Morning Digest: New York's top court strikes down Democratic maps, saying lawmakers cannot draw them

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The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, Stephen Wolf, Daniel Donner, and Carolyn Fiddler, with additional contributions from David Jarman, Steve Singiser, James Lambert, David Beard, and Arjun Jaikumar.

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Leading Off

● NY Redistricting: New York’s highest court struck down the state’s new maps for Congress and the state Senate on Wednesday, ruling in a bitterly divided 4-3 opinion that lawmakers did not have the authority to take over the redistricting process after the state’s bipartisan redistricting commission failed to agree on new districts. The Court of Appeals ordered the trial court handling the case to work with a special master to adopt replacement maps “with all due haste” and suggested that primaries for affected races be moved from June to August.

Under an amendment to the state constitution, referred by the legislature and passed by voters in 2014, new maps were to be drawn by the misleadingly named Independent Redistricting Commission, which in fact is not independent as that term is commonly understood. Rather, eight of its 10 members are chosen by legislative leaders, with an equal number of Democrats and Republicans, and those eight then choose two unaffiliated commissioners. (A judge even struck the word “independent” from the ballot text describing the amendment, but the commission’s name has nevertheless stuck.)

The amendment also requires that the panel approve any maps on a bipartisan basis; predictably, this evenly split body made up largely of political appointees deadlocked earlier this year. The legislature, where Democrats enjoy supermajorities in both chambers, then stepped into the gap to draw new maps on its own—a power the Court of Appeals now says it lacked.

What should lawmakers have done instead? The court was vague on that score, relegating the discussion to a footnote that included suggestions like “political pressure” and “more meaningful attempts at compromise” as possible “courses of action.” Judge Jenny Rivera, in a dissent, argued that the majority’s stance “leaves the legislature hostage to the IRC, and thus incentivizes political gamesmanship by the IRC members.” Should the legislature have exhausted all of these remedies, it’s not at all clear what the court would have the state do had the commission still failed to perform its duties.

The majority also went a step further: Despite ruling that the congressional map had no force of law from the get-go—”void ab initio” in legal parlance—it nevertheless further determined that it violated the constitution as a partisan gerrymander favoring Democrats. A different dissenter, Judge Shirley Troutman, called this part of the decision “an inappropriate advisory opinion,” citing longstanding judicial precedent against the issuance of such opinions because the “function of the courts is to determine controversies between litigants.” (In a third dissent, Judge Rowan Wilson offered a detailed rebuttal to the majority’s finding of illegal gerrymandering.)

The practical effects of the court’s decision will cause considerable upheaval to the state’s political calendar. Notably, the candidate filing deadline passed weeks ago. As a consequence of this ruling, not only will the primary have to be delayed but campaigns will have to gather signatures to appear on the ballot a second time (1,250 for Congress and 1,000 for the state Senate)—a notoriously time-consuming and expensive process in New York. They may even once again have to fend off legal challenges to their petitions from rivals.

But barring an unlikely appeal to the U.S. Supreme Court on the grounds that the Court of Appeals has intervened too late in the election cycle, congressional and senatorial hopefuls in New York can now only bide their time as the trial court develops new maps.

The Downballot

● The 2022 election cycle really gets going next month with primaries in more than a dozen states, so we invited Daily Kos Elections editor Jeff Singer to join us on this week’s episode of The Downballot to run us through all the key contests. We analyze some sloppy GOP food fights in Senate races in Alabama, North Carolina, Ohio, and Pennsylvania; a pair of primaries in Oregon and Texas where progressive challengers are seeking to oust irritating Democratic moderates; and the first incumbent-vs.-incumbent matchup of the year, thanks to West Virginia losing a House seat.

Co-hosts David Nir and David Beard also shake their heads in disbelief at a bizarre ruling by New York’s top court striking down the state’s new maps; explain why Utah Democrats chose not to endorse a candidate for Senate at their convention last week; discuss the Michigan GOP’s decision to back Trump-endorsed Big Lie proponents for state attorney general and secretary of state; and breathe a sigh of relief over the results of the French presidential runoff.

Please subscribe to The Downballot on Apple Podcasts or wherever you listen to podcasts. You’ll find a transcript of this week’s episode right here by noon Eastern Time.

Redistricting

● NH Redistricting: A committee in New Hampshire’s Republican-run state House has narrowly advanced a congressional map that would dramatically reshape the state’s two existing swing districts in an effort to favor Republicans in the 1st District by packing Democrats into the 2nd District. Sununu previously vowed to veto a similar map that Republican lawmakers advanced, and he has also signaled he doesn’t like the latest proposal.

