Steve Huefner, my colleague at The Ohio State University Moritz College of Law and its Election Law program, and I had a conversation about the stresses and challenges facing democracy in the United States. A recording is available. I found the discussion productive, and I hope others do as well. 

One main theme of the discussion—the nation’s electoral and political institutions that worked reasonably well in the aftermath of World War II no longer function adequately because of changes in cultural conditions affecting American elections and politics—is echoed in an essay that Bruce Cain contributed to the “100 ideas in 100 days” series at NYU Law School’s Democracy Project. (Rick Pildes blogged about Bruce’s essay earlier today.) Bruce, whose previous work has greatly influenced my own thinking on America’s “Madisonian” system, writes in this essay: “We need to ask ourselves whether the Congressional rules that worked so well in the post-WWII period are the right ones for the current polarized era.” 

Bruce ends his essay with the intriguing suggestion that the United States would benefit from a “28th Amendment” that would require members of Congress to “go without pay if they could not pass the budget on time.” I’m not sure that would be a sufficient fix for the current problems caused by partisan polarization. I would add the necessity for the kind of electoral reform that former Senator Joe Manchin embraced this weekend, which I wrote about in my recent Common Ground Democracy post. But I wholeheartedly agree with Bruce that all of us should be brainstorming about what institutional innovations would restore our Madisonian system to the kind of well-functioning equilibrium that existed in the post-WWII period. 

A new Justice, Democracy, and Law essay at SCOTUSblog. Focusing on the new cert grant in Watson v. RNC, which concerns the deadline for submitting absentee ballots postmarked by Election Day, the essay considers two different jurisprudential perspectives the Court could employ for deciding the case: (1) a “representation-reinforcing” posture of the kind advocated by John Hart Ely and employed in earlier SCOTUS precedents; or (2) a “democracy-neutral” textualism favored by the current Court and exhibited in such cases as Rucho v. Common Cause. Contending that the Court will and indeed should eschew the former jurisprudential posture in this case because of the partisan polarization that presently afflicts the role of absentee voting in American democracy, the essay explains why the latter jurisprudential perspective of democracy-neutral textualism should yield the conclusion that states are entitled under federal law to set the deadline for receiving cast absentee ballots after Election Day as long as they are postmarked by then.

I’ve posted a short Common Ground Democracy essay on the event in Austin over this past weekend at which Joe Manchin, the former Senator from (and governor of) West Virginia, embraced the fundamental principle of Condorcet Voting, called “Consensus Choice Voting” at the event–which elects the candidate whom a majority of voters prefer over each other candidate when compared head-to-head. As I say in the essay, Manchin is the most prominent politician to support Condorcet Voting as the electoral method best suited for tackling the problem of partisan polarization.

This morning Rick linked to David Graham’s story for the December issue of The Atlantic, entitled Donald Trump’s Plan to Subvert the Midterms Is Already Under Way.

As someone who wrote a law review article in advance of the 2020 presidential election anticipating how Trump would endeavor to challenge the outcome if he was defeated as a result of “blue shift” ballots counted after Election Night, I’m all in favor of attempting to prognosticate what comparable efforts to undermine valid election results might occur in connection with next year’s midterms.

One detail in Graham’s story, however, is mistaken–or at least misleading. The article opens with a scenario in which “[c]ontrol” of the House of Representatives “seems like it will come down to two districts in Maricopa County, Arizona.” After contemplating what might happen in the state to prevent Democrats from winning those two districts, Graham writes: “the state names the two Democrats as winners” but “House Republicans reject Arizona’s certification and instead seat the GOP candidates.” Graham sums up this scenario by saying that “Trump’s allies keep the House” as a consequence of this “profoundly illegitimate” maneuver. (Much later in this lengthy article, Graham repeats in more general terms the same fear: “With Trump blowing wind into flimsy fraud allegations, the House GOP caucus could try to use them to preserve a narrow majority.”)

The problem with Graham’s scenario is that the House is not a continuing body. Thus, if the two Arizona districts will determine control of the House, then Republicans will not (yet) be the majority party in a position to seat Republican claimants instead of Democrats. The fact that Republicans were in the majority in the House during the previous two-year Congress is irrelevant. On January 3, 2027, the House will have to organize itself by first having the Members-elect vote in a new Speaker. If there is contestation over enough seats to determine which party has a majority of Members-elect for the purpose of holding the vote on who is the new Speaker, that contestation can stymie and delay the Speakership vote and prevent the organization of the House.

