At Liberty Podcast: Abortion Rights Won the Midterms Nationwide, Now What?

So far, we are cautiously optimistic and hopeful about the positive progress for civil rights and civil liberties.

This week, voters went to the polls to elect their representatives at every level of government.

Most notably for us at the ACLU, the midterms are the first opportunity to get a national sense of where voters are sitting on abortion access since the June overturn of Roe v. Wade. We are also on guard watching for voting rights violations and are eager to make sure every ballot is counted.

So far we are cautiously optimistic and hopeful about the positive progress for civil rights and civil liberties and so today we are checking in with the experts, the morning after election day, to see how they’re feeling about the future of our reproductive freedom and voting rights work. Joining us are J.J. Straight, the ACLU’s Liberty Division Deputy Director and Zara Haq, a Senior Campaign Strategist, both J.J. and Zara sit in our National Political Advocacy Department.

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KENDALL CIESEMIER
From the ACLU, this is at Liberty. I’m Kendall Ciesemier, I use she/her pronouns and I’m your host.

This week, voters went to the polls to elect their representatives at every level of government. Most notably for us at the ACLU, the midterms are the first opportunity to get a national sense of where voters are sitting on abortion access since the June overturn of Roe v. Wade. We are also on guard watching for voting rights violations and are eager to make sure every ballot is counted. So far we are cautiously optimistic and hopeful about the positive progress for civil rights and civil liberties and so today we are checking in with the experts, the morning after election, to see how they’re feeling about the future of our reproductive freedom and voting rights work.

Joining us are J.J. Straight, the ACLU’s Liberty Division Deputy Director and Zara Haq, a Senior Campaign Strategist, both J.J. and Zara sit in our National Political Advocacy Department.

J.J.and Zara, Welcome to At Liberty!

J.J. STRAIGHT
[00:01:10] Thank you.

ZARA HAQ
[00:01:11] Thanks, Kendall.

KENDALL
[00:01:13] I’m so happy to have you both here. I want to just check in and get a gut reaction from both of you. It’s the morning after Election Day. We have some results, but we are still awaiting others. How are the two of you feeling so far about where we are and did you sleep last night? Be honest.

J.J.
[00:01:31] This is J.J. I slept for maybe two and a half hours. I wouldn’t say it was the most restful sleep I’ve ever had, but I actually feel vindicated this morning.

KENDALL
[00:01:43]I love that.

J.J.
[00:01:44]Yeah. I mean as you mentioned, we had the Dobbs decision which obviously, you know, we expected, saw it coming around the corner, had the leak happen. But the way that that decision absolutely also put us at a different level of citizenship in this country. And what I saw last night and what started in August for us in Kansas was when abortion was on the ballot, people spoke clearly and definitively and with the majority voice that we know we have on this issue, which is nonpartisan, and that is that abortion is popular and that people want it to be legal and accessible, period, end of story.

KENDALL
[00:02:32] Yeah that is very similar to how I feel as well. I’m like, Oh, we showed up, we showed out. Zara, what about you?

ZARA
[00:02:40]I’m feeling good, cautiously optimistic about some things that we’re still tracking and looking at. Like J.J., I didn’t get a lot of sleep but this morning when I woke up, I had some good news and saw some great results. And in a lot of these places where we are seeing narrow margins, I think a lot of the work that’s gone on over the years to create systemic change and greater access is helping to kind of lead and build upon candidates whose policy platforms really align with expanding civil liberties, protecting them, and helping voters make decisions for themselves.

KENDALL
[00:03:11] Absolutely. Thank you for that overview. I think midterms are complicated, right? There are a lot of different pieces and we saw a lot of good news across the board. I want to dig into all of this much more.

We’re going to start with abortion. J.J., you mentioned abortion was on the ballot this midterm season and we’ve talked about this on the podcast before. We’ve talked about the Michigan ballot initiative. We’ve spoken with Connie Kross, a volunteer in Western Michigan, who is a retiree, who really for the first time felt galvanized and passionate and went out and single handedly led a team to get thousands of signatures to get this measure on the ballot. I mean, this was the work of so many volunteers on the ground, just regular people. We also spoke with Rachel Sweet, who was the campaign manager for the Kansas and Kentucky ballot measures to protect from the full elimination of abortion access. What can you tell us about abortion ballot measures? How many were there? How many did we win?

