Morning Digest: Three states could finally erase same-sex marriage bans from the books

It's not just about excising bigotry—it's about keeping the Supreme Court at bay

(Credit: Yes on Prop 3, Freedom to Marry commercial)

Leading Off

Same-sex Marriage

Voters in California, Colorado, and Hawaii will decide whether to remove same-sex marriage bans from their state constitutions, but as LGBTQ rights advocates argue, there's far more at stake than excising long-defunct language.

While same-sex marriage has been legal across the nation ever since the Supreme Court's 2015 decision in Obergefell v. Hodges, HuffPost's Lil Kalish highlights progressive fears that the court's hard turn to the right since then puts those rights at risk. 

They're also not convinced that the Respect for Marriage Act, a bill passed in 2022 that protects both same-sex and interracial marriage across the country, would stop conservative justices.

"If this Court follows through on its threat to revisit Obergefell, we could easily see nationwide rights to same-sex marriage restricted again," Democratic Rep. Jill Tokuda warned the Hawaii legislature in written testimony earlier this year.

The oldest of these restrictions is found in the governing document of Tokuda's home state, but it would be stricken from the books if Hawaii voters approve Question 1. A "yes" vote would remove language placed in the state constitution in 1998 saying, "The legislature shall have the power to reserve marriage to opposite-sex couples." 

It would take a simple majority of voters to pass Question 1, but there's a complication. Hawaii, as Civil Beat's Chad Blair explains, takes into account the total number of ballots cast, not just whether more people select "yes" instead of "no." 

"Anything that’s not an actual yes counts as a no," said Senate Judiciary Committee chair Karl Rhoads, a Democrat who tells Blair he's mulling legislation to eliminate this practice (which was once common but is now only in use in three other states). Any fix, however, would likely take another constitutional amendment, so no changes could come in time for this year's elections.

Hawaii's Supreme Court made history in 1993 when it ruled against the state for discriminating against same-sex couples looking to wed, making it the first court in the world to issue such a decision. That ruling, known as Baehr v. Miike, prompted a swift backlash, however: Several states passed new bans on same-sex marriage, while Congress followed up in 1996 with the Defense of Marriage Act.

Hawaii soon joined in. Democratic Gov. John Waihee signed a new ban in 1994 designed to comply with the ruling, and supporters of the status quo went further still. In 1998, about 70% of voters approved an amendment allowing lawmakers to restrict marriage to opposite-sex couples.

But that constitutional provision, which was known as Section 23, eventually gave the legislature the power to reverse itself. In 2013, a different Democratic governor, Neil Abercrombie, signed a bill making Hawaii the 15th state to legalize same-sex marriage, legislation that came a full decade after Massachusetts became the first to allow it.

But just like in California and Colorado—where marriage equality came through court order rather than legislative action—the old amendment remains on the books.

"One of the things we've learned in recent history is that if you leave buried landmines legally, they may blow up," Jeff Hong of the Change 23 Coalition recently told Hawaii Public Radio. But Hong expressed confidence this relic wouldn't be around to harm anyone for much longer.

"Three out of four people now support same-sex marriage," he said. "The pendulum has swung. We're in a position to now look back and make the correction."

Such a correction could also come in Colorado, where Amendment J would remove an 18-year-old constitutional ban declaring that "only a union of one man and one woman shall be valid or recognized as a marriage in this state." Because the amendment would not insert new language into the state constitution, it needs only a simple majority to pass rather than 55% of the vote, as Colorado normally requires.

Same-sex marriage became illegal in the Centennial State in 2000 when the state's last Republican governor, Bill Owens, signed a bill passed by the legislature. Six years later, voters approved a constitutional ban by a 55-45 margin even as Democrat Bill Ritter was turning in an even larger victory in the race to replace the termed-out Owens. 

But Colorado is a very different place now. This onetime swing state is now a blue bastion led by Democratic Gov. Jared Polis, whose victory in 2018 made him America's first openly gay governor.

The most expansive of these three repeal measures will be found on ballots in California, the state whose same-sex marriage ban is perhaps the most infamous. Proposition 3 would not only repeal the notorious Proposition 8 passed in 2008, it would also substitute text affirming that the "right to marry is a fundamental right" in the nation's largest state. 

The effort to pass Proposition 3, as Politico's Dustin Gardiner recently highlighted, is also using this campaign as a chance to rectify some of the mistakes it made during the unsuccessful battle to beat Proposition 8.

Gardiner writes that same-sex marriage backers concentrated on "white, cisgender gay and lesbian couples" sixteen years ago at the expense of other LGBTQ groups. By contrast, Gardiner notes that Yes on Prop 3's advertising has showcased transgender and nonbinary people, as well as a more racially diverse cast.

"This time around, we believe it’s an inclusive campaign," said Bamby Salcedo, who leads the Trans Latina Coalition, in comments to Gardiner. "We have a seat at the table."

