On Tuesday, exactly two weeks after the November 5 election, the Republican-controlled legislature in North Carolina reconvened in Raleigh, ostensibly to pass disaster relief for areas affected by Hurricane Helene. But, with no public notice, they snuck provisions into the bill stripping power from the state’s incoming Democratic governor and attorney general and dramatically changing how elections are administered. The bill passed the state House Tuesday night, just hours after it was publicly released, and is expected to be approved by the state Senate on Wednesday.

“It’s a massive power grab,” says Melissa Price Kromm, executive director of the pro-democracy group North Carolina for the People Action. “They didn’t like what happened in the election, and they want to overturn the will of the people. That’s not how democracy is supposed to work.”

Though Trump carried North Carolina, Democrats won five statewide offices—governor, lieutenant governor, attorney general, secretary of state, and school superintendent. They narrowly lead in a pivotal state Supreme Court race that is headed to a recount.

Democrats also broke the GOP’s supermajority in the state legislature, which they had held due to extreme gerrymandering. This means that unlike in previous sessions, come January, Republicans will no longer be able to override the vetoes of the state’s incoming Democratic governor, Josh Stein, who easily defeated scandal-plagued Republican candidate Lieutenant Gov. Mark Robinson.

So, in a lame-duck session, Republicans preemptively stripped power from these Democratic officials before they are sworn in.

Most notably, the bill prevents the governor from appointing members of the state election board and transfers that authority to the state auditor, who, for the first time in more than a decade, is a Republican. Under North Carolina law, the governor, a position held by Democrat Roy Cooper for the past eight years, appoints a majority of members on the state election board and county election boards. The auditor will now have that authority, giving Republicans the power to appoint majorities on the state board and 100 county election boards.

These appointments will likely have major ramifications for elections in the state. The state board administers elections and issues guidance to county officials, who in turn have the power to decide where polling places go and the number of early voting locations. In addition, both the county and state boards must certify election outcomes. That raises the possibility that the new bill will enable Republicans to cut back on voting access and refuse to certify election results should a Democrat narrowly win. Price Kromm noted that the bill was introduced only one day after results showed Democratic Supreme Court Justice Allison Riggs leading her GOP opponent by just 623 votes after trailing by more than 10,000 votes on election night.

“Legislators have put forward a bill that fails to provide real support to communities hit hard by Hurricane Helene and instead prioritizes more power grabs in Raleigh,” Cooper said in a statement.

For years, Republicans have been trying to prevent Democratic governors from appointing a majority of election board members, but they have repeatedly been blocked by voters and the courts. So now they have bypassed the precedent and handed the power over to the state auditor—a position with no expertise or previous authority in elections.

“This makes no logical sense other than he has an R next to his name.”

“No other state has that,” says Price Kromm. “This makes no logical sense other than he has an R next to his name.”

Other Democratic officials will also see their power stripped under the new legislation. The bill prevents the state’s incoming attorney general, Jeff Jackson, from filing lawsuits that contradict the positions of the legislature or joining lawsuits that originate in other states or with private actors, which state attorneys general frequently do.

The bill also changes the composition of the state courts. It eliminates two judicial seats held by judges who ruled against the legislature in voting rights cases and creates two new judicial positions that will be appointed by the GOP legislature. And, it specifies that the governor can only fill judicial vacancies with members of the same party, which would prevent Stein from appointing a Democratic judge to fill the position of an outgoing Republican judge.

This is not the first time Republicans have convened a lame-duck session to strip power from Democrats—and not just in North Carolina. They did so when Cooper beat Republican Gov. Pat McCrory, preventing him from appointing members to boards of University of North Carolina schools, restricting the number of state employees he could hire or fire, and subjecting all of his nominations to confirmation by the GOP-controlled state Senate, which was not previously required.  

Back in 2018, after Democratic Gov. Tony Evers defeated Republican Scott Walker in Wisconsin, Republicans also held a lame-duck session before Christmas to strip Evers of power and pass new laws making it harder to vote. Democrats called it a soft coup, and Evers viewed it as a precursor to the January 6 insurrection. “There hasn’t been a peaceful transition of power,” he told me.

The latest power grab in North Carolina could foreshadow the next few years in Washington under GOP control—and how the Republican Party’s antidemocratic tendencies have become more institutionalized, going much deeper than Trump. As Price Kromm puts it, “It’s batshit crazy down here right now.”

J. Ann Selzer has earned several nicknames throughout her 37-year-long stint leading the Des Moines Register’s Iowa Poll. She’s called the “Outlier Queen” when she breaks from what appears to be the consensus of political polls. And when her final pre-election polls paint a complicated picture for otherwise favored candidates, political insiders refer to her as the “Harbinger of Doom.”

Now, as the Election Day countdown timer inches toward zero, Selzer’s latest polling may be the specter that has worried some Republicans—the rageful spirit of Iowa women who lost abortion access this past summer. Contrary to every other poll, this poll of 808 likely Iowa voters shows that Kamala Harris has a 3-point lead over Donald Trump in one of the reddest red states. It’s within the poll’s margin of error but a far cry from Selzer’s previous tallies: In September, Trump enjoyed a 4-point lead over Harris, and in June, he was 18 points ahead of President Joe Biden.

“Nobody in their right mind would predict it,” Selzer said on the self-described “Never Trump” podcast The Bulwark. “Our methodology is to make no assumptions, and we made no assumptions.”

“Nobody in their right mind would predict it. Our methodology is to make no assumptions, and we made no assumptions.”

Selzer has gone against the polling consensus before—and has been proven right. She was one of the few pollsters who predicted Trump’s significant lead over Hillary Clinton in 2016, and she broke from the crowd in 2008 when her poll predicted Barack Obama’s 2008 win in the Iowa Democratic caucuses. The driving force behind the latest shift? Selzer says it’s women—particularly older and independent women—incensed by the Iowa Supreme Court’s decision to allow a six-week abortion ban to go into effect. 

The state Supreme Court’s June decision overruling a lower court’s block on the six-week ban may have come as a surprise, considering previous court decisions. In 2018, four years before the Dobbs v. Jackson Women’s Health Organization decision overturned Roe v. Wade, the Iowa court upheld the fundamental right to abortion, striking down a 72-hour waiting period and dooming the six-week ban, which was then the most restrictive abortion law in the United States. 

But this past summer’s opinion wasn’t a fluke; as I reported in July, it was the desired result of a yearslong scheme to rig Iowa’s courts against abortion. The GOP, which holds every statewide office and controls both legislative chambers, used its unencumbered power to overhaul the judicial selection process, giving Republican Gov. Kim Reynolds majority control over the committee that nominates justices. Her conservative appointees changed the makeup of the court. When lawmakers passed another six-week ban last year, the justices delivered on the Republican promise to restrict abortion—despite Iowans repeatedly signaling their support for abortion rights. The shift of a significant number of Iowa voters toward supporting Harris represents more than just anguish at the fall of abortion rights; it’s a strong rebuke to the GOP for its manipulation of the court.

The court’s opinion has likely produced what Selzer called a “jaw-dropping” result: Women age 65 and older, a typically Republican group, favor Harris over Trump 63 percent to 28 percent. Women overall favor Harris by 20 points, while Trump has a 4-point lead among men. “You need to win with women more than you lose with men,” Selzer said, “and we’re seeing that in these data.”

For his part, Trump dismissed the poll as “heavily skewed.” But Iowa House Democratic Leader Jennifer Konfrst says the results reflect what Democrats have been seeing on the ground. “They are sick and tired of politicians interfering in their doctor’s offices and are looking for people up and down the ballot who are going to actually fight for their freedoms,” Konfrst told the Des Moines Register. “And this issue is salient and real, and the fact that Vice President Harris all the way down to candidates for the Iowa House are talking about the same rights and freedoms shows that this is what Iowans are looking for.”

In overturning Roe v. Wade, the US Supreme Court gave state-level judges enormous new power to decide the reproductive fates of tens of millions of people of childbearing age. With the national right to abortion wiped out, states were forced to decide if abortions were legal for their residents as pre-Roe “zombie” laws, trigger bans, and state constitutional protections whipsawed pregnant people trying to receive care. And now, in ten states, abortion-rights ballot measures are going before voters.

It has been up to state courts to sort out this increasingly convoluted mess. Could a 150-year-old law criminalizing abortion be used to prosecute modern-day doctors? The Arizona Supreme Court decided it could. Do frozen embryos count as “children”? The Alabama Supreme Court said so in February. And does a state constitution’s guarantee of “life, liberty, and the pursuit of happiness” protect a woman’s right to end her own pregnancy? Last month, a North Dakota state judge decided yes. Meanwhile, over the last year, state supreme courts in Iowa, Florida, and Georgia have all allowed six-week bans on abortion to take effect.

Yet unlike their federal counterparts, these black-robed figures don’t enjoy lifetime appointments. Two years after Dobbs, state supreme courts have become among the most critical battlegrounds of the 2024 elections. Twenty-two states allow voters to elect their state supreme court justices, and several more let voters decide whether to retain justices appointed by the governor. Anti-abortion forces have long understood that controlling who sits on state high courts is critical to cementing and expanding their far-right agenda. Indeed, it was only after the GOP governors of Iowa and Florida packed their supreme courts with conservative justices did those courts overturn prior state precedents and uphold draconian abortion bans.

“State courts have been an under-resourced and overlooked tool for reproductive and gender equity.”

Abortion rights supporters are finally seeing the light. “State courts have been an under-resourced and overlooked tool for reproductive and gender equity,” says Christina Uribe, director of the Gender Equity Action Fund, which channels money to local progressive and reproductive-rights advocacy groups that educate voters about state-level judicial races. “There’s a lot of opportunity here, and a lot of work left to do to make sure people understand the power that state courts have over their daily lives and the power they have to decide who sits on the bench.”

Progressives made the most of that opportunity in last year’s Wisconsin Supreme Court special election, which shattered turnout and spending records in a battle for ideological control of the highest court in a crucial swing state. The victory of an openly pro-choice justice, Janet Protasiewicz, swung control of the court leftward for the first time in 15 years, with consequences for both abortion access and voter rights. The court has the final say over Wisconsin’s congressional maps, for instance, which have been heavily gerrymandered to favor the GOP.

Advocates like Uribe are hoping that concerns over reproductive rights will have the same impact this November. “Abortion turns out to be really highly mobilizing,” she says. (It’s true.) “I do believe voters subconsciously associate the US Supreme Court with ‘they created this mess.’ They don’t want the state court creating more of a mess.”

So which states have supreme court elections to watch? Here are seven states where the outcome on November 5 could influence the future of abortion rights for tens of millions of people.

Ohio

A trio of partisan Supreme Court races are expected to shape how Ohio implements an abortion-rights amendment that passed with broad support last year.

In November 2023, Ohioans voted overwhelmingly to create a state constitutional right to “make and carry out one’s own reproductive decisions.” But what does that mean for the state’s six-week abortion ban, which is still on the books? What about the many other incremental restrictions on abortion that lawmakers have passed over the decades? As long as the Republican-dominated state legislature doesn’t repeal these laws—and they haven’t—it’s up to the courts to decide.

So far, in response to lawsuits by abortion-rights advocates, lower-court Ohio judges have permanently blocked the six-week ban and have temporarily blocked a 24-hour waiting period and a rule against physician assistants and nurse practitioners providing abortion pills. But those fights aren’t over—and they will almost certainly be appealed all the way up to the state’s high court, which is now controlled 4-3 by Republican justices.

Ohio Supreme Court terms last six years, and races were nonpartisan until 2021, when GOP state lawmakers voted to add candidates’ party affiliations to the ballot, claiming it was needed to better inform voters (they had just lost three seats to liberal candidates.) This year’s races are uphill battles for Democrats, who need to win all three state seats to gain a majority and potentially determine the outcome of the abortion rights cases. If Republicans win all three, they’ll hold a 6-1 supermajority, with a clear advantage for abortion opponents. 

Michigan

As in Ohio, Michigan’s Supreme Court has the final word on whether old anti-abortion laws will be overturned after voters passed a constitutional amendment enshrining abortion rights in 2022. Democratic Gov. Gretchen Whitmer has already signed a package of bills repealing some laws that conflicted with the new amendment. But other restrictions persist, including a ban on Medicaid-funded abortions and a parental consent requirement for minors.

Michigan justices serve eight-year terms, with two seats up for election at a time, and no term limits. Democratic-backed justices currently hold a 4-3 majority on the court, and Republican-backed candidates will need to win both races on the November ballot to flip control. (While Michigan Supreme Court races are ostensibly nonpartisan, candidates are selected at party nominating conventions.) Justice Kyra Harris Bolden, an incumbent appointed by Whitmer, is running against Judge Patrick O’Grady, who was nominated after a Trump ally charged with election tampering dropped out. Meanwhile, law professor Kimberly Thomas is the Democrat vying for an open seat against Republican state representative Andrew Fink. In 2021, Fink supported a city ordinance making it a crime to “aid or abet” abortion in the Ohio city of Hillsdale, the home of an influential conservative Christian college.

Montana

In a red state where voters put a premium on keeping the government out of people’s daily lives, the Montana Supreme Court has often taken a remarkably permissive approach to abortion rights. In a 1999 case, Armstrong v. State, it ruled that the state constitution’s strong language around privacy implies a right to “procreative autonomy.” Based on this precedent, even before Dobbs, state courts struck down a parade of anti-abortion laws:: a 20-week ban, waiting periods, mandatory ultrasounds, parental notification requirements, and prohibition of telemedicine abortion, among others.

But with two of the seven state Supreme Court seats up for grabs this November, reproductive rights advocates are worried the tide could shift, especially with the state attorney general firing shots at Armstrong. Justices serve eight-year terms, and the court is officially nonpartisan, but both retiring justices are seen as left-leaning. Two candidates to replace them, Jerry Lynch and Katherine Bidegaray, have both said they agreed with Armstrong’s reasoning (responding to a Montana ACLU questionnaire). Two others, Cory Swanson and Dan Wilson, have been dubbed part of a “pro-life team for Montana” by the anti-abortion group Susan B. Anthony Pro-Life America—and neither answered the ACLU question.

One additional factor: If Montana voters pass a constitutional amendment known as CI-128 that’s also on the November ballot, they’ll enshrine an explicit right to abortion until the point of fetal viability, around 24 weeks. As in Ohio and Michigan, it will be up to the state Supreme Court to interpret the amendment, if it passes.

North Carolina

Over the past few years, conservatives have gradually flipped control of North Carolina’s supreme court, and Republican justices now hold a 5-2 majority. They could extend that margin to 6-1 this year if state Court of Appeals Judge Jefferson Griffin beats incumbent Justice Allison Riggs, who was appointed by Democratic Gov. Roy Cooper to fill a vacancy.

Griffin is seen as a threat to abortion rights. Last year, he was part of a three-judge panel that ruled that a mother’s parental rights could be terminated if her child was in utero at the time she committed a crime—because “life begins at conception.” The ruling was so error-ridden, and the outcry so loud, that it was withdrawn three weeks later.

