It’s not every day that the House expels one of its own, so of course we’re talking about George Santos getting the boot on this week’s episode of The Downballot. Co-hosts David Nir and David Beard discuss the deep fracture inside the GOP that the expulsion vote, then handicap the special election to replace Congress’ newest ex-member. They also dive into the absolutely wild New York Times report detailing how former Rep. Tom Suozzi had to grovel before Gov. Kathy Hochul to earn her approval to run in that February election.
The Davids spend some more time examining House Republican dysfunction as they recount the departures of two of the party’s top leaders, Kevin McCarthy and Patrick McHenry. They also explain why the results of a legislative special election in Miami mean good news for Democrats before jumping into redistricting updates for both Florida and Georgia, then wrap up with a surprisingly positive ruling in favor of voting rights in North Carolina.
Transcript is lightly edited for clarity.
David Beard: Hello, and welcome. I’m David Beard, contributing editor for Daily Kos Elections.
David Nir: And, I’m David Nir, political director of Daily Kos. “The Downballot” is a weekly podcast dedicated to the many elections that take place below the presidency, from Senate to city council. Please subscribe to “The Downballot” on Apple Podcasts and leave us a five-star rating and review.
Beard: Glad to have you back, Nir, because we have a lot of political happenings this week, to talk about.
Nir: I am super glad to be back and ready to dive into all of the craziness in New York’s 3rd congressional district with George Santos’ unprecedented expulsion. Then, we have a pair of GOP departures, from the highest ranks of House Republicans. Then, we’re also talking about some promising results for Democrats in a Florida special election this week.
We have some redistricting updates from both Florida and Georgia. Finally, there was a shockingly good ruling out of a court in North Carolina smacking down yet another attempted GOP power grab. We have so much to talk about. We will be right back after the musical break.
Beard, I cannot believe it was less than a week ago that George Santos became the first Republican ever to be expelled from the United States House of Representatives. It feels like it has been years already.
Beard: Yeah. It’s strange. It felt, for so long, that it wasn’t going to happen. Week after week, Republicans would push it off, or deflect to the Ethics Committee or to the investigations, or whatever. It just seemed like George Santos was just going to stick around until, maybe, next year’s election. Then finally, it all came to a head so quickly, and now things are moving incredibly fast.
Nir: Incredibly fast. I have to admit that right before that vote came down, I thought he might actually survive. You had all these leading Republicans, including Mike Johnson and Jim Jordan and Steve Scalise, saying that they were going to vote to keep Santos. I guess the heat finally got to be too much for, I’m going to say, man, the leftward half of the GOP caucus. Let’s not pretend that they’re to the left on anything.
Beard: Maybe, moderately less crazy.
Nir: Yes. The moderately less crazy half of the GOP caucus, including of course all of the freshmen Republicans in New York state and all of the Biden-district Republicans. I guess they just had enough of his nonsense.
Beard: Yeah. The B storyline, here, is definitely the further fracturing of the House Republican Caucus…
Nir: Yeah.
Beard: … and their inability to come to a unified position on, really, anything, at this point. I think it was pretty clear that there were sort of two ways to go about it. You either expel Santos, which is both the right thing to do and has maybe some political benefits for some of your more vulnerable members. Or, you’re like, “We’re going to do the real political thing. We need his vote. We’re going to keep him in office and take advantage of the extra Republican vote for the rest of the year.”
Instead of choosing one of those two options, you had a bunch of members take option A, and most of the leadership take option B. Just sort of be like, “But if you want to take option A, that’s fine. We’re not going to tell you what to do,” which is, “Why are you in leadership if you don’t want to tell any of your members how to vote on things?” In the end, Republicans split right down the middle. The vote for expulsion was 311 to 114. It passed with the supermajority necessary to expel him, but Republicans actually voted against it just within their own caucus. 105 Republicans voted for it, and 112 Republicans voted against it. So, a majority of Republicans wanted to keep Santos in Congress.
Nir: That split, though. I mean, that really is down the middle. What do they call this in the UK, or other parliamentary countries, where they won’t whip a particular vote? A vote of conscience, or something?
Beard: Yeah. There are a couple of different terms: a vote of conscience, a free vote, things like that. The natural standard is like a two-line whip, I think. There are a few different levels because a three-line whip is the really, really must-vote one. Then, the free vote is when there are no consequences for voting against your party.
