you to ask Howard any question you had about the policing of pregnancy. And once again, you delivered with many thoughtful questions, touching on everything from landmark court cases to new technology. We narrowed your submissions to just nine reader questions to share with Howard, also throwing in a tenth from our own staff.

Howard replies to your questions below, sharing what gravely worries her about the realities of policing and surveillance today, but also finding advocacy to be hopeful about. We’ve organized your questions under four themes—explore at your leisure:

Decades of policing

The realities of criminalization today

Standards of care

What lies ahead?

Read on to learn more about the most consequential legal cases, new tools of surveillance, and a lot more.

Decades of policing

Dobbs galvanized more attention on reproductive rights, but you began your research on the policing of pregnancy long before that decision. What was happening in the decades that your book covers—what has criminalization looked like, besides restrictions on abortion? And what made you start paying such close attention to it? — Bolts staff

In the decades before Dobbs, there was a lot of action in the courts and in state legislatures carving out fetal personhood beyond the scope of abortion. Fertilized eggs, embryos, and fetuses were defined as legal persons in tort law. Pointing to the reality of homicidal violence against pregnant people, pregnancies were defined as crime victims, independent of the people gestating them. 

After Roe, criminalization began in earnest in the 1980s, as the “War on Drugs” drove punitive approaches to social issues, and the anti-abortion movement became a more organized political force. Panic over crack cocaine led to a focus on impoverished Black women who tested positive for the drug while pregnant. 

Most pregnancy criminalization cases involve a positive drug test, but other arrest cases involve self-harm, car accidents, self-managed abortion or miscarriage, failing to protect a fetus from third party violence, and even failure to take good care of themselves. 

Though I had been very passionate about sexual and reproductive health issues, I actually didn’t realize that the criminalization of pregnancy was happening until grad school. We read Dorothy Roberts’ Killing the Black Body and I was forever changed. I was outraged—that it was happening, that so many people either didn’t know or didn’t care. And, there were some great law review articles on it, but not a lot of data. So, I decided I wanted to do something about that. 

What are some landmark legal cases related to the criminalization of pregnancy that concerned citizens should be aware of, and what were their implications? — Chrissy T.

This issue has only come before the Supreme Court once, in Ferguson v. City of Charleston, a 2001 case. This case began as a lawsuit against the Medical University of South Carolina, which had adopted a policy of drug testing certain pregnant patients and reporting positive tests to law enforcement. By the time the case got to SCOTUS, it wasn’t about whether we could punish pregnant folks for crimes against their pregnancies, it was about illegal searches and seizures: Can you drug test a patient for the purposes of law enforcement activity alone, without reasonable suspicion or a warrant? The court said no, you can’t. 

And yet this hasn’t stopped the practice: The case only ever applied to public medical facilities, and healthcare providers can essentially lie about why a drug test is offered. 

Today, drug testing and reporting of pregnant patients and newborns is common and widespread, though most of the time the reports result in family court cases, not criminal ones. 

Another notable case is ex parte Ankrom (2013), which is when the Alabama Supreme Court said that a 2006 law passed by Alabama to punish the chemical endangerment of a child could also be applied to pregnancy. Despite the law saying nothing about pregnancy, the court basically defined fertilized eggs as “children” and uteruses as contaminated “environments.” Though pregnancy-related arrests started years before Ankrom, the decision emboldened prosecutors and opened the door to further legal developments. 

For example, the Alabama Supreme Court case earlier this year that defined embryos created by IVF as extrauterine children, endangering the procedure in the state, cited Ankrom multiple times as precedent.

What does your research show about the way women of color and low income women have been treated on this front during the period you studied, versus white women and higher income women? — Morgan M., from California

The criminalization of pregnancy is inherently racist. Across the U.S., the drugs that women of color are more likely to use have been treated with more scrutiny and have been uniquely stigmatized than those used by white women, despite comparable rates of substance abuse. 

Alabama has been a somewhat different story, in that the racial composition of the arrest pool is much more comparable to state demographics—although this does not mean that it has a racially egalitarian criminal justice system. Alabama’s criminalization period started in 2006, when the big drug panic was related to home-cooked methamphetamine. This focus on meth, and the drug’s association with impoverished white people, led to a wave of them being targeted. 

In my book, I explore rhetorical connections between the panic over so-called “meth babies,” to the early U.S. eugenics movement’s focus on impoverished white people—a white supremacist attempt to shore up the strength of the “white race” by eliminating the whites on the fringes. While information on income was not available in all of my cases, I was able to see if a defendant qualified for a public defender. Perhaps unsurprisingly, the vast majority of the people who were arrested in my study were impoverished enough to qualify for public defense. 

The realities of criminalization today

When I was pregnant in MA in 2021, I was told that because I had a medical marijuana card prior to being pregnant, I could be drug tested at any point in my pregnancy, even though I reported not using it while pregnant. When I read up on the legality of that, I found out that women testing positive for marijuana during delivery accounted for the largest share of referrals to the Department of Children and Family Services. I would love to know more about how marijuana can be legal in a state but criminalized for pregnant people. — Mae, from Massachusetts

Unfortunately, there are a lot of areas of law where pregnancy knocks a person down a peg, legally. You can lose some of your most fundamental rights, including the right to reject medical treatment, the right to privacy, the right to liberty. And people who are reported to Child Protective Services for using drugs during pregnancy usually lose their children at least temporarily—an inherently traumatizing experience. This has included people who use legally prescribed medications, including marijuana.

A case on this question just came out of Oklahoma. The state’s Court of Criminal Appeals ruled that you cannot be prosecuted for using medical marijuana while pregnant; local prosecutors were trying to charge multiple women with criminal neglect. This does not, however, prevent CPS from getting involved—this would be left up to the discretion of the relevant agency.

I’m in Virginia, the last state in the South with access to abortion, and law enforcement here has advocated for a wide expansion of Automated License Plate Reader (ALPR) technology across the commonwealth. Attorneys general across the country have articulated their desire to access this sort of data to track movements of pregnant people to see if they access abortion care across state lines. What are some of the dangers of expansive surveillance networks, like Flock’s ALPR networks, and how does that apply to access to care? — Shawn W., from Virginia

Some of the key differences between today and the last time abortion was criminalized are that our criminal justice apparatus has expanded considerably, as have our surveillance networks.

All forms of electronic surveillance, from ALPR to credit card transactions can potentially be used as evidence in a pregnancy case. Law enforcement can get clearance to examine your text messages, your search history, your credit card statement, and even GPS data to track your location. I worry that this will frighten people away from using the internet to find safe ways of self-managing pregnancies, to arrange travel out of state, or even to find support in understanding what options and resources are available. This leaves people who need abortions isolated.

That being said, we haven’t found a single case where a person was “caught” because of their digital footprint. Everyone who has been arrested, to date, was found because a person told on them: a neighbor, a boyfriend, a nurse. We need to be cautious about who we talk to.

Is performing an abortion the only situation in which these laws apply criminal liability to men? — Alan M., from Washington

So far, yes, the only situation where cisgender men have faced prosecution is for performing abortions. But some states have also been exploring the criminalization of abortion “helpers.” A new Louisiana law goes into effect on October 1 that will classify abortion pills as “controlled dangerous substances.” Any non-pregnant person found to be in possession of these substances without a prescription has committed a crime–even if that person has secured the medication for their own future use in the event of an unplanned pregnancy.

Meanwhile, in family court, there have been a few cases where men have been targeted; not for using drugs themselves, but for failing to prevent their wives from using drugs. This is reminiscent of the law of coverture, a “olde time” legal doctrine from English common law, that basically treated women like legal dependents of whichever man they were attached to—a father or brother or husband. Men were held responsible for “making” their wives behave.

Standards of care

How do these laws affect women with ectopic pregnancies? My friend had an ectopic pregnancy after her daughter was born; the doctors recommended she have tubal ligation to ensure no additional similar pregnancies. — Kirsten, from Maryland

In case readers don’t know, an ectopic pregnancy is a pregnancy where the fertilized egg has implanted somewhere other than the uterus, most often in the fallopian tube. These pregnancies are never viable, and they are extremely dangerous, as the growing embryo can cause tissues to tear and organs to rupture. These must be treated by ending the pregnancy with surgery or with a medication called methotrexate. 

Ectopic pregnancies have been in the news since the Dobbs case, because these medical emergencies bump up against vague laws banning abortions. Healthcare providers are put into a position where they have to wonder: Will offering this life-saving care result in the loss of my medical license, or even my incarceration? For example, in Texas, healthcare providers face 99 years in prison if a prosecutor decides they have violated the abortion ban. In practice this means that emergency medical care can be dangerously delayed while lawyers try to decide whether or not your doctor is allowed to help you. 

This is what happened to Kelsie Norris-De La Cruz, a 25-year old woman in Texas who was ordered to go home and wait after she was diagnosed with an ectopic pregnancy, as there was a chance the pregnancy was still “alive.” She was unable to receive care until her fallopian tube began to rupture. 

(Editor’s note: A new investigation published this week by the Associated Press identified the cases of 100 pregnant women who were denied emergency service in different states.)

How have healthcare providers become part of this apparatus of criminalization? Are there certain things they have to report if they notice them? — Anonymous | Why doesn’t federal HIPPA protect women from states accessing their medical records? — @cyndtrueme, on X   

Healthcare providers are the primary gatekeepers for this whole thing: Of the over 1,000 pregnancy-related arrest cases that I studied, 75 percent originated by a healthcare provider making a report. 

There are two federal laws to consider: HIPAA and CAPTA. HIPAA is basically a record-sharing law that places some limits on when medical information can be shared. In general, without your permission, information can only be shared when a person thinks a patient is a direct threat to themselves or others. Healthcare providers have made reports based on their belief that a fertilized egg, embryo, or fetus is a child facing imminent harm.

CAPTA (the Child Abuse Prevention and Treatment Act) provides federal funding for the “prevention, assessment, investigation, and treatment” of child abuse. Many healthcare providers assume (or are advised) that CAPTA specifically requires that states define substance use during pregnancy as child abuse, and mandate reports to authorities, but this is incorrect. CAPTA does not require prosecution, drug testing, or filing abuse reports of babies exposed to drugs in utero. 

What lies ahead?

The GOP’s official policy platform adopted at the RNC wants more states to establish ‘fetal personhood’ laws. Can you explain what the impact of this would be? — Anonymous

The GOP platform endorses the idea that the U.S. Constitution defines fertilized eggs, embryos, and fetuses as full legal persons. (Editor’s note: Courts have not recognized this conservative interpretation of the Fourteenth Amendment, but there are signs that several justices are open to it.) I can’t overstate how impactful this would be. Anybody with the capacity for pregnancy, or who even looks like they have the capacity for pregnancy, would be suspect at all times, and lose the right to medical privacy. They would be banned from doing anything considered (rightly or wrongly) unsafe for a pregnancy, from a seemingly endless list of foods and beverages that are off limits, to forms of medical care including abortion. They would lose the right to medical privacy, and we would nullify advance directives (legal documents where a person states their decisions about life-sustaining care should they become incapacitated) during pregnancy. They could be fired from jobs deemed unsafe. Pregnant people who are abused by their partners could be charged for failing to protect their “unborn child.” 

You can’t have fetal personhood and full legal recognition of people with the capacity for pregnancy at the same time: You are a womb before you are a person.

The bulk of the legal action establishing fetal personhood comes from states. One horrifying reality is that homicide is a leading cause of death for pregnant women, usually at the hands of their intimate partners. Instead of focusing on the factors that make pregnant people more vulnerable to homicidal violence, 38 states have responded by defining fertilized eggs, embryos, or fetuses as potential crime victims. The legislation is sometimes inspired by specific cases that get a lot of press coverage and cause public outrage—most often involving a white victim. For those of us who care about intimate partner violence, this might seem like a great solution to a terrible problem. I argue, however, that these laws are trojan horses, establishing fetal personhood in the criminal code under the auspices of protection. In turn, these very laws have been used as precedent to establish fetal personhood elsewhere in state law, and have been used to punish pregnant women deemed to have endangered or harmed their own pregnancies. 

Are there grassroots groups that you see are doing a good job fighting against this? — I’m worried, from Ohio

It is easy to feel overwhelmed when I think about the work that needs to be done. Thankfully, none of us have to do this work alone, and there are many groups and organizations fighting back. There are two legal advocacy organizations worth looking into: Pregnancy Justice provides legal defense, guidance, resources, and education for cases involving pregnancy criminalization and CPS reporting. If/When/How also does amazing work on legal defense in abortion cases, and they operate both a legal help hotline and a Repro Legal Defense Fund to help cover bail and legal fees. 

There are also some local and state-specific groups working on this, including Healthy and Free Tennessee, Sister Reach, and Sister Song, which focuses on the South. One of the most powerful things you can do right now is to get involved with your local abortion fund or practical support network. Not only do they help fund abortions and make arrangements for people who need support, but they also support folks who want to continue their pregnancies, give birth, and parent their children. They are the grassroots backbone of the reproductive justice movement.