Now, Griffin could ascend to the state’s highest court for an eight-year term. But even if Riggs keeps her seat, Democrats would need to win Supreme Court races again in 2026 and 2028 to recover the majority. It’s a long game in a state that once served as an abortion-access lifeline to pregnant people in the South— until a single state representative switched parties and gave Republicans the supermajority they needed to enact a 12-week abortion ban over Cooper’s veto last year.

Retention elections in Arizona and Indiana

In Arizona and Indiana, supreme court justices are appointed by governors but must run for a retention election after two years, and then every six or ten years thereafter. (In Arizona, for instance, an initial 2-year term would be followed followed by 6-year terms. Indiana’s initial 2-year term is then followed by a 10- year term.) Usually, these up-or-down votes in the retention election are perfunctory: Only six judges in Arizona’s 112-year history have not been retained, according to the Tucson Sentinel, and it’s never happened at the supreme court level.

Voters this year could buck that trend, as progressive and abortion-rights advocates try to mobilize a “No” vote on retention elections for Justices Clint Bolick and Kathryn King in Arizona; and Justices Mark Massa, Derek Molter, and Loretta Rush in Indiana.

All these justices have signed on to opinions that blocked access to abortion in their states. In Arizona, Bolick and King joined a ruling in April that said the state could enforce its 1864 “zombie” abortion ban—triggering so much public outcry, the legislature soon repealed the old law. In Indiana, the three justices upheld a near-total abortion ban, interpreting the state constitution to only protect abortion when the procedure was “necessary to protect [the pregnant person’s] life or to protect her from a serious health risk.”

While retention elections have been sleepy in the past, the campaigns against these justices have made some sit up and take notice. Supporters of the Arizona judges are trying to stop the judicial elections altogether, by filing their own ballot initiative. Proposition 137 would eliminate the state’s retention election system, and instead allow appointed judges to keep their seats indefinitely unless they are convicted of a crime or a commission finds their performance lacking. If it passes, it would nullify “No” votes against King or Bolick. 

Texas

The Texas Supreme Court has been uniformly Republican since 1998. So it seemed like a safe bet that the three incumbent Republican justices—Jimmy Blacklock, John Devine, and Jane Bland—would easily swat away their trio of Democratic challengers this November. That was until the emergence of Find Out PAC—a committee formed this spring by former US Air Force undersecretary Gina Ortiz Jones to go after the Texas justices who “f*cked around with our reproductive freedoms, and now they’re going to find out,” as the group’s website puts it.

Find Out PAC’s ads draw attention to the justices’ recent rulings against women who were denied abortions amid dangerous pregnancies. Last December, the court ruled against Kate Cox, a pregnant woman who found out her fetus had no chance of survival. Her doctor said carrying the pregnancy to term would put her at high risk for serious medical complications and require her to undergo a C-section, so Cox sought to temporarily block the state’s ban so she could get an abortion. A lower court initially agreed, but the Texas Supreme Court stepped in to block the order. Then, in May, the court unanimously decided that the state abortion ban’s medical exceptions were sufficiently clear, even though a group of women said they were denied abortions despite experiencing serious pregnancy complications. One of the plaintiffs, Amanda Zurawski, had been forced to wait until she was diagnosed with a life-threatening case of sepsis and a fallopian tube infection that affected her future fertility.

The odds are still long in all three races, but the seat considered most likely to flip is currently held by Justice John Devine, who has bragged about being arrested outside abortion clinics; he also missed more than half of oral arguments between last September and February because he was too busy campaigning. “These folks are elected; they can be unelected,” Jones told the Austin-American Statesman. “Republicans understand that the bench is a stepping stone for higher office, while we’re not even fighting for those seats.”

Earlier this month, Louisiana became the first state in the country to classify the two most common drugs used in medication abortions, mifepristone and misoprostol, as Schedule IV controlled substances, creating stiff penalties for their unauthorized use. Medical providers sounded alarms when the GOP-controlled legislature passed the law: Abortion is already banned in the state in nearly all cases, and the new classification would delay lifesaving care for people experiencing miscarriages and health conditions unrelated to pregnancy. 

Now, in a just-filed lawsuit, doulas, medical providers, and women denied care under the state’s abortion law argue that the new classification of mifepristone and misoprostol runs afoul of Louisiana’s constitution. By separating the drugs from others with similar risk profiles, the suit contends, the new law discriminates against people on the basis of their physical conditions, ones that are treated with mifepristone and misoprostol.

In Louisiana, controlled substances fall into five categories depending on their medical indications and risk for abuse—Schedule I being the highest risk, and Schedule V the lowest risk. The current list of Schedule IV drugs includes opioids, barbiturates, and benzodiazepines, all drugs with high potential for addiction. The classification of mifepristone and misoprostol as dangerous drugs subjects them to tight regulations. But they’re not dangerous drugs, nor do they have abuse potential like their Schedule IV counterparts; more than 100 studies have shown them to be safe and effective in ending pregnancy. Contrary to their current classification in Louisiana as having addictive potential, the Food and Drug Administration—which approved the drugs decades ago—has never found the medications to lead to physical or psychological dependence. 

Misoprostol and mifepristone have proven to be effective in a variety of contexts. Both are used in miscarriage care, mifepristone is used to treat ovarian cancer, and misoprostol is crucial to managing postpartum hemorrhages. Under Louisiana’s law, anyone in possession of either drug—except for pregnant women—is subject to five years in prison and a $5,000 fine. 

The classification, the lawsuit argues, subjects the drugs to a “highly regulated legal scheme” that delays care. Previously, misoprostol was commonly stored in obstetric hemorrhage carts or in staff’s pockets. But under its new status, only a provider licensed to administer controlled substances can retrieve the drug from locked cabinets where other scheduled substances, like narcotics, are stored. As a New Orleans OB-GYN told my colleague Julianne McShane, in a medical emergency, time is of the essence, and even a delay of several minutes can have disastrous consequences.

Pregnant women were already being denied care before the medications were reclassified. One of the plaintiffs, Kaitlyn Joshua, was denied miscarriage care by two hospitals because of the state’s abortion ban. “Now lawmakers have passed yet another law making it harder to get care during a miscarriage, and they did it without following the requirements of the State’s constitution,” Joshua said in a news release.

Earlier this month, Louisiana became the first state in the country to classify the two most common drugs used in medication abortions, mifepristone and misoprostol, as Schedule IV controlled substances, creating stiff penalties for their unauthorized use. Medical providers sounded alarms when the GOP-controlled legislature passed the law: Abortion is already banned in the state in nearly all cases, and the new classification would delay lifesaving care for people experiencing miscarriages and health conditions unrelated to pregnancy. 

Now, in a just-filed lawsuit, doulas, medical providers, and women denied care under the state’s abortion law argue that the new classification of mifepristone and misoprostol runs afoul of Louisiana’s constitution. By separating the drugs from others with similar risk profiles, the suit contends, the new law discriminates against people on the basis of their physical conditions, ones that are treated with mifepristone and misoprostol.

In Louisiana, controlled substances fall into five categories depending on their medical indications and risk for abuse—Schedule I being the highest risk, and Schedule V the lowest risk. The current list of Schedule IV drugs includes opioids, barbiturates, and benzodiazepines, all drugs with high potential for addiction. The classification of mifepristone and misoprostol as dangerous drugs subjects them to tight regulations. But they’re not dangerous drugs, nor do they have abuse potential like their Schedule IV counterparts; more than 100 studies have shown them to be safe and effective in ending pregnancy. Contrary to their current classification in Louisiana as having addictive potential, the Food and Drug Administration—which approved the drugs decades ago—has never found the medications to lead to physical or psychological dependence. 

Misoprostol and mifepristone have proven to be effective in a variety of contexts. Both are used in miscarriage care, mifepristone is used to treat ovarian cancer, and misoprostol is crucial to managing postpartum hemorrhages. Under Louisiana’s law, anyone in possession of either drug—except for pregnant women—is subject to five years in prison and a $5,000 fine. 

The classification, the lawsuit argues, subjects the drugs to a “highly regulated legal scheme” that delays care. Previously, misoprostol was commonly stored in obstetric hemorrhage carts or in staff’s pockets. But under its new status, only a provider licensed to administer controlled substances can retrieve the drug from locked cabinets where other scheduled substances, like narcotics, are stored. As a New Orleans OB-GYN told my colleague Julianne McShane, in a medical emergency, time is of the essence, and even a delay of several minutes can have disastrous consequences.

Pregnant women were already being denied care before the medications were reclassified. One of the plaintiffs, Kaitlyn Joshua, was denied miscarriage care by two hospitals because of the state’s abortion ban. “Now lawmakers have passed yet another law making it harder to get care during a miscarriage, and they did it without following the requirements of the State’s constitution,” Joshua said in a news release.

On Wednesday, in a 6-3 decision, the Supreme Court ruled in favor of Virginia Gov. Glenn Youngkin’s decision to remove nearly 2,000 registered voters from the state’s rolls, after two lower federal courts deemed the purge illegal. At least 1,600 voters will now have to fight to get reinstated—with less than a week to Election Day.

“It was a lawless decision in which the Supreme Court did not explain its decision or rationale,” said Anna Dorman, counsel with voting rights advocacy group Protect Democracy.

Two months ago, Youngkin filed an executive order to purge Virginia’s voter rolls, ostensibly in a quest to prevent “noncitizens” from casting ballots. Since then, his administration has unceremoniously kicked thousands of actual citizens off the rolls, an outcome that advocates and election officials warned Youngkin about before he initiated the program. According to Dorman, most people have had their registration revoked due to simple clerical errors on DMV paperwork.

“There has been no prosecutions of any noncitizen for voting in Virginia in the last 20 years, despite Gov. Youngkin’s Election Integrity Unit searching high and low,” Dorman said. “But if there was, this program wouldn’t stop it. Those people can still just sign an affidavit and vote. So the only people actually being hurt by this are eligible US voters who are confused about whether they’re allowed to vote.”

As I reported last week, a judge with the Fourth Circuit Court of Appeals ruled that Youngkin’s purge violated the National Voter Registration Act, a law that stops states from removing ineligible voters from the rolls within 90 days of the election. On Sunday, an appeals court rep9ortedly upheld that decision, according to the Washington Post.

However, the Supreme Court’s conservative majority has tossed out those rulings, allowing the governor to remove as many voters as he pleases with little to no explanation of the legal reasoning.

Voting rights advocates warn that the court’s actions tie into Donald Trump’s bigger plan to undermine the results of the 2024 election. As my colleague Pema Levy reported, the conspiracy theory surrounding noncitizens voting in the 2024 election was stoked by Trump’s right-wing donors:

So who’s behind the push to make baseless claims of non-citizen voter fraud a bogeyman? According to a new report, the money funding the groups pushing the lie comes from the same stew of rightwing donors backing Trump, his authoritarian agenda, and the judges who enable him.

The non-citizen voting myth, in other words, is coming from the same activists who may seek to weaponize the lie for political gain this November. 

“This is just another attempt to launder conspiracy theories and lies in the public consciousness,” said Doman. “They’re repeating these lies so many times that even if people don’t necessarily believe any specific instance, they have a generalized sense that there is something amiss in order to deny the election results, if they don’t go their way.”

If you’ve been removed from Virginia’s rolls, all hope is not lost. Because the state allows same-day voter registration, anyone affected can reinstate their registration before voting, either during the early voting period or on Election Day. All they’d have to do is sign an affidavit confirming their citizenship at their polling location.

However, they must cast those votes in person. If you’re one of the many folks who rely on absentee ballots, then your voting options in Virginia’s elections are nonexistent.

“Anyone who wanted to vote absentee has been who has been purged under this program has been disenfranchised,” said Dorman. “That impacts college students, that impacts disabled individuals, that impacts people who just can’t get time off from work. And I think that that is contrary to the purpose of the National Voter Registration Act, which is the law that we sued under here.”

On Wednesday, in a 6-3 decision, the Supreme Court ruled in favor of Virginia Gov. Glenn Youngkin’s decision to remove nearly 2,000 registered voters from the state’s rolls, after two lower federal courts deemed the purge illegal. At least 1,600 voters will now have to fight to get reinstated—with less than a week to Election Day.

“It was a lawless decision in which the Supreme Court did not explain its decision or rationale,” said Anna Dorman, counsel with voting rights advocacy group Protect Democracy.

Two months ago, Youngkin filed an executive order to purge Virginia’s voter rolls, ostensibly in a quest to prevent “noncitizens” from casting ballots. Since then, his administration has unceremoniously kicked thousands of actual citizens off the rolls, an outcome that advocates and election officials warned Youngkin about before he initiated the program. According to Dorman, most people have had their registration revoked due to simple clerical errors on DMV paperwork.

“There has been no prosecutions of any noncitizen for voting in Virginia in the last 20 years, despite Gov. Youngkin’s Election Integrity Unit searching high and low,” Dorman said. “But if there was, this program wouldn’t stop it. Those people can still just sign an affidavit and vote. So the only people actually being hurt by this are eligible US voters who are confused about whether they’re allowed to vote.”

As I reported last week, a judge with the Fourth Circuit Court of Appeals ruled that Youngkin’s purge violated the National Voter Registration Act, a law that stops states from removing ineligible voters from the rolls within 90 days of the election. On Sunday, an appeals court rep9ortedly upheld that decision, according to the Washington Post.

However, the Supreme Court’s conservative majority has tossed out those rulings, allowing the governor to remove as many voters as he pleases with little to no explanation of the legal reasoning.

Voting rights advocates warn that the court’s actions tie into Donald Trump’s bigger plan to undermine the results of the 2024 election. As my colleague Pema Levy reported, the conspiracy theory surrounding noncitizens voting in the 2024 election was stoked by Trump’s right-wing donors:

So who’s behind the push to make baseless claims of non-citizen voter fraud a bogeyman? According to a new report, the money funding the groups pushing the lie comes from the same stew of rightwing donors backing Trump, his authoritarian agenda, and the judges who enable him.

The non-citizen voting myth, in other words, is coming from the same activists who may seek to weaponize the lie for political gain this November. 

“This is just another attempt to launder conspiracy theories and lies in the public consciousness,” said Doman. “They’re repeating these lies so many times that even if people don’t necessarily believe any specific instance, they have a generalized sense that there is something amiss in order to deny the election results, if they don’t go their way.”

If you’ve been removed from Virginia’s rolls, all hope is not lost. Because the state allows same-day voter registration, anyone affected can reinstate their registration before voting, either during the early voting period or on Election Day. All they’d have to do is sign an affidavit confirming their citizenship at their polling location.

However, they must cast those votes in person. If you’re one of the many folks who rely on absentee ballots, then your voting options in Virginia’s elections are nonexistent.

“Anyone who wanted to vote absentee has been who has been purged under this program has been disenfranchised,” said Dorman. “That impacts college students, that impacts disabled individuals, that impacts people who just can’t get time off from work. And I think that that is contrary to the purpose of the National Voter Registration Act, which is the law that we sued under here.”

As Donald Trump campaigns to be a dictator for one day, he’s asking: “Are you better off now than you were when I was president?” Great question! To help answer it, our Trump Files series is delving into consequential events from the 45th president’s time in office that Americans might have forgotten—or wish they had.

Donald Trump has said that if he is elected president again, he will use the Justice Department to prosecute political enemies. We should believe him, because he attempted to do just that in his first term, with some success. And he will be better prepared to execute his plans if he returns to the White House.

