Election Factor Four: Abortion

Abortion rights initiatives could tip the balance in critical states and races

Photo: Damian Dovarganes / AP

Nearly every important election since June 2022 has been about abortion rights. Polls come and go; they dip and rise. But real election data is far more meaningful. And that data tells us that abortion remains a huge factor in our elections. The 2024 election will bring that into even clearer focus.

I wrote last month in The Big Picture about how abortion has become the defining “wedge” issue that has split the Republican Party apart. Democratic strategists understand the vulnerability the GOP faces on the question, and they intend to exploit it to maximal effect.

Political power and elections are about winning in the places you most need to win. Assuming that abortion drives enthusiasm, voter turnout and even cross-over voting, it’s important to ask, quite specifically, where the question of abortion will wind up mattering most when it comes to the 2024 election. To break this down, let’s look at the presidential election and the race to control both the Senate and the House.

Control of the White House

When it comes to who will sit in the Oval Office on January 20, 2025, the math remains very much the same as it did in 2020. While there are always some wild cards (e.g., when will Texas flip blue?), we can assume the map will look something like this on Election Night as the counting continues:

Map created at 270 to Win

Some would put Michigan and Pennsylvania into the toss-up category, but I have them as leaning blue. Biden won Michigan comfortably in 2020, and the GOP has basically fallen apart there, with the Democrats now holding a trifecta of government. And he also won Pennsylvania by some 81,000 votes, more than a percentage point. Since then, in 2022, Democrats have won statewide races in Pennsylvania for governor and senator by even bigger margins, during what was supposed to be a “red wave” year, rejecting Trump’s endorsed candidates. And there have been big demographic shifts that favor the Democrats, with hundreds of thousands of older, mostly Trump voters no longer around—replaced by younger voters who trend strongly Democratic.

And that’s why I’m now watching Arizona and Nevada quite carefully. These states are still quite purple, with Arizona only recently flipping to the Democrats after Biden eked out a win with just a 10,000 vote margin over Trump, moving it to the blue column for the first time since 1996. And Nevada is acting quite swingy as well, narrowly electing a GOP governor yet re-electing a Democratic senator in the same 2022 selection.

But here’s the fascinating thing: Activists in both states are working to place an abortion rights initiative on the ballot in both of these states. And that could be seismic.

In Arizona, abortions are currently banned after 15 weeks under a law that sprang into effect after the Dobbs decision overruled Roe v. Wade. But there’s also a “lurker” law that the state Supreme Court is considering, one that was passed in 1864, which would impose a complete ban on abortions with no exceptions for rape, incest or the life of the mother. While this plays out in the courts, abortion rights activists are now collecting the signatures they would need to amend the state constitution and permit abortions up to the point of fetal viability, currently around 24 weeks. This, by the way, is the same right to abortion that Ohioans recently passed by approving Issue 1.

Arizonans elected a Democrat, Katie Hobbs, as governor in 2022 over her challenger Kari Lake. Many voters in exit polling cited abortion as a key reason for their vote. As the AP reported at the time,

For about two-thirds of Arizona voters, the U.S. Supreme Court’s overturning of Roe v. Wade, the ruling that recognized a constitutional right to abortion, was an important factor. Those voters overwhelmingly favored Hobbs over Lake.

So far, the Arizona activist groups claim they are on track to obtain 800,000 signatures, more than double the requirement to qualify. That signature gathering process is also a form of campaigning because it raises statewide awareness of the measure.

In Nevada, the prospects of a state-wide abortion rights initiative are slightly murkier. In November, a judge struck down the effort to place a broad reproductive rights measure on the ballot, claiming it violated the “single-subject” rule for such measures. The proposed constitutional amendment would enshrine a “fundamental right to reproductive freedom” in the state constitution, including prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion and abortion care. The judge found that this basket of rights was too broad, and that the measure also had proposed an “unfunded mandate” that is contrary to Nevada law.

Proponents of the measure plan to appeal the matter to the Nevada Supreme Court, noting that the judge who struck it down is a Republican appointee. But they are hedging their bets, too. They have now proposed a different ballot measure that, like Ohio and Arizona, would guarantee the right to an abortion until fetal viability, or when necessary to protect the life or health of the pregnant patient. This more streamlined measure, which doesn’t suffer the legal infirmities identified by the judge in the earlier case, may more readily pass muster with the Nevada courts.

If the amendments have the desired effect, then pro-abortion rights voters in Arizona and Nevada could return in droves in 2024 to vote to protect fundamental reproductive freedom. That is very bad news for Donald Trump, who is the reason abortion rights were destroyed in the first place. As Trump likes to boast, “I was able to kill Roe v. Wade.” That may play well to GOP primary voters, but it is a big loser among moderates and independents.

Assuming I’m correct about Michigan and Pennsylvania, a Biden win in Arizona would earn him 11 electoral college votes and put him over the top at 271 using my map above. A Biden win in Nevada, with its six electoral college votes, would mean Trump would have to run the table in the remaining battlegrounds and win Wisconsin, Arizona and Georgia—all states he lost in 2020. That is a tall order and unlikely to happen.

