Chapters
Shownotes Transcript
You're a podcast listener, and this is a podcast ad. Reach great listeners like yourself with podcast advertising from Lipson Ads. Choose from hundreds of top podcasts offering host endorsements, or run a reproduced ad like this one across thousands of shows to reach your target audience with Lipson Ads. Go to LipsonAds.com now. That's L-I-B-S-Y-N-Ads.com. I have received a request.
That we have on the live show on Wednesday, New York City's newest public employee. The Ratzar. Is that the Ratzar? The Ratzar. And I'm like, I think I might just email her on a whim to see if she'll do it. Why not? We gotta shoot your shot. Nate Galen and the Ratzar.
Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk. The Supreme Court is set for another high-profile clash over abortion rights. Last Friday, Justice Samuel Alito issued a temporary stay in a case challenging the FDA's approval of mifepristone, a drug used in medication abortions. It means that for now the status quo stands, after a lower court had issued a stay that would have restricted the use of the drug during the appeal process.
It's also been a week and a half since the initial ruling in this case, so we'll talk about how Americans are reacting and where things go from here. And then there were five. South Carolina Senator Tim Scott announced an exploratory committee for a run for president last week. It's something of a technicality, but for all intents and purposes, he is running. So we'll talk about his pitch to Republican voters and what his starting position looks like.
And we've got a variation on our good or bad use of polling segment. Montana Republicans are considering changing the state's voting system to a top two primary, but just for 2024 and just in the Senate race. It looks like an attempt to make it harder for Democratic Senator Jon Tester to win reelection, but will it work?
Here with me to discuss our senior reporter, Amelia Thompson-DeVoe. Hey, Amelia. Hey, Galen. Also here with us is senior elections analyst, Nathaniel Rakich. Hello, Nathaniel. Good morning, Galen. How was your weekend? You know, it was pretty good. Kind of felt like the first weekend of summer. Thanks for asking. How was yours, Nathaniel? It was good. It felt very much like spring for me because I have terrible seasonal allergies. And here in D.C., the pollen count was at a 13-year high. So basically, I wanted to die. Okay.
We discussed this before I think we started recording the podcast this morning, but we went down the rabbit hole of trying to figure out how exactly DC measures its pollen count. And we found out that it's the military. Yes, it is apparently the US Army centralized allergy extract lab. So thanks to them, I guess, for putting some data on exactly how much I was suffering this weekend. We you know, we love data in any form.
Amelia, now I got to turn to you. This podcast must be cursed because while I have been out during the start of war in Europe or the start of Donald Trump's impeachment, you were out the week that two of your expertise collided in a spectacular fashion, which is abortion politics and policy and the judiciary.
So last week while you were away, well, first, a federal judge ruled that the FDA approval for Mifepristone should be revoked. That was a week and a half ago. There were last minute appeals, stays and competing court orders culminating in an emergency application from the Biden administration to the Supreme Court and a stay maintaining the status quo.
So one, Amelia, where was your head at during all of this? And then two, you know, where do things go from here?
Well, I was feeling a little fuzzy-headed as all of this was coming in because it was Passover and I was not allowed to eat bread. And that was always a very challenging week of the year for me. But yeah, I mean, in all seriousness, I was mostly off while these rulings were coming out. And it was really interesting to see the way that it sort of ping-ponged through the courts. The original ruling was stayed for seven days to give...
the parties a chance to appeal, which obviously they wanted to do. And now we're in a little bit of a holding pattern while we wait for the Supreme Court to intervene. I should note that what happened with the Supreme Court is entirely normal and does not give us any insight into how they will ultimately rule. This is sort of the equivalent of a kind of
placeholder ruling so that, you know, keeping things like keeping things on ice for a few days while the Supreme Court gets read into the case and decides what they're going to do. So even though this stay came from Justice Samuel Alito, who is obviously one of the more conservative justices on the court, he's the point person for the Fifth Circuit, which is where this case originated. So that's why he was the person to
put forward this day. And this is pretty normal. It doesn't really tell us even where his head is on this or where any of the other justices are. What are the next steps in all of this? Well, we have to see what the Supreme Court says and, you know, whether they choose to get involved at this stage or whether they rule and essentially kick it back to the lower courts. So that's going to be one of the big questions. And are we finding that out by Wednesday?
The Supreme Court is going to say something by Wednesday. And, you know, it's interesting because I think one of the things that's kind of fascinating about all of this is that we're still quite early in the legal process. The ruling that came from Judge Kaczmarek a week and a half ago was a preliminary ruling, a preliminary stay. Many parts of the legal process still have to be gone through at this point. We're just talking hypothetically about
about whether this is serious enough that a judge needs to intervene and change the status quo while this whole process moves through the courts.