The post How Pregnancy is Policed: Your Questions Answered appeared first on Bolts.

Ever since the Arizona Supreme Court upheld a near-total abortion ban this month, pro-choice advocates have rushed to reverse it. They’ve pushed the GOP-run legislature to repeal the law, to no avail so far. They’ve defended the Democratic governor’s order blocking enforcement of the ban from legal pushback. And now they’re close to placing a constitutional amendment protecting abortion on the November ballot. 

If these statewide solutions fail, though, they’re at least eying Arizona’s local prosecutors as the backstop to an outcome they dread: the prospect of people facing criminal charges—and prison terms—over abortions.

“The least our county attorneys can do is commit that they would not prosecute those cases,” said State Representative Analise Ortiz, a Democrat whose district covers parts of Maricopa County. “They absolutely should do that to bring relief to the millions of people who are scared by this decision.”

Whether such a backstop materializes in Maricopa County—a giant jurisdiction home to more than four million residents in Phoenix and its surrounding areas—is going to come down to November’s prosecutor race.

Maricopa County Attorney Rachel Mitchell, a Republican who is up for reelection this year, reacted to the ruling with a statement vowing that women would not be “prosecuted for receiving an abortion,” and especially calls out that she would not prosecute abortions that stem from rape, incest, or molestation. The statement did not, however, address whether she would prosecute doctors who provide abortions. Just days prior, Mitchell had said she’d enforce Arizona’s abortion law “whatever that law is.” She has also denounced as unlawful a gubernatorial order barring county attorneys like herself from prosecuting abortion. 

Mitchell’s only Democratic challenger, Tamika Wooten, promises she won’t pursue such prosecutions if she becomes county attorney. 

“I will not prosecute a woman for her personal health care decisions, nor will I prosecute the medical provider who performs that,” Wooten, a former local prosecutor and defense attorney, told Bolts. “That is a very serious and personal decision that a person must have with themselves and with their health care provider, and it’s not my business.”

Mitchell’s office on Monday declined to answer questions from Bolts about whether she would prosecute doctors that provide abortion, only referring Bolts to her April 9 statement that does not mention medical providers. “That statement, in its entirety, is the information being provided at this time,” said a spokesperson for the office. 

Arizona’s revived ban, which dates back to 1864, mandates two to five years in prison for doctors who provide an abortion except when it’s to save a patient’s life.

In 2022, the GOP passed a separate law banning abortions after 15 weeks; that law also makes it a felony for doctors to violate those restrictions. 

Even if Arizona repeals the 1864 law, that would still leave in place this 15-week ban and its share of criminal penalties.

Wooten criticized Mitchell for not ruling out charges against medical professionals. “If you say you’re not going to prosecute the woman but you’re not quite sure if you’re going to prosecute the medical professional, licensed medical professionals are going to be wary of that,” Wooten said. “That’s gonna force a woman to go to a back alley. Now we’re subjecting women to all kinds of unsafe, unsanitary procedures… because our licensed professionals are afraid that they’re going to be prosecuted.” 

Wooten added, “We need to make sure that the people who are licensed and able to perform these can do it confidently without fearing felony prosecution or prison.”

In the GOP primary in August, Mitchell first faces a rematch against Gina Godbehere, a conservative who used to work as a prosecutor in the county attorney’s office; Godbehere did not reply to Bolts but has echoed Mitchell’s position on abortion in the past. 

Arizona’s 14 other counties also elect their chief prosecutor this year, but a statewide analysis by Bolts found that most of these races aren’t even contested, and among those that are, Maricopa County is unique in featuring a stark contrast on the issue of criminalizing abortion. It’s the only Arizona county where there’ll be at least one candidate on the ballot this year pledging to not prosecute abortion, and at least one candidate who hasn’t made that assurance. 

This single race, though, will have outsized resonance, since it’s playing out in the county that by itself is home to most of the state’s abortion clinics and the majority of Arizona’s population.

Mitchell was just a line prosecutor in the Maricopa County prosecutor’s office in 2018, when she was tapped by U.S. Senate Republicans to interrogate Christine Blasey Ford during Brett Kavanaugh’s Supreme Court confirmation hearings. In 2022, the same year Kavanaugh voted to strike down federal protections for abortion in the Dobbs decision, Mitchell was appointed Maricopa county attorney after her predecessor’s surprise resignation.

Mitchell then prevailed in a 2022 special election that closely mirrored the upcoming election. In the immediate aftermath of the Dobbs ruling, she defeated Godbehere in the Republican primary and then beat another pro-choice Democrat by six percentage points.

The state supreme court’s shock decision this month to trigger Arizona’s Civil War-era abortion ban has once again underscored the stakes of who occupies the local county attorney offices with a hand in enforcing it. Still, the exact role these county attorneys will play in either protecting or prosecuting abortion remains unsettled.

Statewide Democratic officials are currently trying to block county attorneys from targeting abortion. Governor Katie Hobbs issued an executive order last year that transferred all abortion cases to Attorney General Kris Mayes, who has pledged to never prosecute them. Combined with Mayes’ promise, Hobbs’ executive order moots the threat of criminal prosecutions for abortion—at least on paper.

But this guardrail is far from ironclad. Hobbs and Myers, who each won very narrow races in 2022, are both up for reelection in 2026. Were they to lose to anti-abortion Republicans in the future, their replacements could revert these cases to county attorneys or bring charges.

More urgently, many county attorneys, including Mitchell, are arguing that Hobbs’ order is invalid and say the governor lacks the legal power to give their cases to the attorney general. 

“It is a substantial overreach to suggest the governor may strip away prosecutorial discretion from local, elected officials,” Mitchell wrote in a letter to Hobbs last year. Jeanine L’Ecuyer, chief of communications for her office, reasserted Mitchell’s position this week, telling Bolts that county attorneys “are not supervised, nor do they report to, the attorney general.” (Wooten, her Democratic challenger, told Bolts she disagrees with Mitchell, and approves of Hobbs’ order.)

If a county attorney challenged or ignored Hobbs’ order, it would trigger a legal showdown—and the state supreme court may be the final arbiter, again. Aadika Singh, a senior attorney at the Public Rights Project, a national organization that was involved in the recent case against Arizona’s abortion ban, told Bolts this uncertainty will deter abortion care providers.

“The promises from the governor and her executive order, the attorney general’s statements, don’t help that doctor feel confident that she won’t be prosecuted by some rogue local prosecutor,” Singh said. 

Such a case could emerge from Yavapai County, home to Prescott and Sedona. Republican County Attorney Daniel McGrane jumped into the recent litigation to ask the state supreme court to revive the 1864 ban and has signaled his interest in prosecuting people for abortion.

When Bolts contacted the Yavapai county attorney’s office with questions about their policies, an employee told Bolts to contact the Alliance Defending Freedom, a religious organization opposed to abortion that represented the office in court during the litigation over the 1864 ban. When Bolts clarified that it had questions about what McGrane would do in light of the court’s decision, and not just about the litigation, his executive assistant replied in an email, “I understand your request, and I have been directed to refer all inquires [sic] to the ADF.” 

The Alliance Defending Freedom did not answer Bolts’ question on how they were advising the Yavapai county attorney’s office, though they did share a generic statement celebrating the court’s ruling.

Asked about the Yavapai office deferring to the Alliance Defending Freedom, Singh told Bolts, “I think it’s very troubling when governments delegate their positions, their jobs, to ideological antichoice groups.” 

Singh’s organization is now fighting to get Arizona courts to delay the implementation of the 1864 ban; the attorney general said last week that the law would not be in effect until June 8 at the earliest. 

In the meantime, Democratic lawmakers made some progress toward repealing the ban altogether in the Senate last week despite Republicans’ narrow majority, but the odds of repeal are even lower in the House. Speaker Ben Toma, a Republican who controls what the chamber votes on and opposes repeal, said on the floor last week, “I would ask everyone in this chamber to respect the fact that some of us believe abortion is the murder of children.” 

Organizers are also championing a constitutional amendment that may end up on the ballot in November; in securing broader abortion rights in Arizona, the measure would overturn both the 1864 and 2022 bans.

“That is the most durable protection we can have here in our state,” said Chris Love, a spokesperson for Arizona for Abortion Access, the organization that’s pushing for an initiative to be voted on in November. The organization has already collected well above the required number of citizen signatures to qualify the measure, and they’re continuing to gather signatures to be safe. 

Obstacles remain, however. Proponents of the measure worry, for instance, that state courts may step in and strike down the initiative even if it passes, as happened a few years back with a state ballot measure to raise taxes to boost education funding. 

The composition of the state supreme court is not set in stone, though. Two of the justices who ruled to uphold the abortion ban this month, Clint Bolick and Kathryn King, are up for retention elections this fall; these races will decide whether they still sit on the bench next year to hear any challenge to the constitutional amendment if it passes. 

A progressive organization on Monday launched a campaign to urge Arizonans to vote “no” on retaining Bolick and King, the Arizona Republic reported, saying it would raise money toward that goal.

Arizona voters have never ousted a supreme court justice before, and several progressive Arizonans told Bolts last week that they were still unsure of how much attention these races would get. Ortiz, the Democratic lawmaker from Maricopa County, says these judicial races could double as a referendum on abortion rights. “If voters take that power to reject these judges, they’re going to send a really strong message,” Ortiz said. “I do think that it would be a worthwhile effort.” 

If the November measure protecting the right to abortion fails or is struck down, or if a court overturns Hobbs’ order preventing prosecutions, the state’s 15 county attorneys would inherit the authority to go after abortion providers within their jurisdiction. Twelve of the 15 current officeholders joined the letter opposing the governor’s executive order last year, though many have also dodged questions about whether they’d enforce the 1864 ban since the supreme court revived it. 

And while all county offices will be on the ballot this year, in most places, voters will have little choice on offer: Just four counties besides Maricopa even drew multiple candidates for prosecutor—Coconino (Flagstaff), Pima (Tucson), Pinal, and Yavapai counties, all of which will be resolved in the August primaries. 

In Coconino and Pima counties, all four candidates are Democrats—deputy prosecutor Ammon Barker and public defender Gary Pearlmutter in Coconino, incumbent Laura Conover and former deputy prosecutor Mike Jette in Pima—and all four told Bolts they would not prosecute abortion cases against either patients or doctors.

“The threat of prosecution will have a chilling effect on the medical administration of this state unless prosecutors in this state can give women and their medical providers clear assurance that this law will not affect them,” said Barker. Pearlmutter added that he also wants to shield “organizations who perform or assist a woman in receiving an abortion,” as well as “a family member or friend who assists a woman in transporting or obtaining an abortion.”

It’s the mirror image in the other two contested races, Pinal and Yavapai counties. Those only drew GOP candidates. 

Pinal County Attorney Kent Volkmer and his primary challenger Brad Miller did not respond to Bolts’ questions. Volkmer’s office also dodged questions by the Arizona Republic. Miller is a staunch conservative who describes himself as pro-life on his website.

David Stringer, a Republican running in Yavapai County against McGrane, said he was “disappointed” in the court’s decision to uphold the 1864 abortion ban, sharply breaking from McGrane, who championed the ruling. Stringer, a former state lawmaker who resigned in 2019 over scrutiny into racist remarks, told Bolts that people should have access to an abortion “in the very early stage of pregnancy.” But he did not rule out prosecutions for abortion. “I would want to see how my colleagues in other county’s handle this very sensitive issue,” he said via email. 

Stringer suggested that it may breach a prosecutor’s duty to refuse to enforce a law that’s in the books, telling Bolts, “A County Attorney is sworn to uphold the law—even laws they may not like.”

Ortiz, the Democratic lawmaker, insists that it does fall within county attorneys’ purview to refuse to prosecute abortion. She points out adultery is a crime under Arizona law and yet prosecutors aren’t going around hounding cheating spouses with criminal charges. 

“Prosecutors have the full discretion to determine which cases they’re going to file charges on and which cases are going to be dismissed, and they make those decisions every single day,” Ortiz said. “It is fully within their authority to say, ‘I am not going to prosecute cases that involve abortion under this unjust law.’”

Still, abortion rights advocates also warn that this emerging patchwork of policies—with some counties open to prosecuting abortion while others are not—is insufficient to protect abortion access even in places with favorable prosecutors. What happens in one county is bound to bleed into the rest of the state, they say, which is why their priorities are amending the constitution and defending Hobbs’ statewide prohibition on enforcement.

“If a few county attorneys decide to aggressively prosecute, it could result in doctors and other providers in other counties deciding not to provide abortion services, due to the lack of statewide consistency in how reproductive health services should be provided,” said Pearlmutter, the Coconino candidate, to explain why he supports the governor’s effort to block a “fractured approach” to enforcement.

In some states led by Republican executives, the drive for statewide consistency has gone the other way. GOP officials have cracked down on prosecutors who refuse to enforce abortion bans, exposing them to heavy retaliation. In 2022, Florida Governor Ron DeSantis went so far as to remove Tampa’s elected prosecutor from his job, ostensibly over such a pledge. 