NPR recently tallied more than 100 times Trump called for the prosecution or jailing of his perceived foes. His stated targets include Kamala Harris, Joe Biden and his family, Barack Obama, Hillary Clinton, Nancy Pelosi, Liz Cheney, Adam Schiff, James Comey, Bill Barr, John Kelly, Mark Zuckerberg, federal prosecutors, election officials, journalists, and pro-Palestinian protestors. He reportedly wanted retired military officers who criticized him, Admiral William McRaven and General Stanley McChrystal, called back to active duty so they could be court-martialed. He suggested that Mark Milley, who previously served as Trump’s chairman of the Joint Chiefs of Staff, deserved to be executed.

The frequency of those threats makes them seem silly. Trump probably isn’t going to sic prosecutors on all those prominent people. But his record suggests he is serious about using the power of his office against many critics. Contrary to the claims of defenders like J.D. Vance—who said recently that Trump “didn’t go after his political opponents” while in office—Trump made sustained public and private efforts while in the White House to order up probes into critics and political opponents. Trump succeeded in numerous cases in having foes investigated, media reports and accounts of former aides show.

Lock Her Up

After calling for Hillary Clinton’s prosecution on the campaign trail, Trump, despite briefly disavowing the idea, pushed throughout his presidency for Clinton’s prosecution. This campaign came in public tweets and private pressure on aides, and was mounted alongside his anger over investigations into his campaign’s contacts with Russian agents in 2016. Trump pressured all three of his attorneys general to open or advance investigations targeting Clinton. They partly resisted but substantially complied.

Many people recall Trump’s fury at Attorney General Jeff Sessions for recusing himself from matters to the 2016 election—which led the appointment of special counsel Robert Mueller. But despite that pledge, Sessions partly appeased Trump by instructing the US attorney for Utah, John Huber, to reexamine Clinton’s use of a private email server and allegations about the Clinton Foundation. Sessions’ order came amid Trump’s repeated public calls for him to look into Clinton’s “crimes.” After firing Sessions in 2020, Trump privately urged acting Attorney General Matthew Whitaker to push Huber to be more aggressive, the Washington Post reported. When Huber’s investigation ended in 2020 without finding wrongdoing by Clinton, Trump publicly attacked the prosecutor as a “garbage disposal.”

But by then, Trump’s third AG, Bill Barr, had appointed John Durham, the Connecticut US attorney, to launch an investigation into the origins of the FBI’s Trump-Russia investigation. Barr named Durham on heels of misrepresenting Mueller’s report, which found that the Trump campaign “expected to benefit” from secret Russian help in 2016. The Durham appointment also came after reports that Trump and his advisers were seeking revenge against his investigators.

Durham’s effort floundered legally, with the acquittal of two of the three men charged with crimes related to the investigation. But the probe, which lasted four years, fared better as an exercise in arming Trump with talking points. Durham appeared to consider that part of his job, though he has publicly disputed that. When the Justice Department’s inspector general in 2019 issued a report that found no evidence the FBI’s Trump investigation was politically motivated, Durham, in consultation with Barr, issued a strange statement disagreeing, without offering any evidence for why.

Durham decided to charge Michael Sussmann, a lawyer who worked for Democrats in 2016, with lying to the FBI, despite evidence so thin two prosecutors quit in connection with the charge. Sussmann was acquitted in 2022, but through filings in the case, Durham publicly aired allegations about Clinton campaign efforts to advance the Russia story, details that did not appear necessary to his case. Right-wing news outlets in February 2022 jumped one such-Durham motion to falsely report the Clinton’s campaign had spied on Trump White House servers. In his final report in 2023, Durham extensively cited material he acknowledged was dubious possible Russian disinformation in an effort to suggest Clinton had helped drive the FBI probe into Trump.

FBI

After firing James Comey as FBI director in 2017, which resulted in Mueller’s appointment, Trump pressed for the Justice Department to prosecute Comey for mishandling sensitive government information by allegedly orchestrating leaks that were damaging to Trump. According to the New York Times, this pressure led to “two investigations of leaks potentially involving” Comey. The DOJ declined to charge Comey.

Other former FBI officials who drew Trump’s ire—former deputy FBI director Andrew McCabe, and Peter Strzok, originally the lead FBI agent on the Russia investigation—faced DOJ probes after Trump railed against them. Sessions fired McCabe the day before his 2018 retirement, in what appeared to be a deliberate act to deny him a pension and benefits. Prosecutors in 2019 tried to charge McCabe for allegedly lying to FBI officials about media contacts, but in an unusual move that suggests a weak case, a grand jury declined to return an indictment.

John Kerry

In a March 2019 press conference, Trump said former Secretary of State John Kerry, who negotiated the 2015 deal freezing Iran’s nuclear weapons development, could be prosecuted for violating the Logan Act, a 1799 law barring private US citizens from negotiating with foreign governments in disputes with the United States. Trump was irked at Kerry’s ongoing contacts with Iranian officials and by past threats by Mueller’s team to charge former national security adviser Michael Flynn with violating the act. Trump told reporters that Kerry should be charged, but “my people don’t want to do anything,” adding, “Only the Democrats do that kind of stuff.

False. Trump’s public and private efforts had by then already secured DOJ scrutiny of Kerry. Former Trump national security adviser John Bolton told the Times he’d witnessed Trump demand Kerry’s prosecution “on at least a half dozen occasions” in 2018 and 2019. Trump also made the case in tweets and public statements. Days after one of Trump’s tweets, in May 2018, a top DOJ official had told prosecutors in Manhattan to investigate Kerry’s contacts with Iranians, according to the Times. Geoffrey Berman, at the time the US attorney in Manhattan, wrote in a 2022 book that the Kerry probe appeared to result from Trump’s edict. “No one needed to talk with Trump to know what he wanted,” Berman wrote. “You could read his tweets.”

Trump succeeded in sparking investigations into his critics and political foes by continually pressing subordinates to deliver actual prosecutions, as former aides like Kelly, Bolton and White House counsel Don McGahn have revealed. In some cases, the resulting probes appear to have been solutions settled on by officials attempting to manage Trump’s pressure with partial measures.

But in a new term, Trump will surely be more aggressive and even less restrained, as his public threats make clear. The Supreme Court’s July declaration that the president has absolute immunity from prosecution for many types of official conduct will leave him with few worries about facing legal consequences for his own actions. And the aides who partly restrained him before will be gone, replaced by more sycophantic enablers.

As Trump pledges to pervert presidential power to prosecute critics, Americans have to take him at this word. If he wins, who is going to stop him?

On Friday, a Virginia judge ruled that Republican Gov. Glenn Youngkin’s recent purge of close to 2,000 voters from state rolls—within 90 days of November’s election—was illegal. Now, with that election less than two weeks away, the state must reinstate all 1,600 revoked registrations.

Fourth Circuit Court of Appeals Judge Patricia Giles found that Youngkin’s purge violated the National Voter Registration Act, a federal law that prevents states from removing ineligible voters from the rolls within 90 days of the election.

Last August, Youngkin issued an executive order that included several “ballot security” measures, including the authority to revoke thousands of Virginians’ voter registrations on the suspicion that they were not US citizens—a notion rooted in a GOP conspiracy theory popularized by Donald Trump and his allies.

Since then, his administration has been purging voters in waves, claiming to have revoked the registration of more than 6,000 non-citizens (and tens of thousands of people who had simply died).

“This program puts the voter registration and the fundamental rights of all Virginians on the line based on conspiracies that have no evidence,” said Anna Dorman, counsel with voting rights nonprofit Protect Democracy.

Earlier this year, Protect Democracy joined several other advocacy groups to file a lawsuit against Virginia’s Department of Elections, accusing Youngkin of trying to “delegitimize and subvert the results of the 2024 election if Donald Trump does not win.” A few days later, the Department of Justice filed its own lawsuit against Youngkin’s administration.

Youngkin has claimed that at least 1,500 “self-identified” non-citizens were removed from the rolls, but the data tells a different story.

On Wednesday, during court proceedings, the DOE was ordered to hand over the names of the people affected by this round of removals. According to Dorman, many of those listed were US citizens.

“We’ve only had this list for 48 hours, and we have already confirmed that there are many eligible US citizens who are on this list, both naturalized citizens and people who have been lifelong Virginia voters,” said Dorman.

She added: “There are nearly 100 people on the list who have been registered and voting in the Commonwealth for more than 10 years. So claims that this is impacting non-citizens are not true.”

While advocates hailed the ruling as a significant victory for voting rights, for many, the damage was already done. Since Monday is the deadline for anyone seeking an absentee ballot, those purged can no longer request one.

“Folks have until tonight to request their absentee ballots,” said Dorman, “Unfortunately, people are not going to be able to get back on rolls before that deadline.”

Youngkin plans to appeal the ruling, stating in a tweet that he was “prepared to take this to the U.S. Supreme Court if needed.” Many other Republicans have jumped to the governor’s defense, including former president Donald Trump, who hinted at a stop in Virginia in the near future.

Sleepy Joe Biden and Comrade Kamala Harris ridiculously accuse me of wanting to “weaponize” the Justice Department, when they have done all of the weaponizing. Now, their truly Weaponized Department of “Injustice,” and a Judge (appointed by Joe), have ORDERED the Great…

— Donald J. Trump (@realDonaldTrump) October 25, 2024

When the US Department of Health and Human Services finalized a rule in May asserting that gender dysphoria can be considered a disability under federal anti-discrimination laws, it codified what the overwhelming majority of courts have found for nearly a decade. The new rule put states on notice: Discrimination against transgender people in employment, education, health care, child care, housing, and elsewhere may violate federal disability protections, and the Biden administration was prepared to fight it.

Now, in a lawsuit led by Texas Attorney General Ken Paxton, 17 states are asking a federal court to strike down the rule in its entirety, including numerous provisions that have nothing to do with trans people. This isn’t a random collection of states; 15 of them have passed restrictions on gender-affirming care, and all have embraced myriad anti-trans policies. 

Among the states’ objections to the new federal rule: They would have to “expend time, money, and resources” to accommodate employees with gender dysphoria, including using the pronouns that align with their identities, eliminating sex-specific dress codes, and letting employees use gender-aligned bathrooms or locker rooms. Nebraska’s attorney general is concerned that his state’s restrictions on gender care put it at risk of disability rights complaints and federal investigations. South Dakota objects to the rule “essentially add[ing] a new category of potentially disabled individuals” whose gender care must be covered by Medicaid.

But gender dysphoria is just part of the 130-page federal rule. It also protects disabled parents’ rights in child welfare cases and prevents hospitals from using disability as a factor in determining who gets care in crisis situations, such as equipment shortages during a pandemic. It adds Long Covid to the list of conditions that may constitute a disability and strengthens protections against unnecessary institutionalization, requiring that care be offered in the least restrictive setting and, ideally, in a patient’s community. 

“The attack is really about the regulatory process of the federal government, and this will impact almost every interaction that a disabled person has with the services and supports that they receive.”

Striking down the entire rule would have wide-reaching implications for all disabled Americans and other marginalized groups who rely on federal agencies’ interpretations of decades-old laws to enforce their rights, says Mia Ives-Rublee, senior director of the Center for American Progress’ Disability Justice Initiative. “They’re utilizing LGBTQ issues as a wedge,” Ives-Rublee says. “The attack is really about the regulatory process of the federal government, and this will impact almost every interaction that a disabled person has with the services and supports that they receive.”

The new rule pertains to two federal statutes passed decades ago to protect people with disabilities on multiple fronts. The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by the federal government, federal contractors, and—in its Section 504—by any organizations or employers that receive federal funds. The Americans with Disabilities Act (ADA), signed into law in 1990, broadened disability protections into most aspects of public life, including education, access to businesses open to the public, and public transportation. Both statutes define a disability as “a physical or mental impairment” that “substantially limits” one or more major life activities. 

When the Rehabilitation Act and ADA were passed, gender dysphoria was not a recognized medical condition, and both statutes expressly excluded “transvestism, transsexualism,” and “gender identity disorders not resulting from physical impairments” from the definition of disability. But over the decades, medical experts and courts have come to understand that for many people who identify with a gender different from the one assigned to them at birth, there can be profound psychological distress and other major negative effects in their work and social lives. In 2013, gender dysphoria was added to the Diagnostic and Statistical Manual of Mental Disorders.

Since then, lawsuits by individuals—the primary way the ADA is enforced—have forged a body of legal decisions that recognize gender dysphoria as a protected health condition and its exclusion from disability protections as discriminatory, says Ben Klein, senior director of litigation and HIV law at GLBTQ Legal Advocates and Defenders. The exclusion of gender dysphoria “was based on obvious animus toward a disfavored group. That is a concept that judges who look at petitions have easily understood—the bias is so clear,” Klein says. 

The 4th Circuit Court of Appeals broke legal ground in 2022 when it became the first federal appeals court to rule on the issue of whether gender dysphoria could be considered a disability under federal disability protection statutes. The court determined that the basis of a gender dysphoria diagnosis—whether it causes a noticeably negative impact on daily life—distinguishes it from the ADA’s definition of gender identity disorder. (The US Supreme Court declined to hear the case in June 2023, letting the decision stand.) Lower federal courts have found, similar to the 4th Circuit, that gender dysphoria is distinct from gender identity disorder. Others have found that even if gender dysphoria is a gender identity disorder, it results from a physical impairment: a mismatch between a person’s physical body and gender identity that can be remedied through gender care. 

In finalizing its new rule—the first administrative update to Section 504 in half a century—the Department of Health and Human Services alluded to this body of case law, which it said has “shifted the legal landscape of disability discrimination protections.” But none of that matters much to the states that joined the Texas lawsuit, which was filed with little national media attention in late September. 

The lawsuit seizes upon the original exclusionary language in the ADA, claiming that what the medical community now considers gender dysphoria falls under the law’s concept of gender identity disorder. “The Biden Administration is once again abusing executive action to sidestep federal law and force unscientific, unfounded gender ideology onto the public,” Paxton said in a press release announcing the suit. “Texas is suing because HHS has no authority to unilaterally rewrite statutory definitions and classify ‘gender dysphoria’ as a disability.”

Beyond the gender dysphoria issue, the lawsuit also makes broad claims about “new regulatory burdens” and “substantial costs” associated with the rule’s impacts to state Medicaid programs. Alaska, Montana, and Nebraska, for instance, argue that the rule’s “least restrictive setting” requirement will be difficult to implement because of health care worker shortages and their states’ unique geographies. 

“One of the goals of the ADA is to address discrimination and stereotypes, particularly about stigmatized health conditions. Gender dysphoria is the quintessential stigmatized health condition.”

Klein and Ives-Rublee emphasized that both the Rehabilitation Act and ADA were written vaguely with the intent that, over the years, experts working for federal agencies would reexamine and refine the regulations implementing the statutes, as scientific and public understanding of disability evolves. When the ADA was passed, trans identity was pathologized, Klein says. “One of the goals of the ADA is to address discrimination and myths and stereotypes, particularly about stigmatized health conditions,” he tells me. “Gender dysphoria is the quintessential stigmatized health condition.”