And if the judge thinks that the plaintiffs, you know, in general are likely to win. So it's fairly unusual for the Supreme Court, at least traditionally, to get involved at this stage of litigation. But it's also pretty unusual for a judge to intervene in the way that Kaczmarek did. And we've been seeing the Supreme Court intervene.
get involved more at early stages of litigation. This is what has been known as the shadow docket and how the Supreme Court has been making, you know, pretty consequential decisions very early in the process at a point at which the case would not necessarily be scheduled for oral argument, where the lower courts haven't fully finished the process. So we're really at a moment of pretty significant uncertainty. What I've heard from legal experts so far is that
The expectation is that the Supreme Court will not uphold Kaczmarek's preliminary ruling, that that's a very conservative decision. And even given the conservative bent of the court, that the Supreme Court would probably not go along with it. Do you have any sense of where this could all end up or the likeliest place that this ends up? I know I'm asking you to really extrapolate here, but what are your thoughts given how everyone else is prognosticating?
I mean, predicting what the Supreme Court is going to do, I think, is a foolish game. So given, though, that even the very conservative appeals court that got this case after Kaczmarek had ruled did not go along with everything in his order, I think it's a fairly
good guess that the Supreme Court will not just rubber stamp what Kazmirak said. I mean, you talk to legal experts and they will tell you that this is a case that in their view, many, many legal experts view has procedural problems that has, is relying on bad science that, you know, is like relying on arguments about like legal concepts, like standing and statutes of limitations and
which are like pretty basic threshold things that can get cases thrown out all the time on technicalities. And there are several of those potentially here. And in fact, that's what the Fifth Circuit ruled on. So to break this apart, I guess we should talk a little bit about what the Fifth Circuit said. So...
Kaczmarek, who's the district court judge, ruled that the FDA's entire approval of mifepristone, they approved it in 2000, and he said that the FDA's initial approval of mifepristone and then subsequent changes to its rules around mifepristone, all of that was unlawful. And so therefore, he was putting a hold on the approval while this moves through the courts. Well,
What the Fifth Circuit said was,
Okay, you know, yes, the FDA made some fairly significant changes to the protocols around Mifepristone in the past 10 years. And they said that those they were going to put on ice, but they did not buy the argument about the original approval of Mifepristone, basically because they felt the statute of limitations had elapsed, that it had been too long since it was approved to be able to pull it off the market.
But the changes that the FDA made are really significant. So it's allowing medication abortion, mifepristone, to be used up to 10 weeks of pregnancy rather than seven weeks of pregnancy. They also approved a generic version of mifepristone. And also very crucially, they changed a bunch of in-person prescribing requirements that had ensured that people had to go into the doctor at least once to take the
pill and also allowed it to be sent through the mail. So one of the things we've seen is this big uptick in telemedicine abortion that is entirely enabled by the FDA's rule changes. So even if, let's say hypothetically, the Supreme Court says, okay, the Fifth Circuit is right. You know, we're not going to yank the drug. We're not going to say the drug was unlawfully approved.
But we are going to say that we essentially have to go back to 2015, which is before all of these changes went into effect. That's still going to have a pretty significant impact on the way that people get Mifepristone. And it will be a blow, especially to...
Telemedicine abortion, which has been really important for abortion clinics as they've been seeing more people coming from out of state, more people later in their pregnancy needing procedural abortions. A lot of people have been opting for medication abortions via telemedicine just because it's easier and you can get an appointment faster that way. So if people can no longer do that, that's going to have a really significant impact.
Yeah. Amelia, this is kind of a basic question here in all of this, but what is the argument for why Mifepristone should not have been approved by the FDA back in 2000?
So it's an argument essentially about how the FDA went about this approval. And at the time, it was very controversial. Mifepristone had been in place in Europe for several years. Bringing it to the U.S. was something that was very political at the time. And the FDA went through a review process that
People now, and I guess in the less recent aftermath of the approval, are arguing didn't pay attention to concerns about safety and essentially went too fast. And the argument is that it violated aspects of federal law in that way.
That, as our science reporter Maggie Kurth and I have reported, is something that has been fairly debunked if you talk to scientific experts. I mean, there was a huge GAO report about this back in 2007 looking into all of these claims about safety issues.
And, you know, it's a drug that's been on the market for over 20 years. And if you look at the data, it really is quite safe. So that's one of the issues here in the case is that the folks who are opposed to the Mifepristone ruling to where the judge ultimately came out and where anti-abortion advocates are putting their arguments. So they're saying basically that it's based in bad science. Yeah.
This has played out in public for about a week and a half, and I'm sure opinions will continue to evolve as we get more information and we have more rulings. But Nathaniel, where do things stand right now? You know, as with abortion in general, Americans are generally more on the side of abortion access.
So we have a Pew Research poll that was coincidentally taken just before the ruling came out, after we knew that this was kind of in the atmosphere. But they found that 53% of Americans said that medication abortion should be legal in their state. Only 22% thought that it should be illegal. And of course, that leaves 24% who weren't sure.
So that uncertainty is a bit of a pattern. We also saw a morning consult poll, and this one was taken after the Good Friday decision by Kaczmarek. It had very similar numbers. So 47% opposed the judge's ruling, 29% supported it, and again, 24% weren't sure or didn't have an opinion.
That said, the most recent poll was a bit more decisive. This was from CBS News and YouGov over this past weekend. 67% of Americans who were polled in this survey said that the abortion pill should be available in states where abortion is illegal, and only 33% said it should be unavailable. So they actually didn't offer a don't know option. So this could be down to survey design, but that's a fairly substantial majority.
