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It’s been five years (to the month!) since the GOP-controlled North Carolina legislature passed the notorious HB 2, a drastic and discriminatory response to a local ordinance in Charlotte that permitted transgender folks to use the bathroom corresponding with their gender identity and established nondiscrimination protections for the LGBTQ community.
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HB 2 not only dictated who got to use which bathroom, but it also prohibited all localities in the state from enacting their own LGBTQ anti-discrimination policies.
Fun fact! In less than 12 hours after its introduction in the North Carolina legislature, then-GOP Gov. Pat McCrory signed it into law.
National backlash was swift and broad. Famous musicians, the NBA, and the NCAA all refused to hold or rescheduled massive events in the state. Several large corporations that had been considering expansions in North Carolina abandoned their plans. Over a dozen states banned taxpayer-funded travel there.
The economic toll of HB 2 was enormous. The Tar Heel State lost out on more than 2,900 jobs that went elsewhere. Cancelled events alone cost the state over $196 million. By the end of 2017, lost business was estimated to cost the state $525 million.
Eight months after signing the bill, McCrory lost reelection to Democratic Gov. Roy Cooper, but Republicans still dominated the legislature. The GOP was anxious about all that lost money but was only willing to walk HB 2 back but so far. In March 2017, Republicans passed a lousy compromise bill that sought to “appease” LGBTQ advocates on the bathroom issue but included a provision that prohibited localities from passing their own anti-discrimination ordinances until just this past December.
Opponents of transgender rights took a little bit of a breather during the Trump administration, which was sympathetic to their brand of oppression.
But with the advent of the Biden administration, which moved quickly to protect LGBTQ rights, anti-equality activists are back in a big way.
According to this handy tracker built and maintained by Freedom for All Americans, dozens and dozens of bills targeting transgender rights have been filed in some 30 states.
One of the national groups pushing this legislation is the right-wing Alliance Defending Freedom, which has been working to oppress LGBTQ Americans since 1994 and has been labeled as an anti-LGBTQ hate group by the Southern Poverty Law Center.
Many of these recent anti-transgender bills have taken the form of “athletic bans”—that is, legislation prohibiting anyone not assigned female at birth from playing women’s sports.
This is literally the first time any of these lawmakers gave two shits about women’s sports
On Wednesday, the GOP-controlled Mississippi legislature became the first state this year to send a bill banning transgender athletes from women’s sports at state schools and universities to the governor’s desk (GOP Gov. Tate Reeves plans to sign it into law).
As an erudite consumer of this missive, I surely don’t have to point out to you that these bills have absolutely nothing to do with women’s athletics and everything to do with shaming transgender kids and telling them that they don’t belong.
But don’t think for a second that there’s anything “grassroots” or “organic” about this sudden rise in anti-transgender legislation across the country.
The Alliance Defending Freedom is part of a coalition of right-wing, anti-LGBTQ groups that launched a website in late February that lets lawmakers directly request “model legislation” to push hate in their states.
Meanwhile, this week South Dakota’s GOP-controlled legislature became the first lawmakers in years to send a RFRA (“religious freedom restoration act”) bill to a governor for her signature.
These bills essentially legalize discrimination against LGBTQ folks in the name of “religious freedom.” You may recall that then-Indiana Gov. Mike Pence caught hell for signing a similar bill into law in 2015. (Mississippi followed suit in 2016, albeit with somewhat less backlash.)
According to HRC, this bill is one of at least 36 RFRAs being considered in state legislatures this year.
Another type of horrifyingly popular anti-transgender legislation making its way through legislatures this year is banning doctors from administering hormone therapy, performing transition surgery, or providing other gender-affirming care to transgender youth.
Alabama is well on its way to making this practice of medicine a felony. Similar measures are moving forward in Kansas, Missouri, and over a dozen other states.
But backwards and harmful views on gender and equality don’t just result in anti-transgender legislation. Sometimes they can lead to your state to reject almost $6 million in early childhood education funds.
This week, the GOP-controlled Idaho legislature narrowly voted to decline massive amounts of kindergarten money for some extremely dubious reasons.
On GOP state representative objected to this and “any bill that makes it easier or more convenient for mothers to come out of the home and let others raise their child.”
GOP state Rep. Barbara Ehardt argued against the funding because she thinks that young children are better off at home, rather than child care or preschool.
Other Republican lawmakers baselessly conjectured that the money would somehow be used to push a “social justice curriculum” or “to take our children from birth and be able to start indoctrinating them.”
Fun fact! About 50% of Idaho is an “early childhood education desert,” and this money would have gone a long way to correcting that.
The measure had the backing of several prominent conservatives in the state, including Idaho’s two U.S. senators.
Oh well!
Okay, time for a … detour of sorts.
This missive is primarily focused on state legislatures—legislation, politics, elections, etc.
But another, lesser-known passion of mine is getting Democrats off their collective asses when it comes to state-level judicial elections.
Republicans have been spending money on judicial elections in a coordinated, sophisticated way for almost seven years now.
