This week on "The Downballot," we're joined by guest host Joe Sudbay and law professor Quinn Yeargain for a deep dive into major political developments in three states. First up is Arizona, where a key GOP retirement on the Board of Supervisors in jumbo Maricopa County gives Democrats an excellent chance to win their first majority since the 1960s. Then it's on to Arkansas, where citizens are working to overturn a Republican bill that purports to ban "critical race theory" in public schools by qualifying a referendum for the ballot. Finally, we hit Michigan, where Democrats just advanced a measure to have the state add its Electoral College votes to a multistate compact that would elect the president by the national popular vote.
David Nir: Hello and welcome to “The Downballot.” 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. David Beard is on vacation this week, but I'm joined by two Downballot regulars, veteran Democratic operative Joe Sudbay and law professor Quinn Yeargain.
So, even though it's June of an odd numbered year, every week, Beard and I marvel at just how much election news there seems to be to cover. We really weren't sure when we first launched this podcast. It was a midterm year, and so now that we're in an off year, we were wondering like, "Are we actually going to have stuff to talk about?" But it turns out there is so much to talk about. Joe, I think I want to hand the reins over to you and let you lead us in this conversation today so that we could just jump right in.
Joe Sudbay: I think every year is an election year, and it is. That's one of the reasons why “The Downballot” is so critically important. And even if we're not actually looking at specific election days in 2023, of which there are plenty, we're learning so much information about what to expect in 2024. And really, there's a state that has become such a battleground, and the battleground within that state is the biggest county, Maricopa County. And the Board of Supervisors is in play, and it's the first time in a long time. Talk a little bit about that, David.
Nir: Yeah. So, Maricopa County Supervisor, Bill Gates, who is a Republican, announced late last week that he would not seek reelection in 2024. And his reasons, well, he didn't exactly say that this was his reason for not running again, but the backdrop to him not running again is really, really terrible. He had been subjected to really extreme violent threats from the far-right ever since the Maricopa Board certified the results of the 2020 elections, which saw Joe Biden become the first Democratic presidential candidate to carry the county since Harry Truman all the way back in 1948.
And the MAGA crazies simply couldn't handle that, and they ramped up extreme attacks on the entire board. Gates was one of their prime targets. And in 2022, during the midterms, he actually spent Election Day at an undisclosed location because of really legitimate fears to his safety. And this is a problem that we have seen play out across the country since the Trump era, these assaults on election supervisors. And really, it's an attempt to just undermine integrity in the election system entirely.
And Maricopa has stood fast against that. Even though the Board is dominated by Republicans, they have said, "Screw off” to the conspiracy theorists, and have upheld the results that show Democrats winning. And what makes Gates's departure interesting on an electoral level is that it really could open the door to even more Democratic victories in Maricopa County.
So, Maricopa, it's an unusual place. It's home of Phoenix and also 60% — fully three-fifths — of the population of the state of Arizona. There's very few counties like that, that just really contain the bulk of an entire state. And so, that's why the Maricopa County Board is so important.
And Gates, when he won his last term in 2020, he did so by just 1.5 percentage points. Now, redistricting has intervened since then, but the maps didn't change a lot. And Gates' seat actually voted for Biden at 54 to 45. That's a 9-point margin. So, Democrats feel or should at least feel really good about their chances of picking up this seat in 2024.
Republicans currently have a 4 to 1 majority on the board. The one Democratic seat is safely blue, but there's another Republican supervisor named Jack Sellers who is definitely vulnerable in '24 as well. He only won by one-tenth of 1% in 2020. His seat is a little bit less blue, but Biden has still won it 51-48.
And if Democrats retake the majority, as Quinn can say a lot more about, it will be their first time in a really, really, really long time with a majority on the Maricopa Board. But Quinn did some amazing sleuthing the other day, and there's this myth that he punctured that I feel like I've said enough. Quinn, I feel like you need to talk about the actual history of Maricopa County's board and the myth busting that you did.
Quinn Yeargain: Yeah. So, I'm always very interested whenever a journalist or somebody says something like, "Democrats have never won a majority on the Maricopa County Board of Supervisors." And there's myths like that, that exist all throughout state politics. And it's very hard to do a lot of this research, because we don't have a good historical database of things like this. It's very difficult to find election results.