And what's interesting about this is that even among people who were asked just like generally, like, do you believe abortion should be always legal, most of the time legal, most of the time illegal, or all the time illegal, even people who said that most of the time abortion should be illegal, about 40% said that Mifepristone should remain legal in states where abortion is legal. So, you know, it kind of goes down to something that we've talked about on this podcast before, which is that like,
kind of imposing a national abortion ban, obviously, or kind of any kind of regime is unpopular. And that even if people are personally opposed to abortion, they may not think that a national ban, which effectively this would be for certain types of medication abortion, should be allowed.
That's some really good data, Nathaniel. Thank you for that. Another question that came up over the past week was, what happens when there are competing rulings from two district courts? And we saw that there was basically a competing ruling between the Texas District Court and Washington State. And in covering different high-profile legal cases over the past however many years it's been, Amelia, I don't think...
we have ever gotten to this point before where it's really unclear which court state governments should, ruling state governments should be abiding by? Like, is this unique or is it just that this is really high profile and this happens, this has happened in the past, this may happen all the time, but we usually don't hear about it because it's less consequential. Like what, what happened here and how close, dare I ask, is it to like a constitutional crisis? Yeah.
Well, so what happened is that there is a separate lawsuit that was filed in March by Democratic attorneys general, and they were basically making the argument that there should be no restrictions on Mifepristone, which is an argument that abortion rights advocates have been making for a while, that this is actually a very safe drug, they say, and the FDA has always had this additional regimen of regulations around it because of politics.
And that's the only reason. And so those should be taken away. And so, yes, this ruling, certainly the timing was dramatic. So Kazmiric released his ruling. And then less than an hour later, we got a ruling in this other case that was saying essentially to the FDA, don't make any changes to the regulatory regime around this drug while the legal proceedings go ahead.
So this is a question that the Supreme Court has been asked to address and may address.
I think it's an open question how much of a conflict there really is there. Because what's really unprecedented about what's happening is the way that Kazmiric, as a federal judge, is telling the FDA that they were wrong and saying, basically, I'm ruling that this drug is no longer approved. Because...
You know, there are arguments that the FDA has its own processes for approving or unapproving drugs and that they didn't go through any of those. And if they don't go through any of those, then maybe the drug manufacturer can sue them. And there have been a lot of Democratic lawmakers who have been urging the FDA to ignore what Kaczmarek said, even if the Supreme Court ends up saying, you know, nope, he's right. No more Mifepristone approval.
It's possible that the FDA could just say, you know what, that's not the way this works. Judges can't tell us whether a drug is approved or unapproved, and we're going to go through our own process for this and see what happens. Wait, that's a constitutional crisis, right?
I think we need to see what happens because there's an argument that also these rulings don't really conflict because, you know, a lot of this, it's not just about what the FDA does. It's about what the drug manufacturers do. And so there is a universe where the FDA doesn't change anything, but the drug manufacturers and distributors, because they're legally conservative and they could potentially be in violation of federal law if a federal judge
says that they're no longer approved, even if the FDA doesn't change the regulations, they might decide, you know what, it's just safer to not distribute this drug while the legal process plays out and we'll see how it plays out. And then at the end of it, we'll reassess. Because again, there are still a lot of steps that have to be followed until we get to a final ruling.
So those are really the kind of two of the biggest unknowns right now is what the FDA is going to do, but also what the manufacturer of the original name brand drug and then the generic will do. And it's, you know, it's potentially especially significant for the generic drug manufacturer if what the Fifth Circuit ends up ruling is that
is the one that goes forward because their approval came late enough that they wouldn't be allowed to distribute if that ruling was upheld. And the name brand drug manufacturer would continue to be able to distribute just in a more limited way.
Yeah, Amelia, on the point about what the FDA should do, the YouGovCBS News poll also asked about that. And this was actually the most surprising finding for me, is that they asked why
what should the Biden administration tell the FDA to do in the wake of this ruling? And only 52% said they should follow the ruling and withdraw approval of the abortion pill. 48% said that they should ignore the ruling. And I thought that was really interesting from a perspective of, you know, the legitimacy of courts and things. And we've talked also on this podcast about, you know, like the further, the more extreme and out of touch with public opinion, which obviously on this issue, the
Kazimiercz ruling at least is, the more pressure there will be for somebody to just not listen to a court and the legitimacy of the court that is threatened in that way. And I was very interested to see a lot of Democratic lawmakers and actually even Nancy Mace, the Republican representative from South Carolina, come out and say that they didn't think that the FDA should adhere to the ruling. So that's definitely something I'll be watching very closely.
I mean, I think that's a really important point, Nathaniel. And, you know, it's about the authority of the judicial system, but it's also about the authority of the FDA. And, you know, there's a reason that more than 400 leaders in the pharmaceutical industry signed onto a statement in the wake of the ruling saying basically that this needs to be reversed.
This is a really harmful attack on the FDA's authority. And basically the judges don't have the subject matter expertise to be doing this. There's a reason we have an FDA, and it's because it's full of experts. And if judges can come in and say, oh no, this drug is no longer approved without having to go through all the steps that the FDA has to go through, then no drug is safe.