The new Texas case is just one of many avenues GOP officials are using to enforce their anti-trans beliefs. As I’ve reported, Republican attorneys general—many from the same states as in the Paxton lawsuit—are also threatening major medical associations with criminal investigations for promoting trans youths’ access to gender care.

Ives-Rublee warns that the Texas suit is also part of a multifaceted attack on the power of federal agencies to interpret civil rights laws, including protections for pregnant workers and access to reproductive health care. This broad conservative effort to rip the teeth out of the administrative state was emboldened by a series of Supreme Court decisions last term, including one that ended courts’ expected deference to federal agency interpretations of vague laws. 

Because the gender dysphoria lawsuit was filed in the federal district court in Lubbock, Texas, any appeal will go to the 5th Circuit Court of Appeals, home to some of the most radically conservative decisions in recent legal history. If the 5th Circuit sides with the states in this case, it would create a conflict with the 4th Circuit decision that could force the Supreme Court, with its far-right supermajority, to weigh in. “I am almost 100 percent sure this is their intention,” Ives-Rublee says.

In late August, on the fringes of a press conference outside New York City Hall, a man wearing a “Kill your local pedophile” T-shirt and a “Babies Lives Matter” pin screamed at a transgender woman who had shown up to protest the speeches. “Is it a boy or a girl?” the man yelled at the protester, gripping a rainbow Trump flag in his fists. “She shaves her armpits, so it must be a man,” he spat, cursing and hurling epithets. 

On the podium, the transphobic messaging was less vile but no less overt. Speakers were urging the small crowd to vote against Proposal 1, a measure on the November ballot that would strengthen protections for abortion in New York state—and much more. Prop 1 is a statewide version of the Equal Rights Amendment (ERA), the 101-year-old feminist effort to guarantee equal rights for women in the US Constitution. While the federal ERA has been largely stalled since the 1970s, many states have adopted their own versions. New York’s constitution, however, currently bans discrimination based only on race and religion, not sex. That could change if voters accept Prop 1’s expansive vision of equality, which includes protections for segments of the population that historically have been marginalized and demonized, including LGBTQ people.

In a year in which support for abortion rights could determine control of statehouses, Congress, and the presidency, Prop 1 seemed like a shoo-in, especially in the blue state of New York. Yet with a little over a month before the election, the effort to pass the New York ERA has been stumbling. An opposition campaign, calling itself the Coalition to Protect Kids, has fixated on the amendment’s protections for trans people, exaggerating its impact on women’s sports and pushing misleading claims about its effects on parental rights. “By solidifying new constitutional rights based on gender identity, Prop 1 is sacrificing the rights of girls,” Amaya Perez, the New York chapter leader of Gays Against Groomers, a right-wing group known for pushing extremist anti-LBGTQ narratives, said at the press conference. 

Those tactics appear to be working. Leaked polling from the pro-Prop 1 campaign shows that voters find the opposition’s messages extremely persuasive. Months ago, Democrats saw the amendment as a means of motivating liberal turnout in November. Now, state Democratic politics are in a precarious state following the indictment of New York Mayor Eric Adams, and Republican candidates are turning the tables, using opposition to Prop 1 as a rallying cry for their own voters.

“They’re trying to use [trans rights] as a wedge issue,” says Faris Ilyas, policy counsel at the New Pride Agenda, an LGBTQ rights group supporting Prop 1. “Even in New York, it’s a working strategy. We’re a little bit scared of what might happen in November.”

It’s an old trick in conservative politics to argue that equal rights are bad for women. The federal ERA, which says equal rights cannot be denied “on account of sex,” was first drafted by leaders of the women’s suffrage movement in 1923 and introduced in every session of Congress for the next five decades. After it finally passed both the House and Senate in 1972, the next step was to go to the states: An amendment must be ratified by three-quarters of state legislatures before it can be added to the US Constitution. But conservative lawyer Phyllis Schlafly mounted a successful guerrilla campaign claiming the amendment would erase all differences between men and women in the law, thus forcing women into military combat, permitting same-sex marriage, and allowing men to use women’s restrooms. The ERA failed to reach the ratification threshold within the seven-year deadline, though efforts to revive and certify it continue.

Even without the ERA, Schlafly’s predictions have more or less come true: The culture already was shifting toward the kinds of gender equality the amendment attempted to codify. Yet her arguments still hold power. Warnings about mixed-gender bathrooms were used to defeat Houston’s Equal Rights Ordinance in 2015—around the same time conservative legal and political organizations, including the Schlafly-founded Eagle Forum, began whipping up the contemporary anti-trans panic, starting with bills restricting trans students’ bathroom access.

The version of the ERA that will appear on New York ballots doesn’t include the word “abortion,” but it was designed first and foremost to protect the right to choose. The effort started in 2019, when Democrats took control of the state Senate for the first time in a decade. They swiftly passed the Reproductive Health Act, removing abortion from New York’s criminal code—where it had been largely forgotten during the Roe v. Wade era—and protecting access to the procedure through 24 weeks’ gestation. (The new law also allowed abortion later in pregnancy if the fetus was not viable or if the pregnant person’s life or health was in danger.) But soon after, state Sen. Liz Krueger of Manhattan, who had spent a decade shepherding the new law, decided the work wasn’t done. “I realized, nope, not good enough,” Krueger says. “We’ve got to actually start to open up our constitution and modernize it.”

With the confirmation of Justice Brett Kavanaugh to the US Supreme Court in 2018, anti-abortion strategists finally had the far-right majority they needed to overturn Roe. “We were basically a pro-choice blue state with people not really understanding how at risk we were from bad law,” Krueger says. If New York enshrined abortion rights in the state constitution, she figured, those protections would be harder to repeal if the political winds eventually shifted.

So Krueger and Assembly Member Rebecca Seawright, also from Manhattan, convened scholars and reproductive law experts to craft an amendment. Rather than simply writing protections for abortion seekers into the constitution, they decided to swing for the fences: a measure modeled on the federal ERA but even broader. In addition to existing protections for race, color, and religion, Prop 1 would ban government discrimination based on disability, age, ethnicity, national origin, and sex—including sexual orientation, gender identity, and gender expression. The resulting amendment, now known as Prop 1, would make New York’s anti-discrimination protections the “most extensive” in the nation, says Ting Ting Cheng, director of the ERA Project at Columbia Law School, who consulted with the drafters. 

“We were basically a pro-choice blue state with people not really understanding how at risk we were from bad law.”

There are nine other abortion rights ballot initiatives across the country this year, but when it comes to reproductive rights, New York’s ERA is unique. While most of the other measures essentially restore Roe, New York’s approaches abortion “as a matter of gender equality,” says Katharine Bodde, policy co-director of the New York Civil Liberties Union, one of the amendment’s chief backers. To accomplish this, it explicitly says discrimination based on pregnancy status, pregnancy outcomes, and reproductive health care and autonomy count as “sex discrimination” and are forbidden. The idea is to leave little room for judges to interpret the ERA in ways that wouldn’t protect abortion rights or pregnant people in the future. After all, courts have wide latitude to interpret ambiguous language, and they sometimes reconsider their old interpretations—as the US Supreme Court did when it reversed Roe. This past spring, Florida’s Supreme Court overturned a prior decision that said the state constitution protected abortion—after being stacked with judges appointed by Republican Gov. Ron DeSantis. And the Iowa Supreme Court has upheld a six-week abortion ban despite the state’s ERA, which broadly enshrines gender equality but doesn’t get into specifics. “We’re taking no chances in New York with courts interpreting ‘sex discrimination’ narrowly,” Bodde says. 

That scares abortion opponents. New York’s Catholic bishops told their 35,000 mailing list subscribers in September that Prop 1 would “permanently legalize abortion without restriction” and “render impossible any change to the law if the hearts and minds of New Yorkers were ever to shift toward protecting the child in the womb.”

Prop 1 follows an ERA in Nevada two years ago, which passed with 58 percent of the vote after being pitched to the state’s fiercely independent residents as a means of protecting individual liberty. The Nevada ERA overcame opposition from anti-abortion forces—including the religious-right legal firm Alliance Defending Freedom—which predicted that the measure would void Nevada’s ban on Medicaid coverage for abortion. (It was right.) Next up: An expansive ERA is slated for the 2026 ballot in Minnesota, and another is on the table in Oregon. “It’s incremental,” Cheng says. “Every state that does something new, it creates a new bar or a new precedent for other states to go beyond that.”

These amendments work in two ways. First, they harden the state’s existing constellation of anti-discrimination laws by adding them to the state constitution. And second, they give individuals strong constitutional grounds to challenge discrimination by the government. In New York, Prop 1’s  protections for different “pregnancy outcomes” might be used to defend women from criminal prosecution after self-managed abortions or losing a pregnancy in a car accident—both of which have happened in New York, says Dana Sussman, senior vice president of Pregnancy Justice, a nonprofit legal advocacy group. And it might be used to challenge state hospitals that drug test pregnant women, sometimes without their knowledge or consent—policies that can lead to child protection cases and family separation.

Other activists hope the ERA could be used to overturn the state’s 24-week gestational limit, which forces some New Yorkers to travel out of state if—for one of the many reasons women can face delays in accessing care—they need a later abortion. Randi Gregory, vice president of political and legislative affairs at the National Institute for Reproductive Health Action Fund, believes Prop 1 would protect abortion rights “at all trimesters.” “We hope that it will be a framework for other states,” Gregory adds. “We’re really excited to be running an expansive and proactive amendment.”

But that’s only if they can get it passed—a task that looks increasingly daunting.

The coalition behind Prop 1 made big promises in June 2023, after New York Democrats’ embarrassing showing in the 2022 election. Their losses had helped flip control of the US House of Representatives back to the GOP, while former US Rep. Lee Zeldin, an anti-abortion Republican, came within 6 points of winning the governorship.

State Democrats evidently had an excitement problem—one they hoped the ERA could solve. Gov. Kathy Hochul and Sen. Kirsten Gillibrand told the New York Times that they wanted to use the amendment to motivate 2024 turnout. Progressive groups formed New Yorkers for Equal Rights, a committee that pledged to spend $20 million ginning up enthusiasm.

Yet in early September, Politico reported that the committee had raised less than $3 million to counter an opposition that had proven surprisingly well-organized and effective. Suddenly, Democrats were afraid of how Prop 1 might affect their candidates in tight races. In the ensuing scramble, Hochul announced $1 million for TV ads and direct mail and issued a statement: “It’s critical voters know that an abortion amendment is on the ballot in New York this year,” she said. “New Yorkers deserve the freedom to control their own lives and health care decisions, including the right to abortion regardless of who’s in office.”

The opposition campaign, the Coalition to Protect Kids, is largely funded by an upstate anti-abortion activist, Carol Crossed, who is vice president of Feminists Choosing Life of New York. Yet it has leaned heavily on anti-trans rhetoric, arguing the amendment would increase trans people’s access to girls’ sports, women’s bathrooms, and gender-affirming medical care—and that these things would be dangerous. “Anti-abortion extremists are pushing a harmful and cruel agenda,” says Sasha Ahuja, campaign director for New Yorkers for Equal Rights. “They’re lying about a small handful of innocent kids to divide New Yorkers and distract us from what this amendment is actually about: protecting the right to abortion, guaranteeing our personal freedoms, and protecting all of us against government discrimination.”

“They’re lying . . . [to] distract us from what this amendment is actually about: protecting the right to abortion, guaranteeing our personal freedoms, and protecting all of us against government discrimination.”

According to New York politics magazine City & State, internal polling shared with ERA proponents in late August found that 64 percent of voters would definitely, likely, or lean toward voting yes on the amendment when presented with its ballot language. But support plummeted by 24 percentage points after voters heard an attack message focused on girls’ sports, transgender protections, and immigration. (Another blatant lie spread by opponents is that Prop 1 would allow undocumented immigrants to vote.)

Ilyas believes the anti-trans messaging gains credence because many voters don’t have personal experience or relationships with trans people. “When you don’t know a trans person, you have this well-funded messaging at you, and people that you trust are saying the same exact thing and reiterating it, it makes sense for even the average New Yorker who’s middle of the road to believe it,” Ilyas says.

Anti-trans attacks have become a go-to strategy for conservative groups fighting abortion rights ballot initiatives. Opponents to Ohio’s abortion rights measure last year claimed it would permit minors to undergo gender-affirming surgery “without parents’ knowledge or consent” and dubbed it an “anti-parent amendment.” (Such surgeries for minors are very rare, and consent from parents or guardians is required.) In Missouri, a last-ditch lawsuit in September tried to block an abortion rights measure from this fall’s ballot by arguing that it might affect laws around single-sex bathrooms and that the voter petition should have disclosed that. (The state Supreme Court didn’t buy it.)

In New York, Prop 1 supporters have repeatedly pointed out that the amendment says nothing directly about trans participation in sports. In fact, trans inclusion in sports is already New York’s status quo, thanks to existing anti-discrimination laws and a state policy allowing trans students to participate on sports teams matching their gender identity. But like Phyllis Schlafly, Prop 1’s opponents love a dire warning: Lawn signs saying, “Save Girls Sports, Vote No Prop 1,” have become a regular sight in some areas. Republican politicians have been picking up on the theme, including Zeldin, the former congressman, and Gina Arena, a GOP candidate for the state Senate from the lower Hudson Valley.

On Long Island, Nassau County Executive Bruce Blakeman and the Republican-dominated county legislature passed a law this past summer blocking permits for women’s sports teams that include trans women, preventing them from using more than 100 county-run parks and athletics facilities. In response, the New York Civil Liberties Union sued the county on behalf of a women’s roller derby league, citing existing New York civil and human rights laws that forbid discrimination based on gender identity, sex, and disability. If the ERA was in the state constitution, lawyers for the league would doubtless argue that Nassau County had violated it as well. “Transgender athletes have been competing and allowed to compete in the state for a really long time now,” Cheng says. “That’s not going to change because of the ERA.”

“Transgender athletes have been competing and allowed to compete in the state for a really long time now. That’s not going to change because of the ERA.”

Still, uncertainty around which laws the ERA might challenge has been a boon to opponents. On its website, the Coalition to Protect Kids claims that banning age discrimination, for instance, would gut laws governing the drinking age, statutory rape, and parental consent for minors to receive medical treatments—especially gender-affirming care. Bodde dismisses these arguments as “misinformation” meant to “stir fear.” Courts have been clear that constitutional rights apply differently to minors and adults, she says, even despite laws forbidding age discrimination. “The state has long been able to create different rules when it comes to young people, whether that’s ensuring a certain age before people can learn how to drive or vote or purchase alcohol.”

But fear and confusion are powerful tools. Prop 1’s opponents have dubbed the ERA the “Parent Replacement Act.” On social media, the Coalition to Protect Kids has repeatedly cited the American College of Pediatricians, a misleadingly named fringe group of anti-LGBTQ doctors whose frequent declarations against gender-affirming care run counter to the conclusions of dozens of major medical associations. Sometimes the claims slip into self-parody: “If Prop One passes…children will mutilate themselves without the benefit of parental guidance,” reads a mailer sent to voters by the New York Republican State Committee. 

For Ilyas, who is transmasculine, the extremist rhetoric feels very personal—and deeply worrisome. “People don’t think that it could happen in New York, just because it’s New York,” Ilyas says. “These people do exist in New York, and they just maybe haven’t had an outlet.”