J.J.
[00:04:28] Well, I won’t bury the headline, Kendall. It was a clean sweep for our abortion ballots. And I want to, you know, not just last night, but obviously we started in August with Kansas. We had three affirmative ballots last night. We had California, Vermont and Michigan who took it straight to the voters to add this protection straight into their state constitution. And, as you said, had overwhelming numbers of volunteers who showed up, really understood the stakes, talked to their friends and their neighbors and showed up last night in droves, just like we saw the qualification in Michigan. We saw all of these measures well above majority, as we still are seeing, you know, the trickling in of last results. We were able to call that measure in Michigan, Vermont and California all last night. That’s how definitive the vote was. I also want to mention Kentucky, where we, just like Kansas, fought back on the cynical measure put up by the legislature to take the right explicitly out of their state constitution so that they can try to continue to hold up a ban that is in Kentucky. And then a little more less known measure because it wasn’t a constitutional amendment, but in Montana, they also had a referendum that we were not necessarily expected to win and certainly knew it would be close. And again, people soundly voted no on that measure as well. And so across the board, when we saw abortion put directly to the voters, out of the hands of cynical politicians who are trying to ban our access, we continue to see that this is not, again, bipartisan or multi-partisan. Let’s not even just limited to two parties. We know lots of independents who voted for our measures or against them. And we know that abortion is popular and that people expect and do not want the government to be involved in this decision, period. As one of our, you know, folks who was running for election said, you know, it should be between a woman and her doctor and a local politician. “Absolutely not!” is the message that was sent last night in multiple ways, starting with those ballot initiatives.

KENDALL
[00:06:46] I want to dig in a little bit more to Michigan, because this has been, as I mentioned, like a behemoth effort of Michiganders. What did we see in terms of turnout, both to get the measure on the ballot and then to pass it?

J.J.
[00:07:00] Yeah, Michigan is one of the states where we saw a surge in voter registration after Dobbs in women in particular. But also last night, the anecdotes about young people showing up, staying in line. I believe in Ann Arbor, because people were in line they couldn’t close the final polls there till midnight. We saw folks across the state really see that Dobbs decision come down and ask, what can I do? What am I going to do in this moment? And I want to start with your story from Connie. There were 60,000 Connie’s who showed up, maybe not at the level that Connie did. She was a leader in our work, but we saw a surge of volunteers who made sure that not only did we get on the ground and qualify, but we had a record breaking number of signatures in the state of Michigan that put us at the exact point we needed to, to kick off that campaign and make sure that we were absolutely putting some of the most protective, comprehensive language into a state constitution that protects us as citizens in Michigan to seek access for abortion, pregnancy care, IVF. So, you know, I’m tired and I’ve shed some tears here and there out of just relief and joy and inspiration.

KENDALL
[00:08:25] Absolutely. I mean, you know, 60,000 volunteers. People have full time jobs. People have families. People have a lot of other priorities. And to get that kind of groundswell, just, you know, is so impressive and really, really cool to see. I want to talk about Kentucky.

J.J.
[00:08:41] Yeah. Me too.

KENDALL
[00:08:43] Kentucky was the first state to put abortion rights to a ballot test while also enforcing a near-total ban that is still in effect. The voters rejection of this measure has created a pathway now for abortion access to be maybe pried open a little bit. What does the victory mean for our ability to do reproductive rights work there and the state?

J.J.
[00:09:07] Well, I’m so glad you asked that question because I think that, you know, elections are part of our progress, but we are absolutely going to have to continue to look at all the avenues that we have in Kentucky and elsewhere on how we really take a place that does right now have a ban that is enacted, and have a path forward to continue our litigation there. Our amazing litigation team, because of the work done in Kentucky on the ballot and at the Supreme Court there, we feel that we have a path to continue to knock down this arcane abortion ban in Kentucky. And then I think, Kendall, you know, again, the other opportunity this poses is because this wasn’t partisan and because we saw ourselves, you know, above majority on an abortion ban in Kentucky, it shows that Kansas wasn’t some aberration or one off, right? We are taking this on in the places that are where people might imagine we wouldn’t be able to win and we are winning soundly. And that is why what we’re going to take to our Kentucky legislators and anybody who dares to continue to take on those extreme measures, we’re going to hold them accountable.