And so, the idea that in the entire century and a half existence of Maricopa County, when Arizona was a territory and then as a state, the Democrats had never won a majority on the Board of Supervisors just sounded too bad or too good to be true. And so, indeed, multiple times when Arizona was a territory, Democrats won a majority, and Democrats won a majority the first year of Arizona statehood. They repeatedly won majorities in the mid 20th century.
You can go from the mid '40s at least until 1968 with victory after victory, after victory, after victory. This 2-1 majority persisting time and time and time and time and time and time again. And there's some variations here. One of the Democrats and one of the Republicans formed a bipartisan governing majority. They were both backed by the same sort of good government group, but there's still this mathematical majority. So, there's literally no version of Democrats have never won a majority that has any truth to it whatsoever.
But indeed, in 1968, Democrats lost their majority for the first time in decades to Republicans. That same year, the Arizona legislature passed a piece of legislation that required that counties the size of Maricopa County to expand to five supervisors. That basically allowed the new Republican majority to gerrymander itself into perpetual power.
And as far as my research uncovered, Republicans have held a 4-1 majority on the board since then. They drew a heavily Democratic district that has remained a heavily Democratic district the entire time. It's basically included, for the most part, most of the Hispanic voters in Maricopa County. It's been a heavily reliably Democratic district. And it's really only in the last 10 years or so that the surrounding areas which have been very reliably Republican for a very, very long time, have started to trend blue, giving Democrats this opportunity.
I mean, I think it's still safe to describe it probably as a light Republican gerrymander, even if it's weakened to some extent. Not sure that it reaches the point of becoming a dummymander or anything like that. But given that Democrats have done well in Maricopa County the last several election cycles now, you'd expect a majority on the board well before 2024. But in any event, no. Myth broken. Democrats have had a majority. They had a majority for decades.
Sudbay: I love that. I love busting myths. And there are so many myths. I think Arizona is a state that just is rife with political myths that may not be accurate. The hagiography that surrounded John McCain for so long.
Look, why is it important for Democrats to control Maricopa County? First of all, it's important because it would reflect the voters' will, and gerrymandering happens even at the local level. And we know one of the reasons there's always a tell, I think there's always a tell from Republicans when they're freaking out about something. And they have tried in the past several sessions of the legislature to try and split Maricopa into several counties. And that's always a tell to me. It hasn't worked.
I mean, the Arizona legislature is so tightly-controlled. Republicans control the Senate by a two-vote margin, and the house by a two-vote margin. Fortunately, there's a Democratic governor. And again, the attorney general won by 280 votes, Kris Mayes, in Arizona this past cycle. Arizona, it's such a battleground. I just feel like we need to bust this myth once and for all, and the way to bust it is for Democrats to win.
The 2020 race, Jevin Hodge who barely lost, barely lost, went on to run for Congress in 2022, barely lost again in that Arizona's 1st congressional district. So, it does provide an opportunity to find some real talent when you have competitive races. That's certainly one example of that.
Nir: The ultimate reason why I would say that Democrats winning control of Maricopa is so important is that because if Republicans continue to keep control, it won't be the same type of Republicans. The MAGA brigades are enraged at the GOP incumbents who are still on the board, and they're probably going to challenge them in primaries, and they'll probably win.
And so, if a Republican replaces Bill Gates, then that Republican is probably going to be crazy, as we saw.
Guys, I'm sure you remember last fall when there was that dark red county in rural Arizona that refused to certify the results of the 2022 elections. And it was actually kind of funny, because by refusing to do so, they actually increased Democratic margins. Because if you remove that county's votes, since it was so heavily red-leaning, then Democrats would actually have done better, including that attorney general you were just mentioning, Joe. But if Maricopa gets taken over by lunatics who refuse to certify election results, then who knows what the fuck will happen. So, winning control of this board is crucial to election integrity for the state as a whole.
Sudbay: Right. And that's Cochise County that you're talking about. And it was kind of wild to watch because, as you said, David, Republicans did pretty well there. It's interesting. I mentioned John McCain who still lives… so many of the political media still remember so fondly driving around on his bus back in 2000, and that he somehow defines Republicans in that state, which is not true. It couldn't be further from the truth.