The Republican State Leadership Committee, the party committee that acts as an umbrella org for the Republican Legislative Campaign Committee, the Republican Lieutenant Governors Association, the Republican Secretaries of State Committee, and AG America, launched the Judicial Fairness Initiative in 2014. Since then, it’s spent millions to elect Republicans and conservatives (some judicial races are nonpartisan) to various benches across the country ever since.
Democrats, on the other hand, tend to spin up one-off efforts to elect a few state supreme court justices here and there from time to time.
While I wait impatiently for the Democratic Party to get off its duff and start a party committee dedicated to investing in these races in a strategic, ongoing way, my excellent colleagues at Daily Kos Elections have helpfully assembled a list of state supreme court races across the country this year and next.
So what? you may be asking yourself. I live in a state where judges are appointed or selected via some other method. Why should I care?
So glad you asked!
It’s probably not big news to you that the federal judiciary grew WAY more hostile to voting rights during the Trump era, and the U.S. Supreme Court has refused to curtail partisan gerrymanders designed to entrench one-party rule.
But meanwhile, state courts have started striking down these gerrymanders and issuing their own decisions defending voting access. (Think Pennsylvania, 2017.)
Unlike federal judges, most state supreme court justices are elected to their posts. This presents progressives with crucial opportunities to replace conservative ideologues with more independent-minded jurists.
Some states present major opportunities for progressive gains on state supreme courts over the next two years, while Democrats must play defense in others.
Specifically, progressives have the chance to flip Ohio’s Supreme Court, gain a more solid majority in Montana, and make inroads that could set them up to flip conservative-heavy courts in Georgia and Texas.
Meanwhile, without a coordinated defensive effort from Democrats, Republicans could take control of progressive-leaning courts in Illinois, Michigan, Minnesota, and North Carolina.
I won’t get too deep into the weeds here (but you’re definitely welcome to dig in yourself here), but here are a few of the races Democrats can’t afford to neglect in the next couple of years
Michigan
- Republicans could flip the Michigan Supreme Court from Democrats, or Democrats could expand their majority to 5-2
- Composition: Four Democrats, three Republicans
- 2022 elections: Two seats up (nonpartisan with partisan nomination conventions)
- Democratic Justice Richard Bernstein, first elected in 2014
- Republican Justice Brian Zahra, appointed in 2011 by former Gov. Rick Snyder (R)
Democrats gained a 4-3 majority on Michigan’s Supreme Court in the 2020 elections, flipping it from GOP control, but Republicans have an opportunity to regain power in 2022 when one justice from each party will face voters again.
Montana
- Conservatives could gain a seat on the Montana Supreme Court, or progressives could gain a seat of their own to secure a clearer majority
- Composition: Three progressives, two conservatives, two swing justices
- 2022 elections: Two seats up (nonpartisan)
- Conservative Justice James Rice, appointed in 2001 by former Gov. Judy Martz (R) and confirmed by the GOP-run state Senate
- Swing Justice Ingrid Gustafson, appointed in 2018 by former Gov. Steve Bullock (D) and confirmed by the GOP-run state Senate
Montana is one of a few red states where Republicans don’t control the state’s highest court, and that’s had a real impact, because its two pivotal swing justices have sided with the three more progressive-leaning justices in some high-profile cases in recent years. With Republicans winning full control over state government in 2020 for the first time in 16 years, however, the GOP is considering a number of new restrictive voting bills, but the state Supreme Court could act as a critical roadblock to these attempts to suppress the vote.
North Carolina
- Republicans can flip the North Carolina Supreme Court from Democrats
- Composition: Four Democrats, three Republicans
- 2022 elections: Two seats up (partisan)
- Democratic Justice Robin Hudson, first elected in 2006
- Democratic Justice Sam “Jimmy” Ervin IV, first elected in 2014
Republicans have made North Carolina one of the most gerrymandered states in the country, but state courts have become a critical check on the GOP’s power to draw unfair maps, culminating in the GOP’s legislative and congressional gerrymanders getting blocked and redrawn in 2019. However, Republicans flipped two Democratic-held seats on the state Supreme Court in 2020 by very narrow margins, so the GOP now only needs to beat one of the two Democrats up next year in order to regain the majority that they lost in 2016.
Ohio
- Democrats can flip the Ohio Supreme Court from Republican control
- Composition: Four Republicans, three Democrats
- 2022 elections: Three seats up (nonpartisan with partisan primaries)
- Republican Chief Justice Maureen O’Connor, first elected associate justice in 2002 and chief justice in 2010
- Republican Justice Patrick Fischer, first elected in 2016
- Republican Justice Pat DeWine, first elected in 2016
Over the last two election cycles, Democrats have managed to flip three Republican-held seats on Ohio’s Supreme Court despite the GOP’s dominance in partisan contests over the same period. That’s put Democrats in a surprising position: If they can win just one of the three Republican-held seats that will be up for election next year, they could flip the court.
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