So, you know, it's a fairly high stakes question for the FDA as well. Well, yeah. And of course, the pharmaceutical companies have a lot riding on, you know, their relationship with the FDA and not having the judiciary come in. But I mean, there is a pretty big difference in terms of democratic norms,
between saying, we want this decision to be reversed, and if this decision stands, don't listen to it. And so I'm curious here, like the Democratic lawmakers that are saying today, you know, regardless, the Biden administration should tell the FDA not to pull approval from
I mean, isn't that stepping on democratic norms in and of itself after sort of spending, and rightly so, much of Trump's presidency talking about those democratic norms and the importance of judicial rulings and them being upheld and so on and so forth?
Well, I mean, I think they would probably make the argument that it was Kaczmarek's ruling that started all of this and that it's a threat to democratic norms if the FDA were to follow a ruling that was basically taking the authority of a government agency and putting it on itself. You know, I think it is...
There is a broader question about the role of the judiciary here. This judge was essentially handpicked by the plaintiffs because of the way that some districts are structured in the Fifth Circuit. You can essentially pick your judge by going to small rural districts.
This guy has been known as someone who was likely very conservative on abortion. He'd worked for a Christian conservative advocacy group, legal advocacy group, before he became a judge. So, you know, there has been criticism of this also, basically saying that the plaintiffs brought this in a courtroom that was the friendliest possible to what in –
I don't know if I would say any other courtroom in the country, but most other judges I think would not have given this case the time of day. So yes, I think there are questions about democratic norms here, but I think they go deeper than simply,
Should the FDA say, yes, this judge is right, we will follow the judge, or we don't agree with the judge, but because of, you know, the way that our system works, we're going to go along with it. Because the circumstances of this case are so unusual and so outside the norms already.
Another notable development in abortion politics in the U.S. last week was that the Florida state legislature passed and Governor Ron DeSantis signed a six-week abortion ban, and that would replace Florida's current 15-week ban.
abortion ban. Now, this timing is notable for two reasons. One, because it didn't come in the immediate aftermath of the Dobbs decision last year. And it also comes weeks before the expectation that Ron DeSantis will announce his bid for the Republican nomination in 2024.
So I guess my question here is, what's the politics behind this? Like, why wait almost a year after the Dobbs decision? Does this have anything to do with running for president? Because you would think that maybe it's a bit too conservative for maybe some of the voters that Ron DeSantis is trying to pick up.
Yeah, I think it is. Um, but of course there's immediate concern is winning the Republican primary. Right. So, um, you know, I think the answer basically the boring logistical answer, right, is that the Florida legislature is in session right now and it wasn't in session last fall. Um, you know, Ron DeSantis could have called a special session, but I think, you know, they were going into an election in what was, you know, at one point a swing state and might still be, um,
He probably recognized that it wasn't the smartest move to call a special session to ban abortion after six weeks, especially there's also a case making its way through the Florida Supreme Court about whether Florida's existing 15-week ban on abortion is legal. And of course, the decision in that case will presumably also have bearing on the legality of the new six-week abortion ban.
But no, but I think, you know, Ron DeSantis, you know, this is one of many very conservative priorities that he will be able to point to if slash when he starts his presidential campaign. I think it'll be a big selling point for him in a Republican primary. But yeah, in a general election, I don't think it's going to be helpful. And I think that does speak to a lot of the
You know, the difficulty these days, if you have to run to win both the primary and a general election, and one of those requires you to to run away from the center and one of those requires you to run to the center. And I guess Ron DeSantis figures, you know, you do what's in front of you first. He is, of course, trailing in the polls to to Donald Trump in the Republican primary.
But I think there are signs that he doesn't really necessarily want to tout this or to create a bunch of huge headlines about Ron DeSantis passes a six-week abortion ban. He signed the bill late at night.
He kind of tweeted a picture of it, but it wasn't a big deal. He also, actually the most interesting thing, he gave a speech at Liberty University, I think the day after or some short amount of time afterward, and he didn't mention that
that he assigned this. And Liberty University, of course, is a very conservative, you know, Christian evangelical university. And so that was interesting from a kind of Republican standpoint. And then just in terms of Florida, right? I mean, a lot of people have assumed Florida is a red state now. And, you know, I think it's certainly like Republican leaning, but I don't think it's necessarily gone, gone. I think a lot of the, you know, Ron DeSantis did win by 20 points in 2022, but a lot of that was because of a depressed Democratic base there.
And a six-week abortion ban is exactly the kind of thing that could reanimate that base. You've already seen some protests in Florida. And so, you know, yeah, I think it is politically risky for him.
I think it's also going to be especially interesting to see how this plays out if the six-week ban goes into effect, which, as Nathaniel mentioned, is contingent on what happens at the Florida Supreme Court because the Florida Supreme Court ruled in the late 80s that there is a right to privacy under the Constitution that includes abortion, the state constitution, that is.