Nir: Let me be clear, I’m not accusing Republicans of having a conscience. It’s honestly realpolitik either way. Either, like you said, “We need Santos’ vote,” or “We want to get rid of Santos because he’s an anvil around our necks.” So, they’re being motivated by political considerations whichever way, but it really is remarkable. It’s just almost impossible to imagine Nancy Pelosi in the past, or Hakeem Jeffries now, saying, “I’m going to vote a particular way on a bill or on a resolution, to have half of Democrats vote the other way.”
Beard: Yeah. Obviously, once it was clear that the vote was going to pass, all of the Republicans should have voted for it. There’s no reason to vote against expelling an incredibly unpopular member, who’s going to go to jail almost certainly. When it’s going to pass anyway, you should just vote for it. The fact that a majority of the caucus didn’t, the fact that the leadership couldn’t even see that and be like, “Oh, the obvious smart choice here is just to vote for it since it’s going to pass anyway,” is really inexplicable and just a sign of further dysfunction within that caucus.
Nir: I said all of the Biden-district Republicans voted to boot Santos, but there were a few Republicans who could be vulnerable in 2024, who did vote to keep him, including Scott Perry, the notorious insurrectionist, in Pennsylvania, Derrick Van Orden in Wisconsin, Maria Salazar in Florida. I don’t know that George Santos is going to be a general election topic come October of 2024, but why take that risk? Certainly, George Santos is doing everything he can to stay in the limelight by tweeting ridiculous, salacious stuff, probably mostly lies, about his GOP colleagues. He’s not making life easy for them. Just get rid of him.
Beard: Yeah. I think George Santos is going to stay in the limelight for as long as he possibly can. I think, pending, obviously, his many legal troubles, we will probably see him on one, or more, reality shows between now and next year’s election. So, I don’t think he’s just going to disappear. Do I think that any results outside of New York are going to be strongly affected by George Santos? Probably not, but like you said, you never know. There’s no reason to open yourself up to even a little bit of risk.
Nir: I don’t think that Orange is the New Black is actually a reality show, Beard.
Beard: Well, I would absolutely imagine a George Santos in-prison docudrama thing.
Nir: Oh, God.
Beard: Who knows? If there’s a way to make money from it, I’m sure George Santos is all in.
Nir: So, we need to talk about life after George Santos. I am talking of course about this special election to fill his now vacant district, New York’s 3rd congressional district based on Long Island and also a part of Queens.
Democratic Governor Kathy Hochul just set that special election for February 13. The key thing here, that we have mentioned before, is that there will be no primaries. Voters will not get to pick nominees for this special election. Instead, the candidates will be chosen by local party leaders in Nassau and Queens. Because Nassau County makes up the bulk of the district, the Nassau leaders will probably have the final say on which candidate each side picks. There was a freaking wild story this week from the New York Times’s Nicholas Fandos, about what exactly is going down behind closed doors with the Democratic pick.
Beard: And, this requires a little background, namely that Thomas Suozzi was the congressman for this district before the 2022 election and retired from Congress to run in the Democratic primary for governor in 2022 against Kathy Hochul. Kathy Hochul became the governor after Andrew Cuomo resigned. She was the lieutenant governor and then was running for a full term of her own.
Suozzi was one of the candidates who challenged her in that primary. That primary got pretty nasty, at times. I think a lot of folks on the Hochul side, I think including Governor Hochul herself, as this story reveals, remain upset with Suozzi for how he ran his campaign. Despite that, the front-runner for the Democratic nomination, here, was Suozzi. Obviously, he has a lot of name recognition. He’s probably a good fit for the district, overall. He served it for a number of years, but there are some speed bumps.
Nir: So in that primary last year, Suozzi went at Hochul from the right, which was just a ridiculous kamikaze maneuver. You can’t win a Democratic primary attacking an incumbent from the right, any more than you could win a Republican primary attacking an incumbent from the left. It just doesn’t happen. Suozzi ran this really reactionary campaign accusing Hochul of failing to address rising crime, and also, pretty much accusing Hochul herself of being corrupt and unethical. Obviously, that pissed the Hochul team off.
Suozzi’s campaign was a disaster. He got 13% of the vote statewide. He actually finished in third place behind Jumaane Williams, who did run to Hochul’s left. Hochul won with about two-thirds of the vote. She won the primary, at least. She wound up having this much closer-than-expected race against Republican Congressman Lee Zeldin. According to Fandos’ report, Hochul’s team in part blamed Suozzi for opening the door to the same kinds of attacks on crime and ethics that Zeldin really amplified heavily in the general election.
However, like you were saying, Beard, Suozzi, is a big name in the district. Former members of Congress are often wooed by campaign committees like the DCCC, or the NRCC, for comeback bids for precisely that reason. So, he definitely has the inside track on the nomination.