That’s why these two abortion initiatives are real game changers when it comes to the race for the White House and why we should watch them quite carefully.

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Control of the Senate

The Democrats currently hold a 51-49 advantage in the Senate, counting independents who caucus with the Democrats on most but not all matters. But that number hides a weakness in 2024: Sen. Joe Manchin of West Virginia has announced he does not intend to run for reelection, and there is no viable Democratic alternative who can hold that seat in a state that voted by 39 points for Trump in 2020.

With the expected loss in West Virginia, that means Democrats will need to defend every other seat without losing a single race, assuming we cannot flip a seat in Texas or Florida. (More on that in another piece). The most vulnerable seat in the nation lies in deep red Montana, where Democratic Senator Jon Tester is making his case for reelection.

Montana is a quirky state politically. It has an extremist, far-right legislature and a conservative Republican governor. But Tester, like Joe Manchin in West Virginia or Andy Beshear in Kentucky, is popular in his home state, despite his party label. But can he overcome a pro-Trump electorate that went for the former president by a margin of more than 16 points four years ago?

Perhaps he can, with an assist from abortion rights. Buoyed by the success in Ohio, activists have announced an initiative expressly protecting pre-viability abortions in the state’s constitution. The move is in direct response to multiple attempts by the GOP-led legislature to restrict abortion rights and access in the state. So far, those laws, which were signed by Governor Greg Gianforte, have been stalled in the courts under a 1999 decision. But activists often remind voters that any change in the court’s composition could overturn that decision, and that the only way to ensure abortion rights is to amend it in the foundational document of the state through a constitutional amendment.

Activists have already had some success on a state-wide abortion rights question. In 2022, they worked successfully to defeat a “born alive” legislative referendum that, according to the Montana Free Press, would have “required medical providers to apply life-sustaining efforts to newborns born after an induced abortion, natural labor or cesarean section, including those with fetal anomalies who have no chance of survival.” That measure went down to defeat by six percentage points. 

Sen. Tester won his election in 2018—a blue wave midterm year—by three and a half percentage points. If the abortion referendum appears on the ballot in 2024 and helps supercharge turnout by women in the state, he could repeat his success in 2024, even though it is an election year with Trump on the ballot. And that in turn could mean Democrats could hold the Senate by a narrow 50-50 majority, should Kamala Harris remain Vice-President and continue to break ties.

The process to qualify the initiative is arduous and needs to pass legal review by the state’s Republican Attorney General. If he refuses to qualify it, as some expect he might, he can be sued, and the matter may wind up before the Montana Supreme Court in 2024. If it is permitted to proceed, organizers will then need to collect signatures from 10 percent of the state’s electorate, including 10 percent from each legislative district. That process will require money and people power to achieve, but progressive groups are fired up to see it through.

Control of the House

The Republican majority currently hangs by a mere three votes. And there are 18 GOP House members who won their races in districts that voted for Joe Biden in 2020. When I look at the map, it seems clear that the greatest haul of seats flipped to the Democrats in 2024 can come from my home state of New York.

New York’s Democratic Party dropped the ball when it came to redistricting and campaigning in 2022. While the red wave was beaten back in the battleground states, Republicans scored enough key wins in the big blue states of New York and California to seize control of the majority. It was heartbreaking and infuriating all at once.

I’m hoping Democrats have learned their lesson. The district maps likely will be more favorable, after a key court win requiring the state’s redistricting commission to redraw them for 2024. But there is also a ballot initiative in the form of an Equal Rights Amendment that will ask voters in the state in 2024 to codify a number of rights, including abortion and LGBTQ rights. Such guarantees, long protected by the U.S. Supreme Court, are now in serious doubt given right-wing attacks on them led by the conservative extremists, Justices Thomas and Alito.

Democratic strategists have cited the success of such protective measures in Michigan in 2022 as a good reason to put them on the ballot in New York in 2024. And they are hoping enthusiasm around the measure will juice turnout, especially in six House battleground districts in the state, five of which are now held by Republicans. Anything close to a sweep there will make the math very hard for the GOP to retain their current majority.

Court majorities come and go, as do governors. With abortion rights (and other rights) no longer safe or protected at the national level, state constitutions have become a critical backstop for such rights. That’s why the various state constitutional amendment battles will be a big story in 2024.

These initiatives may even prove determinative. In 2022, Dobbs sent the question of abortion rights back to the states to decide for themselves. Red states responded with draconian laws and restrictions, infuriating women voters who expressed that anger in millions of votes cast for abortion rights since Dobbs. This blowback has been far beyond what the anti-abortion forces expected. And it might help deliver a crushing electoral defeat to the GOP in 2024.

I hope you’ve enjoyed this series on election factors for 2024. The coming year will present deep challenges to our democracy, the greatest it has faced since the Civil War. With my work here at The Status Kuo, I have endeavored to bring clarity and focus to our political and legal discourse. I believe an educated and informed electorate is the greatest weapon we have against the growing anti-democratic tide. It has been my privilege to lead this effort and to engage with you all daily throughout 2023. And I am especially thankful to all those who have pledged their support for my work, allowing me to focus my time and energies here. We are now a substantial and mighty community. Let’s go help win this for our country in 2024. — Jay