Some prosecutors working under a broader ethos of criminal justice reform have also announced they won’t file criminal charges against a larger array of behaviors than just abortion—an approach known as declination. They have said these offenses are a matter for public health professionals, rather than for courts. For instance Julie Gunnigle, Democrats’ unsuccessful nominee in Maricopa County in 2020 and 2022, had pledged to not prosecute low-level drug possession and sex work.

Maricopa Democrats’ candidate this year, Wooten, did not name any type of charge besides abortion that she would decline to prosecute during an interview with Bolts, though she said she wanted to increase alternatives to incarceration for people with addiction or mental health issues in order to “address the underlying issue, as opposed to just throwing everybody in prison.” 

But Wooten drew a line in the sand against enforcing a law that is about “taking constitutional rights away from women.” She invoked Rosa Parks and the civil rights movement’s legacy of civil disobedience.

“Sometimes you may have to bend the rules in order to make a greater good for America,” she said.

The post Arizona Will Elect County Prosecutors in Shadow of Abortion Ban appeared first on Bolts.

The Texas supreme court closed out 2023 by blocking an abortion during a medical emergency, forcing a woman to flee the state. Just days before Christmas, Wisconsin justices struck down the state’s GOP-drawn gerrymanders. So far this year, Montana’s supreme court has stepped in to protect voting rights, while a decision in Alabama threatened in vitro fertilization treatments. 

In each of these states, unlike at the federal level, voters chose who sits on the bench and which judges get to dictate such profound consequences. And the 2024 elections may now reshape who holds power on supreme courts across the country.

Thirty-three states have elections for their high courts this year; some have as many as five or six seats on the ballot. In total, 82 seats are up for voters to decide. 

These races may potentially shift the outcome in high-stakes cases that are already in the legal pipeline on everything from the rules of direct democracy to the fate of reproductive rights.

Michigan and Ohio are the two states where a supreme court’s partisan majority could flip outright. Democrats are defending a narrow edge in Michigan; the GOP is doing the same in Ohio. 

But the 2024 elections may also affect the ideological balance of other supreme courts, starting with Kentucky, Montana, North Carolina, and Texas. Some of these states hold nonpartisan races where judicial candidates are not affiliated to political parties; but those courts still tend to have liberal, moderate, and conservative wings, and parties and other groups often get involved in their elections, sometimes pouring in huge amounts of money.

Eighteen states are holding regular elections for their supreme courts, namely races where candidates can challenge incumbent judges or run for an open seat. There are 51 such elections in 2024, but importantly, about a third of them are effectively already over; in most cases, that’s because only one candidate filed to run.

The procedure is markedly different in 15 other states, where incumbent judges who want a new term run in so-called retention elections—simple up-or-down votes, with no challengers, that decide if a judge should stay in office. It is exceedingly rare for justices to be ousted in retention elections—in some states this has never happened—but some do get heated.

You can explore the rules in the state that interests you in our state-by-state guide to each court. 

Note that the exact landscape of this year’s elections may still change; if a judge up for retention were to resign early, for instance, it would cancel the election altogether.

The 2024 cycle is already well underway. Three incumbents in Texas were voted out in March in the GOP primary after facing attacks by far-right politicians. An Illinois justice survived a primary. And an Arkansas justice hopped to another seat on the bench to evade retirement rules.

The stakes only escalate from here. Conservatives hope to gain ground on Montana’s liberal-leaning court thanks to the retirement of two justices long targeted by the right. In Kentucky, the retirement of a conservative-leaning justice may have the opposite effect. Democrats risk falling even further behind on North Carolina’s court, while the prospect of Michigan and Ohio’s courts flipping carries important ramifications for sentencing and democracy. 

Across Arizona and Florida, four justices who voted to uphold abortion bans this month are up for retention—two in each state. Three justices who took part in the Colorado supreme court’s decision to bar Donald Trump from the ballot also face retention tests. A justice who voted against the erosion of direct democracy faces reelection in Mississippi. 

Bolts today guides you through each of the 33 states with elections for their high courts.

States with regular supreme court elections 

Alabama

When this supreme court ruled 8-1 in February that frozen embryos are children, endangering IVF treatments, it also brought into full view conservative plans to press for more restrictions on reproductive rights. Five of the court’s nine seats are on the ballot in 2024, but three of the justices who joined that ruling—William Sellers, Jay Mitchell, and Tommy Bryan, all Republicans—are running for reelection unopposed. 

The election for chief justice is contested, though. Chief Justice Tom Parker, a far-right jurist whose opinion in the IVF decision drew heavily from the Bible, is retiring. Sarah Stewart, an associate justice on the supreme court who also joined the majority in that ruling, won the GOP primary to succeed Parker and now faces Democrat Greg Griffin in November. Griffin is a lower-court judge who blocked new restrictions on birth centers last year in a victory for reproductive rights groups. No Democrat has won a seat on this court since 2006; last week, the first legislative race since the February ruling swung toward the party.

Stewart’s bid for chief justice means she is not running for reelection for her current seat. Chris McCool, a Republican lower-court judge, is running unopposed and is certain to join the court. 

Arkansas

Justice Shawn Womack secured another term without facing any opposition in this state’s March election. But in the two other seats on the ballot, neither incumbent sought reelection. That set up an odd game of musical chairs: Four of the six candidates running for these two open seats were already sitting justices hoping to move to different seats on the court. 

As Bolts reported, the perplexing situation is poised to shift Arkansas’ high court further right.

One of these races has already ended: Justice Courtney Hudson, who wanted to change seats to circumvent retirement rules by a few extra years, prevailed over an outsider in March by receiving more than 50 percent of the vote. Hudson now has to resign from her current seat, triggering a vacancy to be filled by Sarah Huckabee Sanders, the state’s conservative governor.

The second race, for the chief justice seat, remains unresolved, but we already know there will be a similar outcome: The only candidate who was not already on the court lost in March. Two sitting justices—Karen Baker and the more conservative Rhonda Wood—grabbed the only spots for the November runoff. Whoever wins that runoff will need to resign from their current seat, handing Huckabee Sanders a second supreme court appointment. 

Georgia

Three justices on this supreme court are running for reelection unopposed this year—Michael Boggs, John Ellington, and Nels Peterson. The fourth incumbent seeking reelection this year, Andrew Pinson, faces a challenger: That is itself noteworthy in a state that held 12 consecutive uncontested races for its state supreme court between 2012 and 2018.

Then, in 2020, Democrat John Barrow ended that long streak of uncontested elections by announcing a run to join the court—only to have GOP officials exploit a loophole that wound up outright canceling the election. Barrow sued to make the state hold supreme court elections that year, but his lawsuit was rejected by the very court he hoped to join. In an interview with Bolts two years later, Barrow said the threat that an election may be canceled had a chilling effect on outsiders’ willingness to run for the court. “Anybody who is thinking about running has to run the risk that they pull out the rug from under you,” he said.

Barrow decided to jump back in after all this year. He is challenging Pinson, a former state solicitor general appointed to the court by Republican Governor Brian Kemp in 2022.

Update (Sept. 2024): Pinson prevailed over Barrow in the May election.

Idaho

Chief Justice G. Richard Bevan is certain to secure a new six-year term this year after no one filed to run against him by the March deadline.

Illinois

While Republicans had a real shot at flipping this supreme court just two years ago, Democrats have instead expanded their majority to 5-2. This year, there’s no such suspense: Both justices on the ballot are running unopposed in the general election. 

Democratic Justice Joy Cunningham is sure to prevail in the first district, which encompasses Cook County (Chicago). Republican Justice Lisa Holder White, a Republican, is sure to prevail in the fourth district in western Illinois.

Kentucky

In 2022, a lawmaker with a zealously anti-abortion record failed to win a seat on this court; the result added to Kentucky conservatives’ long standing frustrations, with their effort to secure a reliable conservative majority repeatedly faltering. While Kentucky is now staunchly red, its judicial elections are nonpartisan, and the court’s politics can be difficult to decipher.

This year, conservatives are the ones on the defensive, with Chief Justice Laurance VanMeter—a Republican even if he ran for judge without a party label—retiring and leaving an open seat on the ballot. The race to replace him could shift the court one step to the left. The election won’t be waged statewide; it will only take place within the fifth judicial district, a swing region in central Kentucky. (The district, which includes Lexington and Fayette County, narrowly voted for Trump in 2020 and then for Democrats by a large margin in the 2023 governor’s race.)

The candidates running to replace VanMeter have contrasting political histories. Pamela Goodwine, currently chief judge on the Court of Appeals, has appeared at Democratic events and enjoyed union support; Erin Izzo, an attorney, has spoken at GOP events and is boosted by local conservatives. Abortion is among the issues that may shape the race after a divided supreme court rejected a challenge to Kentucky’s abortion ban last year. VanMeter sided with the majority in that case, which was decided on procedural grounds, and abortion is likely to return to the court in the future.

Louisiana

Scott Crichton, a Republican justice, is retiring, and the contours of the race to replace him are uncertain. The state’s filing deadline is not until this summer, the last in the country. In addition, the state legislature is currently considering options to redraw the state’s judicial map, in part to add a second majority-Black district as many justices have demanded. 

Update (Sept. 2024): The state drew a new map, making Crichton’s second district a lot more Democratic. John Guidry, a Democrat, is running for the seat unopposed.

Michigan

This is one of the few supreme courts whose partisan majority could flip this year. Democrats currently have a 4-3 majority, an edge that’s come into play in recent cases that touch on sentencing and democracy, and each party is defending one seat this fall. 

Democratic Justice Kyra Harris Bolden is seeking to stay on the court, one year after Governor Gretchen Whitmer appointed her. If she wins, it will be enough for Democrats to retain a majority.

Republican Justice David Viviano, meanwhile, is retiring. That gives Democrats a golden opportunity to flip a seat and expand their majority, since they won’t need to oust an incumbent. (Sitting judges typically enjoy a large advantage; in Michigan, while the general election ballot does not list candidates’ party labels, it does mention that they’re incumbents.)

Michigan has a unique system in which the parties nominate supreme court candidates during a summer convention, rather than in primaries. In August, the GOP nominated Patrick O’Grady, a local judge, to face Harris Bolden. For the open seat, Democrats nominated Kimberly Thomas, a law professor who runs the Juvenile Justice Clinic at the University of Michigan Law School, and Republicans nominated Andrew Fink, a state lawmaker.

Editor’s note: This item has been updated after the August conventions decided the general election candidates.

Minnesota

Three justices, all of whom were first appointed to the bench by Democratic governors, are running for reelection this year. Anne McKeig, an appointee of Governor Mark Dayton, is unopposed.

Natalie Hudson, who was promoted to chief justice last year by Governor Tim Walz, faces a challenge by Stephen Emery, a self-described conservative who in the past has amplified false claims about widespread voter fraud. Emery won a race for county attorney in western Minnesota in 2022, but resigned within days of the election; his current website features essays against private corporations, the press and the courts and criticizes the judicial branch for imposing “criminal-friendly rules.”

Karl Procaccini was appointed to the court last year by Walz after serving as the governor’s general counsel. He now faces Matthew Hanson, a local attorney who says he is running because judicial races are too often uncontested, and who has criticized Walz and Procaccini for the lockdowns during the COVID-19 pandemic. Hanson has expressed conservative positions on social media. “I support Donald Trump because he ended abortion and racism”, Hanson posted on X last year in reply to a post by Kamala Harris about the Supreme Court striking down affirmative action in college admissions. He has also posted in defense of ending Roe’s federal protections for abortion, and mused that the state “allow(s) more gun crimes to justify banning law abiding Minnesotans from owning guns.”

The state could have held other races this year. Justice Barry Anderson, who was set to hit the mandatory retirement age in October, said he is resigning in May. Democratic Governor Tim Waltz appointed a new justice, who won’t face voters until 2026. Meanwhile, Justice Margaret Chutich’s seat was scheduled to be on the ballot this fall; her current term ends in January. But she too announced she is retiring this spring. If she had finished her term and retired as scheduled, the state would have held an open race for her seat this year. Instead, her decision to retire months early means there will be no election for her seat in 2024; Walz appointed another new justice who also won’t face voters until 2026.

Editor’s note (Sept. 2024): This item has been updated after the summer filing deadline and primaries settled who will be on the November ballot.

Mississippi

The Mississippi Supreme Court struck down the state’s ballot initiative process in 2021 on a 6-3 vote. All the justices who dissented that day—Robert Chamberlin, Jimmy Maxwell, and James Kitchens—are up for reelection, though Chamberlin and Maxwell are unopposed and already sure to keep their seats on the bench.

But Kitchens, who won his last election with support from state Democrats, faces a crowded field of four challengers, including Republican lawmaker Jenifer Branning, who is running as a conservative with the support of her state party.

This race is taking place within the first district, which leans slightly Democratic.

The fourth and final incumbent on the ballot this year is Justice Dawn Beam, who voted with the majority to void the direct democracy process; she’ll face lawyer David Sullivan in the second district. 