According to Fandos’ report, on Monday night of this week, after hours, Hochul called up Suozzi and said, “Come up to Albany, and come see me right away if you want a chance of having this nomination.” Suozzi got in his car and drove to Albany. Fandos describes him as making his way through three hours of traffic on a Monday evening, and Hochul laid out her demands. So, the two key demands that Hochul had, and I’m quoting Fandos here, one, she “Needed the Roman Catholic former congressman to agree to run as a full-throated defender of abortion rights.” And number two, she sought assurances that “He would not run ads damaging their party’s brand.”
Now, that second one sounds to me like a reference back to the kind of attacks that he was running against Hochul, on crime and similar topics, last year. She doesn’t want him giving fodder to the GOP, anymore, just like he did last year.
Beard: Yeah. I think the key, here, is that there’s a way to work on inoculating yourself against some of these attacks. We know Republicans are going to do these attacks without throwing the party under the bus, without making it harder for other Democrats in your area and in the state to run their own campaigns. That’s obviously not something that Suozzi was concerned about when he was running his scorched earth primary last year. So obviously, I do think it’s fair to make sure that he’s not going to be doing that again in another election.
Nir: It says a lot though about what kind of a guy Suozzi is that Hochul felt the need to force him to grovel and promise to be a team player. I mean, that means you know the guy is a jerk. I think, though, that the other issue, abortion, could really, really loom large. Abortion was something that Suozzi was already under fire for, especially from his top Democratic rival, former state Senator Anna Kaplan. Now, a bunch of Democrats and a bunch of Republicans were already running for Santos’ seat in the expectation of running in the regular primary, which is in June, then hoping for the chance to win Santos’ seat in the November general election. Now, all of these candidates are hoping that party leaders pick them for the special election. But again, Suozzi definitely has the inside track.
On the abortion front, his record really kind of sucks. He managed to, for a number of years in Congress, get A ratings from the abortion rights groups. But, when he was county executive in Nassau, at one point he gave money to groups promoting abstinence education, which obviously is something that A, doesn’t work, and B, reproductive rights activists absolutely despise. He, also, has been hostile to repealing the Hyde Amendment.
That is such a technical phrase, and I really don’t like it. You have to spend time explaining it, but it’s really, really simple. What the Hyde Amendment means is that Medicaid cannot pay for abortions. Many, if not most, poorer people in America are on Medicaid. So, what this means is that access to abortion care for poorer women, and especially women of color, are they’re disproportionately affected by the fact that Medicaid won’t pay for an abortion. It should pay for abortions. It’s obvious that it should. For the longest time, Democrats in Congress had generally kind of gone along with the Hyde Amendment. They hadn’t really fought it and Suozzi was one of those guys who seemed very happy to go along with it.
The tide has absolutely shifted. Beard, I’m curious if you agree with me on this. I think that the center of gravity, now, in the Democratic Party, is definitely opposed to the Hyde Amendment and that folks want to see Medicaid funding for abortions.
Beard: Yeah. In fact, outside of some very, very red seats, I think Democrats who support the Hyde Amendment are potentially opening themselves up to primary challengers. I think the center of gravity has moved that much around the issue of reproductive rights. The Hyde Amendment is not a policy that a Democrat, at the center of the party, could conceivably support at this point. It’s only something that somebody on the right edge of the party would consider supporting.
Nir: Yeah. And for that reason, I think Suozzi is lucky that he isn’t going to face a primary before he almost certainly gets tapped for this special election. There will still be that race for the full term. If Suozzi wins the special election, I think it would be probably really hard to beat him in a primary. Of course, if he loses, then there will be so much finger-pointing; I don’t even want to think about it. I can guarantee you that if Suozzi loses the special election, whoever wins the Democratic primary for the full term will be a very strong supporter of abortion rights.
Beard: Yeah. Absolutely. And a final note on this whole story, it’s not necessarily surprising to me that Hochul would want to talk to Suozzi one-on-one, get these reassurances, have these demands, particularly after the primary last year. It’s not even shocking that this leaked. Obviously, political stories about meetings between important folks leak all the time. That’s what a lot of journalism is based on.
The fact that the governor’s team confirmed the meeting, and basically what happened in the meeting in the article, was wild to me. Hochul’s campaign spokesman, Brian Linsmeyer said, “The governor will allow his nomination to move forward,” and basically confirmed the broad outlines of the meeting. That’s what the article says.