In late August, on the fringes of a press conference outside New York City Hall, a man wearing a “Kill your local pedophile” T-shirt and a “Babies Lives Matter” pin screamed at a transgender woman who had shown up to protest the speeches. “Is it a boy or a girl?” the man yelled at the protester, gripping a rainbow Trump flag in his fists. “She shaves her armpits, so it must be a man,” he spat, cursing and hurling epithets. 

On the podium, the transphobic messaging was less vile but no less overt. Speakers were urging the small crowd to vote against Proposal 1, a measure on the November ballot that would strengthen protections for abortion in New York state—and much more. Prop 1 is a statewide version of the Equal Rights Amendment (ERA), the 101-year-old feminist effort to guarantee equal rights for women in the US Constitution. While the federal ERA has been largely stalled since the 1970s, many states have adopted their own versions. New York’s constitution, however, currently bans discrimination based only on race and religion, not sex. That could change if voters accept Prop 1’s expansive vision of equality, which includes protections for segments of the population that historically have been marginalized and demonized, including LGBTQ people.

In a year in which support for abortion rights could determine control of statehouses, Congress, and the presidency, Prop 1 seemed like a shoo-in, especially in the blue state of New York. Yet with a little over a month before the election, the effort to pass the New York ERA has been stumbling. An opposition campaign, calling itself the Coalition to Protect Kids, has fixated on the amendment’s protections for trans people, exaggerating its impact on women’s sports and pushing misleading claims about its effects on parental rights. “By solidifying new constitutional rights based on gender identity, Prop 1 is sacrificing the rights of girls,” Amaya Perez, the New York chapter leader of Gays Against Groomers, a right-wing group known for pushing extremist anti-LBGTQ narratives, said at the press conference. 

Those tactics appear to be working. Leaked polling from the pro-Prop 1 campaign shows that voters find the opposition’s messages extremely persuasive. Months ago, Democrats saw the amendment as a means of motivating liberal turnout in November. Now, state Democratic politics are in a precarious state following the indictment of New York Mayor Eric Adams, and Republican candidates are turning the tables, using opposition to Prop 1 as a rallying cry for their own voters.

“They’re trying to use [trans rights] as a wedge issue,” says Faris Ilyas, policy counsel at the New Pride Agenda, an LGBTQ rights group supporting Prop 1. “Even in New York, it’s a working strategy. We’re a little bit scared of what might happen in November.”

It’s an old trick in conservative politics to argue that equal rights are bad for women. The federal ERA, which says equal rights cannot be denied “on account of sex,” was first drafted by leaders of the women’s suffrage movement in 1923 and introduced in every session of Congress for the next five decades. After it finally passed both the House and Senate in 1972, the next step was to go to the states: An amendment must be ratified by three-quarters of state legislatures before it can be added to the US Constitution. But conservative lawyer Phyllis Schlafly mounted a successful guerrilla campaign claiming the amendment would erase all differences between men and women in the law, thus forcing women into military combat, permitting same-sex marriage, and allowing men to use women’s restrooms. The ERA failed to reach the ratification threshold within the seven-year deadline, though efforts to revive and certify it continue.

Even without the ERA, Schlafly’s predictions have more or less come true: The culture already was shifting toward the kinds of gender equality the amendment attempted to codify. Yet her arguments still hold power. Warnings about mixed-gender bathrooms were used to defeat Houston’s Equal Rights Ordinance in 2015—around the same time conservative legal and political organizations, including the Schlafly-founded Eagle Forum, began whipping up the contemporary anti-trans panic, starting with bills restricting trans students’ bathroom access.

The version of the ERA that will appear on New York ballots doesn’t include the word “abortion,” but it was designed first and foremost to protect the right to choose. The effort started in 2019, when Democrats took control of the state Senate for the first time in a decade. They swiftly passed the Reproductive Health Act, removing abortion from New York’s criminal code—where it had been largely forgotten during the Roe v. Wade era—and protecting access to the procedure through 24 weeks’ gestation. (The new law also allowed abortion later in pregnancy if the fetus was not viable or if the pregnant person’s life or health was in danger.) But soon after, state Sen. Liz Krueger of Manhattan, who had spent a decade shepherding the new law, decided the work wasn’t done. “I realized, nope, not good enough,” Krueger says. “We’ve got to actually start to open up our constitution and modernize it.”

With the confirmation of Justice Brett Kavanaugh to the US Supreme Court in 2018, anti-abortion strategists finally had the far-right majority they needed to overturn Roe. “We were basically a pro-choice blue state with people not really understanding how at risk we were from bad law,” Krueger says. If New York enshrined abortion rights in the state constitution, she figured, those protections would be harder to repeal if the political winds eventually shifted.

So Krueger and Assembly Member Rebecca Seawright, also from Manhattan, convened scholars and reproductive law experts to craft an amendment. Rather than simply writing protections for abortion seekers into the constitution, they decided to swing for the fences: a measure modeled on the federal ERA but even broader. In addition to existing protections for race, color, and religion, Prop 1 would ban government discrimination based on disability, age, ethnicity, national origin, and sex—including sexual orientation, gender identity, and gender expression. The resulting amendment, now known as Prop 1, would make New York’s anti-discrimination protections the “most extensive” in the nation, says Ting Ting Cheng, director of the ERA Project at Columbia Law School, who consulted with the drafters. 

“We were basically a pro-choice blue state with people not really understanding how at risk we were from bad law.”

There are nine other abortion rights ballot initiatives across the country this year, but when it comes to reproductive rights, New York’s ERA is unique. While most of the other measures essentially restore Roe, New York’s approaches abortion “as a matter of gender equality,” says Katharine Bodde, policy co-director of the New York Civil Liberties Union, one of the amendment’s chief backers. To accomplish this, it explicitly says discrimination based on pregnancy status, pregnancy outcomes, and reproductive health care and autonomy count as “sex discrimination” and are forbidden. The idea is to leave little room for judges to interpret the ERA in ways that wouldn’t protect abortion rights or pregnant people in the future. After all, courts have wide latitude to interpret ambiguous language, and they sometimes reconsider their old interpretations—as the US Supreme Court did when it reversed Roe. This past spring, Florida’s Supreme Court overturned a prior decision that said the state constitution protected abortion—after being stacked with judges appointed by Republican Gov. Ron DeSantis. And the Iowa Supreme Court has upheld a six-week abortion ban despite the state’s ERA, which broadly enshrines gender equality but doesn’t get into specifics. “We’re taking no chances in New York with courts interpreting ‘sex discrimination’ narrowly,” Bodde says. 

That scares abortion opponents. New York’s Catholic bishops told their 35,000 mailing list subscribers in September that Prop 1 would “permanently legalize abortion without restriction” and “render impossible any change to the law if the hearts and minds of New Yorkers were ever to shift toward protecting the child in the womb.”

Prop 1 follows an ERA in Nevada two years ago, which passed with 58 percent of the vote after being pitched to the state’s fiercely independent residents as a means of protecting individual liberty. The Nevada ERA overcame opposition from anti-abortion forces—including the religious-right legal firm Alliance Defending Freedom—which predicted that the measure would void Nevada’s ban on Medicaid coverage for abortion. (It was right.) Next up: An expansive ERA is slated for the 2026 ballot in Minnesota, and another is on the table in Oregon. “It’s incremental,” Cheng says. “Every state that does something new, it creates a new bar or a new precedent for other states to go beyond that.”

These amendments work in two ways. First, they harden the state’s existing constellation of anti-discrimination laws by adding them to the state constitution. And second, they give individuals strong constitutional grounds to challenge discrimination by the government. In New York, Prop 1’s  protections for different “pregnancy outcomes” might be used to defend women from criminal prosecution after self-managed abortions or losing a pregnancy in a car accident—both of which have happened in New York, says Dana Sussman, senior vice president of Pregnancy Justice, a nonprofit legal advocacy group. And it might be used to challenge state hospitals that drug test pregnant women, sometimes without their knowledge or consent—policies that can lead to child protection cases and family separation.

Other activists hope the ERA could be used to overturn the state’s 24-week gestational limit, which forces some New Yorkers to travel out of state if—for one of the many reasons women can face delays in accessing care—they need a later abortion. Randi Gregory, vice president of political and legislative affairs at the National Institute for Reproductive Health Action Fund, believes Prop 1 would protect abortion rights “at all trimesters.” “We hope that it will be a framework for other states,” Gregory adds. “We’re really excited to be running an expansive and proactive amendment.”

But that’s only if they can get it passed—a task that looks increasingly daunting.

The coalition behind Prop 1 made big promises in June 2023, after New York Democrats’ embarrassing showing in the 2022 election. Their losses had helped flip control of the US House of Representatives back to the GOP, while former US Rep. Lee Zeldin, an anti-abortion Republican, came within 6 points of winning the governorship.

State Democrats evidently had an excitement problem—one they hoped the ERA could solve. Gov. Kathy Hochul and Sen. Kirsten Gillibrand told the New York Times that they wanted to use the amendment to motivate 2024 turnout. Progressive groups formed New Yorkers for Equal Rights, a committee that pledged to spend $20 million ginning up enthusiasm.

Yet in early September, Politico reported that the committee had raised less than $3 million to counter an opposition that had proven surprisingly well-organized and effective. Suddenly, Democrats were afraid of how Prop 1 might affect their candidates in tight races. In the ensuing scramble, Hochul announced $1 million for TV ads and direct mail and issued a statement: “It’s critical voters know that an abortion amendment is on the ballot in New York this year,” she said. “New Yorkers deserve the freedom to control their own lives and health care decisions, including the right to abortion regardless of who’s in office.”

The opposition campaign, the Coalition to Protect Kids, is largely funded by an upstate anti-abortion activist, Carol Crossed, who is vice president of Feminists Choosing Life of New York. Yet it has leaned heavily on anti-trans rhetoric, arguing the amendment would increase trans people’s access to girls’ sports, women’s bathrooms, and gender-affirming medical care—and that these things would be dangerous. “Anti-abortion extremists are pushing a harmful and cruel agenda,” says Sasha Ahuja, campaign director for New Yorkers for Equal Rights. “They’re lying about a small handful of innocent kids to divide New Yorkers and distract us from what this amendment is actually about: protecting the right to abortion, guaranteeing our personal freedoms, and protecting all of us against government discrimination.”

“They’re lying . . . [to] distract us from what this amendment is actually about: protecting the right to abortion, guaranteeing our personal freedoms, and protecting all of us against government discrimination.”

According to New York politics magazine City & State, internal polling shared with ERA proponents in late August found that 64 percent of voters would definitely, likely, or lean toward voting yes on the amendment when presented with its ballot language. But support plummeted by 24 percentage points after voters heard an attack message focused on girls’ sports, transgender protections, and immigration. (Another blatant lie spread by opponents is that Prop 1 would allow undocumented immigrants to vote.)

Ilyas believes the anti-trans messaging gains credence because many voters don’t have personal experience or relationships with trans people. “When you don’t know a trans person, you have this well-funded messaging at you, and people that you trust are saying the same exact thing and reiterating it, it makes sense for even the average New Yorker who’s middle of the road to believe it,” Ilyas says.

Anti-trans attacks have become a go-to strategy for conservative groups fighting abortion rights ballot initiatives. Opponents to Ohio’s abortion rights measure last year claimed it would permit minors to undergo gender-affirming surgery “without parents’ knowledge or consent” and dubbed it an “anti-parent amendment.” (Such surgeries for minors are very rare, and consent from parents or guardians is required.) In Missouri, a last-ditch lawsuit in September tried to block an abortion rights measure from this fall’s ballot by arguing that it might affect laws around single-sex bathrooms and that the voter petition should have disclosed that. (The state Supreme Court didn’t buy it.)

In New York, Prop 1 supporters have repeatedly pointed out that the amendment says nothing directly about trans participation in sports. In fact, trans inclusion in sports is already New York’s status quo, thanks to existing anti-discrimination laws and a state policy allowing trans students to participate on sports teams matching their gender identity. But like Phyllis Schlafly, Prop 1’s opponents love a dire warning: Lawn signs saying, “Save Girls Sports, Vote No Prop 1,” have become a regular sight in some areas. Republican politicians have been picking up on the theme, including Zeldin, the former congressman, and Gina Arena, a GOP candidate for the state Senate from the lower Hudson Valley.

On Long Island, Nassau County Executive Bruce Blakeman and the Republican-dominated county legislature passed a law this past summer blocking permits for women’s sports teams that include trans women, preventing them from using more than 100 county-run parks and athletics facilities. In response, the New York Civil Liberties Union sued the county on behalf of a women’s roller derby league, citing existing New York civil and human rights laws that forbid discrimination based on gender identity, sex, and disability. If the ERA was in the state constitution, lawyers for the league would doubtless argue that Nassau County had violated it as well. “Transgender athletes have been competing and allowed to compete in the state for a really long time now,” Cheng says. “That’s not going to change because of the ERA.”

“Transgender athletes have been competing and allowed to compete in the state for a really long time now. That’s not going to change because of the ERA.”

Still, uncertainty around which laws the ERA might challenge has been a boon to opponents. On its website, the Coalition to Protect Kids claims that banning age discrimination, for instance, would gut laws governing the drinking age, statutory rape, and parental consent for minors to receive medical treatments—especially gender-affirming care. Bodde dismisses these arguments as “misinformation” meant to “stir fear.” Courts have been clear that constitutional rights apply differently to minors and adults, she says, even despite laws forbidding age discrimination. “The state has long been able to create different rules when it comes to young people, whether that’s ensuring a certain age before people can learn how to drive or vote or purchase alcohol.”

But fear and confusion are powerful tools. Prop 1’s opponents have dubbed the ERA the “Parent Replacement Act.” On social media, the Coalition to Protect Kids has repeatedly cited the American College of Pediatricians, a misleadingly named fringe group of anti-LGBTQ doctors whose frequent declarations against gender-affirming care run counter to the conclusions of dozens of major medical associations. Sometimes the claims slip into self-parody: “If Prop One passes…children will mutilate themselves without the benefit of parental guidance,” reads a mailer sent to voters by the New York Republican State Committee. 

For Ilyas, who is transmasculine, the extremist rhetoric feels very personal—and deeply worrisome. “People don’t think that it could happen in New York, just because it’s New York,” Ilyas says. “These people do exist in New York, and they just maybe haven’t had an outlet.”

This story was originally published by the Guardian and is reproduced here as part of the Climate Desk collaboration.

A right-wing organization is attacking efforts to educate judges about the climate crisis. The group appears to be connected to Leonard Leo, the architect of the right-wing takeover of the American judiciary who helped select Donald Trump’s Supreme Court nominees, the Guardian has learned.

The Washington, DC-based nonprofit Environmental Law Institute (ELI)’s Climate Judiciary Project holds seminars for lawyers and judges about the climate crisis. It aims to “provide neutral, objective information to the judiciary about the science of climate change as it is understood by the expert scientific community and relevant to current and future litigation,” according to ELI’s website.

The American Energy Institute, a right-wing, pro-fossil fuel think tank, has been attacking ELI and its climate trainings in recent months. In August, the organization published a report saying ELI was “corruptly influencing the courts and destroying the rule of law to promote questionable climate science.”