It’s a situation very much to worry about, but not in the way Graham describes. It wouldn’t be the Republicans giving themselves the majority by seating two more Republican members instead of the two Democrats who were certified by the state to have won the election. It would be much messier and more complicated than that. (As a general rule, the Clerk of the House is supposed to identify as a Member-elect a candidate who presents a prima facie valid certificate of election from the state, history shows that it is not always that simple.)

If one wants an inkling of what might happen if control of the House is at stake in the context of disputes over enough seats to make a difference in which party has a majority of votes to win the Speakership election, I encourage reading about two episodes described in Ballot Battles: The History of Disputed Elections in the United States (rev. ed. 2024). The first is the so-called “Broad Seal War” over New Jersey’s House seats in 1838, which starts on page 92. The second is the contestation over the 1862 midterms during the Civil War, starting on page 110.

Given all the discussion in today’s oral argument about the “congruence and proportionality” test under Boerne for assessing the scope of congressional enforcement power under the Fourteenth and Fifteenth Amendments (an issue I addressed in my first SCOTUSblog post on Callais), it seems to me worth considering whether, as applied to congressional districting (which is what Callais itself involves), the analysis of the Shaw-based constitutional challenge to the district created to avoid a VRA section 2 violation changes at all if one views section 2 in this context as an exercise of Congress’s power under Article I, section 4 to determine the “times, places, and manner” of congressional elections–rather than as an exercise of Congress’s Fourteenth and Fifteenth Amendment enforcement powers.

For one thing, my strong impression is that under the Court’s precedents the Court is supposed to sustain an exercise of congressional power if there is any basis for doing so. Even if Congress lacks the power to enact a law under one source of authority under the Congress, the law must be sustained if it can be considered as a valid exercise of a different source of constitutional authority. Consider, for example, Chief Justice Roberts’s decisive opinion for the Court in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the case that upheld the individual mandate in the major Obamacare law. After Roberts concluded that the individual mandate could not be sustained as an exercise of congressional power under the Interstate Commerce Clause, he went on to consider–and uphold–the individual mandate as a valid exercise of Congress’s Taxing power. He did this even while acknowledging that construing the individual mandate as a tax law, rather than a regulation, was not at all the most natural reading of the statute. I haven’t thought through whether similar reasoning could be employed to sustain the applicability of VRA’s section 2 to congressional districts under Article I, section 4, even if for some reason (with which I don’t agree with, to be clear) it could not be sustained under Boerne‘s congruence and proportionality test for legislation to enforce the Fourteenth and Fifteenth Amendments.

Assuming for sake of consideration that the VRA section 2’s result test applied to congressional districts is an exercise of Article I, section 4 power, what then? The plaintiffs in Callais would still be challenging Louisiana’s second majority-black district as a violation of Shaw v. Reno and its progeny. Here is where it seems especially important to acknowledge just how inconsistent with originalism Shaw v. Reno is (as I discussed in my second SCOTUSblog piece on Callais). In this regard, it is worth recalling that there is no Equal Protection Clause applicable to congressional statutes. To be sure, there are many precedents going back to Bolling v. Sharpe holding that the federal government must be bound by Equal Protection principles to the same extent as states are. But that is an entirely non-originalist exercise of constitutional interpretation, and anytime the Supreme Court is prepared to say that Congress has acted unconstitutionally by violating Equal Protection principles, the justices–especially originalist justices–should pause and ask themselves whether they really should be invalidating what Congress is doing under an exercise of their Marbury v. Madison authority “to say what the law is.” Or is their potential judicial decree to nullify the Act of Congress in question just legislating from the bench when the Court is demanding that Congress obey its conception of Equal Protection?

One can argue whether or not the Shaw doctrine should constrain race-based districting by states that is not required to remedy a VRA section 2 violation. I think Shaw is inconsistent with originalism even if that context. But when a congressional district is drawn because Congress itself has required a remedy for vote dilution, then invalidating that district is to say that Congress cannot undo racially discriminatory vote dilution even with respect to representation in Congress itself. That position seems untenable as an effort to be faithful to what Congress actually did when it sent the Fourteenth Amendment to the states for ratification.

I’m honored to be included in NYU Democracy Project’s “100 ideas in 100 days” series. Here’s my contribution. It makes a point about the need for high school civics education to include a component on the philosophy and mathematics of social choice. Without this addition to the curriculum, it’s not possible for the public to have an informed discussion about the pros and cons of various alternatives for how to design an electoral system to yield a single winner among multiple candidates. As ELB readers know, I have my own views on these pros and cons, but what’s really important for a democracy is that the citizenry be able to make an intelligent choice for itself on this crucial issue. Currently, I can think of no higher priority for our field.