So, the fact that the Hochul administration was basically like, “Yeah. We did that. We had him drive up here. We yelled at him a bunch. We made him make all these promises. Then, we sent him down, telling him, ‘We’ll let you know in the morning,'” it’s sort of a flex by the administration, which I actually find strange. I feel like that’s not the Hochul administration’s usual style, even though it’s sort of historically a very New York thing to do. They definitely wanted to do as much flexing as they could to stick it in the New York Times like this.
Nir: That really, really is remarkable. It also means that Hochul is taking huge ownership of this race, and this is a difficult district. Biden won it by eight, but last year Zeldin, in his race against Hochul, won it by 12. Republicans have, since that 2020 election, been doing quite well on Long Island in general, and Nassau in particular. They did well in local elections just last month. So, I think this one is going to be a tossup. Republicans, of course, also are in the midst of picking their candidates, but I think we’ve gone on long enough about this one. We will actually know for certain who Republicans are picking. They haven’t made it quite as explicit as Democrats have. We’ll know in just a few days. So, we will definitely follow up on that on the next episode of “The Downballot.” Of course, we will be covering this race, plenty.
Beard: Meanwhile, in the few short days since George Santos was expelled, two more Republicans have decided to follow him out the door. It wasn’t just some mild backbenchers; it was none other than former Speaker Kevin McCarthy, who announced that he was going to resign at the end of the year, and Speaker Pro Tempore Patrick McHenry, who oversaw that debacle of the time when we didn’t have a speaker, has also announced that he’s going to be retiring. Now, he’s sticking around through the end of this Congress next year, but he is also out the door. So, it’s just a huge sign that these two very significant, high-up figures in the party are like, “We’re out. We don’t want to do this anymore.”
Nir: Well, McHenry was a top member of the party when he announced his retirement. Kevin McCarthy was a random backbencher by that time.
Beard: I guess that’s true; I guess that’s true.
Nir: McCarthy, right after his ouster, was talking a big game about how he was going to run for reelection. Very quickly, thereafter, reports started coming in suggesting he was going to retire. So, this is no surprise at all that he wants out, as soon as possible. But, man, I mean it must really, really suck to be a House Republican when you’re just engulfed in this nonstop chaos.
McHenry, there was talk about making him speaker when he was speaker pro tempore. He was like, “Nuh-uh. Don’t want it.” He was totally like the John Snow type. He’s, now, pulling the plug.
There’s also another layer, here, which is that Republicans have a rule in their caucus, an internal GOP rule, that only applies to their party, that sets term limits for committee chairs.
So, Patrick McHenry is chair of the Financial Services Committee, one of the most powerful committees in Congress, except he is in his third term. The GOP term limits only allow you to head up a committee for a maximum of three terms.
What this means is that some of the most senior experienced members of the Republican caucus ultimately decide to bail because they’ve reached their peak. For McHenry, running the Financial Services Committee is the best he can hope for. If he were to come back next Congress, he would kind of have bupkus to do. It’s the problem with term limits writ large, you basically wind up taking your most experienced, valuable members and saying, “We don’t want you anymore.” The public loves them, unfortunately, but it’s certainly damaging the Republican Party at a time when the GOP can ill afford to lose any of its veterans like this.
Beard: Yeah. I think the Republican Party already suffers from brain drain vis-a-vis the Democratic Party. College-educated voters are moving more and more to the Democratic Party. You see that at elite colleges, not just in America, we’re talking broadly, about the history of the world, and how other countries function. These folks go to good colleges, they get involved in governance, and they’re the people who are the leaders of tomorrow, etc. In recent decades, that’s more and more been Democrats, so the Republicans don’t have as big of a pool to draw from. Then you’re losing these people, either from disgust with Trump, or they just don’t want to have a leadership position, as you talked about with McHenry. They’re just tired of it all. Again, being a Republican just sounds terrible, if you’re in the House. That’s just a further brain drain and leaves you in a worse and worse position in terms of executing policy and getting things moved through the House.
We’ve seen what a shit show the Republican caucus is. There aren’t good leaders who are able to get the job done the way that we saw Nancy Pelosi do it. I think we’ve seen Hakeem Jeffries… obviously, it’s easier to be a minority leader than it is to be a speaker, but he has done a good job so far. Mike Johnson was elected Speaker about a month and a half ago. There are already rumblings of people upset with him, people who are like, “Oh, he’s on thin ice. I’ve been disappointed time and again already in these six weeks. Yada yada yada.”
