Politics in the Post-Roe World – Sabato’s Crystal Ball

Katie R. Ochoa
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KEY POINTS FROM THIS ARTICLE

— The president’s party often struggles in midterms, although extraordinary circumstances can save them from losses. The Supreme Court’s overturning of Roe vs. Wade could be 2022’s extraordinary circumstance.

— Beyond abortion, Republicans still retain powerful political advantages.

— Democrats could get their version of 2018’s “Kavanaugh Effect.”

— 2022 won’t definitively resolve the abortion question.

The midterm after Dobbs

The ordinary outcome in midterm elections is that the president’s party loses ground, almost always in the House and often in the Senate and the statehouses as well. Of the 40 midterms held since the Civil War, the president’s party has lost ground in the House in 37 of them.

The 3 exceptions show that in order to buck the ordinary midterm trend, the president’s party needs to benefit from some sort of extraordinary occurrence. In 1934, Franklin Roosevelt’s immense popularity as he fought the Great Depression helped Democrats make a small gain in the House and a big gain in the Senate. In 1998, a roaring economy contributed to Bill Clinton’s popularity, and Republicans likely overplayed their hand on their pursuit of Clinton’s impeachment over the fallout around his affair with a White House intern. And in 2002, George W. Bush’s popularity in the aftermath of the Sept. 11 terrorist attacks and in the leadup to the Iraq war gave the Republicans powerful issues to emphasize as they made modest gains in the House and the Senate, flipping the latter to GOP control.

As we digest the Supreme Court’s monumental decision on Friday to jettison Roe vs. Wade and remove the constitutional right to abortion that the court initially put in place a half century ago, we have to wonder — could this be another extraordinary circumstance that confounds the usual midterm effect?

Here are 5 points we’re considering:

1. President Biden remains unpopular and the top, non-abortion issues of 2022 favor Republicans

Notice that in the 3 counter-examples to the usual midterm trend above, the 3 presidents who saw their party net seats in a midterm (FDR, Clinton, and G.W. Bush), were all popular. Clinton and Bush were over 60% approval around the time of the midterm, and Roosevelt almost assuredly was as well (FDR’s presidency pre-dates the modern era of polling).

Biden, meanwhile, is not popular. His net approval rating turned negative nearly a year ago, in late August following the collapse of the U.S.-backed government in Afghanistan and the haphazard American withdrawal. As of Monday morning, his approval in both the FiveThirtyEight and RealClearPolitics averages was about 39% approve/56% disapprove, the worst mark of his presidency in both averages. Those numbers are worse than Donald Trump’s at a comparable time in his presidency.

A big part of the reason Biden is struggling is because voters are struggling with inflation at levels unseen for 4 decades. Gas prices are also very high. These are issues that would be difficult for any president, but they are also ones where Republicans, as a party, are well-equipped to wield predictable but time-tested attacks.

Republicans often criticize Democrats for high spending, and they can argue, persuasively to at least some, that the Democrats’ American Rescue Plan, passed at the start of Biden’s presidency contributed to inflation. Republicans also are used to attacking Democrats over being less supportive of domestic energy production, another quite possibly effective line of attack given very high gas prices. How fair these criticisms are belongs in the eyes of the beholder; our only point is that these lines of attack are squarely in the Republicans’ wheelhouse. This is part of the reason why we have been so bullish on Republicans in this midterm: Since Jan. 1, the Crystal Ball has made 29 rating changes in House, Senate, and gubernatorial races: 27 of those have been in favor of Republicans, while only 2 have come at the Republicans’ expense.

If you believe the abortion issue is only going to have a negligible impact on the midterm, this is your argument: Roe vs. Wade going away isn’t going to suddenly make Biden popular, nor is it going to crowd out the very real problems going on in the country that weigh Biden (and Democrats) down.

It is not surprising that, in the immediate aftermath of the ruling, Democrats appear to be enjoying something of a bounce. The NPR/PBS NewsHour/Marist College poll, out Monday morning, had Democrats up 48%-41% on the House generic ballot. Most other recent generic ballot surveys have shown Republicans leading. The generic ballot did not really change when the Dobbs opinion was leaked back in early May, although that was a hypothetical decision, whereas this is a real one. We’ll have to see whether this is the start of a new trend, or just a blip.

2. Republicans are on the wrong side of a change in the status quo

Public opinion is very complicated — the public’s nuanced position on abortion is a good example, which we will explore later on — but one thing that can get a party in trouble is challenging or changing the status quo on an issue where the party is also on the wrong side of public sentiment.

