KEY POINTS FROM THIS ARTICLE
—Yesterday, Arizona’s state Supreme Court ruled that, going forward, an 1860s-era law that bans abortions in nearly all cases will be operable.
—As the backlash to this verdict will probably energize Democrats, Republicans in key races there are distancing themselves from the issue—much like Donald Trump has done at the national level.
—Arizona seems likely to join less electorally-critical Florida as a Sun Belt state that will host an abortion-related ballot measure in the fall.
—Though the status quo seems likely to remain, Nebraska’s legislature could have, indirectly, led the Biden campaign to make Arizona even more of an electoral priority.
Strict abortion ban set to take hold in Arizona
As with 2022, the fight for abortion rights is shaping up to be a defining issue in the 2024 election cycle. Yesterday, the swing state of Arizona made national news on that front. In 2022, then-Gov. Doug Ducey signed legislation prohibiting abortions past the 15th week of pregnancy. But earlier this week, the state Supreme Court, a body made up of entirely GOP-appointed judges, went even further: it ruled that an 1864 law, dating back to the state’s territorial days, that bans abortions in nearly all cases could be enforced. With this ruling, Arizona will effectively have the strictest abortion ban in effect of any state that Joe Biden carried in 2020.
In the immediate aftermath of state court’s ruling, leading Arizona politicos reacted about as expected. Gov. Katie Hobbs and state Attorney General Kris Mayes, both Democrats, vowed to fight the ruling—the latter said she would decline to enforce the 1860s-era law, although lower-level prosecutors may not take their cues from her. As an aside, we often bring up Mayes’s election as an example of why “every vote matters.” In 2022, Mayes’s result made Biden’s 10,000-vote margin from 2020 look like a landslide: she defeated a pro-Trump candidate, Abe Hamadeh, who is now running for Congress in the 8th District, by less than 300 votes out of more than 2.5 million cast. Counterintuitively, and as Republican lobbyist Liam Donovan notes, Mayes’s positioning may be helping Republicans at the margins—had a relative handful of votes gone the other way, Hamadeh would now be in a position of enforcing a law that works against his party politically.
The sentiments of Hobbs and Mayes have been echoed by Rep. Ruben Gallego (D, AZ-3), Democrats’ likely nominee in the state’s open-seat race for Senate. Gallego’s probable general election opponent, Kari Lake, has changed her tune from 2022, when she was the GOP’s losing nominee for governor. In a statement, Lake criticized the court’s ruling despite voicing her support for the 1864 law on multiple occasions during her run for governor.
Even before today, we have been wondering whether Arizona’s race truly belongs in the Toss-up category. Though the other two states in the category, Montana and Ohio, feature Democratic incumbents, their partisan fundamentals are considerably friendlier to Republicans. Although we’ve yet to see Lake’s latest fundraising numbers, Gallego’s own fundraising picked up noticeably in the first quarter of this year. While we aren’t announcing any changes today, it’s easy to see how any backlash from the state Supreme Court’s decision could play in Gallego’s favor.
Lake’s pivot, an indication that she realizes the court’s conclusion may have toxic political implications for state Republicans, also mirrors what her hero, former President Donald Trump, has attempted at the national level. Even while Trump has run best with very conservative Republicans during the (ongoing) primary season, he has appeared to trim his sails on the abortion issue. Last year, Trump criticized the six-week ban that Gov. Ron DeSantis, then one of his rivals, put into place in Florida as a “terrible mistake.” More recently, Trump praised the Supreme Court’s Dobbs ruling not because it could be seen as a stepping stone towards a national ban but because it returned the question of abortion to the states.
Just as some GOP governors pounced on Trump’s attack on DeSantis’s law, his recent comments were met with criticism from some leading anti-abortion groups. As political analyst Drew Savicki pointed out, Trump’s trajectory on the issue probably reflects the fact that he is personally not as ideological as other Republicans and is better attuned to some post-Dobbs electoral realities than some of the “true believers” on his side. But the Biden campaign, of course, is still working to lay the Dobbs ruling at Trump’s feet.
A Florida detour
Trump’s comments were, at least in part, a response to another notable abortion-related development that came in his adopted home state. Earlier this month, the Florida state Supreme Court—a body that, like its counterpart in Arizona, is composed solely of Republican-appointed judges—declined to block two measures that will appear on the November ballot. While one measure would legalize recreational marijuana, the other would enshrine a right to abortion access into the state constitution.
As of now, this news has not changed our basic outlook in Florida. Although the Biden campaign has signaled that it sees the state as winnable—it has already run ads there, for instance—Florida is an expensive state were Democrats have a lot to prove. In past cycles, Floridians have also proved willing to simultaneously back liberal ballot positions and conservative candidates: in 2014, then-Gov. Rick Scott (R) was reelected as an amendment which would have legalized medical marijuana took 58%, although it fell short of the 60% share that is required for such amendments to pass in Florida.