Look at the two top nominees, the gubernatorial nominee, Kari Lake, who fortunately lost, and Blake Masters, who was arguably one of the most extreme Republican candidates in 2022, and that's saying a lot. That's who the GOP is in Arizona these days. John McCain days are long gone.
Yeargain: I think what you're forgetting when you say that Kari Lake lost is that the fight is still going on. She's still looking for her day in court to contest the election results, and it's a big conspiracy really.
Sudbay: We just had a recent court hearing and she lost again. When I say she's lost, I should say she's lost repeatedly. I think that would sum it up more. Arizona though, really a fascinating state. David Nir, you know we've been doing this work for a long time. The fact that we're even talking about Arizona because 10 or 12 years ago, if you had wanted to talk about Arizona this way, people would have rolled their eyes. But I think events like passing SB 1070 back in 2010, it really mobilized a lot of young activists and they got out there, they registered voters, and they have helped changed the politics of the state, the trajectory of the state.
Nir: Quinn, I know you were being extremely sarcastic in mocking Kari Lake, but think about this. She considers herself to be the governor of Arizona despite losing last year — I guess governor in exile — but she's also probably going to run for the Senate. So would she be the first ever governor/senator? Who knows? We'll have to see in 2024.
Yeargain: Yeah, I mean, it raises some really interesting questions. She might be the first person since Huey Long to have to delay her swearing into the Senate so that she can cue herself out as governor. Who knows?
Sudbay: Well, we've got some other Republican rising stars to talk about. I want to talk about Arkansas in just a few minutes, but let's just take a quick break here on “The Downballot.” We'll be back in just a few.
Welcome back to “The Downballot.” My name's Joe Sudbay. I'm guest hosting today, and it's a really fun day for me because I actually get to ask a lot of questions. David Beard's out this week, and I am joined by David Nir, of course, the political editor of Daily Kos, and law professor Quinn Yeargain.
And right before the break I mentioned we spent a lot of time talking about Arizona, but I wanted to head over to Arkansas where there's another GOP rising star who is the governor currently. That is Sarah Huckabee Sanders, the daughter of Mike Huckabee, the former governor, former presidential candidate who, if you've watched Shiny Happy People on Amazon Prime about the Duggar family, you see him prominently featured many times. She also, Sarah Huckabee Sanders, was the White House press secretary under Donald Trump.
As governor she has, no surprise, pushed a very extreme agenda. And one of the pieces of legislation that she was really excited about signing was an extremist education bill called the LEARNS Act. David Nir, tell us about the Learns Act and what it entails.
Nir: Yeah, it's one of these far-right bills that basically tries to erase any discussion of racism in public schools. And Sarah Huckabee Sanders crowed about the bill saying, "All forms of racism and leftist indoctrination in our schools will be outlawed." But most notoriously, the bill prohibits any discussion of critical race theory, and it doesn't even define what critical race theory is.
Now, of course, we know that critical race theory is actually an academic framework that analyzes systemic racism, but conservatives just love to throw that term around to describe any discussion of racism that they don't like, which is every discussion of racism. And the Republicans dominate the legislature in Arkansas. Sarah Huckabee Sanders was a huge, huge proponent of this bill, rammed it right through, but there was one Republican legislator who actually voted against it. He's a former teacher himself, Jim Wooten, and he said of his colleagues, "I would say that 50% of them are trying to get close to the governor and the other 50% are afraid of her."
So basically this LEARNS Act passed due to a combination of sycophancy and fear. It's truly pathetic. The bill has actually been put on hold by a state court judge, but there is a group of activists that is working to permanently repeal the legislation. And in fact, there is actually a way to do this in Arkansas, which is really very interesting. And Quinn, since you are the unquestioned expert on this aspect of state politics, I'd like to turn it over to you to fill us in on what's going on here with this repeal effort.
Yeargain: Yeah, so oftentimes when we think about things like direct democracy, we talk about people who have written a law or have written a constitutional amendment themselves and are gathering signatures to put it on the ballot and they're enacting it. And we frequently talk about a lot of efforts on the right to crack down on initiatives like that.
But a very important piece of the direct democracy powers that voters have and have had for a very long time in many states is the referendum that allows in, at least some cases, voters to take a law that was passed by the legislature, gather signatures and put the law on the ballot. And if it does not receive majority support, that is to say if a majority votes against it, the law is repealed. And there's a really long history of this being done in Arkansas. Arkansas has, unlike a lot of other southern states, a really robust history of direct democracy and enough voters are working to gather signatures to put this law on the ballot as a referendum measure.