I have a new Justice, Democracy, and Law column on SCOTUSblog. In advance of tomorrow’s argument in the huge Voting Rights Act case Louisiana v. Callais, I consider how principles of originalism and respect for precedent apply to the question upon which the Supreme Court ordered reargument. The column starts with a discussion of Justice Barrett’s new book, in which she lucidly discusses her judicial philosophy of originalism and how it relates to the doctrine of stare decisis. The column then explains why adherence to originalism and an appropriate application of the Court’s doctrine of stare decisis, which limits or overrules precedents that prove unworkable or conflict with other elements of law, yield the conclusion that section 2 of the Voting Rights Act should remain intact. Instead, it’s the Shaw v. Reno line of cases that cannot withstand this analysis insofar as it conflicts with the power of Congress to prohibit redistricting that causes vote dilution in section of the VRA. The column concludes:

“From reading Barrett’s book, one gets the impression that she approaches her role on the Supreme Court with great “integrity,” as Will Baude has observed. One thus hopes that she will deliberate on the issues in Callais with the intellectual honesty to which she aspires – and will convince her colleagues on the court to do so as well. At the very least, given what she has written, one can reasonably expect that she will grapple with the issues of originalism and the doctrine of stare decisis applicable in Callais as examined in this essay (and developed in much greater length in an amicus brief submitted by my fellow election law scholar Travis Crum). It will be most disappointing if the court, as well as Barrett herself, fails in Callais to live up to the standard she set forth in her superb book.”

During my visit to Australia, I was a guest on an episode of the Presidential Upending! podcast hosted by professors Claire Corbould and Zim Nwokora of Deakin University. I really enjoyed this wide-ranging conversation. Spending time in Australia allows one to get some distance from the United States, providing the opportunity for a new perspective and some reflection.

NPR’s Nina Totenberg has a review of Justice Kennedy’s forthcoming book Life, Law, and Liberty. The review discusses an interview that NPR will air in October. In the interview, Justice Kennedy says “he is ‘very worried’ about America today.” Kennedy continued:

“‘We live in an era where reasoned, thoughtful, rational, respectful discourse has been replaced by antagonistic, confrontational conversation.’ … ‘Democracy is not guaranteed to survive.'”

Also this:

“‘It seems to me the idea of partisanship is becoming much more prevalent and more bitter.'”

The book review also says much of interest about Supreme Court and constitutional law generally. I’m going to recommend that my Constitutional Law and Jurisprudence students read it. I’m looking forward to the book itself.

L.A. Times:

“The primary group backing Proposition 50 raked in $77.5 million and spent $28.1 million through Sept. 20, according to a campaign finance report that was filed with the secretary of state’s office on Thursday.

“The committee has $54.4 million in the bank for the final weeks of the campaign, so Californian should expect a blizzard of television ads, mailers, phone calls and other efforts to sway voters before the Nov. 4 special election.

“The two main groups opposing the ballot measure have raised $35.3 million, spent $27.4 million and have roughly $8.8 million in the bank combined, campaign finance reports show…

“Polling about the proposition is not definitive. It’s an off-year election, which means turnout is likely to be low and the electorate is unpredictable. And relatively few Californians pay attention to redistricting, the esoteric process of redrawing congressional districts.”

POLITICO:

“President Donald Trump on Saturday falsely accused the FBI of fomenting the Jan. 6, 2021, assault on the Capitol — a sharp escalation of his attacks on the bureau and his effort to downplay the violence a mob of his supporters inflicted that day.

“Trump on social media said the FBI had “secretly placed” 274 agents into the crowd of rioters who stormed the Capitol to disrupt the certification of Joe Biden’s victory in the 2020 election.

“His comments stemmed from reports Friday in right-leaning media that appeared to conflate the FBI’s response to the Jan. 6 attack — the bureau has long acknowledged sending agents and support personnel to the Capitol after the breach to help restore order — with conspiracy theories that the bureau embedded undercover agents to ignite the attack in the first place.

“In reality, the inspector general of the Justice Department revealed 10 months ago that “hundreds” of FBI agents went to the Capitol to assist at the request of the beleaguered Capitol Police. The bureau also had personnel responding to pipe bombs placed outside the national Republican and Democratic parties’ headquarters and to a vehicle full of explosives.