So, I don’t know if that’ll actually lead to anything. It’s already been such a turbulent place after such a short period of time, that I would want to get out, too. I mean, you could also try to be a better human being and become a Democrat, or something, but let’s not ask for the impossible.
Nir: Yeah. I mean, it is the season of miracles for many religions around the world, this time of year, but that is definitely a bridge too far. To your point about the dysfunction and the rumblings against Mike Johnson: right now, Mike Johnson can only afford to lose three Republicans on any particular vote. If he loses four, then the vote fails. If four Republicans side with Democrats, then the Democrats simply win the vote. So that’s how small the margin of error is, but it’s actually, potentially, going to get even smaller.
We have a couple of other resignations, one Democrat, Brian Higgins, and one Republican, Bill Johnson, that are forthcoming. They’re supposed to happen early next year, but there’s also the Santos special that, of course, we were talking about. If Democrats actually flip that race, then once the remaining resignations all take place, then Johnson’s margin of error would become just two. If he were to lose three votes in this scenario, where Democrats flip the Santos seat, then boom, the Republican bill or vote or motion, or whatever it is, will lose whatever is coming to the floor.
So, yeah. I think this is only going to empower crazies. That’s the wild thing, when guys like McCarthy quit midstream because the crazies are absolutely hammering them, it gives the crazies more power. We saw that happen after Boehner, and saw it happen with Paul Ryan. Now, it’s just the story of the GOP.
Beard: Yeah. And, I think it’s obviously very important for us to track these margins both for future vacancies and for votes where Democrats are unified and are trying to pick off a handful of Republicans to stop bad legislation. What we’ve seen over the course of recent months is that the Republican majority doesn’t really exist. It’s something that exists more on paper, than in reality.
I saw someone on Twitter who made this point really well, which is that there is no functional majority of the Republican Party. Anything that passes, that actually could conceivably get signed into law, is something that passes with 100 plus Democratic votes. The only thing that they’ve sort of passed has been a handful of messaging bills. A lot of the messaging bills have also failed because of divisions within the caucus itself. So the House Republican majority, obviously they have committees, they have subpoena power. It’s not to say that it’s worthless, by any means. It’s not a majority in the way that we think of a majority, that can exercise its will in the chamber whenever it wants, the way that most majorities have been… because it’s so dysfunctional.
Nir: You know what? I’m actually kind of feeling like Kevin McCarthy, myself. I’m getting sick of the House GOP. I want to move on. Let’s talk some more about special elections because we just had another one on Tuesday night down in Florida. The results were really, really interesting. This was for Florida’s vacant 118th district in the state House, a reliably red Republican seat.
Republicans won it. If you’re a “Downballot” listener, you knew this “but” was coming. They only won it by six points, by a 52 to 46 margin. Donald Trump carried this district, the 118th State House district, by 16 points, so that’s a 10-point overperformance for Florida Democrats. What’s even crazier is that Ron DeSantis won this district last year by more than 30 points. So, it’s just a massive overperformance by Democrats.
Of course, it’s very easy to say, “Oh, well, it’s just a moral victory. Republicans still won.” Yeah. But, here’s why this really, really matters. We’ve mentioned before an even more important special election, coming up on January 16th for the 35th state House district. This is another vacancy in the Orlando area. It’s also Republican-held, except this one, Biden won by five points. If Democrats win this seat, it would be a red-to-blue flip. If Republicans turn in a performance similar to the one that they turned in on Tuesday night, then boom, they lose. If you do 10 points worse than the presidential toplines, and the presidential toplines already have the Democrats winning, you’re done.
Beard: Yeah. Even more impressive is that this seat is heavily Latino. It’s heavily Cuban, in particular. Historically, one of the Republicans’ strongest demos in the Hispanic community is the older Cuban vote. As this is a special election, obviously turnout was way down. We don’t have age statistics, but it’s safe to assume that the electorate was very, very old. They almost always are in these really low-turnout special elections. So the fact that Democrats overperformed that much, in what was likely a very old Cuban electorate, is really, really impressive.
Nir: Yeah. That’s a fascinating detail. I wish we could have Tom Bonier back on, for the second week in a row, to dig into the voter file data for that race. It definitely speaks well for Democrats’ chances in Florida. This is now the second notable race this year, in Florida, where Democrats have overperformed. We actually won that huge race for Jacksonville Mayor, Florida’s largest city, in the spring. That was one of those green shoots and a hopeful sign that Florida Democrats might be getting their mojo back.