But there's a lot of bureaucracy that has to happen in order for that to actually manifest. And we see this happening in a lot of Republican-controlled states around the country where voters submit petitions or they're trying to put something on the ballot, and the people who are in charge of certifying it for the ballot do so in a way that is inaccurate or misleading or takes away the point or just delays, delays, delays, delays, delays, and who am I to characterize anybody's actions in this respect?
But it sure seems like the attorney general of Arkansas is delaying because only recently has the language actually been accepted, which gives voters about two months to gather 54,000 signatures. That's doable, certainly. Not necessarily easy to do in that period of time, but that's the challenge that voters have in this moment. If they want to put it on the ballot, they have this not Herculean task, but significant task, of gathering a large number of signatures from all over the state to do so.
Sudbay: Quinn, you actually wrote about efforts to make it harder unconstitutionally to get access to direct democracy in Arkansas. You wrote it at your Substack, Guaranteed Republic, which is another must read, and it's really one of these things that you can see the Republicans in the legislature, and they tried it last year. They tried to increase the limit, the threshold to 60%, which had to go to the ballot and was rejected 59 to 41, which is a pretty strong margin in Arkansas in support, I think, of direct democracy. What is this latest attempt that Arkansas Republicans have tried to institute to really limit access to this whole process?
Yeargain: So in any state that has a long and robust history of direct democracy, there's almost always a short and very fractured history of trying to crack down on that direct democracy. And indeed, politicians have been opposed to direct democracy for a really, really, really, really long time. And so in Arkansas, when Republicans got the majority of the Arkansas legislature last decade, they recognized that Arkansas voters have used the initiative process to put a lot of things on the ballot, a lot of which they have ultimately chosen to adopt: legalizing medical cannabis, raising minimum wage. There was an effort in 2020 to put a top four primary on the ballot like they have in Alaska, but it was kicked off the ballot for technical reasons. This is a process that's being used robustly by Arkansas citizens.
And recently Republicans put a constitutional amendment on the ballot that would raise the geographic distribution of requirement. That is to say, if you're gathering signatures, most states in the country require that they come from a certain number of counties, a certain number of Senate districts or congressional districts or something like that, to ensure that there is some adequate distribution of signatures. And in Arkansas, under the Constitution, it says that you have to gather signatures from at least 15 counties of the state. And in 2020, they proposed a constitutional amendment that would require that voters gather signatures from three-fifths of all of the counties rather than just that 15.
This was rejected, but not to be deterred, by the rejection of that constitutional amendment. They turned right around this year and enacted a statute that requires that signatures be gathered from 50 counties out of 75. And that's a pretty significant increase. It's what was rejected by voters just two years ago. And in doing so, there's a pretty obvious argument that they're violating what the Constitution says.
The only thing that the Constitution says about the distribution is that voters have to submit signatures from at least 15 of the counties of the state. And Arkansas legislators pointed at that and said, "Look, it says at least 15 counties, at least, we can legislate beyond that. We can impose this requirement that goes above and beyond that." And the logical response to that is, "Well, if you're so convinced that that is the truth, then why did you propose a constitutional amendment just a few years ago that would have raised that threshold? If you believed you could do this statutorily? Why try to do it constitutionally?" It doesn't make any sense. It's an effort to put something on the ballot.
And voters already indicated that they don't want this. And the Arkansas Constitution also says rather clearly, "No law shall be passed in any manner interfering with the freedom of the people in procuring petitions." There is a strong argument here that this is unconstitutional under the Arkansas Constitution, and it's facing a lawsuit arguing that it's unconstitutional right now. And the defense of the state just seems to be, 'The Constitution says at least." End of argument, really. I mean, they're not really saying much more than that.
Nir: I find that so freaking absurd because it's so obvious that what the state Constitution means is that it's okay if you submit from 16 or 74 or 75. It doesn't mean that the Constitution is setting some kind of floor that the legislature could just dicker with whenever it wants to. And like you said, Quinn, it just feels like they have such unclean hands here. Why on earth did they try that constitutional amendment if they thought they could just magic it away with a simple statute and not go through the whole ordeal of having it fail by double digits? The whole thing seems ridiculous, but obviously this is going to wind up before the Arkansas Supreme Court eventually. Do we have any hope there?