The makeup of the state Supreme Court is very different now, and I think most people are expecting the conservative majority on the court, many of whom were appointed by DeSantis, to uphold the 15-week ban. And if they uphold the 15-week ban, then the six-week ban goes into effect 30 days later. So this isn't going to happen immediately, but if it does happen, Florida is a state that really has not seen –
attacks on abortion access in the way that basically every other state in the South has. It has a lot of abortion clinics. It's pretty easy to get an abortion. I mean, even in rural parts of the state, if you just look at a map of where abortion clinics are, it's not like Alabama, where there were 50,
three or four abortion clinics in the whole state of Alabama by the time the Dobbs decision came down. This is a state where it has historically been easy to get an abortion, where abortion politics has not taken the center stage that it has in other southern states like Texas, which has been fighting over abortion for over a decade. And it's also become a haven state
for many people throughout the South. I mean, we published data last week that we got a first look at from researchers who have been tallying the number of abortions that have happened in the aftermath of Dobbs, and Florida was one of the states that saw a big increase. And that's not surprising, because if you live in the South, your choices for getting an abortion basically are Florida, if you're before 15 weeks,
or South Carolina or North Carolina, where South Carolina is one of these states where there are very few clinics and a lot of people are going to North Carolina too, but there are long waits there. And if you live in Georgia, which has a six-week ban, or Alabama or even Mississippi, it might make sense to go to Northern Florida and a lot of people are seeing, or a lot of abortion providers are also reporting huge upticks in traffic. So it's not going to be the same thing
kind of impact where for a long time there was sort of chip, chip, chipping away at abortion access and it was harder and harder to get an abortion. And then finally it all stopped that, you know, you saw in a lot of Southern states. It'll be a much more abrupt shift. And of course it is, you know, a six week ban, which means that some people will still be able to get abortions. But based on what we've seen in Texas and Georgia, we can expect that the number of abortions will probably decline by about half in
And people are going to have to travel really long distances. I mean, Florida, you know, if you're in South Florida, where...
where are you going to go to get an abortion? Like, you're going to have to get on a plane. So I think that's another question as well. In terms of the politics of DeSantis, though, I think he's in a really tricky position because he had been viewed with suspicion by some anti-abortion activists who are obviously very powerful within the Republican Party because this hasn't been an issue that he has spotlighted and focused on before, because he hasn't made a big
a big deal out of this in Florida. And so I think he's trying to walk a tightrope right now where he is trying to appease a segment of the Republican base that is very powerful right now and really, despite the outcome of the 2022 midterms, wants to really seize the opportunity that was given to them by the Dobbs ruling and try to place the most restrictions on abortion that they can on
So, you know, I think it makes sense that we would be seeing this kind of like, you know, trying to support it in a way that the most important people notice, but also that most people don't notice thing from DeSantis because...
I think this is potentially a pretty significant general election liability for him. But if he wants to win the Republican primary, if anti-abortion advocates are out there saying he's not really pro-life, that's a big problem for him. All right. Well, speaking of the 2024 Republican primary, let's move on and talk about Tim Scott.
You're a podcast listener, and this is a podcast ad. Reach great listeners like yourself with podcast advertising from Lipson Ads. Choose from hundreds of top podcasts offering host endorsements, or run a reproduced ad like this one across thousands of shows to reach your target audience with Lipson Ads. Go to LipsonAds.com now. That's L-I-B-S-Y-N-Ads.com.
You're a podcast listener, and this is a podcast ad. Reach great listeners like yourself with podcast advertising from Lipson Ads. Choose from hundreds of top podcasts offering host endorsements, or run a reproduced ad like this one across thousands of shows to reach your target audience with Lipson Ads. Go to LipsonAds.com now. That's L-I-B-S-Y-N-Ads.com.
Senator from South Carolina, Tim Scott, entered the 2024 Republican presidential primary arena by announcing his exploratory committee last week. Now, OK, of course, technically, he just has an exploratory committee. He's not officially running, but we've
been through this rodeo before, this is one of the steps that candidates take if they want to sort of dip a toe in. But like, basically, they start their campaign. They're in Iowa, they're in South Carolina, they're in New Hampshire, and they're giving interviews like they're running for president. And they also, you know, in Tim Scott's case, of course, published a video that read basically exactly like a presidential announcement. So,
What is Scott's pitch to Republican voters about why they should support him?
He is making a pitch around unity and optimism. He is saying basically that politics has gotten too contentious, that we're fighting too much, that he is the candidate who is going to sort of bring things back toward the center and is going to have a bright vision of America, despite, you know, all of the
Yeah, so he's gotten, you know, looking at the polling, he's received about 1% in all recent polling that I've seen. What is the world in which he wins the nomination? What does that world look like? What has happened?
Yeah, so I think Scott's issue right now is just that he isn't very well known. So if you look at some polls of like his favorable and unfavorable ratings among Republicans, generally only 50% or even fewer of Republicans can form an opinion about him, which obviously is also going to translate into, you know, basically being at 1% in the kind of horse race polls. I think the absolute highest he has clocked in any national survey that we've seen is 4%.