Senate

● AL-Sen: A group called Alabama RINO PAC has spent $714,000 so far in the May 24 GOP primary on an ad calling Army veteran Mike Durant a liberal who wants to confiscate guns, and Durant has gone up with a response ad that highlights his military background and features him firing an assault rifle as he bemoans the “career politicians” funding lies against him.

● GA-Sen: 34N22 PAC, which is supporting former NFL star Herschel Walker, has released a poll conducted by a firm called Grassroots Targeting that shows the Republican with a 51-41 lead over Democratic Sen. Raphael Warnock. This is the first time this cycle where we’ve seen a survey from Grassroots Targeting in any contest, and this release is by far the best result for Walker from any pollster that has tested this race. Most other outfits that have released surveys this year have found him only narrowly ahead of Warnock.

Walker’s campaign has also begun airing his first TV ad this cycle as part of a $1 million buy. The spot introduces parts of his biography to voters and preemptively offers a rebuttal to some of the attacks on his past behavior by calling him an “advocate for mental health” who “spent more than a decade sharing his story, raising awareness, and offering help to those in need.” The ad emphasizes his endorsement from Trump and hits standard conservative themes on immigration and crime.

However, one of the ad’s claims that Walker “built one of the largest minority-owned food service companies in the country” prompted Georgia Democrats to accuse him of once again blatantly lying about his business record. State Democrats cited a recent Daily Beast article that investigated Walker’s Renaissance Man chicken business and noted that the largest Black-owned food service business in the country, Bridgeman Foods, reported $870 million in annual revenue and 20,000 employees, while even the largest such company in Georgia, TME Enterprises, had $41 million in revenue and 680 employees.

By contrast, Walker has claimed only $70-80 million in annual revenue but told a federal court in 2019 that Renaissance Man and two of his related businesses only had $14 million combined in net earnings between 2009 and 2017, which averages to just $1.5 million a year.

This is far from the first time that Walker has been accused of telling easily disproved lies about his business record and academic achievements, and state Democrats cited a number of other news articles from reputable sources that debunked many of Walker’s claims.

● IA-Sen: Retired Navy Vice Adm. Michael Franken has released a poll from Change Research showing the Democrat down just 45-42 against longtime GOP Sen. Chuck Grassley. No other poll among the handful released by other pollsters this cycle has found Grassley’s lead anywhere near this small, and neither national party is acting like this race is competitive so far. Franken is running in the June primary against former Rep. Abby Finkenauer, whose campaign published a GBAO poll earlier this month showing her with a 64-15 lead over Franken.

● PA-Sen: Honor Pennsylvania PAC, which is backing former hedge fund manager Dave McCormick in the May 17 Republican primary, has launched an ad that throws the kitchen sink at TV personality Mehmet Oz. The ad notes that Oz, who is a dual citizen, served in the Turkish army despite growing up in America, and it claims Oz admitted that he’s “not socially conservative” before playing clips of Oz appearing to support abortion, gun safety laws, and gender transitioning for children. The spot closes with a video clip of Oz calling Hillary Clinton “one of the smartest people I have ever met” before Clinton is shown on screen laughing.

● OH-Sen: Fox News has released a new survey of Tuesday’s Republican primary from the Democratic firm Beacon Research and the Republican pollster Shaw & Company Research that finds Trump’s endorsed candidate, venture capitalist J.D. Vance, taking a 23-18 lead over former state Treasurer Josh Mandel, with wealthy businessman Mike Gibbons at 13%; a 25% plurality remain undecided in this crowded contest. This is a notable shift from Fox’s March poll when Gibbons enjoyed a 22-20 edge over Mandel as Vance languished in third with 11%.

Mandel’s well-funded allies at the Club for Growth are still hoping that Vance’s past attacks on Trump will still drag him down, and the group is out with a commercial that actually questions the GOP master’s choice. After old footage plays of Vance labeling himself “a Never-Trump guy,” the audience is treated to a 2018 clip announcing that Trump had endorsed Mitt Romney’s Senate campaign in Utah. “How’d that turn out?” asks one of the spot’s stars before another explains, “Look, I love Trump, but he’s getting it wrong with J.D. Vance, too.” The GOP firm Medium Buying says that the Club is putting at least $1.7 million into ads for the final week of the primary.

The Club itself also intensely opposed Trump in the 2016 primaries, though unlike Vance, it never considered supporting Hillary Clinton in the general election. The organization, like Vance and other one-time Trump critics, spent the last several years reinventing itself as all-in for MAGA, and until this month, its rehabilitation seemed to be mostly complete. As recently as April 9, Trump used a rally in North Carolina for Rep. Ted Budd, a Senate candidate both he and the Club back, to say of organization president David McIntosh, “We are undefeated when we work together.” Nevertheless, writes CNN’s Gabby Orr, there was still friction between Trump and McIntosh: In one incident, McIntosh reportedly peeved Trump by bringing along Mandel as an uninvited guest to their meeting.