As we keep our Likely Republican rating for both its presidential and Senate contests in place, we would basically defer to state mapper Matthew Isbell’s recent Substack edition on the topic. While the ballot questions will bring some potential upside for Democrats in Florida, much will depend on both how the amendments are messaged (for instance, how well Democrats can tie abortion to Trump) and the national mood later this year.
Why Arizona matters (and why it could matter even more)
Though it is not official yet, it seems likely that Arizona will also have a similar measure on the fall ballot. A coalition of abortion rights advocates in the state are petitioning for a ballot question that would protect access to abortion—with a July submission deadline, they claim they already have more than the required number of signatures.
The (likely) forthcoming referendum, and just the general fallout in Arizona surrounding the state high court’s verdict, will likely motivate Democratic voters in this marginal state. Still, as we have frequently done, we’d caution Democrats not to take anything for granted. Last year, we took an exhaustive look at post-Dobbs abortion ballot measures across the country: though the pro-abortion rights side has prevailed in each instance, their position has almost always run ahead of what Democrats earned in key races. A rare exception to this trend came last year in Kentucky—Gov. Andy Beshear’s (D) reelection margin was slightly stronger than the margin by which the pro-abortion rights side prevailed by in a 2022 vote there (but they were on the ballot in different years). But it’s easy to imagine usual Republican voters in Arizona (and Florida) voting yes on abortion rights but also supporting GOP candidates in actual partisan races.
It seems possible that Republicans in the state legislature could try to draft legislation that would effectively revive the 15 week ban—and thus, theoretically, mitigating backlash to the court’s ruling—but it’s not clear such a solution feasible. As local reporter Brahm Resnik points out, Republicans have just bare majorities in either chamber of the legislature and some of their more conservative members are on board with the court’s verdict. A year or so ago, Ohio Republicans were in a similar boat: they could have softened their state’s six-week abortion ban, which may have possibly taken the wind out of the sails an abortion rights constitutional amendment vote that November. But the legislature declined to act, and voters ultimately ended up approving a measure that enshrined abortion rights into the state constitution.
Though we have talked mostly in the context of federal-level races so far, this this week’s ruling could also hurt Republicans in Arizona’s legislative races, where they are defending some members in seats that Hobbs carried. Even before this week, Arizona represented one of Democrats’s relatively few prospects for a new legislative trifecta.
Finally, as something of a closing thought, one other state that has made news for its legislative happenings in recent weeks was Nebraska. Trump and some other notable state Republicans—including Gov. Jim Pillen (R) and Rep. Don Bacon (R, NE-2)—pushed to scrap the state’s current congressional district-based electoral vote allocation in favor of a winner take all format. As has been the case for several decades by now, only Maine and Nebraska operate under the former system.
2020 was the first presidential election in which both Maine and Nebraska simultaneously split their electoral votes. Still, from a purely mathematical standpoint, the two splits basically cancelled each other out: as Trump carried Maine’s rural 2nd District, Nebraska’s Omaha-centric 2nd District flipped to Biden. With current political trends in mind, that split seems likely to represent a “new normal”: in 2022, Gov. Janet Mills (D-ME) was reelected by 13 points but lost ME-2 while Pillen won Nebraska’s governorship by 23 points but ran only about even with his Democratic opponent in NE-2.
The Nebraska effort appears dead in the legislature’s regular session, but Pillen said late Tuesday that he is planning to work with state legislative leaders to pass it in a special session. It’s unclear if that will actually happen, but keep watching. For the sake of argument, let’s say their unicameral legislature did actually pass the winner take all system. Such a move would have some ripples in Arizona. We’ll explain.
Though Biden carried both states by less than a percentage point in 2020, we’ve considered Wisconsin the must-win state for him while if he carried Arizona again, it would have been, to us, “icing on the cake.” Our reasoning is that while Arizona was an important flip for the Biden campaign in 2020, Biden winning Wisconsin would likely be a sign that he’s holding up well in the electorally critical Midwest. Wisconsin was also the tipping point state in the last two presidential elections.
But let’s consider Map 1. In this scenario, Trump does just well enough in Georgia to narrowly flip it back and picks up Nevada, which is friendlier to third parties than many other swing states. Biden’s strength in the Midwest mostly holds but, with Nebraska using a winner-take-all format, Arizona, with 11 electoral votes, becomes more critical than Wisconsin, with 10. Biden 2020 minus Arizona, Georgia, Nevada, and Nebraska’s 2nd District vote would leave him at 269, one vote short. But swap out Arizona for Wisconsin, and Biden gets to exactly 270 in this scenario.
Map 1: Hypothetical scenario with Arizona providing Biden’s 270th electoral vote
To be clear, Arizona will still be one of the states that will be most decisive in 2024: aside from the presidential and Senate contests we’ve discussed, it will host a couple of key House races. But in a world where Trump gets his way in Nebraska, Arizona would matter a little more.