But like, that's not a terrible place to be. Like if you're assuming that you're not one of the polling front runners, the place you want to be is someone who is not very well known, but also liked among the people who do know you, um, which Scott is. So for example, um, morning consult recently found that 35% of Republicans had a favorable opinion of him. 10% had an unfavorable opinion. Um,
Another poll from HarrisX, 40% favorable, 13% unfavorable. So again, only about half of Republicans can form an opinion, but the vast, vast majority of those who have an opinion like him. And I think this just reflects kind of the place that he's carved out within the Republican Party, which is he has managed very impressively, I think, to not piss off either the Trump wing or the not Trump wing. They kind of both
claim him as one of their own. And that has put him in this unique position, as Amelia said, to be kind of the quote unquote unity candidate for the party. But that said, you know, what is the path for him? Like, you know, I think obviously like he has to become better known and the hard part, of course, is going to be to maintain that excellent favorability ratio while increasing your name recognition, which is not guaranteed at all. And I think there also needs to be some kind of, you know,
Like room needs to open up because right now Trump and DeSantis together are combining for something like 70 or 80 percent of the primary vote. And and that just, you know, one of those people needs to to kind of shed their their support and, you know,
There could be a world where, you know, DeSantis, you know, it seems like DeSantis, a lot of people are like, ooh, DeSantis doesn't have what it takes. Maybe he shouldn't even run in 2024. I kind of think that chatter is silly. I think he's almost certainly going to run. But what if he doesn't? Then, you know, there is Lane and Tim Scott as somebody who hasn't really offended the
the kind of moderate wing of the party as much as DeSantis has could have more appeal than DeSantis in a Republican primary, but also certainly in a general election. And yeah, so I think some kind of combination of running a strong campaign that doesn't piss anybody off and kind of getting lucky with one of the other candidates kind of coughing up some support that Scott can then vacuum up.
And making a case for this unity message. I mean, you know, it's going to set him apart potentially. But I think there's also a real question about whether there is an appetite for that among Republican primary voters.
Yeah, so his message is one of unity, and he's the nice guy that people like within the Republican Party, and he's made a lot of friends, as you've all mentioned. From a policy perspective, from an issue perspective, what is he stressing as the points of unity or the places where he can win the independent or moderate voters that Republicans haven't been able to pick up recently?
So I think Tim Scott's answer to a question that he got this weekend about his stance on federal abortion laws was telling insofar as he was trying to offer an answer that I think, like if you look at it on paper, falls down the middle, but is actually not going to be satisfying really to anyone. So he was asked about whether he thought that there should be some kind of federal abortion ban. He said he would
definitely support a 20 week ban, but kind of stumbled over the specifics. Seemed like he didn't have like a, a real articulated argument for why this is where it should be. And I think that is telling, uh,
Because this is an issue where it's going to be really hard to find an answer that is satisfying to most people or, you know, even a significant minority of people if you're not offering something that is sort of one of the two extremes. Because the Dobbs decision has made Democrats...
more extreme on abortion, more likely to just say there should be no limits on abortion. Obviously, many Republicans are dug in in the other direction. And a lot of Republicans, I think, are also sort of genuinely uncertain about where they want the line to be drawn, which makes sense because for almost 50 years, the Supreme Court had taken care of that and they had decided that it was this viability line and people didn't really have to
process through themselves. Should it be 15 weeks? Should it be 12 weeks? Should it be 20 weeks? So I think it makes sense that Republican candidates would be struggling a bit to articulate where they think that line should be if they are not going to fall into the Ron DeSantis category and say, okay, I think we should basically move
ban abortion extremely early. Um, but I think it's also an example of how difficult it is to put forward positions that are truly unifying, even within the Republican primary electorate. Um, I mean, you know, let alone the general population. So I think that's something where Scott is really going to have to, he's going to have to prove that he has more than just talk. Um,
that he's going to have to actually offer something that is pretty hard to pull off at this moment in American politics. Yeah, it sounds like one of the other themes of his campaign, just watching his announcement video,
He's talking about cultural issues in America. He's, of course, a black senator from South Carolina. He talked about America not being racist in a similar way to Nikki Haley when she announced her campaign, essentially saying that Democrats have gone too extreme on questions of race and culture in America. He's also a pretty pro-business person. I think if you were trying to pick
a presidential candidate that he's most like in recent years, you would pick Mitt Romney, not Donald Trump. And so perhaps part of his appeal is to the suburban voters that Republicans have lost over the past eight years. You know, unity can feel in some ways stylistic in an environment, a political environment where things have gotten pretty bitter. And so I think that's part of his appeal as well. Well,
Yeah, I mean, as a black candidate who is who is saying essentially that, you know, we need to move past talk about America's racist past and sort of look to a future that is not racist and that America is not racist now, you know, to hear that from a black candidate could be appealing to some white conservative voters as
who sort of feel uncomfortable with the way that their party is branded as racist often these days and want someone who can speak more authentically on the issue of racism. You know, Tim Scott is someone who has experienced racism, but is also saying, you know, our party isn't racist, the country isn't racist, and we need to move on from all of this focus on the past. So it's possible in that way that he could be appealing to some voters as well.