ELI’s Climate Judiciary Project is “falsely portraying itself as a neutral entity teaching judges about questionable climate science,” the report says. In reality, the American Energy Institute claims, the project is a partner to the more than two dozen US cities and states who are suing big oil for allegedly sowing doubt about the climate crisis despite longstanding knowledge of the climate dangers of coal, oil, and gas usage.

In a PowerPoint presentation about the report found on its website, the group says the Climate Judiciary Project (CJP) is “wholly aligned with the climate change plaintiffs and helps them corruptly influence judges behind closed doors.”

“Their true purpose is to preview the plaintiffs’ arguments in the climate cases in an ex parte setting,” the presentation says.

“The idea that [the Environmental Law Institute] is corruptly influencing the court from the left…is complete disinformation.”

Both the report and the PowerPoint presentation link the American Energy Institute to CRC Advisors, a public relations firm chaired by right-wing dark money impresario Leo. Given his outsize role in shaping the US judiciary—Leo helped select multiple judicial nominees for former president Donald Trump, including personally lobbying for Brett Kavanaugh’s appointment—his firm’s role in opposing climate litigation is notable.

“He was greatly responsible for moving our federal court systems to the right,” said David Armiak, the research director for Center for Media and Democracy, a watchdog group tracking money in politics, of Leo. CRC Advisors’ work with the American Energy Institute, Armiak said, seemed “to delegitimize a group that’s seeking to inform judges or the judicial system of climate science, something that [Leo] also opposed with some of his other efforts.”

The American Energy Institute report’s document properties show that its author was Maggie Howell, director of branding and design at CRC Advisors. And the PowerPoint’s document properties lists CRC Advisors’s vice president, Kevin Daley, as the author.

Neither CRC Advisors nor Leo responded to requests for comment.

In an email, the institute’s CEO, Jason Isaac, said: “American Energy Institute employed CRC Advisors to edit and promote our groundbreaking report on the corrupt relationship between our federal court system and leftwing dark money groups.”

But Kert Davies, the director of special investigations at the nonprofit Center for Climate Integrity, who shared the report and PowerPoint with the Guardian, said ELI is “far from leftwing.”

The institute’s staff include a wide variety of legal and climate experts. Its board includes executives from Shell Group and BP—oil companies that have been named as defendants in climate litigation—and a partner at a law firm that represents Chevron. Two partners with the firm Baker Botts LLP, which represents Sunoco LP and its subsidiary, Aloha Petroleum Ltd, in a climate lawsuit filed by Honolulu, also sit on ELI’s leadership council, E&E News previously reported.

“ELI’s seminars are giving judges the ABCs of climate change, which is a complicated subject that they ought to know about,” said Davies. “The idea that they’re corruptly influencing the court from the left…is complete disinformation.”

Asked for comment about ELI’s connection to oil companies, the American Energy Institute CEO, Isaac, said that “all of those companies have embraced and/or are pushing political agendas” that are “contrary to the best interest of Americans, American energy producers, and human flourishing,” including environmental, social, and governance investing and diversity, equity and inclusion.

Isaac described oil and gas as keys to prosperity. “I live a high-carbon lifestyle,” he said. “I wish the rest of the world could, too.”

“They are the appeasers, the ones feeding the crocodiles,” he said. He did not respond to questions about the extent of the relationship between the American Energy Institute and CRC Advisors.

In a statement, Nick Collins, a spokesperson for ELI, called the American Energy Institute report “full of misinformation and created by an organization whose leadership regularly spreads false claims about climate science,” and described the CJP curriculum as “fact-based and science-first, developed with a robust peer review process that meets the highest scholarly standards.”

The American Energy Institute’s attack on the judicial climate education program comes as the supreme court considers litigation that could put big oil on the hook for billions of dollars.

Honolulu is one of dozens of cities and states to sue oil majors for allegedly hiding the dangers of their products from the public. Hawaii’s supreme court ruled that the suit can go to trial, but the defendants petitioned the US Supreme Court to review that decision, arguing the cases should be thrown out because emissions are a federal issue that cannot be tried in state courts.

This past spring, far-right fossil fuel allies launched an unprecedented campaign pressuring the Supreme Court to side with the defendants and shield fossil fuel companies from the litigation. Several of the groups behind the campaign have ties to Leo.

In June, the Supreme Court asked the Biden administration to weigh in on the defendants’ request. Biden officials could respond as soon as this week. “It’s doubtful that AEI’s timing of their report release was a coincidence,” said Davies.

The Supreme Court may soon weigh in on another case, too: In April, 20 Republican state attorneys general filed “friend of the court” briefs asking the court to prevent states from being able to sue oil companies for climate damages. All of the signatories are members of the Republican Attorneys General Association, to which Leo’s Concord Fund is a major contributor.

In the weeks since its publication, the American Energy Institute report attacking ELI has received a surge of interest from right-wing media. Fox News featured the report, as did an array of conservative websites. On Thursday, The Hill published an op-ed by Ted Cruz attacking the ELI project. Other right-wing groups have previously questioned the motives of ELI.

CRC Advisors has counted Chevron, one of the plaintiffs in Honolulu’s lawsuit, as a client. In 2018, the Leo-led PR firm also worked on a campaign aimed at exonerating the Supreme Court justice Brett Kavanaugh from accusations of sexual assault.

Davies said it “would not be surprising” if CRC Advisors had a “large role” in the creation or promotion of the report attacking ELI’s judiciary trainings. “They’re known for running campaigns for corporate interests and rightwing interests,” he said.

In addition to his work with the American Energy Institute, Isaac also serves as a fellow at Texas Public Policy Foundation—a think tank backed by oil and gas companies that has recently garnered scrutiny for its role in drafting the ultraconservative policy playbook Project 2025.

A former Republican Texas state representative, Isaac has dedicated much of his career to disputing climate research and promoting misinformation to justify deregulation of the fossil fuel industry. Isaac recently responded to a Twitter post about Climate Week by the EPA, calling the conference on climate change “nothing more than a celebration of people suffering from mental illness, #EcoDysphoria, with those attending insisting the rest of us catch it.”

On a September 25 episode of the right-wing Wisconsin talk radio program “The Vicki McKenna Show,” Isaac offered a defense of the fossil fuel industry, describing oil and gas as keys to prosperity. “I live a high-carbon lifestyle,” he said. “I wish the rest of the world could, too.”

Formerly known as Texas Natural Gas Foundation, the American Energy Institute on its face appears to contribute little more than public relations work in defense of the fossil fuels industry. The group publishes blog posts defending carbon emissions and denouncing the push for climate action. It has also produced a handful of longer reports promoting laws that restrict environmental, social and governance (ESG) investing and opposing the widespread adoption of electric vehicles.

Among its board members are Steve Milloy, who served on Donald Trump’s Environmental Protection Agency transition team, once ran a tobacco industry front group, and is a well-known climate denier. Milloy did not respond to a request for comment.

According to the group’s most recent tax filings, the American Energy Institute, which lists four staffers and a CEO on its website, is not a lavish operation. The group brought in about $312,000 in revenue in 2022 and appears to fund its operations at least partly by selling merchandise—among other products, branded T-shirts, tote bags, and beer koozies emblazoned with the words, “I Embrace The High Carbon Lifestyle.”

This story was originally published by the Guardian and is reproduced here as part of the Climate Desk collaboration.

A right-wing organization is attacking efforts to educate judges about the climate crisis. The group appears to be connected to Leonard Leo, the architect of the right-wing takeover of the American judiciary who helped select Donald Trump’s Supreme Court nominees, the Guardian has learned.

The Washington, DC-based nonprofit Environmental Law Institute (ELI)’s Climate Judiciary Project holds seminars for lawyers and judges about the climate crisis. It aims to “provide neutral, objective information to the judiciary about the science of climate change as it is understood by the expert scientific community and relevant to current and future litigation,” according to ELI’s website.

The American Energy Institute, a right-wing, pro-fossil fuel think tank, has been attacking ELI and its climate trainings in recent months. In August, the organization published a report saying ELI was “corruptly influencing the courts and destroying the rule of law to promote questionable climate science.”

ELI’s Climate Judiciary Project is “falsely portraying itself as a neutral entity teaching judges about questionable climate science,” the report says. In reality, the American Energy Institute claims, the project is a partner to the more than two dozen US cities and states who are suing big oil for allegedly sowing doubt about the climate crisis despite longstanding knowledge of the climate dangers of coal, oil, and gas usage.

In a PowerPoint presentation about the report found on its website, the group says the Climate Judiciary Project (CJP) is “wholly aligned with the climate change plaintiffs and helps them corruptly influence judges behind closed doors.”

“Their true purpose is to preview the plaintiffs’ arguments in the climate cases in an ex parte setting,” the presentation says.

“The idea that [the Environmental Law Institute] is corruptly influencing the court from the left…is complete disinformation.”

Both the report and the PowerPoint presentation link the American Energy Institute to CRC Advisors, a public relations firm chaired by right-wing dark money impresario Leo. Given his outsize role in shaping the US judiciary—Leo helped select multiple judicial nominees for former president Donald Trump, including personally lobbying for Brett Kavanaugh’s appointment—his firm’s role in opposing climate litigation is notable.

“He was greatly responsible for moving our federal court systems to the right,” said David Armiak, the research director for Center for Media and Democracy, a watchdog group tracking money in politics, of Leo. CRC Advisors’ work with the American Energy Institute, Armiak said, seemed “to delegitimize a group that’s seeking to inform judges or the judicial system of climate science, something that [Leo] also opposed with some of his other efforts.”

The American Energy Institute report’s document properties show that its author was Maggie Howell, director of branding and design at CRC Advisors. And the PowerPoint’s document properties lists CRC Advisors’s vice president, Kevin Daley, as the author.

Neither CRC Advisors nor Leo responded to requests for comment.

In an email, the institute’s CEO, Jason Isaac, said: “American Energy Institute employed CRC Advisors to edit and promote our groundbreaking report on the corrupt relationship between our federal court system and leftwing dark money groups.”

But Kert Davies, the director of special investigations at the nonprofit Center for Climate Integrity, who shared the report and PowerPoint with the Guardian, said ELI is “far from leftwing.”

The institute’s staff include a wide variety of legal and climate experts. Its board includes executives from Shell Group and BP—oil companies that have been named as defendants in climate litigation—and a partner at a law firm that represents Chevron. Two partners with the firm Baker Botts LLP, which represents Sunoco LP and its subsidiary, Aloha Petroleum Ltd, in a climate lawsuit filed by Honolulu, also sit on ELI’s leadership council, E&E News previously reported.

“ELI’s seminars are giving judges the ABCs of climate change, which is a complicated subject that they ought to know about,” said Davies. “The idea that they’re corruptly influencing the court from the left…is complete disinformation.”

Asked for comment about ELI’s connection to oil companies, the American Energy Institute CEO, Isaac, said that “all of those companies have embraced and/or are pushing political agendas” that are “contrary to the best interest of Americans, American energy producers, and human flourishing,” including environmental, social, and governance investing and diversity, equity and inclusion.

Isaac described oil and gas as keys to prosperity. “I live a high-carbon lifestyle,” he said. “I wish the rest of the world could, too.”

“They are the appeasers, the ones feeding the crocodiles,” he said. He did not respond to questions about the extent of the relationship between the American Energy Institute and CRC Advisors.

In a statement, Nick Collins, a spokesperson for ELI, called the American Energy Institute report “full of misinformation and created by an organization whose leadership regularly spreads false claims about climate science,” and described the CJP curriculum as “fact-based and science-first, developed with a robust peer review process that meets the highest scholarly standards.”

The American Energy Institute’s attack on the judicial climate education program comes as the supreme court considers litigation that could put big oil on the hook for billions of dollars.

Honolulu is one of dozens of cities and states to sue oil majors for allegedly hiding the dangers of their products from the public. Hawaii’s supreme court ruled that the suit can go to trial, but the defendants petitioned the US Supreme Court to review that decision, arguing the cases should be thrown out because emissions are a federal issue that cannot be tried in state courts.

This past spring, far-right fossil fuel allies launched an unprecedented campaign pressuring the Supreme Court to side with the defendants and shield fossil fuel companies from the litigation. Several of the groups behind the campaign have ties to Leo.

In June, the Supreme Court asked the Biden administration to weigh in on the defendants’ request. Biden officials could respond as soon as this week. “It’s doubtful that AEI’s timing of their report release was a coincidence,” said Davies.

The Supreme Court may soon weigh in on another case, too: In April, 20 Republican state attorneys general filed “friend of the court” briefs asking the court to prevent states from being able to sue oil companies for climate damages. All of the signatories are members of the Republican Attorneys General Association, to which Leo’s Concord Fund is a major contributor.

In the weeks since its publication, the American Energy Institute report attacking ELI has received a surge of interest from right-wing media. Fox News featured the report, as did an array of conservative websites. On Thursday, The Hill published an op-ed by Ted Cruz attacking the ELI project. Other right-wing groups have previously questioned the motives of ELI.

CRC Advisors has counted Chevron, one of the plaintiffs in Honolulu’s lawsuit, as a client. In 2018, the Leo-led PR firm also worked on a campaign aimed at exonerating the Supreme Court justice Brett Kavanaugh from accusations of sexual assault.

Davies said it “would not be surprising” if CRC Advisors had a “large role” in the creation or promotion of the report attacking ELI’s judiciary trainings. “They’re known for running campaigns for corporate interests and rightwing interests,” he said.

In addition to his work with the American Energy Institute, Isaac also serves as a fellow at Texas Public Policy Foundation—a think tank backed by oil and gas companies that has recently garnered scrutiny for its role in drafting the ultraconservative policy playbook Project 2025.

A former Republican Texas state representative, Isaac has dedicated much of his career to disputing climate research and promoting misinformation to justify deregulation of the fossil fuel industry. Isaac recently responded to a Twitter post about Climate Week by the EPA, calling the conference on climate change “nothing more than a celebration of people suffering from mental illness, #EcoDysphoria, with those attending insisting the rest of us catch it.”

On a September 25 episode of the right-wing Wisconsin talk radio program “The Vicki McKenna Show,” Isaac offered a defense of the fossil fuel industry, describing oil and gas as keys to prosperity. “I live a high-carbon lifestyle,” he said. “I wish the rest of the world could, too.”

Formerly known as Texas Natural Gas Foundation, the American Energy Institute on its face appears to contribute little more than public relations work in defense of the fossil fuels industry. The group publishes blog posts defending carbon emissions and denouncing the push for climate action. It has also produced a handful of longer reports promoting laws that restrict environmental, social and governance (ESG) investing and opposing the widespread adoption of electric vehicles.

Among its board members are Steve Milloy, who served on Donald Trump’s Environmental Protection Agency transition team, once ran a tobacco industry front group, and is a well-known climate denier. Milloy did not respond to a request for comment.

According to the group’s most recent tax filings, the American Energy Institute, which lists four staffers and a CEO on its website, is not a lavish operation. The group brought in about $312,000 in revenue in 2022 and appears to fund its operations at least partly by selling merchandise—among other products, branded T-shirts, tote bags, and beer koozies emblazoned with the words, “I Embrace The High Carbon Lifestyle.”