Now, it’s two in a row. Usually, you want to wait for three for a trend. I mean, of course, that’s just anecdotal nonsense, too. Two is better than one. That suggests that Jacksonville wasn’t a blip. So, yeah. I wouldn’t feel great about the HD-35 special election if I were the Florida GOP. The Florida GOP is so used to thinking that they’re on top of the world. God, I would love to humble them.
Beard: Yeah. If you go back before 2022, the problem with Florida for Democrats is that they kept losing by minuscule margins, election after election. It was not blowouts. Obviously, you go back to 2018, most notably, where they lost both the governor and the Senate races by very, very narrow margins. We’re talking that the Senate race was recount margin. It was so, so tight.
Then, obviously Trump, I think weirdly has a bit of a home-state advantage in Florida, even though he says he’s from New York. He’s really a Florida man by now, I think, is safe to say.
Nir: A Florida man by residence and by nature.
Beard: Yes. So, it was really 2022 when we saw the bottom fall out. We saw turnout was terrible for Democrats, and I think people were so shaken by that. They were like, “Oh, well, Florida’s a red state, now. Let’s all flee in terror from Florida and the impossible to defeat Republican Party of Florida.”
I don’t think that’s the case. Do I think it’s still to the right of the country? To some degree. Of course, I wouldn’t sit there and say Florida’s going to be the swing state of the next election. I don’t think it’s out of the blue that we could win an upcoming special like this, that we can be competitive in the state. I don’t think it’s worth just abandoning the state, completely. It’s too big. It’s too important.
Nir: Completely agree with all of the above, though, Florida Republicans are doing their absolute best to make sure that the fix is in. We talked before, on “The Downballot,” about a pending lawsuit that is working its way through the court system to reinstate Florida’s 5th congressional district. This was a predominantly Black district in north Florida that connected the cities of Tallahassee and Jacksonville.
Republicans demolished it at Ron DeSantis’ insistence, carved it up into several pieces, and made them only winnable by white Republicans. The problem for the GOP and Ron DeSantis is that this violated the state constitution. The state constitution has amendments that voters passed called the Fair Districts Amendments that prohibit undermining minority voting rights in this way. So, Democrats sued. The trial court agreed that the 5th congressional district should be reinstated.
Well, just the other day, the intermediate appeals court, the Florida Court of Appeals, overturned that ruling. It’s the most mind-bending, enraging ruling that I have read in quite some time. The reason it’s so freaking nuts is that the lower court said, “Yeah. You have to bring back the old Florida 5,” based its ruling on precedent handed down by the Florida Supreme Court. It said, “Look, this is what the Florida Supreme Court ruled about this district in the previous decade.” There was a round of litigation seven, eight years ago about this same district, and they said, “We are bound by what the Supreme Court said.” This intermediate appeals court simply said that the Florida Supreme Court precedents don’t apply to it, with just absolutely bonkers non-logic. I mean, it’s not even worth reading any excerpts from the case because they’re just so nonsensical.
In a normal, just world, what would happen is, this case would get appealed to the Florida Supreme Court. The Florida Supreme Court would say, “No. You actually have to follow our past rulings that said that this 5th district should look like this, and needs to be here, and can’t just be eradicated,” except the Florida Supreme Court is a far-right court, now, in large part because of Republicans winning those super, super close races that you were talking about, Beard, for governor, and getting to stack the court with ultra-right-wing judges.
Beard: Yeah. There tend to be two kinds of rulings from republican/conservative judges. There are conservative rulings, which again, I’m not a lawyer; I’m not going to try to decide which decision is best. They cite precedent and they cite all these legal principles and probably liberal justices might rule another way. It’s all sort of within the bounds of the judicial system that we’ve set up and had for hundreds of years.
Then, there’s what I like to call “fuck you” rulings, which is when Republican judges decide that, “Oh, you think you’re going to come in here and you’re going to get something that would help Democrats or Black people or minorities of another kind, because of the law. You think I care about the law, when really what I want to tell you is, ‘Fuck you. You don’t have the rights you think you have. I don’t care what I have to write in my opinion. That’s not the important thing. I’ll write whatever I have to write so that I can say, ‘Fuck you. Get out of my court. Stop trying to get your little congressional district where Black people have representation.'” That’s what the judges are saying.
The plaintiffs and the defendants, which is the state of Florida, didn’t even want this appeals court to take the case. They wanted to go straight to the Supreme Court so that they could move this case along quickly and get a result ahead of 2024. The appeals court was like, “No, no. We know everyone wants to skip us, but we so desperately want to have this fuck you ruling, stopping this congressional district, that we’re going to insert ourselves into this argument, force you to have this intermediate round of appeals, and put this ruling out just so we can all feel good about how we screwed over Black voters in northern Florida.”