KENDALL
[00:10:23] I want to talk about something that we mentioned on the “What’s On Your Ballot” episode that we just did with with Kary Moss, where we broke down all the different roles and positions that people can elect candidates to that have a lot to do with abortion access, whether that’s helping pass it in their state or, as you said, State Supreme Court judges. We also have talked about State Attorney Generals or District Attorney Generals and the choice of whether or not someone could, you know, decriminalize or criminalize abortion care. Do we have anything to report on races that were exciting in this arena and in our effort to elect people who were supportive of abortion access?

J.J.
[00:11:14] Yeah, I mean, we’ll have a lot you know, we’ll continue to have more to report as we get information in, obviously. But just from last night’s results, I think it’s so important and we played a pivotal role as the ACLU in making sure people did understand at the local level, particularly post Dobbs, that every, almost everybody, touches this issue. And so we focused a lot of energy and public education on our state Supreme Courts. We have so far this morning, we’re seeing progress and feel good about Kentucky. We were able to hold the majority there, in Kansas, and Michigan and Montana also look good for their State Supreme Courts. In Kansas, we also worked on four state legislative races, and we won three of them, putting us closer to a veto-proof majority. And it looks like we’re holding the governor there. Right? So again, Kansas is an example where the ballot had an interplay with the state Supreme Court and with the legislature and with the governor there. Michigan is another place that we saw a trifecta of fact. And what I mean by that is the governor, and it looks like- again, there’s still counting and there may be some recounts- but we could see the entire state control go to a more pro-abortion pro- access, pro-health care legislature there. And I think that I would say that a lot of that has to do with the fact that folks were talking about abortion in Michigan and were demanding of their elected officials what their positions were. And really understood that when we were saying abortion was on the ballot, we meant it literally, and we meant that every single office was critical to that. We also saw in a complicated state like Nevada, and we’re still waiting for results there on electeds, but they passed an equal rights amendment last night, and that’s one that, again, when we think about abortion, we want to make sure folks have access to abortion. When you go back to the Dobbs decision and you read it, which I encourage everyone to do, particularly if you need inspiration to get angry about what Justice Alito wrote, he was really taking away our very equality to be able to make decisions. And so I think that that was also an important moment to, you know, where multiple things were on the ballot that really interlock. And you know, we’re going to spend some of this capital that we went in that we put in the bank last night. When we come to these state legislatures, right, when these folks try to do these cynical bans or take away access, we’re going to be there and we’re going to remind them that that is not where their constituents are.

KENDALL
[00:13:56] You know, on the podcast, we talk a ton about how all of this really comes down to our ability to enact our democracy on an individual level through voting and just how all of these issues really are all intertwined. I want to pivot to voting rights. Zara, you know more than the rest of us, probably, that none of this progress can even be made without free and fair elections. Of course, you know, we’ve covered on the podcast a lot about gnarly gerrymandering that we’re seeing both of the partisan and racial variety. And that is at play in our elections. And that’s always going to be something that we’re going to work against. But I wanted to even just get your take. You know, there also is a really legitimate concern that we have, when we have elections, about violence or voter intimidation or day of voting issues, any kind of like emergency work that we will need to do. How did things play out on Election Day for voters? Did we see issues?

ZARA
[00:15:09] There are always going to be issues on Election Day that could be a wide range. And I think part of it is just understanding kind of contextually like there’s so many polling locations across the country, there could be very different things that happen. We have places where there might be like a machine that’s glitching and has a technical issue. And so we need to address that quickly. Then there are places where there’s deliberate acts of voter suppression or intimidation that happen or intimidating poll workers, and these things do come up. Thankfully, there are great partners in our Election Protection Coalition, our litigation team and the Voting Rights Project here at the ACLU and many other people across the country who are there, they’re present. They react very quickly. They look to resolve the issues or to create a note that, like, if we’re seeing this now, maybe they’re not able to fix it in the moment. But this is something for us to look towards to fix in the future as we identify systemic issues that are contributing to these problems across the country.