But whatever detente existed collapsed just days after that North Carolina event when the Club responded to Trump’s embrace of Vance by re-airing a different ad that showcased the candidate’s past attacks on him. Trump, reported the New York Times, had an aide text McIntosh, “Go f*^% yourself” (which presumably wasn’t censored), and Orr reports the two have not communicated since then. Donald Trump Jr. has gone even further, tweeting this week, “The same pro-China group funding career politician @JoshMandelOhio spent $10 million to stop Trump in 2016 & are spending millions today to stop @JDVance1.”

The Club, though, may already have more to worry about than a few mean texts and tweets. Orr writes that the organization “is grappling with frustrated board members and donors, who worry its influence will plunge if it doesn’t quickly patch things up with Trump.” But the Club’s decision to run this new anti-Vance ad indicates its leaders aren’t in any hurry for another reconciliation.

● UT-Sen: After Democrats at the party’s state convention recently opted to support anti-Trump conservative independent Evan McMullin instead of fielding a Democratic challenger, far-right Republican Sen. Mike Lee is running a new ad claiming that he hasn’t changed since going to D.C. and is still “a conservative’s conservative” as multiple Utah GOP officeholders praise him for his “family values” and “pro-life values.”

● WI-Sen, WI-Gov: Marquette University Law School is out with new numbers from both the state’s major August primaries. In the Democratic contest to take on Republican Sen. Ron Johnson the school shows Lt. Gov. Mandela Barnes leading Milwaukee Bucks executive Alex Lasry 19-16, with state Treasurer Sarah Godlewski at 7% and a large 48% plurality undecided. Back in February, Marquette had Barnes beating out Lasry by a larger 23-13 spread.  

There was far less change in the GOP race to face Democratic Gov. Tony Evers, though. Former Lt. Gov. Rebecca Kleefisch leads businessman Kevin Nicholson 32-10, compared to 30-8 two months ago, while state Rep. Tim Ramthun lags with 4% of the vote. Another contender, wealthy businessman Tim Michels, announced his own bid Monday after the poll was already in the field and was thus not included.

Governors

● MA-Gov: SEIU Massachusetts State Council, which represents 115,000 workers across the state, has endorsed state Attorney General Maura Healey ahead of the September Democratic primary, where Healey faces state Sen. Sonia Chang-Díaz.

● NE-Gov: The Republican firm Medium Buying caused a brief stir on Wednesday morning when it tweeted that wealthy businessman Charles Herbster had stopped airing ads with less than two weeks to go before the GOP primary, but his campaign quickly told the National Journal‘s Mary Frances McGowan that it very much was still running spots. The problem, tweets McGowan, was that “there was an issue with the wiring of the buy” that has since been fixed.

● NM-Gov: State Rep. Rebecca Dow has unveiled the first negative ad in the June GOP primary, going up with a spot that attacks former TV news meteorologist Mark Ronchetti as a “Never Trumper.” Dow’s spot plays a video clip of Ronchetti saying, “I used to be a Republican until the orange one,” and it also accuses him of being a “climate change activist” who worked with those funded by Jewish philanthropist George Soros, a common boogeyman for the far-right.

● NV-Gov: North Las Vegas Mayor John Lee has launched a commercial arguing that, despite his tough talk, Clark County Sheriff Joe Lombardo is anything but the immigration hawk he’s positioning himself as ahead of the June GOP primary. The narrator’s claim that Lombardo “defied President Trump [by] letting Vegas become a sanctuary city, protecting criminal illegal aliens” is accompanied by a photo of Wilber Ernesto Martinez Guzman, an undocumented immigrant from El Salvador who was sentenced to life in prison for murdering four people. However, as the Nevada Independent’s Riley Snyder points out, that crime happened in northern Nevada, which is well outside Lombardo’s jurisdiction.

● OH-Gov: Fox’s new poll from the bipartisan team of Beacon Research and Shaw & Company Research shows Gov. Mike DeWine well ahead in Tuesday’s GOP primary with just a plurality of the vote because his opponents appear to be splitting the anti-incumbent vote. The governor leads former Rep. Jim Renacci 43-24, with farmer Joe Blystone taking a potentially crucial 19%. Back in early March, Fox’s survey had DeWine beating Blystone 50-21, while Renacci was in third with 18%. We’ve seen no numbers from any reliable pollsters during the intervening time.

Blystone, likely to Renacci’s chagrin, is continuing to do relatively well even though he hasn’t aired any TV or radio ads whatsoever. Renacci, who was the party’s 2018 Senate nominee against Democratic incumbent Sherrod Brown, by contrast has used his personal fortune to finance his campaign, but he’s still lagged far behind DeWine in ad spending. The GOP firm Medium Buying tweeted Tuesday that the governor has swamped Renacci $4.68 million to $1.52 million, while an RGA-funded organization called Free Ohio PAC has deployed another $778,000 to aid DeWine.