Yeargain: Honestly, yes. I mean, what I would say is what you see sometimes in states all around the country is you see Republican legislatures imposing limits like this on direct democracy, and you see state courts, regardless of the state sometimes, stepping in to say, "No, that's unconstitutional under the state constitution."
In Idaho, for example, just a few years ago, the legislature had dramatically raised the threshold for initiated statutes. And in Idaho, they've done fantastic things with the initiative process. It always to the chagrin of the legislature and the governor. And so logically it made sense to make it harder to do that. But the Idaho Supreme Court, which has had a Republican majority for a very long time, stepped in to say, "No, voters have a fundamental right under the state constitution to propose initiatives, and we are going to evaluate any efforts by the legislature to limit that. We're going to be fairly skeptical of that."
Now, I'm not sure that anybody would've necessarily expected that from the Idaho Supreme Court in that case, but that was a really bold, assertive, and honestly, I think brave opinion to deliver and to hand down with a really strong rationale. The Arkansas Supreme Court, I don't think is as, I don't know, renegade, moderate, whatever word we would like, as the Idaho Supreme Court, perhaps. But I do think that there is hope under the Arkansas Supreme Court, it has been willing to strike down things that the legislature has done. It is textual. It is extremely textualist, but fortunately for the plaintiffs in this case, the text of the Arkansas Constitution happens to be on their side.
Reading things in context, this is what — we're all textualists now — reading things in context, in order, understanding what things are referring to, that's where we are at this point in our history, the text is clear. So, I think that there is, there's hope in the first place, but there's also a ridiculously strong textualist argument here.
Nir: And if this measure qualifies for the ballot, it's going to be really interesting to see what happens when it actually goes before voters in November of 2024. Joe, I’ve got to imagine that an organization like this that's been set up to oppose this measure, it's called Citizens for Arkansas Public Education and Students — they call themselves Arkansas CAPES — that they're not going to pursue an effort like this unless they have polling or other data that makes them believe that they can actually be successful. And I think this just really flies in the face of what you would expect the sort of DC pundit conventional wisdom to be, right? Because they think, "Oh, well, sure. Critical race theory, attacks on that'll be popular with Arkansas voters." But obviously, Arkansas CAPES thinks otherwise.
Sudbay: Yeah. David, going to that, this whole CRT thing started with the Glenn Youngkin campaign, if you remember back in 2021 when he ran for governor, and he was treated as a moderate by the DC punditry and political crowd. And everyone else was like, "Ask him to explain it. Ask him to define. Ask him to talk about what CRT is." And the thing is, they're talking to their base with CRT, because when they hear the word CRT, they know it's race. They know it's race, and that is what they feed to their base.
But I agree with you, when you want to talk about education and getting kids educated, Arkansas has a history of being on the front lines of the civil rights movement. You are telling people they can't educate their kids about what happened in Little Rock? That's what it really comes down to. That's what Sarah Huckabee Sanders signed into law, and what we're trying to get overturned in that state. It's really going to be fascinating to see.
But one of the other things I think that's really important is so often on these ballot measures, and I... Let's go back to Kansas in the summer of 2022. It was almost a foregone conclusion among the Beltway intelligentsia, such as they are, that there was no way an abortion referendum would pass on our side in Kansas in August of 2022. It was just a foregone conclusion. There was some polling that showed it close. There wasn't even really that much polling, because the polling firms and the networks didn't even do it, because they didn't think it would matter. And what happened? 60-40.
When people get the chance to vote, it's really different. Not for a candidate, because as you know, a lot of people vote the same party, and that's become increasingly true, but on specific issues. I mean, Medicare expansion has passed on the ballot in red states. Marijuana legalization. Increasing the minimum wage got over 60%, increasing the minimum wage in Florida, in 2020. So I think it's a far different ballgame, and I don't think that everybody who doesn't pay attention to states, which is a lot of the punditry crowd, and what happens in states in these ballot measures misses it.
Yeargain: Yeah, I think that you're quite right that when we talk about CRT, we're talking about Republicans playing to the base, and I have two immediate reactions to that. One of them is I'm reminded of how Lee Atwater talked about the Southern strategy, that we're not saying the N-word anymore. We're talking about states rights, we're talking about things like that, and we're using this kind of coded language. We say CRT, it's very, very similar in that sense, that you're evoking this idea in people's minds and you're speaking in this coded way.