In June, Ohio held a special election to fill an open congressional seat in a district that voted 72 percent for Donald Trump in 2020.

On Election Day, former Ohio Supreme Court Justice Maureen O’Connor drove the length of the sprawling 200-mile district, which Republicans drew two years ago to dilute the influence of Democratic voters and boost their own power. Crisscrossing 11 counties and four media markets, she started at the fairgrounds in rural Marietta, on the West Virginia border; followed the Ohio River through the foothills of the Appalachian Mountains; stopped in Steubenville, near Pennsylvania; and ended at a polling site in urban Youngstown.

Although Democrats performed much better than expected, the outcome of the race was never in doubt. GOP state Sen. Michael Rulli, a grocery store owner who called himself “the Trump candidate,” won easily. “This was drawn to make the 6th Congressional District as favorable to a Republican as possible,” a dismayed O’Connor said after. “That’s the definition of gerrymandering.”

O’Connor, 73, has short gray hair and an affinity for pearls, with the tough, no-nonsense demeanor of a former prosecutor. She’s been a Republican for four decades, serving as the first female chief justice in Ohio and the longest-tenured female statewide politician. But, now retired, she was traveling the state like a Johnny Appleseed for democracy, rallying voters against gerrymandering and taking on leaders of her own party, who have aggressively used the tactic to give Republicans lopsided majorities in the legislature and the state’s US House delegation. (Nationally, gerrymandering gives Republicans an advantage of 16 House seats, according a new report by the Brennan Center for Justice.) She was visiting the 6th District to collect signatures for an initiative on the November ballot that would create a citizens redistricting commission to draw district maps free from political interference. “The system doesn’t work because of the involvement of the politicians,” O’Connor told me. “Let’s get politicians out of the mix and return that power, like it was at the beginning of the country, to ‘we the people.’”

“This is part of a larger story of whether we truly have a representative democracy and how the rules are being written in a way where people don’t have as much of a say. And so the response has been people turning to the ballot measure process.”

Half of all states allow citizens to place constitutional amendments and other initiatives on the ballot, and the importance of direct democracy extends well beyond Ohio. The initiative and referendum process originated at the turn of the 20th century, when Jim Crow was firmly entrenched in the South and robber barons held sway over much of the North and West, leading to growing complaints that democratic institutions were no longer responsive to popular demands. “I believe in the initiative and the referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative,” former President Teddy Roosevelt said when he visited Columbus, Ohio, in 1912 to endorse an effort to amend the state’s constitution through ballot initiatives.

Direct democracy does not always lead to good public policy—see Brexit, for example. Special interests and ideologues have often hijacked the ballot initiative process, putting complicated issues before voters that could be better handled by the legislature. But in hyper-gerrymandered states like Ohio, the only way to ensure that the will of the majority is followed is to override representative democracy and go directly to the people. This strategy has taken on renewed urgency in response to recent US Supreme Court decisions taking away fundamental rights, from the gutting of the Voting Rights Act to the overturning of Roe v. Wade. These initiatives can garner support across party lines in a way that is otherwise impossible in a highly polarized partisan political climate.

Since the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, seven states have voted directly on abortion, and in all seven—red and blue alike—abortion-rights advocates have won. This year, voters in 10 states, a record number, will vote on whether to enshrine protections for reproductive rights, including in battlegrounds such as Arizona, Florida, Montana, and Nevada. “Dobbs gave people a real clear example of rights that we thought were guaranteed not being secure,” says Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center (BISC), a progressive advocacy group. “Right now, in a number of states, this is the only way to protect reproductive rights.”

This election cycle, voters will weigh in on 153 statewide measures, including 57 initiated by citizens, according to BISC. In addition to fighting gerrymandering and protecting reproductive rights, they will have the opportunity to adopt ranked-choice voting (Colorado, Idaho, Nevada, Oregon), enshrine no-excuse absentee voting (Connecticut), protect marriage equality (California, Colorado, Hawaii), and raise the minimum wage (Alaska, California, Massachusetts, Missouri).

Not all these measures will lead to progressive policies. State-level Republicans are also using the initiative process to advance their own priorities, such as tougher immigration laws, private school vouchers, and new voting restrictions. Meanwhile, they are also pushing proposals that would make it harder for citizen-led groups to get future initiatives on the ballot.

At a time when so much attention is focused on the presidential race, what happens at the frequently overlooked bottom of the ballot will be just as consequential. If Trump regains power, states will become the last line of defense for protecting fundamental rights. And if Kamala Harris wins and Democrats recapture both houses of Congress, the states can once again become “laboratories of democracy,” in the words of former Supreme Court Justice Louis Brandeis, showing how to regain freedoms that have been ripped away by Republicans in Washington and a regressive Supreme Court.

“This is part of a larger story of whether we truly have a representative democracy and how the rules are being written in a way where people don’t have as much of a say,” Fields Figueredo says. “And so the response has been people turning to the ballot measure process where they can to make decisions that govern their lives.”

The fight against gerrymandering is personal for O’Connor.

In 2015, 71 percent of Ohio voters approved the creation of a redistricting commission that was supposed to stop gerrymandering in the state. It included the state’s most powerful politicians—the governor, secretary of state, auditor, and leaders of the state legislature—and tasked them with ending “the partisan process” for drawing state legislative maps. Three years later, an even larger percentage of Ohio voters approved a similar initiative applying to congressional districts.

But when Republicans on the commission, which had a 5–2 GOP majority, drew new legislative maps after the 2020 census, they flagrantly ignored this assignment. The lines they approved gave Republicans a supermajority in both chambers of the legislature—67 percent of seats in the state House and 69 percent in the state Senate. GOP members of the commission laughably asserted that because Republicans had won 13 of the past 16 statewide elections, they were entitled to up to 81 percent of legislative seats, even though Republican candidates hadn’t gotten anywhere close to that percentage of votes statewide.

Under O’Connor’s leadership, the Ohio Supreme Court did not buy that argument. By a 4–3 vote, it struck down the maps in January 2022; O’Connor joined her Democratic colleagues to cast the deciding vote.

But Republicans on the redistricting commission, instead of following the court’s orders, kept defying them—not once, but seven times. Every time the court struck down a gerrymandered map, Republicans passed a new one, until a separate federal court stepped in and said there was no time to rectify the gerrymandering before the 2022 election, forcing Ohioans to vote in districts that had been deemed illegal over and over. With a legislative supermajority, “we can kind of do what we want,” bragged commission member Matt Huffman, the Republican state Senate president. And they did, passing one extreme policy after another, from a six-week abortion ban to a bill allowing Ohioans to carry a concealed handgun practically anywhere without a permit or background check to stripping the Republican governor and his health director of the authority to manage the Covid-19 pandemic. Some far-right members of the legislature even floated impeaching O’Connor.

O’Connor grew up as one of eight kids in an Irish Catholic family in suburban Cleveland and rose through the ranks of Ohio politics, from county prosecutor to lieutenant governor, before joining the court in 2002 and becoming chief justice in 2011. She was known for her blunt manner and maverick streak, bucking her party on issues like abortion and criminal justice reform. “When I first met her, I was a bit scared of her, too,” joked former Ohio Supreme Court Justice Yvette McGee Brown, “and the reputation is well-deserved.” In a concurring opinion in the gerrymandering case, O’Connor made clear her disappointment with the GOP-led redistricting commission and outlined how Ohioans could reform the process.

“Having now seen first-hand that the current Ohio Redistricting Commission—comprised of statewide elected officials and partisan legislators—is seemingly unwilling to put aside partisan concerns as directed by the people’s vote, Ohioans may opt to pursue further constitutional amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics,” she wrote.

At the end of 2022, O’Connor was forced to retire from the court at age 71 due to term limits. A more conservative justice replaced her, shifting the court’s Republican majority well to the right and ensuring that the gerrymandered legislative maps would not be struck down again. Days after leaving the bench, O’Connor channeled her anger into action, leading a new group, Citizens Not Politicians, in a bid to create what she had called for in her opinion—a citizens redistricting commission divided equally among Democrats, Independents, and Republicans.

Citizens Not Politicians submitted 535,000 valid signatures in July to qualify for the ballot, and this November, Ohio voters could finally end gerrymandering once and for all. “This is the most important thing I’ve ever done,” O’Connor says.

Supporters of the initiative argue that it will bring Ohio’s legislature and US House delegation more in line with the rest of the state, which leans toward Trump and hometown running mate JD Vance, but is more purple than deep red, with a few Democrats, like US Sen. Sherrod Brown, still able to win statewide office.

“It would change the state in a huge way, not because it means Democrats are going to have some guaranteed majority,” says David Pepper, former chair of the Ohio Democratic Party and author of Laboratories of Autocracy: A Wake-Up Call From Behind the Lines. “What it will mean is a majority that generally leans Republican, quite close, reflecting Ohio’s closeness, but most importantly, because you have the safety valve of fair districts and competitive races, the driving force of Ohio politics will not be the extremists in the statehouse.”

The pushback against direct democracy has been just as fervent as the push for it.

In August 2023, Republicans in the Ohio Legislature forced a vote on a ballot initiative, known as Issue 1, that would have made it much harder to pass future initiatives. It called for changing the threshold for passing a ballot measure from a simple majority vote to a 60 percent supermajority, and it required organizers to gather signatures from 5 percent of voters in all of the state’s 88 counties instead of the 44 currently needed. Republicans scheduled the vote in the dead of summer, when many people were on vacation and students were out of town, to try to sneak it through with little public scrutiny.

That move was part of a larger trend. In 2017, BISC tracked 33 bills seeking to alter the ballot measure process. In 2023, lawmakers in 39 states introduced 165 bills to change the process, 76 of which sought to restrict or undermine initiatives. “After the Dobbs decision, conservatives in Republican-trifecta states have doubled down on trying to undermine the will of the people,” Fields Figueredo says.

“You put very sexy things like abortion and marijuana on the ballot, and a lot of young people come out and vote,” former Pennsylvania Republican Sen. Rick Santorum complained.

Republicans claimed the 2023 Ohio initiative was meant to stop “out-of-state special interests,” but one legislator admitted privately that it was designed to preempt passage of an abortion-rights measure that had qualified for the November 2023 ballot, as well as O’Connor’s redistricting reform effort. And, in fact, “out-of-state special interests” were the very people behind the GOP effort. The largest individual donor to the Issue 1 cause was far-right Illinois megadonor Richard Uihlein, who helped bankroll the “Save America” rally that preceded the January 6 insurrection and has funded scores of candidates and groups promoting election denialism. When the bill received a ­hearing­ in the legislature, the only person who testified in favor of it was a representative from a little-known think tank in Florida, the Foundation for Government Accountability, that received nearly $18 million from Uihlein. The foundation, which has led the behind-the-scenes push to limit direct democracy around the country, is affiliated with the State Policy Network, an alliance of conservative think tanks, and it has received more than $5 million from the dark-money network led by Federalist Society Co-Chair Leonard Leo.

The Republicans’ gambit in Ohio backfired spectacularly. The anti-initiative initiative was defeated with 57 percent of the vote, and that November, Ohioans passed new measures enshrining the right to abortion in the state constitution and legalizing recreational marijuana by similarly decisive margins. “You put very sexy things like abortion and marijuana on the ballot, and a lot of young people come out and vote,” former Pennsylvania Republican Sen. Rick Santorum complained afterward.

But the popularity of direct democracy in Ohio hasn’t stopped Republicans from continuing to try to undermine it. After the Citizens Not Politicians initiative qualified for the ballot this year, the Ohio Ballot Board, which like the redistricting commission has a Republican majority, grossly misrepresented the intention of the measure. The summary of the ballot initiative adopted by the board implied the measure would encourage partisan gerrymandering rather than curb it, claiming the initiative would “repeal constitutional protections against gerrymandering” and “manipulate the boundaries of state legislative and congressional districts to favor the two largest political parties in the state of Ohio.” Shortly thereafter, Speaker of the House Mike Johnson (R-La.) came to Ohio to raise money for the campaign working to defeat the anti-gerrymandering initiative.

Citizens Not Politicians immediately sued the ballot board, asking the Ohio Supreme Court to block the “biased, inaccurate, deceptive, and unconstitutional ballot language.” The board’s chair, GOP Secretary of State Frank LaRose, who lost the GOP primary for US Senate in 2024, is a member of the redistricting commission that repeatedly voted for the state’s gerrymandered maps and previously voiced support for impeaching O’Connor. He was also a leading proponent of the effort to make it harder to amend the Ohio Constitution, which he admitted was “100 percent about keeping a radical pro-abortion amendment out of our constitution.”

Republicans are using the initiative process to undermine voting rights in other ways, too. Republican-controlled legislatures have placed initiatives on the ballot in eight states mandating that only US citizens can vote in state elections.

“The self-dealing politicians who have rigged the legislative maps now want to rig the Nov. 5 election by illegally manipulating the ballot language,” O’Connor said in a statement at the time. On September 17, in a 4-3 decision, the conservative majority on the Ohio Supreme Court upheld the bulk of the board’s ballot summary.

That’s indicative of how Republicans across the country are responding to citizen-­initiated measures they don’t like. Take Arizona, where voters will consider an initiative that would repeal the state’s near-total abortion ban and establish a constitutional right to the procedure. The Republican-led legislature put 11 of its own initiatives on the ballot, which supporters of abortion rights call a “voter exhaustion tactic.”

Some of them are particularly egregious. After the Arizona Supreme Court reinstated an abortion ban dating back to 1864 earlier this year, abortion-rights supporters targeted two of the justices for removal at the ballot box. So the legislature placed a referendum on the ballot that would eliminate six-year terms for Supreme Court justices and allow them to serve indefinitely if they adhere to “good behavior.” It would apply retroactively to October 31, meaning that if voters decide not to retain the anti-choice justices but also approve the initiative eliminating fixed terms, the judicial election will be effectively nullified.

At the same time, Arizona Republicans are trying to impose new obstacles to getting future citizen-led initiatives on the ballot, like Ohio Republicans attempted last year, following the playbook developed by the Foundation for Government Accountability and the right’s dark-money network. Currently, voters must collect signatures equal to 10 or 15 percent of the vote in the last gubernatorial election to place a statute or constitutional amendment on the ballot. But another referendum advanced by the legislature would require organizers to collect that number of signatures in all the state’s 30 legislative districts, essentially allowing voters in just one district to veto the wishes of the other 29.

A similar law passed in Arkansas last year, increasing the number of counties in which initiative supporters must collect signatures from 15 to 50 of the state’s 75 counties. Voters rejected a nearly identical proposal in 2020, introduced after initiatives raising the minimum wage and legalizing medical marijuana passed over the objections of GOP lawmakers. Arkansas Republicans also blocked an initiative this year that would have overturned the state’s near-­total abortion ban, with the state Supreme Court disqualifying it from appearing on the November ballot because it said organizers did not properly submit an obscure bit of paperwork.