KENDALL
[00:16:03] And speaking of systemic issues, I want to talk about voting rights, voting laws that have been passed in response to the 2020 election, anti voting rights laws in places like Georgia, Texas, Arizona. I mean, maybe it’s too soon to know, but did we see this have a notable effect in midterms and turnout?

ZARA
[00:16:26] I think it’s tough to play numbers right now. So we’re still looking at things coming in. I do want to say that the “Big Lie” of 2020, it’s a dangerous ideology. That’s what led to a lot of violence and provide a false justification in this fake narrative about issues that are coming up in elections that weren’t happening. And it’s creating justification for voter suppression efforts. Just January through May, there were over 390 bills introduced restrictive voting laws. This is, I mean, just unprecedented numbers of things being introduced to try and prevent people from having access to the ballot. We’re disenfranchising voters up and down from every angle. And I don’t think that’s the way that we protect democracy or have voter’s voices heard. And that’s why we see democracy on the ballot this election, it’s going to be on the ballot every election. But to go back specifically to like things that are happening in reaction, I think it’s like a big two fold, I would say measures that took place during the pandemic to create greater access in response to public health concerns. Some of those were taken in an emergency way. They were implemented. Some of them were walked back. Some of them provided inspiration for permanent modernization and greater access. And some of them, unfortunately, provided inspiration for greater ways to restrict voting and to disenfranchise people. I would say things like vote-by-mail being expanded is extremely important. And we saw it last night. Connecticut voters said they would like to see the legislature drafting, create an early voting system in Connecticut, which is great news, of course. But we also see that places like in Texas, they’re passing laws that make vote by mail and even early voting more restricted, which is preventing people like voters with disabilities from accessing voting in a safe and totally normal, like perfectly fine, safe and encouraged way to make it easier for them. But what we’re really looking at here is that it’s coming at so many different angles and so many different levels all the way down to your local level. So I do want people to just be aware of the things that are happening incrementally in your state legislatures that you can actually speak out about and push against.

KENDALL
[00:18:24] Yeah. And for people who actually may not be familiar with what the “Big Lie” was, I’ll say that it was the idea that the 2020 election was stolen or that, you know, the presidential election was invalid in some way. And so I just want to be clear on that. There are over 300 candidates across the country in federal and state races that were people or proponents of that idea that the 2020 election had been stolen in some way. One position that we did talk about briefly was Secretary of State. Secretaries of State, in each state, have a lot of power over how elections are run. What can you tell us about our feelings about the results that are coming in on those races?

ZARA
[00:19:12] I would say for the Secretary of State races, I really want to kind of lay out why they’re important and why they really matter this cycle. The Secretary of State in many states, not all states, because of the way that our kind of government levels are structured, are the chief election officer, chief elections officer in that state. So they’re responsible for overseeing election administration. That means, varying by state, their authorities can also lead to expanding access or advocating for that access to be legislated with the state legislators. So it’s a very important role. It’s a down ballot raise. It doesn’t get a lot of attention. This is probably the first time it’s gotten this much attention for various reasons connected to, you know, false narratives about election fraud and things like that. But where we invested in Minnesota, Nevada, Arizona, the cycle was really important that we push candidates, all candidates on issues of counting every vote before certifying elections, certifying elections according to the votes that were cast in a nonpartisan manner, and then also pushing them for greater expansion to the state, expanded access to the ballot moving forward. And so those are the questions that we posed to candidates. And then the answers that we got back were part of our voter information campaigns. We want to make sure that the people in charge of the elections are counting all the votes and then certifying according to those vote counts. We want to make sure everyone’s voices are heard as they intended.

KENDALL
[00:20:26] And I mean, do we know any status on those?

ZARA
[00:20:36] So Arizona and Nevada are still being counted. Girl J.J. and I are sitting here. Refresh, refresh, refresh.

KENDALL
[00:20:38] Yeah.