The second thing though is that I think that it's a less obvious message in many ways. I mean, one of the things that I think is really striking when you listen to someone like Ron DeSantis talk is just how perpetually “capital O” online he is. It's not something that resonates with people when you talk in this weird jargon that just sounds like it's pulled from some 4chan threat or something, when we're talking about cultural Marxism and stuff like that.
I don't think that the vast majority of Republican voters in this country really have any earthly idea what people are talking about when they say stuff like this, and I think that in the context of Arkansas, there is a unique opportunity for something like this to just be framed as, "This is an attack on teachers. It's an attack on public schools. It's an attack on your kids' school and what they can read in their library." That's a winning message if it's able to be pitched that way. I mean, obviously there's an incentive to go in and nationalize something like this, but I think that this is one of these things where I think that the vast majority of people probably recognize that we need to be honest about history.
I don't think there's anything really in polling that indicates that people don't think that we should teach things like slavery in schools, that we shouldn't teach about the civil rights movement in schools, that we shouldn't just teach this whitewashed, sanitized version of Rosa Parks in schools. I'm not even confident that if you nationalize it in this way, that it's really going to be a loss for Arkansas CAPES in this situation. I mean, it strikes me that they're probably in a good position here. I mean, we'll certainly see, but I really don't think that this is something that really sticks with the vast majority of the Republican base. The very “capital O” online base, absolutely, but outside of that, I don't know. I'm interested to see.
Nir: Quinn, you talked about attacks on public schools. There's a whole other aspect of this piece of legislation that we didn't even mention, which is that it also provides vouchers for students to attend private schools or get homeschooled. And we know what that is. It's an attack on the entire public school system, the entire idea of public education.
It's basically a giveaway to wealthy parents who already would probably be sending their kids to private schools anyway. It's yet another attack on teachers’ unions, which are just about, in many Southern states, some of the last strong unions left. And I think that that kind of deep attack on the very idea of public schooling is probably a key issue that's motivating the opposition to this bill, and I wouldn't be surprised to see that be in the forefront of the messaging as well.
Sudbay: Yeah, I agree with that. And it's been interesting, because vouchers have been front and center with, it's been a real Republican agenda item in Iowa, a vouchers bill pushed by Governor Kim Reynolds. But in states like Georgia and Texas, it has been rural Republicans who have fought against those, rural Republicans in the legislatures who have fought against those measures, because they think it hurts public schools, and that's something they're very proud of in their communities. So I do think that that, David, is another really important issue.
Well, this has been a fascinating conversation about Arkansas. So much at stake there, and we will see how it plays out both in the courts, and in the court of public opinion and with the voters over the next few months. Let's take another break here on “The Downballot,” and when we come back, I want to talk about some developments in Michigan. We'll be back.
All right. Welcome back to “The Downballot.” I want to dive into a development that happened this week in the Michigan House of Representatives. Michigan, of course, where the Democrats took control of the House and the Senate, and we are seeing great progress. But something really interesting, the Democrats in the House passed the National Popular Vote Interstate Compact, NPVIC. David Nir, what is the NPVIC? Why should we know about it, and why is it important that Michigan is moving in that direction?
Nir: Yeah, so the first thing is, let's get rid of the acronym. Let's just talk about what this is. And so the compact is an agreement between states, and the Constitution allows for states to make all sorts of agreements with one another, and what this particular one would do is that all member states would agree to give their Electoral College votes to the winner of the national popular vote. And the key thing is that the compact would not come into force until enough members join such that they would constitute a majority of the Electoral College, which right now stands at 270 votes.
So once enough states with 270 electoral votes join, then this compact says that after a presidential election, all of those states will collectively award their electoral votes to the winner of the national popular vote. So whether other states don't join the compact, it ultimately doesn't matter, that you would then transform the election into one decided by the national popular vote, which of course is what we should be doing anyway, because it's really what just about any normal democracy does.
Obviously, we've had two elections in our lifetimes where Republican candidates have won the Electoral College despite losing the popular vote. It's a terrible outcome for democracy. Of course, Republicans love the system, and they would have no interest in amending the Constitution to abolish it. So this organization sprung up many years ago with this extremely clever idea to really find a different way around the problem of the Electoral College, and the Constitution doesn't preclude states from handing out their Electoral College votes as they see fit.