Utah Republicans have gone even further, asking voters to give the legislature the explicit power to undermine the will of the voters. In 2018, Utah voters, like in Ohio, passed a measure creating an independent redistricting commission to draw new legislative maps and ban partisan gerrymandering. But Utah Republicans passed a new bill that effectively repealed the initiative and drew a map that divided Salt Lake City among all four of the state’s congressional districts to prevent Democrats from winning any of them. After the Utah Supreme Court ruled in July that the legislature had violated the state constitution, Republicans authorized a new ballot initiative asking voters to grant the legislature the authority to amend or repeal citizen-led initiatives. Democratic leaders called it a “blatant power grab.”

Republicans were hoping to convince voters to side against their own interests by including a provision banning foreign entities from donating to initiative campaigns, even though legislative leaders could not cite any evidence of that occurring. But as in Ohio, the move to erode direct democracy backfired on Republicans. On September 25, the Utah Supreme Court unanimously ruled that the measure violated the state constitution and votes for it would not be counted in November.

Republicans are using the initiative process to undermine voting rights in other ways, too. Republican-controlled legislatures have placed initiatives on the ballot in eight states mandating that only US citizens can vote in state elections. The proposals, developed based on model legislation drafted by the American Legislative Exchange Council, which connects corporations with conservative state legislators, furthers Trump’s lie that noncitizens are illegally voting in US elections, and could lay the groundwork for future restrictions on ballot access.

When voters have used the initiative process to expand voting rights, Republicans have frequently gutted those efforts. The most notable instance occurred in Florida, where 65 percent of voters in 2018 approved Amendment 4, repealing one of the country’s worst felon-disenfranchisement laws, dating back to Jim Crow. But months later, the GOP-controlled legislature passed another law requiring ex-offenders to pay off all fines, fees, and restitution before casting a ballot, which prevented about 700,000 people from voting even after they had served their time. Voting-rights advocates called it a “modern-day poll tax.” In a highly publicized crackdown on voter fraud that seemed designed to have a chilling effect on voter participation, Republican Gov. Ron DeSantis’ election police force arrested 20 ex-offenders, even though some had no idea they were ineligible to vote. (More recently, the election police force has gone door to door questioning the signatures of people who supported putting an abortion­-rights referendum on the ballot.)

The Amendment 4 fight showed how passing a ballot measure is one thing, but successfully implementing it is another struggle altogether. State and federal supreme courts regularly rule on their constitutionality, and state legislatures often seek to undermine or repeal them.

“Republicans voted for a number of these ballot measures and then went on to vote for candidates that don’t support reproductive rights,” Fields Figueredo of BISC says of abortion-rights initiatives that have passed since Dobbs. “This year, folks are having to do more work to make that connection. To make sure the will of the people is heard, we need to have people in governing power to follow through on what voters did.”

Democrats plan to draw attention to ballot initiatives in 2024 as a way not just to boost turnout for the top of the ticket, but to emphasize the importance of down-ballot races that tend to receive little attention but go hand in hand with the initiative process. That’s a tricky balancing act, because if Democrats promote the initiatives too aggressively, it could limit their bipartisan appeal.

In Ohio, supporters are bullish that the anti-gerrymandering initiative will pass—and survive legislative and judicial attempts to kill it. “Would you rather have citizens draw the maps than the politicians?” asks Pepper, the former Democratic Party chair. “That contrast strikes a really strong chord.”

While top Republicans in Ohio view O’Connor as a Liz Cheney-esque figure, a former leading light of the GOP establishment who became an apostate, she has no regrets about taking on powerful forces in her own party for the good of democracy. “I’m not going to let these misguided, self-serving politicians define what kind of Republican I am,” she says.

On Tuesday, US District Judge R. David Proctor ruled in an injunction that part of Alabama’s voter suppression law SB1—state legislation that made it a felony to assist disabled people in requesting and filling absentee ballots—was an unenforceable violation of the federal Voting Rights Act. The rest of SB1, which nominally targets the practice of “ballot harvesting,” will remain intact for the time being.

SB1, which was enacted in March, prohibited “any person from ordering, requesting, collecting, prefilling, obtaining, or delivering an absentee ballot application or absentee ballot of a voter.” The law also established criminal penalties for people who assisted others with absentee voting.

In April, the Alabama NAACP, the state chapter of the League of Women Voters , Greater Birmingham Ministries, and the Alabama Disabilities Advocacy Program sued Alabama Attorney General Steve Marshall and other state government officials, asking for an injunction.

As their lawsuit points out, the US Code explicitly protects people’s rights to receive assistance while voting:

Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.

In his opinion, Proctor acknowledged that SB1 disproportionately affected disabled and low literacy voters: “SB 1 unduly burdens the rights of Section 208 voters to make a choice about who may assist them in obtaining and returning an absentee ballot,” the judge wrote.

In a statement released after Proctor’s decision, the plaintiffs celebrated the injunction as a positive step in upholding democracy.

We’re glad that the district court has sided with the rights of the voters and is committed to promoting voting accessibility. Our democracy works best when everybody can participate in it, and this ruling prevents the enforcement of a cruel law that would have suppressed the voices of blind, disabled, and low literacy voters.

On Tuesday, US District Judge R. David Proctor ruled in an injunction that part of Alabama’s voter suppression law SB1—state legislation that made it a felony to assist disabled people in requesting and filling absentee ballots—was an unenforceable violation of the federal Voting Rights Act. The rest of SB1, which nominally targets the practice of “ballot harvesting,” will remain intact for the time being.

SB1, which was enacted in March, prohibited “any person from ordering, requesting, collecting, prefilling, obtaining, or delivering an absentee ballot application or absentee ballot of a voter.” The law also established criminal penalties for people who assisted others with absentee voting.

In April, the Alabama NAACP, the state chapter of the League of Women Voters , Greater Birmingham Ministries, and the Alabama Disabilities Advocacy Program sued Alabama Attorney General Steve Marshall and other state government officials, asking for an injunction.

As their lawsuit points out, the US Code explicitly protects people’s rights to receive assistance while voting:

Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.

In his opinion, Proctor acknowledged that SB1 disproportionately affected disabled and low literacy voters: “SB 1 unduly burdens the rights of Section 208 voters to make a choice about who may assist them in obtaining and returning an absentee ballot,” the judge wrote.

In a statement released after Proctor’s decision, the plaintiffs celebrated the injunction as a positive step in upholding democracy.

We’re glad that the district court has sided with the rights of the voters and is committed to promoting voting accessibility. Our democracy works best when everybody can participate in it, and this ruling prevents the enforcement of a cruel law that would have suppressed the voices of blind, disabled, and low literacy voters.

More than two years since the overturn of Roe v Wade, legal battles over abortion laws are as chaotic as ever. But occasionally, the challenges playing out state by state result in a string of good news for abortion rights. That was the case this week, with a cluster of court decisions that will expand abortion access in Nevada and North Dakota, and allow Missouri and Nebraska voters to weigh in on the issue in November.

On Thursday, District Court Judge Bruce Romanick in Bismarck, North Dakota, issued a powerful opinion siding with abortion providers who challenged a state law that had deemed their practice a felony.

In his order, which takes effect in two weeks, Rominick ruled that the North Dakota constitution’s protections for life, liberty, and the right to pursue happiness include the right to choose abortion. “A woman’s choice of whether or not to carry a pregnancy to term shapes the very nature and future course of her life, on nearly every possible level,” he wrote. “The Court finds that such a choice, at least pre-viability, must belong to the individual woman and not to the government.” He also struck down the ban for its vagueness, concluding that, at present, North Dakota doctors could be prosecuted if other physicians second-guessed their decision to provide an emergency abortion.

Virtually all abortions have been illegal in North Dakota since April 2023, when Republican Gov. Doug Burgum signed a ban with exceptions only to save the life of the pregnant person, or for rape and incest survivors within the first six weeks of pregnancy. North Dakota’s only abortion clinic moved across the state line to Minnesota in 2022, soon after the Supreme Court overturned Roe v. Wade, meaning most people seeking to end a pregnancy will have to leave the state.

But Romnick’s decision should make it easier for doctors to provide emergency abortions to patients with severe pregnancy complications—care that that is often withheld in abortion-ban states, with dire consequences. “It is now much safer to be pregnant in North Dakota,” Center for Reproductive Rights lawyer Meetra Mehdizadeh said in a statement on Friday.

Also on Thursday, a Nevada court order requiring the state Medicaid program to cover abortion became final after the state government declined to appeal an earlier ruling. Nevada will become the 18th state to allow Medicaid funds to cover abortion, the Associated Press reported.

That ruling is the result of a challenge brought under Nevada’s Equal Rights Amendment, which added language banning sex discrimination, along with many other types of discrimination, to the state constitution. Voters there supported the ERA by a nearly 18-point margin in 2022.

In their lawsuit, a Nevada abortion fund and the ACLU argued that the ban on Medicaid coverage amounted to sex discrimination because it denied low-income Nevadans who can become pregnant the ability to make decisions about their future. Back in March, a Clark County District Judge Erika Ballou had agreed—though her decision didn’t become final until this week.

”There was a time when we got it wrong and when women did not have a voice,” one judge wrote. “This does not need to continue for all time.”

“The court made clear that the state cannot withhold coverage for essential, sex-linked health care from low-income Nevadans,” ACLU Reproductive Freedom Project staff attorney Rebecca Chan explained in a statement. “As a result of this decision, Nevadans who have Medicaid as their health insurance will no longer need to fear that they will be forced to carry a pregnancy against their will.”

In November, voters in New York will decide whether to enshrine an ERA of their own—one of 10 states with abortion-related initiatives slated for the 2024 ballot. Yet initiatives in two of those states were in jeopardy until courts came to their rescue this week. On Tuesday, the Missouri Supreme Court threw out a last-minute claim arguing that the text of an abortion-rights initiative petition had omitted details required by state law; it ordered the anti-abortion secretary of state to certify the initiative for the ballot.

On Friday, the Nebraska Supreme Court ruled that dueling initiatives can appear on the ballot in that state, where current law bans abortion after 12 weeks. One of the initiatives, titled “Protect the Right to Abortion,” would create a state constitutional right for Nebraskans to get an abortion prior to “viability” (the hard-to-pinpoint moment in pregnancy when a fetus is able to survive outside the uterus). The other, titled “Protect Women and Children” would enshrine the current 12-week abortion ban in the state constitution.

If both pass, the one with the most votes prevails. But anti-abortion advocates had tried to kill the pro-abortion rights measure altogether by arguing that by regulating abortion before and after viability differently, it dealt with more than one subject, according to the Nebraska Examiner. Friday’s state Supreme Court ruling tossed that challenge, and ensures the vote on both questions will proceed.

Now, with 52 days left before voters will decide whether to add abortion protections to their state constitutions, the opinion from North Dakota’s Judge Rominick could offer some guidance.

“If we can learn anything from examining the history and prior traditions surrounding women’s rights, women’s health, and abortion in North Dakota, the Court hopes that we would learn this: that there was a time when we got it wrong and when women did not have a voice,” Rominick wrote. “This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time.”

More than two years since the overturn of Roe v Wade, legal battles over abortion laws are as chaotic as ever. But occasionally, the challenges playing out state by state result in a string of good news for abortion rights. That was the case this week, with a cluster of court decisions that will expand abortion access in Nevada and North Dakota, and allow Missouri and Nebraska voters to weigh in on the issue in November.

On Thursday, District Court Judge Bruce Romanick in Bismarck, North Dakota, issued a powerful opinion siding with abortion providers who challenged a state law that had deemed their practice a felony.

In his order, which takes effect in two weeks, Rominick ruled that the North Dakota constitution’s protections for life, liberty, and the right to pursue happiness include the right to choose abortion. “A woman’s choice of whether or not to carry a pregnancy to term shapes the very nature and future course of her life, on nearly every possible level,” he wrote. “The Court finds that such a choice, at least pre-viability, must belong to the individual woman and not to the government.” He also struck down the ban for its vagueness, concluding that, at present, North Dakota doctors could be prosecuted if other physicians second-guessed their decision to provide an emergency abortion.

Virtually all abortions have been illegal in North Dakota since April 2023, when Republican Gov. Doug Burgum signed a ban with exceptions only to save the life of the pregnant person, or for rape and incest survivors within the first six weeks of pregnancy. North Dakota’s only abortion clinic moved across the state line to Minnesota in 2022, soon after the Supreme Court overturned Roe v. Wade, meaning most people seeking to end a pregnancy will have to leave the state.

But Romnick’s decision should make it easier for doctors to provide emergency abortions to patients with severe pregnancy complications—care that that is often withheld in abortion-ban states, with dire consequences. “It is now much safer to be pregnant in North Dakota,” Center for Reproductive Rights lawyer Meetra Mehdizadeh said in a statement on Friday.

Also on Thursday, a Nevada court order requiring the state Medicaid program to cover abortion became final after the state government declined to appeal an earlier ruling. Nevada will become the 18th state to allow Medicaid funds to cover abortion, the Associated Press reported.

That ruling is the result of a challenge brought under Nevada’s Equal Rights Amendment, which added language banning sex discrimination, along with many other types of discrimination, to the state constitution. Voters there supported the ERA by a nearly 18-point margin in 2022.

In their lawsuit, a Nevada abortion fund and the ACLU argued that the ban on Medicaid coverage amounted to sex discrimination because it denied low-income Nevadans who can become pregnant the ability to make decisions about their future. Back in March, a Clark County District Judge Erika Ballou had agreed—though her decision didn’t become final until this week.

”There was a time when we got it wrong and when women did not have a voice,” one judge wrote. “This does not need to continue for all time.”

“The court made clear that the state cannot withhold coverage for essential, sex-linked health care from low-income Nevadans,” ACLU Reproductive Freedom Project staff attorney Rebecca Chan explained in a statement. “As a result of this decision, Nevadans who have Medicaid as their health insurance will no longer need to fear that they will be forced to carry a pregnancy against their will.”

In November, voters in New York will decide whether to enshrine an ERA of their own—one of 10 states with abortion-related initiatives slated for the 2024 ballot. Yet initiatives in two of those states were in jeopardy until courts came to their rescue this week. On Tuesday, the Missouri Supreme Court threw out a last-minute claim arguing that the text of an abortion-rights initiative petition had omitted details required by state law; it ordered the anti-abortion secretary of state to certify the initiative for the ballot.

On Friday, the Nebraska Supreme Court ruled that dueling initiatives can appear on the ballot in that state, where current law bans abortion after 12 weeks. One of the initiatives, titled “Protect the Right to Abortion,” would create a state constitutional right for Nebraskans to get an abortion prior to “viability” (the hard-to-pinpoint moment in pregnancy when a fetus is able to survive outside the uterus). The other, titled “Protect Women and Children” would enshrine the current 12-week abortion ban in the state constitution.

If both pass, the one with the most votes prevails. But anti-abortion advocates had tried to kill the pro-abortion rights measure altogether by arguing that by regulating abortion before and after viability differently, it dealt with more than one subject, according to the Nebraska Examiner. Friday’s state Supreme Court ruling tossed that challenge, and ensures the vote on both questions will proceed.

Now, with 52 days left before voters will decide whether to add abortion protections to their state constitutions, the opinion from North Dakota’s Judge Rominick could offer some guidance.

“If we can learn anything from examining the history and prior traditions surrounding women’s rights, women’s health, and abortion in North Dakota, the Court hopes that we would learn this: that there was a time when we got it wrong and when women did not have a voice,” Rominick wrote. “This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time.”