Health care is a good example. In 2010, Democrats passed the Affordable Care Act, which as a whole was not popular and which promised a change to the health care status quo. Seven years later, Republicans tried (and failed) to change the ACA (“Obamacare”), which by then had become the status quo in health care policy. They failed to pass an alternative to Obamacare, but they got stuck on the wrong side of the issue anyway because of their very public attempt to change the status quo. The health care issue contributed to the losses each party suffered in those midterms.

The Supreme Court, dominated by Republican appointees, has just changed the status quo on abortion, and the status quo on abortion was, broadly speaking, popular. It is common to see support for the Roe vs. Wade decision in the 60s in national public opinion polling. Republicans have wanted Roe overturned for decades and worked to make it happen through their presidents’ judicial appointments. They have now scored a signature achievement, but they are not really on the right side of public opinion. Abortion will remain legal in many places, but it will be severely constrained, if not completely banned, in many places, too.

Almost all presidents seek to make a midterm election more of a choice than a referendum, because choice elections are generally easier to win than referendums. Democrats have been searching for anything they can to try to make this election a choice, be it the transgressions of the former president or even the policy proposals of Sen. Rick Scott (R-FL), the chairman of the National Republican Senatorial Committee. Very little has stuck so far, as the political environment has remained strong for Republicans. But abortion is such a huge issue, and Republicans (through the court) have changed the status quo so dramatically, that one cannot just assume the issue won’t matter.

Whatever one’s position on abortion, we do think the following is fair to say: Fairly legislating on the issue requires a high level of medical expertise and nuance; otherwise, there will be regrettable consequences. The New England Journal of Medicine, in an editorial criticizing the Dobbs vs. Jackson Women’s Health Organization decision that overturned Roe, warns of some of these consequences. Unfortunately, it seems obvious to us that many key state legislators don’t possess the kind of expertise and nuance, particularly on abortion, to legislate in nuanced ways. The likelihood of Republicans overplaying their hand is high.

3. Public opinion on abortion is muddy

More broadly, mainstream, elite opinion in both parties does not necessarily square with where the majority of the public is on this issue.

Namely, Republicans generally oppose abortion rights with few if any exceptions, and Democrats generally support abortion rights with few if any exceptions.

After the Dobbs decision leaked a couple of months ago, we discussed public opinion on abortion rights, using data from our ongoing study of Biden and Trump voters with Project Home Fire. We asked respondents about whether abortion should be legal, with 0 indicating the maximal anti-abortion rights opinion and 100 indicating the maximum pro-abortion rights position on a 100-point scale. Just 7% of respondents picked 0, and 15% picked 100; everyone else was somewhere in the middle, with 57% of respondents picking a position that was more supportive of abortion rights, and 43% picking a position that was less supportive. That sort of nuance is evident in much of the opinion polling over abortion.

In other words, there are opportunities for both parties to accuse the other of being extreme on the issue. It just may be that in the immediate aftermath of Dobbs, Republican extremism on abortion will be easier to pinpoint because of the coming flood of anti-abortion activity in the states and because the status quo has changed in the direction of their position. But the political damage to Republicans could be mitigated by their previously-established advantages in this election cycle (as described in the first part of this article).

4. A Democratic version of the “Kavanaugh Effect”

Some Republican strategists believe that the bruising battle over Brett Kavanaugh’s confirmation to the Supreme Court roused a somnolent Republican base and helped limit the GOP’s problems in the 2018 election. While Republicans ended up doing about as poorly as could have been expected in the House, they did end up making a small net gain in the Senate, which included beating 3 Democratic Senate incumbents in deep red states. Those 3 former Democratic senators — Indiana’s Joe Donnelly, Missouri’s Claire McCaskill, and North Dakota’s Heidi Heitkamp — also believe the battle over Kavanaugh hurt them, which they discussed at a joint event hosted by the UVA Center for Politics in 2019. The “Kavanaugh Effect” is a hard one to prove beyond anecdotal evidence, although the University of Houston’s Alex Badas and Elizabeth Simas argued in a recent Political Science Research and Methods article that judicial appointments are a particularly important issue for Republicans. It stands to reason, then, that perhaps the battle over Kavanaugh served to essentially remind some Republican voters of whose side they should be on, which perhaps contributed to those red state Senate flips.

