All posts by Rick Hasen

My New One in the NY Times on How States, Courts, and the Public Can Combat the Risk Trump Poses to the 2026 Midterm Elections

authoritarian threats in US, election subversion risk

I have written this guest essay for the NY Times (free gift link). It begins:

With Republicans potentially losing their current seven-vote majority in the House in next year’s midterm elections (or, less likely, their six-vote majority in the Senate), President Trump has been sending clear signals of his intent to interfere with the fairness and integrity of those elections.

After saying in a social media post on Monday that “DEMOCRATS … CHEAT AT LEVELS NOT SEEN BEFORE,” he promised to sign a new executive order aimed at “MASSIVE VOTER FRAUD” in order “to help bring HONESTY to the 2026 midterms.” Mr. Trump also promised to “lead a movement to get rid of MAIL-IN ballots and also, while we’re at it, Highly ‘Inaccurate,’ Very Expensive, and Seriously Controversial Voting Machines.” He also claimed that the United States is the only country using mail-in balloting. (In fact, it is used in Canada, Britain and many other countries.) Mr. Trump’s claim that “the States are merely an ‘agent’ of the Federal Government in counting and tabulating the votes” is as legally wrong as it is politically dangerous. That can also be said about his plans to issue an executive order interfering with how states run their elections.

The fear that Mr. Trump will try to subvert the 2026 elections is real — after all, he tried to overturn the results of the first presidential election he didn’t win. But even if Mr. Trump fails to keep the House and the Senate in Republican hands, he will have delegitimized future Democratic victories in the eyes of his MAGA base….

For decades, I argued that the United States should join other modern democracies in having national nonpartisan administration of elections. What we have instead is a hyper-decentralized system that gives states the primary role in running elections, and states in turn give their counties the authority to conduct elections and count ballots. I had thought that the variety of voting rules, machines and personnel was inefficient and particularly dangerous in polarized times, when every local mistake becomes evidence of some claim of a stolen or botched election.

What I had not factored into my thinking was that centralizing power over elections within the federal government could be dangerous in the hands of a president not committed to democratic principles. It is among the many things I had thought about American democracy that have been overturned by the advent of Mr. Trump….

States can serve as the primary bulwark against this attempted election subversion. States are not federal “agents.” They control election systems and can assert their longstanding rights to run elections. This is no longer a red state-blue state issue: Either all states have the power to run elections, despite the president’s make-believe grievances, or none of them do. The Republican Party objected when President Joe Biden issued an executive order to federal agencies to encourage more voter registration. Mr. Trump seeks to exert far greater authority than anything Mr. Biden had in mind.

Courts are the second bulwark against presidential meddling in elections. Federal courts have already issued orders blocking parts of Mr. Trump’s earlier executive order that infringe on state sovereignty. Although courts, including the Supreme Court, have not been strong in recent years on voting rights protection — and things seem poised to get worse on Voting Rights Act enforcement after the court returns in October — so far they have amassed an admirable record in stopping attempts at election subversion. The most recent example was when Judge Richard E. Myers, a very conservative Federal District Court judge in North Carolina, blocked an attempt by a Republican candidate who tried to get North Carolina’s Supreme Court to retroactively change the rules for voter eligibility, after the election, in an attempt to turn his election loss into a win….

n the end, the American people also have a key role to play in pushing back against Mr. Trump’s meddling. People will need the courage to go vote even in American cities that may have federal agents swarming around them. “Voter protection” in recent decades has not meant protection from government-led violence and intimidation, but it may come down to that. Democrats, Republicans and other members of the public should monitor voting procedures, as allowed by state law, to make sure that state and county election officials stand up to federal pressure and do the right thing as they conduct elections and tabulate ballots. Local civic and business leaders need to back our election administrators, who may find themselves subjected to pressures to bend or break the rules. All of this organizing needs to happen now, not next November. To keep us from sliding further into autocracy, it is civil society we must make great again.

This remains true because even if Mr. Trump refrains from trying to run for an unconstitutional third term, he isn’t finished working to manipulate election results in his favor. To counter this, we will have to rely on the resilience of our commitment to democracy, which is far stronger than the rantings of a would-be strongman. Seen in this light, the diversity of our rules for running elections becomes our strength.

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“Texas House to take up GOP congressional map delayed by Democrats’ walkout”

redistricting

Texas Tribune:

The Republican-led Texas House on Wednesday was set to advance a new congressional map crafted to hand five additional U.S. House seats to the GOP over fierce opposition from Democrats, who cast the plan as an attempt by President Donald Trump to stack the deck in next year’s midterm election.

Republican lawmakers are pursuing the unusual mid-decade redistricting plan, which has set off a national map-drawing war, amid pressure from Trump to protect the GOP’s slim majority in Congress. The effort comes just four years after the Legislature last overhauled the state’s congressional map following the 2020 Census.