ZARA
[00:20:39] It’s going to be several days, probably. There’s so many different factors that come into play. You know, it’s every state has different rules about mail in voting, about how they can be postmarked when they have to arrive, when they can actually begin counting the ballots, which is why we see a delay sometimes in how they’re county, because they’re not able to count them until Election Day or until polls close. So depending on these different variables, you know, we just have to sit tight. We have to keep hitting that refresh button. Looking at Steve maybe on with his big board and being able to figure out what’s going on across the country. But it’s worth the wait because we want to make sure that they’re counting all the votes and everyone feels like they’re, you know, their voices were heard there. And like, you know, there’s different states that even offer ballot tracking and things like that. So you can make sure that it made it in. So then, you know, it’s in the process, it’s being counted, and we’re just eagerly awaiting the results. But I think across the board, we’re seeing that people really do want to be able to trust that election administration is happening in a free way, fair way, in a nonpartisan manner. And that’s really our message here, is that that’s the way it should be.

KENDALL
[00:21:45] And to just put a pin in the narrative, it’s completely normal for votes to still be in process.

ZARA
[00:21:50] Absolutely.

KENDALL
[00:21:54] Good. Thank you for that. I want to talk about you mentioned at the very beginning that some of our voting work contributed to some of these abortion ballot measures being passed. How has the voter registration work that we’ve been focused on contributed here?

ZARA
[00:22:14] So the work that we do is in different avenues. We work on voter modernization. So that includes like online registration, same day registration, automatic voter registration. These are all mechanisms in which we’re creating a system that makes it easier for you to be registered to vote, update your registration, and have it reflect exactly the community living in so you’re able to participate in those elections. Other things that we do is work on restoration of rights. Unfortunately, 4.6 million Americans were not able to vote yesterday because of a past felony conviction. They may have completed their sentence, but not completed other aspects, not fulfilled certain fines. There’s a wide range of those issues that could have contributed to that on a state level. 1.1 million of those people live in Florida. I mean, if you’re looking at the kind of vast impact that can have up and down the ballot, it’s huge. And it’s also designed to impact marginalized communities, particularly Black and Brown voters of one in 19. Black Americans are disenfranchised under this. And then we’re also looking at the fact that pretrial detainees, that’s people who are in jail, haven’t been convicted of anything. They’re effectively disenfranchised, because if you weren’t able to request a ballot, you didn’t know you were going to be arrested or you’re not able to have access the day of, you’re not able to vote. And it’s just because there is no system necessarily in place in every locality. Many places are successful at doing this, but I think it needs to be a little bit more highlighted in the sense that here are people who should be allowed to vote. I think everyone should be allowed to vote. Universal enfranchisement, I think, is really important. But when we talk about restoration of rights and felon disenfranchisement, we should definitely also talk about pretrial detainees who are being effectively disenfranchised, even though the law does allow them to vote. And then we’re also looking at different issues with like gerrymandering, redistricting has obviously had an impact as well. So these are all ways in which we’re kind of just working through these issues on a higher level because it can recreate the system that we’re in and create greater access, especially for marginalized communities who are the most impacted by these laws.

KENDALL
[00:24:13] That’s a really helpful overview. I also think, you know, it’s just really notable to say that same day voter registration probably did really play a meaningful role in some of these ballot measures getting passed. And, you know, I think that that’s like a really important thing to just call out because, you know, this is like a very concrete way to say, this is the impact, right? This is the impact that that can have. And I think that it’s sometimes hard or can feel even elusive to people to think about like, okay, what is that actually? Like, what kind of impact do these things actually have? Do they have actual impacts on election outcomes? And it turns out that they do. So. I think it’s just really important to emphasize that or call that out. I also want to touch on just like- and this is actually for both you, J.J. and Zara- your work is so heavily dependent on kind of like the context of the legislative pool that we’re sitting in. You know, I think, the work that you’re doing in political advocacy, your work, your lives, every every effort that you make is so based on what happens in our elections. And I think we have also talked a lot about on this podcast that it’s really tough. The court system is looking really tough for us and making progress and expanding civil rights and civil liberties. What does this new kind of mandate given by the voters and the current results that we have, what kind of what does this give you for your work moving ahead and what are your plans in your respective areas?