So that's the background here. Right now, there are 17 members of the National Popular Vote Interstate Compact, and they together have 205 Electoral College votes. Michigan, Joe, which you just mentioned, a committee in the State House just advanced the bill to have the state join the compact. That would add Michigan's 15 electoral votes to the compact, taking the compact up to 220 votes. Now, Republicans typically oppose joining the compact. They did so here, it was a party line vote, but I think we can almost certainly expect that Democrats will pass it before the full House, that the Senate will pass it, that Governor Gretchen Whitmer will sign it. It's unlikely that they would've taken up this bill had there not been widespread support among Democrats for it already. So then, from there, the real issue is can we get to 270, and by when?
Sudbay: So that of course will be a challenge. You mentioned other states have done it. Minnesota passed it this year, of course, because Minnesota now has control of the House, Senate, and the governor's office. Nevada's interesting, because they now have a Republican governor, but they're trying a different way to get into the compact. David, tell us what's going on in Nevada, because it kind of fits with the conversation we were just having about direct democracy.
Nir: Yeah, so in Nevada, we lost the governorship, of course, last November. And so Joe Lombardo, a Republican, is now the governor, but Democrats have a very strong grip on the legislature there. And so they know that Lombardo would veto a bill to join the compact. In fact, to his great shame, the guy Lombardo beat, Steve Sisolak, vetoed a bill to join the compact a few years ago, but Nevada Democrats and the legislature really want to join the compact, and so they have decided to put a constitutional amendment on the ballot that would ultimately go before voters. The thing is, it's a bit tricky to get an amendment on the ballot in Nevada, even for members of the legislature. They have to pass it twice, within an election intervening in between.
I guess the theory behind this kind of rule is giving voters a chance to weigh in on the fate of state lawmakers who may perhaps be in the middle of doing something really unpopular. And so if control of the legislature changes hands, then those plans get derailed. In any event, I'd say it's quite unlikely that Republicans will gain control of the legislature in 2024. So Nevada Democrats, they pass the amendment once, they have to pass it again after 2024, and then it can go before voters in 2026. So that's a bit of a longer term play, but really that's in keeping with everything else. There is, I would say, zero chance of the compact coming into play for 2024. I think that's inarguable, but there is a chance by 2028. So Nevada is moving forward on a timeline that, if Democrats have success in other states, would allow the compact to potentially take effect by '28.
Sudbay: I do want to get into when you are mucking around like this, and that's not the right term. There's obviously going to be legal challenges and I want to hear from Quinn on that. But before we get there, David, what are the other states? How do we get to 270?
Nir: So right now, Joe, your home state of Maine is the other blue state where the compact also failed in recent years. It came up for a vote in the legislature and it did not succeed. So activists there are, my understanding is, trying another push and hoping that they'll meet with a different result this time, and that would add means four electoral college votes to the compact. After that, then there's five more states that currently have mixed control or Republican control, where Democrats actually have a chance of regaining power or taking control of all of state government and thereby being able to pass the compact. So at the top of the list are Arizona, New Hampshire, Pennsylvania, and Virginia — and Wisconsin is also more of a long shot possibility. I think we should probably devote a future episode to talking about each of these states because they're also interesting.
We already talked a lot about Arizona in this episode, and the path for Democrats to gaining control in each state varies in each one, and there's different time horizons. Some of them require only one election. Virginia, for instance, would require at least two elections, but we'll dive into them in a future episode. Mark my words, book it, put it on the calendar now. But there really is a path, and the path is closer now than it was when we really last dug into this a few years ago. Democrats flipped the Pennsylvania House, they flipped the Arizona governorship. So I really do think that this is potentially within view. But Joe, like you said, there are going to be legal challenges for sure, and there's also a question as to whether Congress needs to give its approval to this compact. And so even if all the pieces fall into place before 2028, it's very possible that we get derailed somehow.
Sudbay: Well, fortunately, David Nir, we have one of the smartest legal minds we know joining with us today. Quinn, what are your thoughts on the legal hurdles that would be in the way of actually in getting the compact to work?