Nir: Yeah. It’s a little hard to say exactly what the Supreme Court will do, here, the Florida Supreme Court, that is. I think you’re right, though. The question is, “Are they going to pretend to be normal jurists who just happen to be conservative, or are they going to be “fuck you” judges?” I think you could sort of view it as the difference between John Roberts and, say, Sam Alito. You can’t be optimistic, though.
Rick Scott and Ron DeSantis got to appoint so many justices to this court that there’s a really good chance that they will stick with this ruling, but maybe not, maybe not. If they reverse the Court of Appeals, then boom, that’s another seat right back in Democrats’ hands. Republicans would not be able to win that version of FL-05. It would almost certainly elect a Black Democrat, as it previously had Al Lawson. So, we’ll see.
The other thing, here, is that by forcing litigants to stop along the way at this intermediate appeal stage, which nobody wanted, the Court of Appeals judges are slowing down the case, which is just a classic part of the Republican playbook. It’s another example of “Justice delayed is justice denied.”
Even if we do get a favorable ruling, who knows? Some courts might say it’s too late for 2024, so then Republicans get the advantage of an illegal map for two out of the five elections during this decade.
Beard: Yeah. Obviously, this map was in place for 2022, and it clearly shouldn’t have been. There’s a good chance it will remain in place for 2024 if things get delayed, or as I think is probably the most likely option, the Florida Supreme Court just signs off on this appeals opinion from the intermediate court.
Of course, as you said, the Supreme Court surprised us with the Alabama ruling. It’s possible that the Florida Supreme Court will surprise us with this ruling and does the right, and clearly legal, thing, to force this district to be recreated between Tallahassee and Jacksonville. We will just have to wait and see.
Nir: There’s also another big redistricting case in another southern state, in fact, Florida’s neighbor, Georgia, that is pending right now. We’ve mentioned before that a federal District Court ordered the state of Georgia to redraw all of its maps, including its congressional map, to create additional Black districts. For the congressional map, the state was ordered to create a new Black majority district, under the Voting Rights Act, in the Atlanta area.
Well, the Republican legislature is convening right now, and they have already put forth a map. It hasn’t been passed into law just yet, but it will be by Friday. And, guess what? Republicans complied with the order. They created a new Black majority district in the Atlanta area. Uh-oh, wait, hold on, psych! They also did something that the court warned them not to do. To create this new Black majority district, which is the 6th district, they eviscerated the 7th district.
The 7th district is this very diverse district, also in the Atlanta area, currently represented by Lucy McBath, who of course is a Black Democrat. They would turn her district, the 7th district, into an unwinnable red district, that would certainly elect a White Republican, but the court told them not to do this. The court said, and I quote, “The state cannot remedy the Section 2 violations described herein by eliminating minority opportunity districts elsewhere in the plans.” To translate that just a little bit, the Section 2 violations, that’s referring to the Voting Rights Act. In other words, the requirement by the Voting Rights Act is that if you can draw a majority-minority district, then you do have to actually draw one, and you can’t just chop up that community a million different ways to dilute minority voting power.
“Minority opportunity district” is an interesting concept. What it means is that a particular minority group might not form a majority in a given area or district. With so-called crossover support from other groups, including White voters, they can still elect their candidate of choice. That’s exactly what happened in Georgia’s 7th district. According to the adult population, there’s a very small White plurality. Whites make up about a third of that district, and Blacks are not far behind. Thanks to crossover support from Black voters… there are also very large Latino and Asian communities in that district, as well. So, thanks to all this crossover support, Black voters were able to elect their candidate of choice, Lucy McBath.
So the court said, “You can’t just chop up this district because it’s a minority opportunity district.” The real question is whether a district like this will be protected by the Supreme Court. Right now, there’s sort of a mix of different rulings across the country saying whether these kinds of crossover districts actually are protected by the Voting Rights Act. Ultimately, this is going to wind up going before the Supreme Court.
Frankly, I’m not optimistic. I think Republicans knew exactly what they were doing here. I think they said, “Yeah. We’ll just defy the lower court because, eventually, we will get the US Supreme Court to rule our way.” They will say, “Yeah. You got rid of GA-07, but it’s okay because you created GA-06.” Like I said, I’m pretty pessimistic, but we’ll know pretty quickly. The lower court has set a very accelerated timetable for hearing this case. There is a hearing coming up on December 20, so really just a couple of weeks from now. But again, Republicans, even if they don’t get a favorable ruling from an appeals court or the Supreme Court right away, they’ll still just try to drag it out.