 
Montana

Republicans have consolidated power in Montana, but this supreme court has been a hurdle for their priorities. The court has recently struck down GOP laws that restricted access to voting, expanded gun rights, and imposed parental notification requirements for an abortion. 

Looking to gain power on the court, conservatives have unsuccessfully tried to change the rules of how justices are elected; two years ago, they failed to oust a Democratic-appointed justice.

They have a new shot to grow their influence this year with the retirements of Chief Justice Mike McGrath and Justice Dirk Sandefur, Bolts reports. McGrath and Sandefur have both benefited from Democratic support in the past, though their records have diverged.

Republican donors and their allies have coalesced around local prosecutor Cory Swanson and federal district court judge Dan Wilson in the two races to replace McGrath and Sandefur. Liberal interests are backing federal magistrate court judge Jerry Lynch and district court judge Katherine Bidegaray, two candidates who have signaled some support for reproductive rights.

Editor’s note: This item has been updated after the June 4 primary decided the runoff spots.

Nevada

Nothing to see in Nevada this year: Justices Elissa Cadish, Patricia Lee, and Lidia Stiglich are all certain to win reelection since no one filed to challenge them by the January deadline.

North Carolina

North Carolina is the poster child for what can happen when a supreme court flips. The GOP won control in 2022, and its new majority promptly reversed decisions on gerrymandering and felony disenfranchisement, and changed gears in racial discrimination cases. 

Democrats now hold just two of seven seats, and they’re in danger of slipping further in November since the only seat on the ballot is that of Democratic Justice Allison Riggs. A former civil rights attorney appointed last year by Governor Ray Cooper, Riggs faces Republican Jefferson Griffin, a lower-court judge. Democrats need to defend Riggs’ seat to have a realistic chance of flipping the court back later this decade.

Ohio

The GOP’s majority on this court is just a narrow 4-3, but it became more conservative last year with the retirement of a moderate Republican and the appointment of a conservative prosecutor to the seat. Three seats are on the ballot this year, with two held by Democrats and one by the GOP, so the court could shift in either direction. 

Democrats will flip the court if they sweep all three seats, but the GOP would significantly expand its majority if it does the same. Implementation of last year’s referendum protecting abortion rights hangs in the balance, as well as democracy issues such as possible redistricting cases.

All elections are statewide, and the GOP is confident it can take advantage of Ohio’s red lean in the wake of a recent law adding party labels to judicial races. In fact, Republicans are looking to push their advantage with an aggressive play to oust Democratic Justice Melody Stewart: Joe Deters, the GOP justice appointed last year, is challenging Stewart instead of seeking reelection to his own seat. 

Meanwhile, Democratic Justice Michael Donnelly will face Republican Megan Shanahan, a lower court judge in Cincinnati.

Two lower-court judges, Democrat Lisa Forbes and Republican Dan Hawkins, will face off for the third seat—the one Deters is vacating.

Oregon

Five of Oregon’s seven justices are up for reelection this year. And each and every one of them is running unopposed. With these Democratic-appointed justices all but certain to secure new terms, the court will keep its left-leaning majority. 

Texas: Supreme Court and Court of Criminal Appeals

There are six judicial seats on the ballot across the state’s two high courts. All are held by GOP judges, which has won every statewide race since 1994, judicial and otherwise. 

Democrats are fielding a candidate in all six—that’s better for them than in 2022—and a confluence of factors may at least give them a shot. For one, the aftershocks of the state’s abortion ban are making judicial politics a bit more salient. Then, there’s the fact that three incumbent Court of Appeals judges were ousted in the GOP primary, an unusual result driven by Attorney General Ken Paxton and his far-right allies’ bid to punish justices who restricted his ability to initiate voter fraud prosecutions. Finally, Supreme Court Justice John Devine, a staunch conservative challenged by Democrat Christine Weems, faces allegations about his ethics.

Still, Texas’ red lean will be difficult for the Democratic candidates to overcome, with Trump expected to again carry the state at the top of the ticket.

Washington

Steven González and Sheryl Gordon McCloud, two justices who are members of the court’s emerging progressive bloc, are running for reelection unopposed.

But it’s certain that there will be some changeover on the court since Justice Susan Owens is hitting the mandatory retirement age and cannot run for reelection.

To replace Owens, the state’s judicial establishment quickly coalesced around Sal Mungia, an attorney who has endorsements from eight of the nine sitting justices; Mungia is also backed by Democratic Governor Jay Inslee. Dave Larson, a municipal judge, won the second spot in the November general election; he has criticized the current court for issuing decisions that are too progressive and said he wants to help “take back the judiciary.”

Editor’s note: This item has been updated after the August primary.

West Virginia

Charles Trump, a Republican state senator, voted in favor of the state’s near-total ban on abortion in 2022. Now he is certain to join the state supreme court since no one else filed for an open seat by the filing deadline. 

The state’s second race also features an unopposed candidate: Justice Haley Bunn, who was appointed to the court by Republican Governor Jim Justice in 2022, drew no challenger. This court was one of the nation’s most polarized last decade, when state Republicans maneuvered to impeach justices or pressure them into resigning to secure a conservative majority.

States that only have retention elections this year 

Alaska

Justices Dario Borghesan and Jennifer Henderson, appointed by Republican Governor Mike Dunleavy in 2020 and 2021, face retention tests in November. No Alaska justice has lost a retention race since 1962, despite some organized efforts to oust incumbents in the past.

Still, this court’s membership matters a great deal for the future of reproductive rights. Alaska’s supreme court has ruled in the past that the state constitution protects abortion rights, though it has not revisited that issue since Borghesan and Henderson joined the court, making their views uncertain. State conservatives hope that an anti-abortion majority will emerge on the court and reverse that precedent. The court could soon hear a case filed by Planned Parenthood to expand access to abortion. 

Arizona

The two justices who face retention this year, Clint Bolick and Kathryn Hackett King, are both appointees of former Republican Governor Doug Ducey, who expanded the court and loosened constraints on appointment to shift it rightward. 

Arizona judges have historically easily prevailed in retention elections, though voters ousted a county judge in 2014, the first time that any Arizona judge had lost in decades, and they ousted three other county judges in 2022. Bolick, who was appointed by Ducey in 2016, received 70 percent in 2018 during his last retention race; King, who was appointed in 2021, has not yet faced voters.

Update (Sept. 2024): Bolick and King both joined a ruling this spring that revived a 19th-century law banning nearly all abortions. While the legislature overturned the ban, the court’s ruling prompted fresh progressive organizing against them. But in June, Republicans put a constitutional amendment on the ballot that would end judicial elections in Arizona, and nullify the Bolick and King’s races, Bolts reports.

Colorado

Colorado’s supreme court briefly became the center of the political world in December when it ruled that Donald Trump was ineligible to run for president. (The U.S. Supreme reversed the decision in early March.) This year, three of the justices who took part in that decision are up for retention: Monica Márquez, who sided with the majority in that ruling, and Brian Boatright and Maria Berkenkotter, who dissented. 

Judicial races are rarely eventful in Colorado—over the last decade, no justice has dipped under than two-thirds of the retention vote—and there’s no high-profile effort to change that in 2024 as of now. Still, Márquez already suffered from one viral false attack in the wake of her vote.

Florida

Florida organizers collected hundreds of thousands of signatures on behalf of two initiatives to protect abortion rights and legalize marijuana, but Attorney General Ashley Moody argued the measures were too unwieldy and confusing and tried to get Florida justices to toss them. That proved too much even for this conservative court, which ruled against Moody this week and placed the measures on November’s ballot.

Only two justices, Renatha Francis and Meredith Sasso, agreed with Moody on both counts, dissenting from both decisions. On the same day, Francis and Sasso also voted to uphold the state’s restrictions on abortion, this time joining a majority to overturn a longstanding precedent. 

Francis and Sasso now each face retention elections in November. They were both appointed to the court by Republican Governor Ron DeSantis, and this is their first time facing voters. On paper, the races have the potential to flare up, since abortion and marijuana are popular and high-profile issues. But in practice, no judge has ever lost a retention election in Florida history.

Indiana 

Since Indiana adopted a system of retention elections in 1970, voters have never refused to retain a state judge. As of now, there’s no indication that 2024 will break that pattern. The court’s two oldest justices, Mark Massa and Loretta Rush, and its youngest justice, Derek Molter, face retention this fall; all were first appointed to the bench by Republican governors. 

Iowa

Justice David May faces voters for the first time since his 2022 appointment by Republican Governor Kim Reynolds, part of a series of appointments with which she’s reshaped the court in her image since signing a law giving herself more authority to decide judicial appointments.

May joined the court just weeks after its landmark opinion ending protections for abortion. The following year, May sided with the anti-abortion camp, voting to reverse a lower-court ruling that had blocked a new ban on abortions after six weeks. Since the supreme court tied that day, the lower court’s decision blocking the ban remained in effect and kept abortion legal in Iowa. But the supreme court is scheduled to weigh in again this year.

Update (July 8): On June 28, the Iowa supreme court on a 4 to 3 vote lifted the injunction against the six-week abortion ban, allowing the ban to be enforced. David May sided with that majority.

Maryland

Six of the seven members on Maryland’s high court were nominated by former Republican Governor Larry Hogan, though all were then confirmed by the Democratic-run Senate. Hogan’s final two nominees, Chief Justice Matthew Fader and Justice Angela Eaves, are up for retention this year, as is the court’s most senior member, Democratic-nominated Justice Shirley Watts. Don’t expect these races to catch fire, since all of the court’s current members who have faced retention races won with at least 75 percent of the vote. 

Missouri

Justices Kelly Broniec and Ginger Gooch joined the court last fall via appointments by Governor Mike Parson, a Republican. They each face voters this fall. Retention races have not caught fire in Missouri’s recent past, with justices routinely receiving more than two-thirds of the vote.

Nebraska

Nebraska is one of the few states where justices represent geographic districts. In 2024, only residents of Lancaster County, home to the city of Lincoln and to the state’s first judicial district, get to weigh in on the supreme court, with Justice Stephanie Stacy up for retention for the second time. She cleared her first test back in 2018 with 81 percent of the vote, a share that’s in line with Nebraskans’ history of overwhelmingly retaining their justices; David Lanphier, the last justice in the state who lost a retention election, was ousted in 1996 over some of his rulings, including one that gave dozens of people incarcerated over murder convictions the opportunity for new trials.

New Mexico

New Mexico has an unusual system in which justices run in regular partisan races the first time they face voters, and then in up-or-down retention elections thereafter. Democratic Justice Briana Zamora defeated a Republican just two years ago, 54 to 46 percent. This year, she’s asking voters to retain her for a full eight-year term, typically an easier hurdle for judges to clear. 

A high-profile decision in Zamora’s still-brief tenure came in November, when she joined all of her colleagues in upholding the state’s congressional map against a GOP challenge. 

Oklahoma: Supreme Court and Court of Criminal Appeals

Across Oklahoma’s two high courts, six judges face retention this year—three on the state supreme court, and three on its court of criminal appeals. 

No Oklahoma appellate judge has ever lost a retention election, but conservatives in the state are mounting an unusual campaign to oust the three supreme court justices who are up for retention. Each was nominated by a Democratic governor, and conservatives are making the case that they’ve stymied right-wing change, pointing for instance to a ruling last year that held that the state constitution protects a woman’s right to access abortion when necessary to save her life.

South Dakota

Justice Scott Myren faces his first retention vote, three years after he was appointed to the bench by Republican Governor Kristi Noem. In late 2021, Myren was the only justice to dissent from a ruling that invalidated a 2020 ballot measure legalizing marijuana. A majority of justices said the measure was too broad to fit within a single ballot question, but Myren wrote that the court should be more deferential to voters’ preferences, and described the initiative process as “this bold experiment in citizen-led direct democracy.”

Tennessee

Justice Dwight Tarwater, who joined the supreme court last summer, faces retention in August. After serving as general counsel to Republican Governor Bill Haslam, Tarwater was nominated to the court by Haslam’s successor, Republican Bill Lee. He replaced the court’s last remaining Democratic-nominated justice, cementing the court’s rightward shift; he is one of three justices that Lee has nominated in the past two years, alongside Sarah Campbell, a former clerk of Samuel Alito, and Mary Wagner, a Federalist Society member. 

Utah

The Utah supreme court has drawn scrutiny this year for stalling decisions on major cases related to abortion and redistricting. Chief Justice Matthew Durrant, meanwhile, is up for retention. He faced no issue surmounting this test the past two times he faced it, receiving 83 percent of the vote in 2004 and 78 percent in 2014.

Wyoming

Two of the court’s five members, Kate Fox and John Fenn, face voters this year. Both were appointed by Republican governors. Judicial elections in Wyoming have been extremely sleepy affairs over the last two decades; the state’s mandatory retirement age of 70 is far likelier to spark changeover in its membership.

The post Your State-by-State Guide to the 2024 Supreme Court Elections appeared first on Bolts.