Yeargain: I think in many ways I'm blessed to talk about this because I feel like I'm relatively agnostic on a lot of the core legal questions here. Some scholars feel very strongly about this in a number of different directions. The reason that there is a potential problem is that there's the compact clause in the US Constitution. Which says that “No state shall without the consent of Congress... enter into any agreement or compact with another state.” And so there have been people who've argued that Congress needs to give its consent for this national popular vote interest rate compact. It's a compact, it has the word compact in the title.
And there's other people who argue that no, this isn't a compact despite the fact that it has it in its title. It's not the kind of compact that the Constitution is contemplating when it's talking about this, so we don't need to worry about congressional approval.
There's other people who argue that even if this is a compact and even if Congress gives its approval, Congress does not have the power to give its approval for this kind of compact because this exceeds the power that Congress has.
And my takeaway from all of this is: who knows? People can pontificate on this from their ivory towers. But from my second story vantage point, I will just say that it'll obviously go to the Supreme Court if it ever happens. I think whether it affects the actual outcome of a presidential election or not, because it will determine how electoral votes are allocated. And I think that, and this is not to splash cold water on this at all because I'm a supporter of this effort, but it does raise a lot of sort of follow up interesting questions.
We talked a lot before 2022 about different efforts by 2020 truthers to disrupt the normal election process. Creating a process where the national popular vote determines the winners, creates some incentive in every precinct in the country for this sort of nasty behavior to take place. I think that one of the potential problems is that it will really test our election infrastructure in a way that it hasn't really been tested since, I don't know, 1876 in many ways. It is an interesting sort of challenge that I think if we ever end up having this, we're going to have to figure out. It's one of the many reasons that having this kind of “deeply delegated to the locals” election administration is not always ideal from just a practical administrative standpoint.
Sudbay: It certainly does obviously present all kinds of challenges. And the one challenge, I think it comes back to something I rant about all the time is the importance of state legislatures and winning back state legislatures — and Arizona is so close and the New Hampshire House with its 400 members is so close. It really matters because it has an upstream effect. And this is, as you said, David Nir, in our lifetime, we've seen two Republican presidents win who lost the popular vote. That's not the way democracy should work. And this is, I think, one of those really great efforts to try and get democracy headed in the right direction. Anyways, that was, but just a fascinating conversation and something that is so much more real than we have would've thought of just a couple years ago.
Nir: Quinn, I agree that there are a lot of hurdles, even if this does come into effect. But my father, he could be a pain in the… but he had one good piece of advice, and he would always say, “let them tell you no.” And what he meant by that was don't tell yourself no, don't decide in advance that it's going to fail or that it's not going to work or that it's not worth trying. If someone comes along later and says, "Nope, you're not allowed. Nope, you can't do that." Okay, fine. Then you get a chance to make your case to the voters in a different way in the future and whatever obstacles the compact faces, I think it is extremely worth pursuing. And even if the Supreme Court or Congress winds up being an insurmountable obstacle, then we just have to try to achieve an actual national popular vote in a different way, and I'm here for it.
Yeargain: I think that one of the things that I certainly find frustrating in conversations like this is if the Supreme Court were to strike this down, I don't see that in any way as something that is irreparably harmful in any way. If the Supreme Court wants to step in and make it really, really, really, really clear that it's not interested in any form of popular sovereignty, if it wants to further degrade its perception in the public's eye, they're welcome to do that. I would rather have a national popular vote than not, but if we're not going to have one, I'd rather the court tarnish its reputation in getting us there.
Sudbay: Really great point. Really great point. What a great conversation today. I just have to say thank you, Quinn and David Nir. I was just so honored to be part of it. Well,
Yeargain: It was really great to be here. Always happy to talk about extremely specific historical things and always a pleasure to be here.
Nir: Well, Joe and Quinn, this was fantastic. I really enjoyed having this conversation. We have been talking with or really guest hosted by Joe Sudbay. You can find him on Twitter at @JoeSudbay, and we've also been talking with Quinn Yergain. You can find him on Twitter @QuinnYeargain. They are both excellent follows. You can also find Quinn at his Substack Guaranteed Republics, another must read. It has been a fantastic show on “The Downballot.” Joe and Quinn, thank you again so much. Also thank you to our producer Walter Einenkel and our editor Trever Jones. We'll be back next week with a new episode.