Voters approved Proposition 8 by a 52-48 spread even as Barack Obama was overwhelmingly carrying the Golden State, but a newly released poll shows that much has changed in the last 16 years. The Public Policy Institute of California publicized a survey Thursday showing Proposition 3 ahead 67-32, which is even larger than Kamala Harris' 59-33 lead in her home state.

Senate

Independent Expenditures

Major super PACs on both sides made several strategic adjustments in their Senate spending plans on Thursday as they try to maximize their gains with the clock winding down.

• MT-Sen, PA-Sen: American Crossroads, an affiliate of the Senate Leadership Fund, is canceling $2.8 million in ad spending in Montana. The Washington Post's Liz Goodwin says the move comes as Republicans "feel more confident" about Tim Sheehy's prospects of ousting Sen. Jon Tester.

That's a relative pittance, however, seeing as AdImpact recently reported the state was expected to see another $30 million in TV ads over the final two weeks, evenly divided between the parties.

Crossroads is also reportedly shifting $1 million into Pennsylvania's Senate race, but that's even less than a pittance there. The state has been so flooded by advertising, especially at the top of the ticket, that the GOP firm Medium Buying says Philadelphia's ABC affiliate is completely sold out of airtime through Nov. 5.

• NV-Sen: SLF is putting money into Nevada's Senate race for the first time, reports NBC's Bridget Bowman, with a $6.2 million expenditure to boost Sam Brown over Sen. Jacky Rosen. That represents a turnaround from the GOP's posture until now: Late on Wednesday night, Axios reported that Republicans "appear to be abandoning Arizona and Nevada," noting that SLF had not spent anything there to date.

But the PAC's new infusion won't go as far as Republicans would like. Like Pennsylvania, Nevada has been subject to a deluge of ads, so such a late reservation will buy fewer spots. And per AdImpact, Democrats already had a $12 million to $3 million advantage for the final two weeks after enjoying a considerable edge all cycle long.

• TX-Sen: The Senate Majority PAC is making its first foray onto Texas TV days after it began running digital and radio ads, with a $5 million ad buy across the state's three largest media markets: Dallas, Houston, and San Antonio. It's not an enormous sum given the state's enormous size, but importantly, Texas has not been quite as inundated as the swing states thanks to a lack of presidential advertising. The race between GOP Sen. Ted Cruz and Democrat Colin Allred, though, has still seen plenty of spending.

Governors

IN-Gov

The Republican Governors Association has contributed an additional $500,000 to Republican Mike Braun, the Indianapolis Star's Kayla Dwyer reports, which brings its total investment in Indiana to $1.5 million. The DGA so far has donated a comparable $1.15 million to Democrat Jennifer McCormick in this unexpectedly competitive race.

House

CA-34

The hawkish pro-Israel group AIPAC has booked $500,000 in TV commercials to help Rep. Jimmy Gomez in the all-Democratic contest for California's dark blue 34th District, Politico reports. 

AIPAC's United Democracy Project previously launched digital ads and mailers targeting David Kim, a former prosecutor waging his third consecutive campaign against Kim. Gomez has also benefited from $500,000 in support from the crypto-aligned group Protect Progress, while there has been no outside spending to aid Kim.

GA-02

Democratic Rep. Sanford Bishop has released an internal poll from Public Policy Polling that gives him a 51-40 lead over Republican Wayne Johnson, a move that comes a week after Johnson showcased an internal from co/efficient showing Bishop ahead just 45-42 in Georgia's 2nd District.

Major outside groups on both sides seem to agree with PPP's read on the race, as they've continued to direct their money to other contests. Johnson, who has been self-funding almost all of his effort, finished Oct. 16 with less than $2,000 in the bank.

Poll Pile

• AZ-Sen: Marist College: Ruben Gallego (D): 53, Kari Lake (R): 45 (50-49 Trump) (late Sept.: 54-44 Gallego)

• FL-Sen: Cherry Communications (R) for the Florida Chamber of Commerce (pro-Rick Scott): Rick Scott (R-inc): 51, Debbie Mucarsel-Powell (D): 46 (51-45 Trump) (Aug.: 51-44 Scott)

• MD-Sen: Braun Research for The Washington Post and the University of Maryland: Angela Alsobrooks (D): 52, Larry Hogan (R): 40 (61-33 Harris) (late Sept.: 51-40 Alsobrooks)

• OH-Sen: YouGov for Bowling Green State University: Sherrod Brown (D-inc): 47, Bernie Moreno (R): 45 (50-43 Trump) (late Sept.: 49-45 Brown)

• PA-Sen: Emerson College for RealClearPennsylvania: Bob Casey (D-inc): 47, Dave McCormick (R): 46 (49-48 Trump) (early Oct.: 48-46 Casey)