When a coalition of voting rights activists in Ohio set out last December to introduce a new ballot initiative to expand voting access, they hardly anticipated that the thing to stop them would be a matter of word choice.

But that’s what Ohio Attorney General Dave Yost took issue with when he reviewed the proposal’s summary language and title, then called “Secure and Fair Elections.” Among other issues, Yost said the title “does not fairly or truthfully summarize or describe the actual content of the proposed amendment.” 

So the group tried again, this time naming their measure “The Ohio Voters Bill of Rights.” Again, Yost rejected them, for the same issue, with the same explanation. After that, activists sued to try and certify their proposal—the first step on the long road toward putting the measure in front of voters on the ballot. 

“AG Yost doesn’t have the authority to comment on our proposed title, let alone the authority to reject our petition altogether based on the title alone,” the group said in a statement announcing their plans to mount a legal challenge. “The latest rejection of our proposed ballot summary from AG Yost’s office is nothing but a shameful abuse of power to stymie the right of Ohio citizens to propose amendments to the Ohio Constitution.”

These Ohio advocates aren’t alone in their struggle to actually use the levers of direct democracy. Already in 2024, several citizen-led attempts to put issues directly to voters are hitting bureaucratic roadblocks early on in the process at the hands of state officials. 

Arkansas organizers have been stonewalled by their attorney general, who has rejected language for ballot proposals to expand medical marijuana and increase government transparency. In Nebraska, a lawmaker behind a law sending more public money to private schools has leaned on the secretary of state to block a ballot referendum attempting to repeal it. 

Abortion rights measures have been under particular scrutiny. Missourians attempting to enshrine abortion rights in the state constitution were delayed from gathering signatures for months as state officials fought over the specifics of the ballot measure. Advocates in Montana are still fighting to get their proposal for abortion rights approved for signature gathering after the state’s attorney general rejected it in January. Meanwhile, observers across the South are waiting with bated breath for the Florida Supreme Court to decide the fate of a proposed abortion rights initiative, which could decide whether abortion remains legally available in the region; Florida Attorney General Ashley Moody asked the court to block the proposal, saying that the language is too confusing for voters to understand. 

Ostensibly, these proposals are being rejected over technicalities; a problem with a ballot title, or unclear language in the proposal. But in practice, advocates argue, the state officials reviewing these proposals are blurring the lines between procedural and political. They claim these officials are overstepping the bounds of their discretion to reject ballot initiatives based on their opposition to the underlying issue and not the quality of the petition.

“We have never seen the Ohio AG try to broaden their authority to allow them to determine whether a title is permissible,” explained Emma Olson Sharkey, an attorney specializing in ballot initiatives at Elias Law Group, one of the firms leading the suit against Yost, the Ohio attorney general. “This is clearly, from my perspective, an overreach of authority, and we are seeing similar efforts with conservative officials across the country.” 

National observers say this is an escalation of an ongoing effort by leaders of mostly conservative state governments to thwart direct democracy. Bureaucratic backlash to citizen-led ballot initiatives has become a pattern in some red states. Arkansas’ Republican-run legislature last year pushed through new rules raising the signature-gathering requirements, just a few years after voters rejected those same changes. Last August, Ohio voters similarly rejected a proposal put forth by state Republicans to increase the threshold needed for measures to pass.

“It’s all part of this larger puzzle of who gets a say and who gets to participate in our democracy, and where things are popular among constituents but that does not align with whoever is in political power in that state,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, which tracks ballot measures around the country.

A rejection from a state official doesn’t necessarily spell certain death for a citizen-led initiative, because organizers typically have opportunities to correct problems and resubmit. But advocates for direct democracy say the long delays caused by fighting with an attorney general over the language of a ballot proposal wastes legal resources and precious time needed to collect signatures and connect with voters. In this way, even if state officials can’t kill proposals outright, then perhaps by a thousand cuts.

In the just over half of states that allow for citizen-led ballot initiatives or referendums, each one has different rules governing the process. In Michigan, a proposal is submitted to the secretary of state before signature gathering, and language is reviewed by the state Board of Canvassers. Illinois has next to no pre-approval process at all for a petition to make it onto the ballot. In Florida, by contrast, ballot title and summary language must be approved by the secretary of state, the attorney general and the state supreme court. 

In evaluating these petitions for inclusion on the ballot, these state officials are typically empowered to conduct a review of the petition’s formatting, language, and adherence to state and federal laws. This may mean an attorney general or lieutenant governor making sure that a petition only applies to one subject, or that the language of a summary is easy to understand. These officials don’t have the authority to review the underlying issue a petition is about. And yet, in recent years, some of them seem to be pushing the boundaries of their clerical duties. 

“It really should be more mechanical power to certify this and neutrally evaluate it,” explained Quinn Yeargain, a professor of state constitutional law at Widener University and frequent Bolts contributor. “They’re putting a thumb on the scale and pushing, I think, to expand the understanding of their power.”

David Couch, an Arkansas attorney who has spearheaded various ballot proposals for years, claims the state’s attorney tried to undercut organizers’ attempts to increase government transparency by repeatedly rejecting their proposed language for ballot measures. Couch worked with a coalition called Arkansas Citizens for Transparency last year to introduce a pair of initiatives aimed at amending the state constitution and creating a new state law to guarantee the right to access public information. The ballot initiatives were first submitted to Republican Attorney General Tim Griffin in November of last year, but he rejected one of them, on the grounds that the popular name and ballot title, “The Arkansas Government Transparency Amendment,” was not sufficiently specific.

The group resubmitted the amendment in December, offering four different options for ballot titles and other changes to the text, but the proposal was again rejected. They made a third submission in January, but before Griffin could issue a decision, Couch sued the attorney general in state court over the previous rejections. 

“In my opinion, he was using his statutory authority, which is very limited, to make us rewrite the amendment and rewrite the act to weaken it, and to make it be more what he would like it to be rather than what we the people would want it to be,” Couch told Bolts.

Griffin has maintained that his rejections remained within his authority, and stated in his first opinion from December that his “decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure’s merits.” Even so, later on in the opinion, Griffin wrote that he took issue with the word “transparency” in the ballot title, saying it had “partisan coloring” and “seems more designed to persuade than inform.” 

Griffin eventually accepted both proposals, though not before one more rejection, and Couch dropped the lawsuit—not because he had a change of heart, he says, but because the coalition had already lost too much signature-gathering time. Organizers now have until July 5 to gather 90,000 signatures from voters in at least 15 counties to get the issue on the November ballot. (That threshold would be even higher under the bill Arkansas passed last year, but it’s currently held up by a different lawsuit heading toward the high court.)

“They use it to run the clock up. You lose a month every time you have to change something,” Couch said. “What he did was just wrong. It’s unconstitutional.” 

In Missouri, abortion rights organizers have engaged in a nearly year-long battle with the state over a proposal to enshrine abortion rights in the state constitution and override the state’s near-total abortion ban. 

After the group, Missourians for Constitutional Freedom, submitted 11 different options for an amendment proposal back in March, there was a protracted legal fight with Attorney General Andrew Bailey, a Republican. Bailey tried to force a fiscal impact statement onto the measure claiming it would cost taxpayers billions of dollars (the state auditor, who is tasked with such assessments, had initially determined the state would see “no costs or savings”). 

Once the state supreme court rejected the attorney general’s attempts to inflate the cost of the amendment, the proposal moved on to Republican Secretary of State Jay Ashcroft, who was tasked with writing 100-word summaries of each option submitted. Organizers accused him of using misleading and partisan language to describe six of the proposals, and the courts ultimately agreed with them after they sued; in an Oct. 31 ruling, a state appeals court said that Ashcroft’s ballot summaries were “replete with politically partisan language,” and ordered him to use the more neutral summaries written by a lower court. Ashcroft tried to appeal the decision to the state supreme court, but they refused to take up the case. 

By the time the dust settled from all this legal back and forth and Missourians for Constitutional Freedom embarked on their formal signature-gathering campaign, it was already January, eleven months since they first submitted their proposal. They now have until May 5 to gather more than 170,000 signatures to get it on the November ballot. One observer with experience running petition campaigns described the experience to The Missouri Independent as “going downhill at a very fast rate of speed.” 

In Montana, a group backing a similar abortion rights measure, Montanans Securing Reproductive Rights, is still stuck in limbo. After state Attorney General Austin Knudsen, a Republican, rejected their measure for not adhering to the single-issue rule, the group quickly petitioned the Montana Supreme Court to overturn the decision, claiming that Knusden overstepped his bounds. They have some precedent on their side—the supreme court in November reversed a similar decision from the attorney general, after he invalidated a ballot measure to reform election rules to create a top-four primary. 

“We were prepared for the fact that it was likely [Knudsen] would try to block the ballot measure and try and take up more time,” said Martha Fuller, president of Planned Parenthood Advocates of Montana, one of the groups in/leading the coalition. But Fuller says they’re not letting this delay kill their organizing momentum. 

“I feel really confident in our ability to gather the number of signatures even on a tighter time frame than we are now,” she said. “Every day we’re hearing from folks who are ready to go; we’re already feeling a sense of momentum building around this measure.”

As organizers fight to get their initiatives on the ballot, they also face broader conflicts around citizen-led ballot measures. Lawmakers around the country have continued to tinker with rules governing nearly every step of ballot initiative processes. While voters in Ohio and Arkansas have rejected state attempts to move the goalposts for ballot initiatives, in others states officials have forced those changes; an analysis by Ballotpedia of legislative changes made to the initiative and referendum process between 2018 and 2023 found that roughly 20 percent of all the legislation passed made the processes more difficult.

And the changes keep coming: Just last week, Republicans in the Missouri legislature advanced two different bills that would make it harder for initiatives to pass. One passed by the Senate would require that a proposal receive majority support in five of the state’s eight congressional districts to pass, in addition to a simple majority of voters statewide. The other, which just passed in the House, would add stricter requirements for the signature gathering process. 

“There’s a constant pushback from conservatives to try to stop these measures in their tracks,” said Olson Sharkey from Elias Law Group. “Because they know, especially with reproductive rights, if these measures get on the ballot, they’re going to win” 

Olson Sharkey sees these tactics coming out of conservatives’ playbook, but conservatives aren’t the only ones deploying them. As Bolts has reported, the Democratic city government of Atlanta changed the rules for popular initiatives in an effort to block a proposed referendum against the ‘Cop City’ police training center; the city council earlier this month went as far as to approve the controversial practice of signature matching to disqualify some people who signed the petition. 

For Fields Figueredo, who tracks ballot initiatives across the country, no matter who’s responsible, chipping away at ballot initiatives betrays a disregard for the fundamental principles of democracy.

“It’s ultimately about minority rule,” she said. “We could elect people in a democratic process, and also they are not actually listening to the will of the people.” 

The post Red State AGs Keep Trying to Kill Ballot Measures by a Thousand Cuts appeared first on Bolts.

Beshear emerged victorious on Tuesday, securing a second term by defeating Attorney General Daniel Cameron by 5 percentage points as of publication, the same margin by which Kentuckians rejected an anti-abortion constitutional amendment last fall.

Glenn Youngkin, Virginia’s Republican governor, made the inverse gamble this fall that he could convince Virginians to hand the keys to their state government to his party even if he told them that the GOP would introduce new restrictions on abortion in the commonwealth. He proposed a new ban after 15 weeks, similar to some congressional Republicans’ proposal. 

But Virginians on Tuesday rejected Youngkin’s offer and Democrats, who campaigned hard on promising to protect abortion rights, won both chambers of the legislature by defending their majority in the Senate and gaining control of the state House from Republicans.

With these results, Democrats held off major Republican efforts to take full control of the state governments of Kentucky and Virginia, a replay of the GOP’s disappointment in the fall of 2022 when it failed to capitalize on the traditional gains for an out-of-power party. 

Republicans’ setbacks last year were widely attributed to the unpopularity of the U.S. Supreme Court’s decision to overturn Roe vs. Wade, and voters reaffirmed various times throughout 2023 that reproductive rights remain a motivating issue. 

Proponents of reproductive rights on Tuesday also secured a decisive win in Ohio, where voters overwhelmingly approved a constitutional amendment to establish a right to abortion. And Democrats also prevailed in a critical state supreme court election in Pennsylvania after they assailed the Republican nominee for signaling support for restrictions. 

Beyond Kentucky and Virginia, two other states were electing their state governments on Tuesday, and both held to their usual partisan form. 

In New Jersey, Democrats easily defended their majorities in both legislative chambers, expanding their majorities despite GOP giddiness this fall, so they will retain full control of the state government for at least the next two years. 

Republicans got their best result of election night in Mississippi, where they will keep control of the state government thanks to Republican Governor Tate Reeves’ reelection victory. The GOP did score a decisive victory last month in Louisiana, which holds its state elections in October, as they flipped the governorship to win control of the state for the first time in 2015.

Republicans will exit the 2023 elections with trifectas in 23 states, and Democrats will enjoy trifectas in 17 states. Ten states will have split state governments. Most states will elect their lawmakers or governors next state, opening the door to further upheaval in the shadow of the presidential race.