ZARA
[00:25:57] I think voting rights is a nonpartisan issue like all civil liberties and civil rights. So we’re looking to make progress and advocate for change. What we’re really looking for is not maybe a certain makeup, but really for us to advocate with legislators as their constituents, as the people in their communities, to say, hey, we want to be able to vote more easily. We want to have a safer environment. I want to be able to sit home and cast my ballot because I have an issue that does not allow me to easily go in person on Election Day to be able to do this. And these are things that impact people across party lines, across demographics, across class, across race. There is a different, you know, obviously motivations for this. But I think just across the board, it’s important for us to keep it moving and to keep up with the important issues in the voting rights work. Regardless of what the makeup is, there’s always places where we can find agreement that expanding access is important because voting is the cornerstone of our democracy.

KENDALL
[00:26:52] Zara, that was beautiful. Very well put. JJ, two things come to mind. One is that some of the federal legislation that had been kind of levied from Senator Lindsey Graham about a national abortion ban, that I think is really concerning to a lot of people and still might be on people’s minds. But then also you have and contrast like what happened with our ballot measures and like, what are you thinking about how we, how do we do more of that?

J.J.
[00:27:22] Well, right away at 5 a.m., I was on a call from my boss about, you know, the states where we’re currently doing ballot exploration. And we’re going to continue to think about that as one of the tools that allows folks to very clearly and soundly send a message about where the electorate is, particularly when it’s in conflict with the elected officials who are, you know, again, cynically making decisions about our access to health care and not representing their actual constituents appropriately or, to Zara’s point, you know, abortion is also a nonpartisan issue. And I think that the parties have extrapolated it to look like it’s partisan. But that’s not where the voters are at all. That’s not where the citizens of this country are on this issue. And we’re going to continue to make that known. But, you know, Kendall, since Dobbs was decided, I don’t want to be Pollyanna about the fact that we have seen, I believe it’s 12 to 13 states, depending on how you define it, who have severely limited or outright banned access to abortion. We’re fighting some of those bans, obviously still in court, and we’re going to have to continue to fight them in the legislature. And our opposition is also fueled by the momentum that came from Dobbs and the Supreme Court and has a model bill that is in full ban, with no exceptions at all. And that’s what they’re pushing to their, the folks that they help elect or that they maybe have in their back pocket, so to speak. And so I think that we are. This is not a one election battle. This is truly us fighting for our equality and citizenship in every opportunity we can, whether it’s at the ballot box, where, again, we send a sound message, and now we need to build on that. We need to hold folks accountable who don’t follow what their constituents want. And we need to make sure that we are being clear and concise about what our expectations of those folks are and making sure that voters understand when they go against their wishes as a constituent when the next election is. I always say the next most important election of your lifetime is always the next one. And that’s just true. That’s the part that’s part of being a citizen in this democracy and standing up. I was expecting a much worse outcome in terms of abortion rights last night. And I think that while we may not win a pro-abortion or pro access a House or Senate or whatever the balance is, it’s clear that it was in no way what we thought it was going to be. And I am going to say that that is a lot to do with the fact that people who were new voters, who are young voters, and then folks who really maybe would have stayed home but showed up in a midterm election and, you know, in some times record numbers or really high numbers from what we usually see and as we saw from exit polls, definitively said, I am here because of abortion rights or women’s rights or because I want to make sure I’m protecting my children’s future. And I think that those are the things that we’re going to continue as we go into our state legislatures and as we see the new Congress sworn in and certainly in future elections.

KENDALL
[00:30:52] Definitely. Well, it sounds to me. Like you’re both very clear eyed about the work ahead, but perhaps a little hopeful or energized by what we have seen thus far. And, you know, I think that you said it very well, J.J., when you said the most important election is the next one. And, you know, that’s hard to talk about the day after an election, but, you know, we’ll be here and we’ll be fighting for the next one as well. Thank you both so much for joining and helping us break all of the results down as we see them kind of come in. Obviously, this is not a complete picture, but it’s been great to have you both signed off on what we’re seeing. So thank you.

J.J.
[00:31:42] Thank you. And thank you, Zara. It’s been a pleasure.

ZARA
[00:31:44] Thank you, J.J. and Kendall.

KENDALL
[00:31:48] Thanks so much for listening. One way to join our fight ahead, is to sign up for our ACLU Action Text Alerts.

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