Perhaps most ominous for Renacci is Trump’s utter silence about taking down DeWine. Trump went after DeWine in November of 2020 for recognizing Biden’s victory by tweeting, “Who will be running for Governor of the Great State of Ohio? Will be hotly contested!” But Trump’s interest in this race seemed to disappear along with his Twitter account, and The Plain Dealer notes that he didn’t even mention DeWine or Renacci at his recent Ohio rally for Senate candidate J.D. Vance. Renacci was at the event but didn’t even get a speaking slot while DeWine, citing a conflicting event honoring the 200th birthday of President Ulysses S. Grant, avoided Trump’s appearance altogether.

● VT-Gov: Observers widely expect Republican Gov. Phil Scott to seek a fourth two-year term, but the governor still hasn’t formally reached a decision about re-election and indicated via a spokesperson on Monday that he would wait until closer to the end of the legislative session to do so. While no noteworthy Democrat has launched a campaign against Scott so far, VTDigger has assessed the field of potential Democratic challengers and found no one seems too enthusiastic about facing the formidable incumbent

Former Lt. Gov. Doug Racine, who held office from 1997 to 2003, refused to rule out running on Monday but cast doubt on the resources and volunteers needed to run being readily attainable. State Attorney General TJ Donovan, whom VTDigger writes “is widely believed to have his sights on the governor’s office,” wouldn’t say whether he was considering opposing Scott, only promising to make his plans known “in the near future.”

Additionally, former state House Speaker Shap Smith made it clear that he would not challenge Scott if he runs again, and 2016 nominee Sue Minter said she isn’t planning on running for office this cycle and that “if Gov. Scott is running again, that it will be a difficult race to win for anybody.”

House

● FL-04: Jacksonville City Councilman Rory Diamond has announced that he’ll stay out of the August Republican primary for this open seat.

● FL-23: Hava Holzhauer, a former prosecutor who later served as a regional Anti-Defamation League director, has joined the August primary to succeed her fellow Democrat, retiring Rep. Ted Deutch. Holzhauer previously ran for the state House in 2010 but badly lost the general election during that GOP wave year.

● HI-02: State Sen. Jill Tokuda on Tuesday filed FEC paperwork for a potential bid for the House seat held by Rep. Kai Kahele, a fellow Democrat who is considering running for governor. Tokuda had been campaigning for lieutenant governor, a post she narrowly lost in the 2018 primary, but Civil Beat reports she recently dropped out of a debate for that race.

● ID-02: Bloomberg reports that a new organization called America Proud has launched a $413,000 buy against Republican Rep. Mike Simpson, which makes this the first outside spending ahead of his May 17 primary rematch against 2014 foe Bryan Smith. The spot digs up Simpson’s 2016 criticism of Trump and faults him for supporting “Pelosi’s Jan. 6 witch hunt.” The second half of the ad praises Smith as a Trump loyalist who backs term limits.

● NC-01, NC-04, OH-11, PA-12: AIPAC, a hawkish pro-Israel group that has come under widespread criticism for endorsing 37 Republicans who voted to overturn the results of the 2020 elections, is using its newly-created United Democracy Project super PAC to air ads in four Democratic primaries. Links to the ads, none of which mention Israel, are below, along with Jewish Insider’s report on the size of the buy in each contest:

The progressive group End Citizens United, meanwhile, is taking the opposite side in two of these contests by endorsing Lee as well as Durham County Commissioner Nida Allam in North Carolina’s 4th District.

● OH-09: State Sen. Theresa Gavarone last week earned the backing of 5th District Rep. Bob Latta, who represents just over half of this redrawn constituency, ahead of Tuesday’s Republican primary to take on longtime Democratic incumbent Marcy Kaptur in the newly gerrymandered 9th District.

Gavarone’s main intra-party foe, state Rep. Craig Riedel, previously won the endorsement of 4th District Rep. Jim Jordan, who has plenty of influence in far-right politics even though his existing turf doesn’t overlap with the new 9th: Riedel himself went up with an ad weeks ago pledging to “join Ohio’s own Jim Jordan and other true conservatives in the House Freedom Caucus to fight for what we believe.”

● WV-02: The Club for Growth isn’t letting its current estrangement from Trump (see our OH-Sen item above) stop it from running a new ad arguing that Rep. David McKinley is lying about his own pro-Trump credentials. The Club, which along with Trump backs fellow incumbent Alex Mooney in the May 10 Republican primary, claims that McKinley digitally inserted himself into a photo so it looked like he’d appeared next to Trump at a rally. The Club has spent at least $517,000 on this contest so far.

● Ad Roundup:

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