Below is Bolts’ rundown of the results in each of the four states that selected their state governments on Tuesday. (Bolts covered the Louisiana elections last month, and will continue covering the results of Tuesday’s local elections throughout the week.)

Kentucky: Democrats keep a foothold in a ruby red state

Beshear squeaked into the governor’s mansion in 2019, ousting a Republican incumbent by less than one percentage point. But he won reelection on Tuesday by a more comfortable margin, 52.5 to 47.5 percent. 

He enjoyed wide popularity during his first term, and his win on Tuesday was powered by heavy support in the state’s urban cores, and slimmer losses than four years ago in rural Kentucky. 

Cameron did his best to tie the race to national politics, pointing to Trump’s endorsement. He also accused Democrats of not supporting law enforcement and vowed to champion stiffer criminal penalties, a familiar campaign strategy for his party. As attorney general, he was responsible for the decision to not file charges against the police officers who killed Breonna Taylor in Louisville. But Cameron ran far behind the GOP’s other statewide candidates, all of whom prevailed easily for races such as attorney general and secretary of state.

The legislature was not up for election on Tuesday, though, and the GOP will retain their large majorities in both chambers, with which they’ve routinely overturned Beshear’s vetoes during his first term, for instance ramming through a ban on gender-affirming care for minors and major abortion restrictions earlier this year. 

Beshear has tried to make up for his de facto inability to veto Republican bills by occasionally flexing his executive authority, drawing some lawsuits and retaliation from Republicans. Within days of coming into office in 2019, he issued an executive order restoring the voting rights of hundreds of thousands of residents with felony convictions who until then had lost their right to vote for life. His reelection virtually guarantees that this executive order will remain in place, and in fact is likely to grow calls from voting rights activists who are pushing him to go further, ending the practice of lifetime disenfranchisement altogether as in the case in most states.

Virginia: Democrats grab full control of the legislature

Youngkin wasn’t on the ballot this year, but he banked on a strong showing by Republicans in the legislative election to deliver him more power and to solidify his national reputation. He spent months recruiting candidates and enforcing strict campaign messaging to pick up the few seats in the state Senate that would deliver his party full control of the state government. He proposed restricting abortion to 15 weeks, calling this a “reasonable” compromise in the wake of the Dobbs decision, and assailed Democrats for supporting criminal justice reforms.

Instead, it’s Democrats who made major inroads on Tuesday. Not only did they defend their edge in the state Senate, but they also gained at least six seats in the state House, costing Youngkin some of his political allies and flipping the chamber.

Over the last two years, Republicans in the state House had teed up legislation that would shift the state to the right, including new limitations on local criminal justice reforms and new restrictions on ballot access, such as repealing same-day voter registration and getting rid of ballot drop boxes. Such proposals will remain dead on arrival, as does Youngkin’s project of introducing new abortion restrictions. 

Still, Youngkin, who cannot run for reelection in 2025, retains use of executive power; earlier this year, he used that authority to drastically curtail the voting rights of people with felony convictions.

Mississippi: Republicans hold off Democratic hopes for an upset

Mississippi is one of the nation’s poorest states, and it’s also one of only ten that has refused to expand Medicaid to cover more lower-income residents, as provided by the Affordable Care Act. Democrat Brandon Presley made Medicaid into a major campaign issue this fall as he took on the state’s Republican Governor Tate Reeves, a staunch opponent of expansion. Presley, a commissioner on Mississippi’s public utility commission and a cousin of Elvis Presley, also zeroed in on a scandal involving tens of millions of dollars of misspent welfare funds that has engulfed Reeves, making Democrats hope for their first gubernatorial win in decades.

But Mississippi’s Republican bent proved too large for Presley to overcome. Black Mississippians vote overwhelmingly Democratic, but white residents vote Republican by a consistently huge margin. Reeves secured a second term on Tuesday, leading by five percentage points as of publication. 

Republicans also easily kept their majorities in the state legislature. They were running unopposed in nearly the majority of districts to start with.

Tuesday’s contests were beset by issues at polling locations in Hinds County, home to Jackson, which is a majority-Black county and the state’s most populous. They were also held in the shadow of a short-lived decision by a federal court to strike down the state’s exceptionally harsh felony disenfranchisement rules, which disproportionately affects Black residents. The ruling in August offered a glimmer of hope to disenfranchised Mississippians but the Fifth Circuit of Appeals ended up vacating it, once again shutting off polling places to hundreds of thousands of Mississippians.

New Jersey: Democrats put 2021 behind them

Democrats barely held onto their trifecta in New Jersey in 2021, when a surprisingly-strong Republican Party gained seven legislative seats and came within close striking distance of the governorship. This year, with all legislative seats up for grabs, Republicans hoped to make further gains on Tuesday—perhaps even breaking up Democrats’ legislative majorities for the first time since 2001—by rallying voters under the battle cry of parental rights and taking issue with school policies that seek to shield transgender students. 

Instead, Democrats easily maintained control of both chambers. Far from losing seats, they made up ground they lost two years ago; they have flipped five Assembly seats as of publication. Democrats also ousted Republican Senator Edward Dunn, whose shock victory against the chamber’s Democratic president in 2021 came to encapsulate their party’s poor results that year.

Continued Democratic control over New Jersey will test the at times frosty relationship between legislative leaders and Governor Phil Murphy, who was not on the ballot on Tuesday. Progressive priorities like same-day voter registration have stalled in the legislature.

And don’t forget about New Hampshire

By winning New Hampshire’s sole legislative race in a special election on Tuesday, Democrat Paige Beauchemin pulled her party within just one seat of erasing the GOP’s majority in the state House. Democrats now have 197 seats to the GOP’s 198.

In the never-ending election cycle, watch out for more special elections in coming months—two seats are already vacant—that will test whether the GOP retains a trifecta in this state.

The post Abortion Rights Power Democratic Wins in Kentucky and Virginia appeared first on Bolts.

After the Supreme Court removed federal protections for abortion in its Dobbs decision last June, the state’s attorney general immediately petitioned a federal judge to enforce a 2019 law that banned abortion after six weeks. It included an exception for when the mother’s life is at stake but not for instances of rape or incest. The six-week ban remained in effect for nearly three months, until a lawsuit brought by abortion providers led to an indefinite stay of the law. During that 82-day window, the costs associated with abortion care skyrocketed, and people were forced to cross state lines to seek the procedure—including, notoriously, a ten-year-old whose heartbreaking story became embroiled in a national controversy. 

The Abortion Fund of Ohio jumped into action, helping hundreds of Ohioans seek care elsewhere, in states where they could access abortion. The fund helped reroute them “out of state to be able to get the care that they were entitled to,” recalls Maggie Scotece, a doula and attorney who is currently serving as the organization’s interim executive director. (The organization is part of the coalition supporting Issue 1.)

But the organization, which helps people fund and access abortions, also received confused calls from, or on behalf of, people who could not travel: minors in group homes or juvenile justice centers, and people on probation and parole. 

Hundreds of thousands of Ohioans have their freedom of movement greatly restricted because they’re under some form of state supervision, and the stakes of Issue 1 may be highest for them. 

 According to data collected by the Prison Policy Initiative, Ohio ranks fourth nationally in the share of its population under any form of carceral control (this includes prisons, jails, probation, and parole), behind Idaho, Arkansas, and Georgia—“and that’s largely due to the massive number of people who are on probation,” said Wanda Bertram, a communications strategist at PPI.

A 2023 PPI report found that, at any time, some 191,000 state residents are on probation, which is an alternative to incarceration that comes with heavy restrictions and surveillance, while around 22,000 more are on parole, a form of post-release supervision that in Ohio is baked into prison sentences. “Probation is handed out like candy here in Hamilton County,” said Sean Vicente, a Hamilton County (Cincinnati) public defender. 

Abortion is currently legal up to 21 weeks and 6 days in Ohio because of the legal dispute over the 2019 law. Meanwhile the campaign to pass Issue 1 and permanently codify abortion rights has raised millions of dollars and gained traction; recent polls have found that between 52 percent and 58 percent of prospective voters supported the measure. 

But Issue 1 has also garnered many opponents, especially among the state’s Republican leadership. If it fails, Scotece predicted that the state supreme court, which has a GOP majority, will “almost certainly” reinstate the six-week ban. 

If that happens, people on probation or parole would face an impossible choice, Vicente said: “Do I travel out of state to take care of that health care issue and possibly get locked up? Or do I have an unplanned pregnancy? Do I have an ectopic pregnancy? Do I have a child via rape?” 

“It’s going to put poor people in a really tough spot where they have to truly decide between health care and liberty,” he told Bolts. 

Parole and probation are often conceived of as alternatives to incarceration that can keep more people in their communities. But both systems are so full of delays, requirements, and catch-22s that Vicente says he and his fellow public defenders often fear they are “setting up our clients to fail.” 

“The restrictions that are placed on people—and the ban on traveling out of state, which is common, is one of these—are often so onerous that people say that they would just rather be in prison,” Bertram said. 

At any given time, 39 percent of the people in Ohio’s jails are being detained because they violated the terms of their probation or parole, according to the PPI report. That’s double the national average of 20 percent. 

“I can understand it being that high, because anything can get you [violated],” said Malika Kidd, who helps women navigate reentry as the Program Director for the Lutheran Metropolitan Ministry in Akron and Cleveland. “You can be around another person that was in prison and you can get violated, just in the same area with them. Somebody in your family can have a gun with them and you’re around it, you could be violated. If you get a traffic ticket and don’t let them know, you can be violated.”

Though women are generally proportionally underrepresented within the criminal legal system, they are far more likely to be on probation than under other forms of correctional control, and both parole and probation compliance present special challenges for women. “Women are more likely to be the primary caregivers of children—all of the requirements that supervision imposes that get in the way of childcare are going to fall harder on women,” Bertram said. “That takes a huge amount of time out of your day.” There are fewer reentry programs serving women, who are more likely to be homeless upon their release—another factor that would make it difficult to comply with the often onerous requirements that accompany supervision. “It’s a combination of a lot of stuff that can overwhelm anybody,” said Kidd. 

Kidd is, in many ways, the face of women’s reentry in Ohio, but her experience with parole there illustrates how arbitrary and burdensome the system can be—and how it restricts people’s freedom of movement. In 2001, after police found cocaine in her car on a trip from Chicago to Cleveland, she was sent to prison for drug trafficking. Her son was just three years old; by the time she got out, he was 17. 

As part of her mandatory minimum sentence, Kidd was given a 5-year “post-control release” term. From the beginning, she says, her parole officer seemed biased against her and determined to make her life harder. The woman upped her risk level, calling her a flight risk because she is originally from Illinois, and forced her to wear an ankle bracelet, which tracked her movements and prohibited her from leaving Ohio. Some people on probation cannot even leave their county of residence without permission. 

Moreover, Kidd says her parole officer exacerbated the already toilsome process with delays in processing her requests for permission to travel outside the state. Ironically, some of Kidd’s requests were in order to speak at conferences about the myriad barriers associated with reentry. Her work was understanding about her spending hours at the parole office waiting for approval, she said, but “I’m sure there were plenty of other employers that weren’t as flexible as mine,” which could leave people to choose between potentially losing their job—a violation of parole conditions in itself—or giving up on the travel request. 

If abortion were once again banned in Ohio, people on parole or probation might be forced to choose between lying to the officer or judge assigned to their case about their reasons for travel, going out of state without permission, or being honest. The former two options both carry the risk of violating your supervision terms and being reincarcerated. 

Vicente said he couldn’t fathom any judges signing off on a travel request that involved going out of state to do something that would violate the law if done within state borders. 

He said, “You’re petitioning the court to say, ‘Hey, I know this is against the law here in Ohio, but I need my client to travel up to Michigan to get the care she needs. Judge, are you willing to allow her to travel out of state to break the law that’s currently in effect in Ohio?’ That I doubt any judges would sign off on.” 

“I think there’s gonna be a lot of frenzied and panicked calls, and it’s gonna put us in a tight spot as well,” Vicente added, wondering how his fellow public defenders would begin to advise their clients under such circumstances. 

An unexpected and unwanted pregnancy—and the stress, exhaustion, physical and hormonal changes, and increased number of health check-ups that tend to follow in its wake—could also make it harder to comply with the terms of supervision. “The medical needs are going to take priority over visiting the probation officer, which puts you in further jeopardy,” Vicente said. More people being forced to carry to term a pregnancy that they don’t want and can’t handle could ultimately contribute to the already high percentage of Ohioans jailed for violating the terms of their supervision.

With polling showing public support for abortion and other reproductive health rights, Ohio Governor Mike DeWine recently proposed to soften Ohio’s six-week ban if it were to come back into effect and to allow some exceptions, for example in the case of rape. But other Republican lawmakers have already resisted such changes. 