One possible outcome of the Dobbs decision is that it has a similar effect on Democrats, perhaps not changing the basic, pro-Republican trajectory of the election, but giving Democrats in bluish states and districts a good reason to stick with their party despite whatever economic concerns they may have.

This is something we’re thinking about in terms of ratings. For instance, Republicans appear to have a real chance to flip some blue state governorships, such as in New Mexico and Oregon. Gov. Michelle Lujan Grisham (D-NM) faces a challenge from 2020 Senate nominee and former TV meteorologist Mark Ronchetti, while Oregon is an open seat featuring a 3-way race among former state House Speaker Tina Kotek (D), former state House Minority Leader Christine Drazan (R), and a prominent unaffliated candidate, former Democratic state Sen. Betsy Johnson. We’ve held these races as Leans Democratic, although one could argue they could each be Toss-ups. Our inclination in the aftermath of the abortion ruling is to keep them where they are for the time being, under the assumption that the ruling may make it easier for the Democratic candidates to corral their base voters, even as the basic right to abortion is not under immediate threat in either state. Another race in the same category is the New Hampshire Senate race, where Sen. Maggie Hassan (D) is seeking a second term against an uncertain field; the Granite State is very much pro-choice, which could assist Hassan. Notice, too, that the Democratic candidates in all of these races are women: for obvious reasons, it may be that candidates who are women are more effective messengers on the abortion issue. There are several other races where abortion seems likely to matter a lot, such as gubernatorial races in Michigan and Wisconsin, which are battleground states with Democratic governors and Republican legislatures where very old, pre-Roe laws banning abortion remain on the books. Crystal Ball Senior Columnist Louis Jacobson identified these and other key races where abortion might matter earlier this year.

If Republicans are to have a really big year in the House — netting something like 35 seats, for instance, which would create the biggest GOP House majority since right before the Great Depression — they will need to win many districts where, in 2020, Biden did better than he did nationally. If instead of achieving this goal, Republicans stall out at the 15-20 seat net range, it would likely be an indicator that the abortion issue brought Democratic voters home in Biden-won districts.

To be crystal clear: We still favor Republicans to flip the House, as they only need to win 5 more seats than they did in 2020 to win the majority. And we think we would still rather be Republicans in the race for the Senate, although we continue to have questions about the strength of GOP candidates in key states. The abortion issue could exacerbate those problems. For instance, former football star and Georgia Senate nominee Herschel Walker (R) opposes abortion even in the case of rape or incest (and he’s far from alone among Republicans in that regard). Perhaps that stance becomes difficult to defend as the salience of the abortion issue now increases.

5. This election will not be the final verdict on abortion rights

Abortion is among the most difficult of political issues because of the deeply-felt opinions on both sides. If someone truly believes that abortion is murder, how could one compromise on such a position? Likewise, if one believes that any restriction on abortion effectively reduces women to second-class citizens, how could that person compromise on that, either? At the same time, wide swathes of the nation don’t fit neatly into either camp.

Different parts of the nation have different attitudes on abortion. The largely secular Northeast is very supportive of abortion rights; much of the South is both deeply religious and much less supportive of abortion rights. There are even differences within the parties on the issue, although they are not nearly as stark as they were a few decades ago. Still, one can find a moderate Republican northeastern governor, Charlie Baker of Massachusetts, decrying the Dobbs decision, while a moderate southern Democrat, John Bel Edwards of Louisiana, can effectively support it.

Democrats have already tried, and failed, to codify Roe vs. Wade’s protections of abortion rights into federal law. They will campaign on the issue. Republicans may not push so stridently for a national abortion ban in the immediate aftermath of the Dobbs decision, but they could eventually push for it the next time they have unified control of government. National abortion rights legislation could end up being the death knell for the filibuster in the Senate. Wild shifts in abortion policy at the state level are certain; such shifts at the national level could come, in time.

Elections are rarely ever just about one thing. Abortion is going to be a bigger deal in 2022 than it otherwise would have been, but it may not alter the basic trajectory of the election. Whether it does, or whether it doesn’t, won’t mean the issue is resolved.

Even under Roe, the nation did not reach a political equilibrium on abortion rights. With Roe gone, the nation is either going to have a patchwork of very different abortion laws depending on the state, or, perhaps in the future, a one-size-fits-all national legislative solution that matches some states but clearly not all. The 2022 election will get the nation started down a future path on abortion, but the ultimate destination is very much unclear.

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