Yeah, I think if you look at Tim Scott's actual voting record, like his DW Nominate score, for example, his DW Nominate score is .629, which is pretty good.
conservative. He's not like someone you would put in the moderate camp ideologically. It really is dispositionally that he is kind of a moderate and bridge builder and something like that. Obviously, I think we have also talked about this before, is that you kind of have to separate out ideology and beliefs from the kind of style that people take because you can be kind of quote-unquote moderate on one of those things and quote-unquote conservative or extreme on one of them. On
on the other. But I think that is an important distinction to draw with Scott. It's not that he is, I don't think he's been kind of a bad conservative ideologically. It's just that he presents a more pragmatic face to the world. Well, in a similar vein, these measurements are also frustrated by our current alignments in the sense that
Yes, he's dispositionally more moderate, but he's also the kind of conservative that you would not expect to question, for example, the results of an election that would, you know, question the outcome of a judicial ruling or something like that where you wouldn't say the same for Donald Trump. So I think it was like there's the norms axis, which Tim Scott is quite conventional on or quite non-Trumpy on in comparison.
All right, we got one final topic to get to before we go today, and that is our good use of polling or bad use of polling or our variation on the theme in Montana. So think of this as polling as in the type of polls that you show up to to vote, not the surveys that we usually talk
about. And here's what's happening. So Republicans in the Montana Senate recently voted to change the state's election laws to a top two primary system, meaning that the candidates run in an all party primary and the top two vote getters compete head to head in the general election. But this law would only change in one single instance for the 2024 Senate election. No other types of elections and in no other years.
Montana Republicans say this would be a test run of a new voting system, but it could also be an attempt to make Democratic Senator Jon Tester's re-election bid harder. A top-two primary system would remove any Libertarian candidates from the equation in the general election. And in past re-election bids, there has been a Libertarian candidate. Presumably, Republicans are thinking that that Libertarian candidate is taking votes away from Democrats.
the Republican. So Nathaniel, you wrote about this for the website. Is this a good or bad use of polling? By which I mean election polls.
Yeah, this is a bad use of polling places. So there are two reasons this is a bad use, right? There's one, which is the kind of like practical, like logistical norms-y reason. And then the other, which is the will it work reason. And so I think, you know, first of all, like,
This is obviously aimed at defeating Jon Tester, whether Republicans will own up to it or not. The fact that it is specifically for his race and no other races, the fact that they tried something similar, they tried to put on a ballot measure for a top two primary the last time or maybe two times ago that he won in a clear kind of reaction to his victory, which again, they thought was aided by libertarians.
That's just like we shouldn't be making election laws based on what we think will advantage one party obviously. But then also just like practically speaking, if you're a Montana voter going to vote in your primary and for the Senate race, you're like, I can vote for anything and all the candidates are there. But for every other race, oh, I have to choose a party? That's just confusing. This is not particularly good election law policy.
But then, like, setting aside all that, let's say that, you know, yeah, I'm a Republican. I want the Republicans to beat Jon Tester. Like, you know, let's fiddle with ways to do that. Like, this isn't necessarily going to be that way either. So for my article, as you mentioned, Galen, I went back and looked at Tester's three previous victories and kind of tried to guess, like, how
whether Tester would have won if there hadn't been a Libertarian on the ballot, if it had just been a Democrat and a Republican, the way that a top two system would presumably make it. Obviously, a Libertarian could be one of the top two candidates in the primary, but it's extremely unlikely. So in Tester's first race in 2006, he got 49.2% of the vote.
and the Libertarian got 2.6%, and then the Republican candidate got 48.3%. If you just kind of do the math on that, the Republican would have needed to get two-thirds or more of the Libertarian vote in order to win. And that's assuming that every person who voted for the Libertarian would have still turned out to vote, which I think is a very questionable assumption, given that if you're voting for a Libertarian in a close Senate race, you're probably disgusted with both parties, and you're very purposefully trying to
protest. Like, I don't think you can assume that these people would be like, oh, okay, my libertarian isn't on the ballot, so I'm just going to vote for the Republican because, you know, libertarians are, you know, generally for small government and that's associated more with Republicans. And I also did the math for that to see like, okay, if you assume that like only 50% of the libertarian voters that year had turned out
What would the Republican have needed to win? And in that scenario, they would have needed 84% of those voters in order to beat Tester, which is just a very tall order. And then you can kind of do the same exercise with his other campaigns. That initial campaign, 2006, was actually the closest call. So in 2012, assuming 100% turnout among Libertarians, the Republican would have needed to win 78% of the Libertarian voters, which
in order to have beaten Tester, which again is an even taller order. And in fact, if you had had the 50% libertarian turnout threshold, it would have been physically impossible for them to beat Tester because there just wouldn't have been enough voters left
to deny Tester a majority. And then finally, in 2018, Tester actually did get a majority of the vote. He got 50.3% of the vote. So obviously, in that case, even if every Libertarian voted for the Republican candidate, they still wouldn't have defeated Tester. So basically, I'm fairly confident that if this system had been in place in all three of his previous elections, that Jon Tester still would have won each election. It might have been
bit closer you know these are all tight races in the event that the next election is decided by 200 votes it's a you know florida you know type situation florida 2000 type situation sure it can make a difference um but uh you know this is not like something that republicans can sit back and be like yeah we beat john tester by changing the rules
Okay, so a couple questions here. We're going to start specific and then we'll get broader. So with Jon Tester specifically, how likely is his reelection put aside what the voting process looks like?