Republicans also tried to change the rules of the initiative process in Ohio to undermine this abortion rights measure, which was petitioned onto the ballot by organizers who collected hundreds of thousands of signatures. GOP lawmakers called a special election in August asking voters to raise the threshold to pass a constitutional amendment from a simple majority to 60 percent. That proposal failed by a wide margin in August.

The GOP’s proposal to change the rules in August was also called Issue 1, which has led to concerns of voter confusion as abortion rights proponents who fought the summer’s Issue 1 are now campaigning for people to approve the new Issue 1. 

If Issue 1 fails, it would add to the existing barriers that preventOhioans from accessing reproductive care. 

Even though abortion is currently legal up to nearly 22 weeks on paper, access is extremely limited in practice, Scotece of the Abortion Fund of Ohio said. While Ohio had more than 40 clinics in the ‘90s, anti-abortion groups have been “incredibly successful” in seeking to close them down, she told Bolts. The state now has just nine clinics concentrated in Ohio’s big cities, only three of which perform abortions up until the legal limit. 

Meanwhile, Scotece stressed that Ohio is already one of the leading states for the criminalization of pregnancy, whether it be arrests and prosecutions for self-managed abortions or the use of narcotics while pregnant. A 2021 study done by researchers at the University of California San Francisco that surveyed people who searched for abortion care via Google showed that intensifying abortion restrictions in the U.S. have led to an increase in self-managed abortions, including by attempting to hurt oneself or ingest drugs and alcohol—which would likely further expose people to criminalization. 

“We already know that folks who are low income, folks that are already under state scrutiny, whether it’s for parole or the family policing system, are more likely to be criminalized for pregnancy and pregnancy outcomes regardless of whether or not that is related to abortion,” Scotece said. 

Codifying the right to abortion and other reproductive care, and creating legal protections for people and organizations that assist others in accessing abortions, won’t solve all of these problems, Scotece added. But it will create a new test that Ohio courts must use when considering the constitutionality of a law that restricts or criminalizes abortion in the state. 

Kidd is not actively campaigning for Issue 1, but told Bolts she supports it. “It’s a woman’s right and I think these good old boys should not decide what a woman should do with her body.”

Correction (Nov. 1): An earlier version of this article misstated a quote from the Abortion Fund of Ohio, and inaccurately stated the number of Ohioans who sought out-of-state care when the six-week ban was enacted.

The post If Abortion Measure Fails, Ohioans on Parole And Probation Could Face Graver Restrictions appeared first on Bolts.

Most of these elections are playing out in the South, where Republicans could secure three more trifectas than they currently have—that is, control of the governorship and both chambers of their state legislature. 

The biggest and most suspenseful battle is taking place in Virginia. Despite Democrats’ gains in the state since the 2000s, the GOP just needs to flip a couple of seats in the state Senate to grab full control of state government. Republicans are also aiming to gain control of Kentucky and Louisiana, in each case by flipping the governor’s mansion. All three states currently have divided governments. 

In Mississippi, the GOP is defending its existing trifecta. 

Democrats don’t have the opportunity to gain a new trifecta this fall, but they’re aiming to keep control of the state government in New Jersey, the most populous of these five states. And in a bonus addition to the fall’s calendar due to a single special election in New Hampshire, they have a shot to keep eroding the GOP majority in the nearly-tied state House, though they won’t be able to quite erase it for now.

These elections are a final messaging test for the parties before 2024, but they’ll also profoundly affect public policy around critical rights within these states, with measures ranging from LGBT rights in Louisiana and new abortion restrictions in Virginia hanging in the balance.

Below, Bolts guides you through each of the states electing governors or legislatures this year as part of our coverage of the 2023 local and state elections around the country. Much more is on the ballot in these states and many others, from a supreme court election in Pennsylvania—the only such race this year—to referendums in Maine or Ohio. 

Kentucky 

Current status: Split government, with a Democratic governor and Republican control of both legislative chambers

What’s on the ballot: The governorship

No matter what, the GOP will retain control of the Kentucky legislature heading into 2024 after very comfortably retaining majorities in the state House and Senate in 2022; those seats are not up for grabs until November 2024.

Republicans also have the votes to override vetoes by the governor, in a rare state where that only takes a simple majority, and they’ve rarely blinked. This year, the GOP-run legislature overrode Democratic Governor Andy Beshear’s veto of 15 bills, ramming through a ban on gender-affirming care for minors and major abortion restrictions.

Still, Beshear has flexed his executive power during his first term, issuing public health orders during the COVID-19 pandemic and winning a legal fight against GOP lawmakers who sought to block them. He also issued an executive order in 2019 that restored the voting rights of hundreds of thousands of Kentuckians who were permanently disenfranchised. And last year, he issued other executive orders to allow some people to access medical marijuana, drawing condemnation from Republican Attorney General Daniel Cameron, who is now challenging Beshear for the governor’s office; Beshear’s order eventually pressured state lawmakers into legalizing medical marijuana through legislation this spring. 

The ensuing clashes have put November’s race between Beshear and Cameron on track to break fundraising records.  

Louisiana

Current status: Split government, with a Democratic governor and Republican control of both  legislative chambers

What’s on the ballot: The governorship, and both chambers of the legislature

All legislative seats in Louisiana are on the ballot this year, but we already know who will run the legislature come 2024 before a single vote has been counted. 

Only Republican candidates filed to run in the majority of districts in both the House and the Senate, guaranteeing GOP majorities in each chamber. Still, the fall’s elections will determine whether they can easily pass their priorities in coming years. 

John Bel Edwards, a Democrat has occupied the governor’s mansion over the last eight years, and he has vetoed many Republican bills in that time. Just this summer, he vetoed a barrage of legislation, including laws that criminalized getting too close to an on-duty police officer and banned discussion of sexual orientation in a classroom. Republicans have made major gains in the legislature during Edwards’ tenure, and earlier this year they finally clinched supermajorities in both chambers after a longtime Democratic lawmaker switched parties, giving them the power to  override vetoes. But veto overrides have remained unusual in Louisiana; Republicans this summer held a special session to take up just a few of the bills Edwards vetoed, and while they passed a bill to ban gender-affirming care for transgender youth, they could not muster the votes for other legislation.

Edwards is now barred from running for re-election due to term limits. If the GOP flips the governor’s office, it would gain unified control of the state government and no longer have to worry about vetoes. The front-runner is Jeff Landry, the state’s ultra-conservative attorney general, who is worlds apart from the outgoing governor on criminal justice policy. 

And even if Democrat Shawn Wilson pulls off an upset victory to become governor, the state’s legislative elections will determine the size of the Republican majority. Democrats have said they hope to break the GOP’s new supermajority, though the party has suffered from dysfunction, undercutting its preparation. Republican leaders, meanwhile, would like to grow their edge even more to make it easier to override vetoes.

Mississippi

Current status: Republican trifecta

What’s on the ballot: The governorship, and both chambers of the state legislature

The GOP is vying to keep unified control of Mississippi’s state government, which should be easy on the legislative side: Republican candidates are running unopposed in most Senate districts as well as in just shy of a majority of House districts, shielding them from any big surprise at the polls in November.

But Democrats have zeroed in on a scandal involving misspent welfare funds that has engulfed Republican Governor Tate Reeves, who is running for re-election and banking on the state’s red lean to prevail. He faces Brandon Presley, a member of the Mississippi Public Service Commission and a well-known politician in the state, who is aiming to hand Democrats’ their first victory in a governor’s race since 1999. Like past Democratic candidates in the state, Presley has vowed to expand Medicaid if he is elected, a reform Reeves has opposed; Mississippi remains one of only ten states that hasn’t expanded the program as provided by the Affordable Care Act, even though the expansion would cover more than 200,000 Mississippians.

The elections are unfolding in a tough landscape for voting rights and restrictions that depress participation, including a lifelong ban on voting for people convicted of many felonies—a policy that disenfranchises more than one in ten adults in the state, including sixteen percent of Black residents. And even though a new law meant to criminalize assistance with mail-in voting was blocked by a judge this summer, it has still left local organizations in a difficult position as they mount turnout efforts. 

New Jersey

Current status: Democratic trifecta

What’s on the ballot: Both chambers of the state legislature

Democrats walked into the 2021 elections confident they would easily keep unified control over state government, but they only barely survived with Governor Phil Murphy’s securing re-election in a surprise squeaker. 

Two years later, the stakes are considerably lower since the governorship is not on the line, but all legislative seats are up for grabs. And although the GOP, which gained seven seats in 2021, once made noise about 2023 being the year they flip a chamber for the first time in two decades, the party has already hit most of its obvious targets and it would have to reach into districts that are firmly blue. According to calculations by the New Jersey Globe, President Biden carried 25 of the state’s 40 legislative districts by double-digits in the 2020 presidential race. Even when Murphy survived statewide by three percentage point in 2021, he carried the majority of legislative districts by at least five percentage points. That gives Democrats a clear roadmap to retaining their legislative majorities this fall. 

Unified Democratic control hasn’t meant that those in the party always see eye to eye, though. Relationships between the legislature’s Democratic leaders and the more progressive governor have been difficult at times since Murphy’s first election. Senate President Steve Sweeney’s shock election loss in South Jersey in 2021 removed one of the state’s more centrist politicians, but progressive priorities like same-day voter registration have still died in the chamber.

Virginia

Current status: Split government: a Republican governor and House, and a Democratic Senate

What’s on the ballot: Both chambers of the state legislature

Republican Governor Glenn Youngkin badly wants his party to seize control of the Virginia legislature, which would give him far more control over the affairs of the state. Alongside Youngkin’s victory in 2021, the GOP also flipped the state House. But the Senate was not on the ballot that year and remained Democratic, and since then it has frustrated conservative ambitions on many issues, including abortion rights, criminal justice, and voting rights. 

Senate Democrats over the last two sessions have killed a barrage of Republican legislation, including bills that would have banned access to abortion at 15 weeks, ended same-day voter registration, enacted new voter ID requirements, and restrained the discretion of reform prosecutors to drop low-level cases.

If the GOP gains the Senate and keeps the House in November, it would open the floodgates for such bills. To get there, they need to flip two Senate seats (out of 40), and not lose more than one House seat compared to the state’s last elections. These margins are tight enough that Democrats are hopeful they’ll be the ones celebrating on Nov. 7 if they manage to not just retain the Senate but also flip the GOP-run House. 

And there are many competitive seats; 14 House districts and 7 Senate districts were within 10 percentage points in the last governor’s race, according to a review of data supplied by the Virginia Public Access Project. (The University of Virginia’s Center for Politics reviews the specific districts that are the likeliest to decide the majority.) Both parties are pouring in large amounts of money to win them, with many ads focusing on abortion access.   

These legislative races are the first general election since Youngkin dramatically tightened voter eligibility in March by ending his predecessor’s practice of automatically restoring the voting rights of people who leave prison. Many Virginians are unable to vote as a result. 

Bonus: New Hampshire 

Current status: Republican trifecta

What’s on the ballot: Just one state House seat

In the entire state of New Hampshire, only one state House district around Nashua is up for election in November. But with the state House nearly evenly divided between Republicans and Democrats, that election carries great symbolic weight. 

Big gains in the 2022 midterms left Democrats within three seats of a majority in the state House and they made further gains in special elections this year, most recently on Sept. 19 by flipping a district in Rockingham County. That cut Republicans’ edge to just one seat, 198 to 197, putting Democrats on track to tying the chamber with an even number of representatives per party ahead of Nashua’s Nov. 7 special election, which is taking place in a district that leans strongly blue, according to Daily Kos Elections. 

Then, on Monday, a House member announced that she would quit the Democratic Party, leaving her former party two seats behind heading into Nov. 7. 

Practically speaking, the exact number of seats held by each party wouldn’t at this stage change the bottom line: The GOP’s hold on the chamber is already tenuous. This is the largest legislative body in the U.S. by far, and lawmakers have other jobs since they’re only paid $100 a year. This means that chronic absences make the chamber difficult to predict and manage on any given day. Expect more vacancies, and party switches, over the next 15 months.

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A measure to change Ohio’s constitution to make it harder to pass future constitutional amendments failed on Tuesday. With an estimated 65 percent of the vote counted on Tuesday night, more than 57 percent of Ohioans voted against Issue 1, the GOP-backed constitutional amendment.

The result is a major victory for Democrats, liberals and abortion rights in a state that has trended hard to the right over the past decade—and keeps alive Ohioans’ ability to circumvent the Republican-controlled legislature to achieve policy changes in the coming years. 

“Ohio voters refused to vote to give up their own power. They saw through the outright lies and obfuscation,” Mia Lewis of Common Cause Ohio, a good-government group that opposed the measure, texted Bolts. “They stood up for majority rule and their right to bring issues to the ballot. We are thrilled. This is a good day for democracy!”

Issue 1 proposed to raise the threshold of passage for future initiatives from 50 to 60 percent. It also would have made it harder to qualify measures for the ballot by increasing the number of petition signatures groups would need to qualify an issue for the ballot..

Most immediately and significantly, its failure means that this November’s constitutional referendum to protect abortion rights will only need to surpass 50 percent of the vote to be enshrined in the state constitution. 