• PA-Sen: Franklin & Marshall College: Casey (D-inc): 49, McCormick (R): 48 (50-49 Trump) (mid-Sept.: 48-40 Casey)

• WI-Sen: Emerson for RealClearWorld: Tammy Baldwin (D-inc): 48, Eric Hovde (R): 48 (49-48 Trump) (early Oct.: 50-46 Baldwin)

• NC-Gov: Marist: Josh Stein (D): 55, Mark Robinson (R): 41 (50-48 Trump) (late Sept.: 54-43 Stein)

• NH-Gov: Emerson for WHDH: Kelly Ayotte (R): 46, Joyce Craig (D): 43, Stephen Villee (L): 4 (50-47 Harris)

• NC-Gov: Emerson for RealClearWorld: Stein (D): 51, Robinson (R): 39 (50-48 Trump) (early Oct.: 50-34 Stein)

• AL-02: Montgomery Research (R): Shomari Figures (D): 50, Caroleene Dobson (R): 46 (52-46 Harris)

• FL-04: University of North Florida: Aaron Bean (R-inc): 48, LJ Holloway (D): 41

• VA-02: DCCC Analytics (D): Jen Kiggans (R-inc): 47, Missy Cotter Smasal (D): 47 (50-46 Harris) (May: 48-44 Kiggans)

• VA-07: Ragnar Research Partners (R) for Derrick Anderson: Eugene Vindman (D): 44, Derrick Anderson (R): 42 (48-43 Harris) (early Oct.: 43-42 Vindman)

• CA Ballot: Public Policy Institute of California: Lower vote required to approve local bond measures for housing and public infrastructure: No: 50, Yes: 48 (59-33 Harris) (early Sept.: 50-49 No)

• CA Ballot: PPIC: End forced prison labor: No: 56, Yes: 41 (early Sept.: 50-46 No)

• CA Ballot: PPIC: Raise minimum wage: No: 54, Yes: 44 (early Sept.: 50-49 Yes)

• CA Ballot: PPIC: Rent control: No: 54, Yes: 42 (early Sept.: 51-46 Yes)

• CA Ballot: PPIC: "Restricts Spending of Prescription Drug Revenues by Certain Health Care Providers": No: 49, Yes: 47 (early Sept. 53-43 Yes)

• CA Ballot: PPIC: Expand felony charges: Yes: 73, No: 25 (early Sept.: 71-26 Yes)

• SD Ballot: Emerson for The Hill and KELO-TV: Marijuana measure: No: 50, Yes: 45 (62-35 Trump) 

• SD Ballot: Emerson: Abortion amendment: No: 48, Yes: 45

• SD Ballot: Emerson: Top-two primary amendment: No: 48, Yes: 40

Emerson's last polls of North Carolina, Pennsylvania, and Wisconsin were done for a seperate client, The Hill.

Ad Roundup

• MD-Sen: Larry Hogan (R) - anti-Angela Alsobrooks (D)

• NJ-Sen: Curtis Bashaw (R) - anti-Andy Kim (D)

• NM-Sen: Martin Heinrich (D-inc)

• PA-Sen: Dave McCormick (R) - anti-Bob Casey (D-inc); Senate Leadership Fund - anti-Casey

• TX-Sen: Colin Allred (D) - anti-Ted Cruz (R-inc)

• MO-Gov: American Dream PAC - anti-Crystal Quade (D)

• NC-Gov: Josh Stein (D) - anti-Mark Robinson (R)

• NH-Gov: Kelly Ayotte (R)

• CA-09: Kevin Lincoln (R) - anti-Josh Harder (D-inc)

• CA-22: Congressional Leadership Fund - anti-Rudy Salas (D)

• CA-41: Will Rollins (D) - anti-Ken Calvert (R-inc)

• FL-13: Whitney Fox (D) - anti-Anna Paulina Luna (R-inc)

• IA-02: Ashley Hinson (R-inc)

• IA-03: Zach Nunn (R-inc); Nunn - anti-Landon Baccam (D) (here and here)

• NE-02: Don Bacon (R-inc) - anti-Tony Vargas (D) (here and here)

• NJ-07: Sue Altman (D) and the DCCC - anti-Tom Kean (R-inc)

• NY-01: John Avlon (D) - anti-Nick LaLota (R-inc)

• NY-18: Pat Ryan (D-inc) - anti-Alison Esposito (R)

• OH-09: CLF - anti-Marcy Kaptur (D-inc)

• OR-04: Val Hoyle (D-inc) (here and here)

• PA-07: CLF - anti-Susan Wild (D-inc)

• WA-03: Joe Kent (R) - anti-Marie Gluesenkamp Perez (D-inc)

• FL Ballot: Yes on 4 Florida - pro-abortion amendment (in English and Spanish)

• NC Supreme Court: Allison Riggs (D-inc)