You know, I would consider it a toss up, like it's certainly going to be one of the main competitive races of 2024. But this isn't a situation like West Virginia, for example, where Joe Manchin may or may not be running for reelection in what is like an extremely, extremely red state at this point, especially on the presidential level and obviously sharing the ballot with Democrats.
you know, Donald Trump or Ron DeSantis or whoever it is, is going to make it harder for a Democratic Senate candidate to kind of swim against that tide. So Montana is a red state, but it's not impossibly red, right? John Tester is not the only Democrat who has won there. Recently, you've had Steve Bullock, the former governor. You've had, you have like, it has two congressional districts now, and the Western Congressional District is
probably within reach for Democrats at some point in a good Democratic year. So, you know, and Jon Tester himself, you know, has a good kind of moderate, you know, I'm a everyday Montana farmer type of brand that has enabled him to
to do well there. So, you know, it's not impossible to see him, you know, outperforming the Democratic presidential candidate, presumably Biden, you know, by, you know, 15 or 20 points and winning the state in a way that I think it is hard to imagine that for someone like Joe Manchin, just because of how red the state is.
Now, put Tester aside, other states have implemented this kind of reform. Washington, California, and Louisiana, other states have implemented a great choice voting, which I think sometimes has a similar goal in mind, which is electing more moderate or broadly appealing candidates than the party primary and then first past the post general election.
Have those reforms actually been effective? And like, look, ultimately, it's kind of transparent what's going on here. But the goal is to have a consensus candidate, to have whoever wins be somebody who can get 50% plus one of the general electorate. And so presumably, if this system were put in place and Jon Tester lost, it's because the majority of Montanans wouldn't want him to be their senator.
Elsewhere, have we seen this effectively moderate what these elections look like?
Yeah, so there's been a fair amount of political science research on this, and the returns have been mixed. Some have found that it has had a moderating influence, and some people will tell you in California, for example, the legislature has gotten more moderate. But then other studies have found that no, actually, it hasn't made a difference once you account for other reforms. Like, for example, in California, around the same time, you've also had an independent reform.
districting commission, obviously other political changes happening in the state and nationwide for that matter. But then, you know, the system also kind of has other impacts that I think there have been some like unintended consequences as well. So for example, sometimes you will have just kind of a
quirk of the way that math works is that, you know, in a like Republican leaning district, for example, you might have two Democrats advance to the general election. And this can happen if you have like, say there's like 40% of a Democratic vote to go around and 60% of Democrat or a
have Republican votes to go around, but you only have two Democratic candidates, so each of them gets 20% of the vote, but you have like a gazillion Republican candidates and they split the vote a gazillion ways. You can have two Democrats advance to the general election and then the
the Republicans are locked out and that's obviously not the will of the voters in that place. You also see kind of a lot of kind of shenanigans going on with one party in the primary trying to like promote or hurt somebody else, you know, on the other side. Obviously this does happen, you know, like Democrats can interfere in the Republican primary as they did in 2022, even in kind of traditional primary states. But,
Um, but it kind of creates some weird incentives in terms of like wanting to, to get Republicans to actively split the vote. If you're a Democrat, uh, in order to let one of your candidates or maybe both of your candidates squeeze in or something like that. Um,
And then there's also the fact that a lot of people, when the system was first introduced again in California and in Washington, places that argued like, you know, oh, like California is such a blue state, right? And so it would be better in the general election if you have like two Democrats and maybe it's a moderate Democrat and a progressive Democrat. And, you know, that will better reflect the, you know, the makeup of the state. But in fact, what happens in that case is that you disengage a lot of Republican voters of whom there's still a lot in
in California. And they don't necessarily always kind of act rationally when you talk about like idea ideologically, like for example, in, I think it was 2018, right when Dianne Feinstein ran against Kevin de Leon, Kevin de Leon was the the kind of more ostensibly progressive Democrat in that race. But a lot of Republicans voted for him just because like,
Dianne Feinstein is a Democratic incumbent, and we've been used to hating her for a long time. So it creates these weird incentives. And so I think when you look at those unbalanced with the fact that it's not really clear whether it has kind of helped its stated ideological cooling the temperatures purpose, you know, I think it's... Yeah, so I was going to ask, all told, is a top two primary system a good or bad use of polling? It sounds like you're about to say bad use. Right. I don't, you know...
I guess it's not really my role to say. I will say that as somebody who collects election results, it's annoying to have to like add extra columns or like, you know, be like Dem 1 and Dem 2. So like, you know, I think I can confidently say that as an elections analyst and data collector, the top two is annoying. And then I'll leave it to other people to assess the kind of normative value of it on other regards.
All right. Well, a fun take on, or a quirky take on good or bad use of polling. But that is a wrap for us for today. So thank you so much, Amelia and Nathaniel. Thanks, Galen. Thanks, Galen. My name is Galen Druk, and Anna Rothschild is in the control room. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet at us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple Podcast Store, or tell someone about us. Thanks for listening, and we will see you soon. ♪
Ooh.