The Ohio ballot measure is the latest state-level referendum to protect abortion rights after the Supreme Court struck down Roe v. Wade in 2022, following successful statewide votes to protect abortion rights in California, Kansas, Michigan, and Vermont.

The election turned into an expensive and hard-fought proxy battle over abortion rights, with tens of millions of dollars pouring in from national groups on both sides of the issue.

But that’s far from the only looming policy fight where this threshold matters: Unions and Democrats are also gearing up for a 2024 ballot initiative to raise Ohio’s minimum wage to $15 by 2028.

The measure would have significantly curtailed a tool Ohio voters have available to them for more than a century. The 50 percent referendum threshold has existed since 1912.

The result is also a significant setback for the conservative politicians who, after months of infighting, backed a statewide referendum to change the threshold to amend Ohio’s constitution by popular vote and make it harder to get constitutional amendments on the ballot in the first place. Those include Secretary of State Frank LaRose, who campaigned hard for it and is running in next year’s election for the U.S. Senate, as well as the GOP state legislators who created the referendum in the first place.

While some Republicans claimed otherwise, they also admitted that kneecapping November’s abortion referendum was their motivation for holding the vote now. 

Republican legislators passed a law in December that banned August elections because they were expensive to hold, unnecessary and bad for democracy because of historically low turnout during the quiet, hot month when many people take vacation during schools’ summer break. And the 60 percent threshold they chose was notable given that multiple polls have found that significantly more than 50 percent of Ohioans support the abortion rights vote—but most found that number just below 60 percent. 

Voter turnout for Tuesday’s election was sky-high, especially given the unusual timing of the election and the fact that the referendum was the only thing on the ballot. 

More voters turned out for Tuesday’s referendum than in the state’s 2022 primaries, a remarkable result given that those primaries featured many competitive races, including for governor and the U.S. Senate. 

And it’s the latest example of Republicans looking to undermine direct democracy and limit voters’ ability to overrule them on policy. Arkansas Republicans recently made it harder to qualify issues for ballot measures, and Utah Republicans did the same in 2021.

When voters have had their say on these changes, though, they have tended to reject them. South Dakotans rejected a GOP-backed constitutional amendment to increase the threshold to pass ballot initiatives last summer; Republicans had called the vote just months before a major showdown over Medicaid expansion in November. A similar measure in 2022 failed in Arkansas.

Ohio’s result indicates just how potent an issue abortion rights remains for voters even in GOP-leaning states, and following successful statewide votes in places like Kansas shows that this will remain a powerful issue for Democrats.

The coalition of liberal groups were confident from the start that they would prevail on this vote, but didn’t take any chances, outraising and outspending their opponents by a wide margin for much of the race.

But in the election’s final weeks, conservative groups backing the referendum poured an additional $5 million into a last-minute statewide TV buy, according to sources tracking advertising, pulling the two sides roughly to parity in the race.

Both sides mixed their messaging on the referendum, targeting different groups with specific messages given the sweeping implications of the vote. Pro- and anti-abortion rights groups spent heavily to turn out their base voters on the issue while also painting it as a fight for checks on power and fundamental principles of democracy. 

On top of that, those opposing the measure spent heavily to make it clear this would further empower politicians and take away Ohioans’ ability to overrule their elected officials. Those supporting the bill ran ads arguing that the referendum would make it harder for deep-pocketed out-of-state interests to spend heavily to change state policy—a deeply ironic message given that the vast majority of money spent on this race (on both sides) came from out of state. They also claimed that the groups opposing the referendum supported “ “abolishing parental rights” and sent voters mailers arguing that this measure would not only prevent abortion rights from taking hold in Ohio, but keep a whole host of progressive ideals at bay, from “critical race theory” to ideas about gender and sexuality being taught in schools. 

But it was clear—to both supporters and detractors—that the main things they were voting on was abortion rights and their ability to change the state constitution. And Ohioans resoundingly declared that they want to preserve both rights.

“The voters made it clear that the power of the people will always rise above deceitful, out-of-touch politicians,” said House Minority Leader Allison Russo, a Democrat, texted Bolts. “Ohio’s constitution and the people’s fundamental freedom to determine our own future has been preserved, but the fight is not over. Citizen-led ballot initiatives give voice to the power of the people, and it will never be silenced.”

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Ohio Republicans passed a measure in May that creates an Aug. 8 election to end Ohioans’ right to directly amend their state constitution with a simple majority vote.

Voters will decide on that day whether to adopt a proposal that would increase the threshold to change Ohio’s constitution from 50 to 60 percent, and that would make it harder for residents to get constitutional amendments on the ballot in the first place. If it passes, the measure would dramatically curtail a tool of direct democracy that has existed in the state for more than a century.

“It’s an attempt to fool voters into giving away their power,” said Mia Lewis of Common Cause Ohio, a pro-democracy group that opposes the amendment.

Ohio Republicans’ latest effort follows a recent pattern. In numerous states where they have near-total dominance and the only option to challenge them is through statewide referendums or constitutional amendments, Republicans have moved to attack direct democracy itself.

Arkansas Republicans recently passed a law that makes it harder to qualify ballot measures for a popular vote, as did Utah in 2021. Arizona Republicans attempted to do the same last fall, to mixed results. Republican legislators in Florida, Idaho, Missouri, North Dakota and Oklahoma have made similar attempts this year, to varying degrees of success. In the maneuver most reminiscent of Ohio’s, South Dakota Republicans rushed through a summer referendum last year in an attempt to make it harder for a Medicaid expansion plan to pass later that year. Voters rejected their last-minute gambit, then passed Medicaid expansion over their objections last fall.

Now, Republicans are trying the same playbook in Ohio.

The precipitating reason for this amendment is a push to enshrine abortion as a constitutional right. After the U.S. Supreme Court’s 2022 decision that ended the federally-guaranteed right to an abortion, Ohio Republicans passed legislation to ban most abortion in the state, though that law is currently pending legal review. Abortion rights groups responded with a campaign to amend the constitution, attempting to follow in the footsteps of similar initiatives that passed in California, Michigan, and Vermont last fall, and in March they got the greenlight to start collecting signatures for a November referendum.

Anti-abortion groups lobbied GOP lawmakers to support a constitutional amendment to make it harder for any future amendments to pass, and rush to get it in place before voters can weigh in on abortion.

“Their true motivation, aside from their insatiable desire for power, is to stop women from having the reproductive freedom that we so deserve,” Representative Jessica Miranda, Ohio House Democrats’ Minority Whip, told Bolts.

Republicans sought to paint this proposed amendment as a necessary adjustment to protect Ohioans against deep-pocketed out-of-state special interests rather than one focused on blocking abortion rights.

“By voting yes on August 8, Ohioans will be protecting our constitution from special interests for generations to come, while still preserving the people’s important role in governing our state,” Ohio GOP Chairman Alex Triantafilou said in a recent statement. 

“We believe the Ohio constitution is a foundational document and shouldn’t be home to every whimsical issue that comes down the road,” said Rob Nichols, a spokesperson for Republican Secretary of State Frank LaRose. 

But Republicans have occasionally admitted what this push is really about.

“There is a reason that every far left group in Ohio is fighting so hard to preserve their ability to do an end run around us,” state Representative Brian Stewart, the Republican who spearheaded the effort to create the referendum, wrote his GOP colleagues in a December letter obtained by the Cleveland Plain Dealer. “After decades of work to make Ohio a pro-life state, the Left intends to write abortion on demand into Ohio’s Constitution. If they succeed, all the work accomplished by multiple Republican majorities will be undone, and we will return to 19,000+ babies being aborted each year.”

In holding this vote, Ohio Republicans are doing an about-face from a position they held just a few months ago. In December, the GOP-controlled legislature passed a law to eliminate August elections because of the difficulty and additional expense for holding them, as well as the historically low voter turnout during a time of year when many people are on vacation.

LaRose said at the time that August elections “aren’t good for the taxpayer, elections officials, voters or the civic health of our state,” and lamented their historically low turnout. 

But after the GOP failed to move the proposal through the legislature in time to put it on the ballot for the spring primary, LaRose and other Republicans changed their tune.

His spokesperson punted when asked why his boss had reversed his position.

“The general assembly has the authority to establish the time, place and manner for an election. It’s their call, and they chose to do an August election,” Nichols told Bolts. “It’s not our call.”

He also shrugged off concerns from local election workers about the cost and effort of an August election, saying he had faith that local officials were up to the task.

“They’re professionals, they’ve been through this before,” he said. “There have been August elections routinely in the past, and they’ve handled themselves flawlessly.”

The amendment’s opponents have filed a lawsuit in an attempt to block the vote from happening at all, arguing it violates this recently passed law banning most August elections.

In a separate lawsuit, they are seeking a court order to alter the Republican-drafted language for the amendment, which their lawyers described in a court brief as a “misleading, prejudicial ballot title and inaccurate.”

Surveys suggest Republicans are out of step with the voters in the GOP-leaning state—both on abortion and on their wish to curtail direct democracy.

An October poll by Baldwin Wallace University found that 59 percent of Ohioans supported a constitutional amendment to make abortion access a fundamental right—enough support to pass with a simple majority, but just shy of a 60-percent threshold—with just 27 percent opposing it. 

But it doesn’t seem like the GOP’s attempted end-around is any more popular with voters than their attempts to curtail abortion access.

An early May poll conducted by the group leading the efforts against the amendment to change constitutional referendums found that Ohio voters would oppose the measure by a margin of 52 to 21 percent. Strategists in both parties say that other private polling indicates the measure is currently opposed by majorities of Ohioans.

“The overwhelming response to this from people has been outrage,” Democratic Ohio state House Minority Leader Allison Russo told Bolts. “They see this as a power grab from a gerrymandered, unaccountable legislature that wants to take away power from people and put it more firmly into politicians’ hands.” 

The proposed amendment has drawn a broad swath of opposition. Traditional Democratic allies like Planned Parenthood, the Sierra Club, the AFL-CIO and numerous left-leaning labor groups have been joined by the Fraternal Order of Police and the Libertarian Party. The bipartisan Ohio Association of Elections Officials came out in official opposition to it because of the added work and unnecessary cost to taxpayers, which is expected to run as high as $20 million.

The referendum has also drawn opposition from two former GOP state attorneys general, as well as all four of Ohio’s living former governors—including Republicans John Kasich and Bob Taft.

Even some Republicans don’t seem that keen on the August vote. The bill only passed the Ohio legislature after months of foot-dragging from reluctant GOP leaders and heavy pressure from anti-abortion rights groups, in spite of a GOP supermajority in both chambers. Republican Governor Mike DeWine only came out in support after it had already been passed by the legislature after months of debate. And the Ohio Business Roundtable, a conservative-leaning coalition of business groups that usually works closely with Republicans, has decided to stay on the sidelines.

But the new law’s sponsors and their allies in the religious right and business community are now rallying to the cause. 

The Ohio Republican Party recently launched an effort aimed at turning out GOP base voters, and a coalition of pro-GOP business organizations headed by the Ohio Chamber of Commerce recently launched an operation to provide air support. Those groups largely back the amendment because they want to make it easier to defeat a 2024 constitutional amendment to raise the state’s minimum wage.

Given the GOP’s insistence that this is about keeping outside special interests from changing the state constitution, it’s ironic that the biggest individual donor so far to back the amendment is an Illinois billionaire. Dick Uihlein, a GOP megadonor and shipping supplies magnate who has a particular fondness for election deniers and social conservative causes, is the biggest donor behind Save Our Constitution, a super PAC that spent more than $1 million on ads badgering reluctant Republican state lawmakers into passing legislation to create the August vote.

The proposal doesn’t just increase the threshold needed for voters to pass constitutional amendments—it also makes it much harder for groups to get amendments in front of the voters. Currently, organizations and movements need to secure signatures from five percent of registered voters in 44 of the state’s 88 counties to get a constitutional amendment on the ballot. The new rule, if approved, would force groups to get enough signatures in every single county—and eliminate the 10-day cure period that currently exists for groups to fix any errors in signatures to qualify for the ballot.

If passed, the Aug. 8 measure would only apply to future constitutional amendments; it would not change the process that governs the initiatives that change regular statutes. Voters would still be able initiate laws or repeal ones passed by the legislature with a simple majority of the statewide vote. 

But state legislators can immediately re-pass the same or similar laws or repeal voter-backed legislation, giving them an effective veto over popular opinion.

The election is scheduled for the second Tuesday in August, where the proposed amendment will be the only question on the ballot. According to early reports, local election officials are scrambling to secure enough poll workers and polling locations in time. 

August elections are typically very low-turnout affairs, with between 5 and 10 percent of registered voters actually casting ballots. Both sides are gearing up to spend heavily on the race, and expect slightly higher turnout due to the gravity of the issue.

But the amendment’s opponents seem much more confident than its advocates.

“It’s gonna be a tough fight in August, and it’s really going to be about getting out the vote,” said Russo, the House minority leader. “But I feel confident that it will be defeated.” 

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