The inspector general did find that 26 FBI confidential sources — who are not employees of the bureau but have at times shared information — were among the crowd that day. But nearly all of them, the IG found, did not tell the bureau of their plans to attend, and none were instructed to violate any laws or participate in the riot.

The IG report also found “no evidence” that the agency had “undercover employees in the various protest crowds, or at the Capitol, on January 6.””

POLITICO:

“Moore disputed characterizations of reluctance in an interview at the 54th Annual Legislative Conference hosted by the Congressional Black Caucus Foundation this week. …

“Moore has yet to call a special session to take up redistricting. He suggested there’s still time to do it, while underscoring he’s been clear with his “legislative partners” he’s ready for them to take it on. And he said he’s had conversations about the matter with Congressional leaders — House Minority Leader Hakeem Jeffries and the Senate’s top Democrat, Chuck Schumer …

“When pressed on why he’s not yet taken action, Moore suggested legal challenges to a new map were not a major concern, even though a Maryland judge struck down a map that might have given Democrats an 8-0 advantage in their House delegation three years ago. He instead put the onus on his general assembly. …

“As Moore builds a national profile ahead of the 2028 presidential primary, he has spoken to Eric Holder, the former U.S. attorney general under President Barack Obama who heads the National Democratic Redistricting Committee, according to two people familiar with the conversations and granted anonymity to discuss private talks. …

“While Moore said he does not feel compelled to accelerate the redistricting fight, suggesting it could be taken up when the legislature reconvenes in January, others believe that would not afford enough time to get new maps passed and adjudicated through likely court challenges before the candidate filing deadline in late February next year.”

Read the whole article for additional details concerning litigation over a previous gerrymander in Maryland and whether or not that precedent is applicable in this particular context.

POLITICO:

“Retribution, not reconciliation, appears to be the prime motivation behind the new probe, with the Republicans behind it still bitter over the work of the panel’s previous iteration, which was largely led by Democrats and concluded President Donald Trump was singularly to blame for the violence inflicted by his supporters. …

“The attack remains a raw issue on Capitol Hill. Sen. Thom Tillis (R-N.C.) helped sink the nomination of conservative attorney Ed Martin to be Trump’s top prosecutor in Washington, citing Martin’s advocacy for Jan. 6 criminal defendants and his comments about the attack. FBI Director Kash Patel has faced intense questioning about his own advocacy for Jan. 6 defendants and his role in producing a rendition of the National Anthem by some of the most violent offenders that day.

“There is even an ongoing controversy over whether to hang a plaque previously commissioned by Congress to honor those who protected the Capitol that day. Johnson has refused to display the memorial, and Loudermilk, while expressing personal support for the officers, said that decision is ‘not in my decisionmaking wheelhouse. …

“Reinvestigating the attack has been a longstanding priority for the Georgia Republican, who came under scrutiny by the previous Jan. 6 panel for hosting a tour of the complex the night before the Capitol riot. One person in his party was later found to have posted incendiary videos and marched toward, but not into, the building the next day. …

“The formal creation of Loudermilk’s panel followed months of negotiations over its scope and powers, with Loudermilk pushing for greater jurisdiction than Johnson’s team had been willing to give — and complaining to fellow Republicans about how GOP leadership was trying to stifle his effort. Then the Trump administration privately applied pressure to get the effort set up, Loudermilk told reporters earlier this year. …

“Besides Loudermilk and Higgins, the panel’s members are Republican Reps. Morgan Griffith of Virginia, Troy Nehls of Texas and Harriet Hageman of Wyoming, as well as Democratic Reps. Eric Swalwell of California, Jasmine Crockett of Texas and Jared Moskowitz of Florida. House Judiciary Chair Jim Jordan (R-Ohio) will serve as an ex officio member alongside Raskin, the top Judiciary Democrat.

“These lawmakers are some of the most aggressive political messengers of their respective parties. Nehls sued the government over what he claimed was retaliation from the Capitol Police for his criticism of the force’s handling of the Jan. 6 Capitol attack. Hageman unseated Cheney after she was ostracized by her party for her leading role in the prior panel and her unrelenting criticism of Trump.”

Newsday reports:

“Two big-spending political action committees quietly paid nearly $1 million last week to end an investigation alleging they violated election laws by illegally coordinating activities with Lee Zeldin’s 2022 gubernatorial campaign. …

“The groups agreed to pay a $900,000 fine — believed to be the largest ever in New York in a case involving a political action committee coordination with a candidate.”

The N.Y. Times coverage of the settlement is here.