Beard: Yeah. It definitely seems like the federal judge in charge of this case is wise to some of this. Obviously, he warned against doing exactly what they did. He set a very accelerated timetable to ensure that this process is resolved in time for the 2024 elections. Whether all of that work leads to the correct result, or if a higher court steps in and is like, “No, no, no, no. Let the Republicans do what they want,”‘ we will just have to wait and see into 2024.
Now, there’s one last topic I wanted to cover before we wrap up, and that’s in North Carolina, of course. So in a surprisingly good ruling, a three-judge court temporarily blocked a law that would allow the legislature to appoint members to the Board of Elections and also move from a governor’s party majority, i.e. whoever controls the governor’s mansion has a majority on the Board of Elections, to an even four/four split on the Board of Elections and on all the County Board of Elections.
This is what the North Carolina Republicans passed, recently. They’ve been trying to pass this for a long time. There was a previous law that was struck down by the North Carolina Supreme Court. There was a constitutional amendment in 2018 that was voted down by voters. Now of course, that Republicans control the North Carolina Supreme Court, Republicans and the legislature are like, “Hey, let’s just pass it again, and hope our friends on the court will just be like, ‘Hey, this time it’s fine.'”
Well, the three-judge panel… this isn’t the Supreme Court; this is a lower court… they unanimously ruled that this was unconstitutional. This three-judge panel temporarily blocked the law. Now, what’s surprising is that this panel was two Republican judges and one Democratic judge. They were picked by the Republican chief justice of the Supreme Court. He gets to decide who hears these types of cases. So, it was really expected that they would go along with Republicans in the legislature and send it on to the Supreme Court to let them also go along with the Republicans in the legislature.
So, the fact that it was stopped here was a surprise. Hopefully, good news. Obviously, I think we’re asking a lot to get two Republicans on the North Carolina Supreme Court, because they have a five to two majority, to agree with this. Even if we think it’s the correct ruling, it’s clearly an issue with the separation of powers and allowing the governor to oversee these election boards. I guess you never know. As we’ve talked about earlier, sometimes we’ve had surprises, so, hopefully, the North Carolina Supreme Court will agree with this and this law will not go into effect. We will continue to follow it as the case winds through the courts.
Nir: This is the problem that ultra-partisan Republican lawmakers keep running into with conservative judges. A lot of these conservative judges, they’re happy to go along, like John Roberts typically is, with their various schemes, but they want to be given a good story. When they pass these laws that so egregiously flout the state constitution or the US Constitution, that they violate the separation of powers, they make it impossible for these conservative judges, who actually went to law school and probably at least think of themselves as caring about the law, and practiced law for many years, and served on the bench for many years. They make it impossible for that kind of conservative judge to actually go along with their nonsense.
We saw it with the Alabama redistricting case, which is very similar to the Georgia one, where you had, again, another three-judge panel, this time of federal judges, with a couple of Trump appointees. Even though they were Trump appointees, they said, “No. Sorry, Alabama, you clearly violated the Voting Rights Act,” because they were following a very explicit and clearly-written law.
I don’t know. The North Carolina Supreme Court, I feel, is probably a more partisan institution because the justices are higher profile. I agree with you. It’s unlikely that we will find two Republicans on that court to switch sides. Like you also said, we keep seeing surprises. I just think that Republicans are asking way too much of a lot of their judges. It also just means that they’re just going to keep looking for crazier and crazier weirdos to appoint to the bench. That is what we can expect from the GOP.
Beard: Yeah. The GOP, ultimately, doesn’t want judges who are going to look at the law and rule on what the law says, even from a conservative perspective. What the modern Republican Party wants is team members, who will be on the Republican Party’s team and look at and be like, “Oh, this is what the Republican Party wants, so I’m going to rule in its favor,” or, “Oh, this is what the Democratic Party wants, so I’m going to rule against it.” That’s what all these Republican elected officials want. They keep getting stymied when they run into a Republican judge who actually wants to make a legal ruling about something.
Nir: Amazing. There are still some conservatives out there who believe in the rule of law.
Beard: That’s all from us this week. “The Downballot” comes out every Thursday everywhere you listen to podcasts. You can reach out to us by emailing [email protected]. If you haven’t already, please subscribe to “The Downballot” on Apple Podcasts and leave us a 5-star rating or review. Thanks to our editor, Trever Jones. We’ll be back next week with a new episode.