Democrats in the Texas House staged a two-week walkout over the plan in a bid to stall the map’s passage and rally a national response among blue states, where lawmakers could launch their own retaliatory redistricting efforts. The roughly two dozen Texas Democrats who returned to Austin on Monday said they were starting the next phase of their fight: putting the screws on their Republican colleagues and establishing a record that could be used in a legal challenge to the map.

Republicans have said the new districts were drawn purely to maximize their partisan advantage, arguing that the GOP’s margins of victory in 2024 supported new lines that entrenched their hold on power. They have also framed the effort as a response to Democratic gerrymandering elsewhere…

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“The Democratic Party Faces a Voter Registration Crisis”

political parties

NYT:

The Democratic Party is hemorrhaging voters long before they even go to the polls.

Of the 30 states that track voter registration by political party, Democrats lost ground to Republicans in every single one between the 2020 and 2024 elections — and often by a lot.

That four-year swing toward the Republicans adds up to 4.5 million voters, a deep political hole that could take years for Democrats to climb out from….

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“Elon Musk Pledged to Start a Political Party. He Is Already Pumping the Brakes.”

third parties

WSJ:

The billionaire Elon Musk is quietly pumping the brakes on his plans to start a political party, according to people with knowledge of his plans.

Musk has told allies that he wants to focus his attention on his companies and is reluctant to alienate powerful Republicans by starting a third party that could siphon off GOP voters.

Musk’s posture marks a shift from early last month, when he said he would form what he called the America Party to represent U.S. voters who are unhappy with the two major political parties.

As he has considered launching a party, the Tesla chief executive has been focused in part on maintaining ties with Vice President JD Vance, who is widely seen as a potential heir to the MAGA political movement. Musk has stayed in touch with Vance in recent weeks, and he has acknowledged to associates that if he goes ahead with forming a political party, he would damage his relationship with the vice president, the people said.

Musk and his associates have told people close to him that he is considering using some of his vast financial resources to back Vance if he decides to run for president in 2028, some of the people said. Musk spent close to $300 million to support Trump and other Republicans in the 2024 election. 

Musk’s allies said he hasn’t formally ruled out creating a new party and could change his mind as the midterm elections near.

But Musk and his team haven’t engaged with many prominent individuals who have voiced support for the idea of a new party or could be a crucial resource to help it get off the ground, including by assisting with getting on the ballot in crucial states. His associates canceled a late-July call with an outside group that specializes in organizing third-party campaigns, according to a person with direct knowledge of the matter. Participants were told that the meeting was canceled because Musk wanted to focus on running his businesses, the person said.

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ELB Book Corner: Karen Sebold: “Make the Federal Election Commission Great Again”

campaign finance, ELB Book Corner, federal election commission

I am pleased to welcome Karen Sebold to ELB Book Corner, writing about her new book, Evaluating Campaign Finance Oversight: An Assessment of the Federal Election Commission. (Use that link with code LXFANDF30 for a 30 percent discount). Here is the third of three posts:

I want to thank Rick Hasen for the opportunity to post about my new book, “Evaluating Campaign Finance Oversight: An Assessment of the Federal Election Commission.” My posts discuss the main themes of the book using edited excerpts from the book.

Today’s post examines one of the book’s primary themes: how to improve the Federal Election Commission (FEC). President Trump pledged to rid the political system of corruption during the 2016 presidential election, but by 2017, many Americans perceived the situation as worse than before he entered the White House (Norris, Cameron, and Wynter 2019). Instead, Trump and the Republican led Senate kept the FEC shut down for most of Trump’s first term by refusing to appoint commissioners to lead the agency. As of May 2025, it remains shut down again due to a lack of a quorum (four commissioners out of six must be present), following the exit of two Republican commissioners, Sean Cooksey and Allen Dickerson, and the firing of a Democratic commissioner, Ellen Weintraub, by Trump. The only silver lining of the FEC shutting down again is that it stops the Republican commissioners from killing the investigations against Trump. According to Citizens for Responsibility and Ethics in Washington (CREW), the GOP commissioners blocked 29 investigations or taking action against President Trump (https://www.citizensforethics.org/reports-investigations/crew-investigations/gop-commissioners-have-single-handedly-blocked-fec-action-against-trump-29-times/).

The exploitation of the campaign finance system and the FEC’s failure to hold violators accountable are evident in the frequent news stories of improper use of campaign funds by politicians recently, and make it clear that campaign finance laws and rules are not self-executing and require a functioning agency. Yet, the agency is hobbled by a lack of resources, and the process of appointing commissioners has become politicized. The budget and full-time employees have not kept up with the astronomical growth of election finance activities. The rate of campaign spending doubles with each passing election cycle, resulting in a corresponding increase in the workload of the FEC. From processing the campaign finance reports to serving the number of filers of these reports, the work of the FEC is increasing tremendously as campaign finance activities increase at a phenomenal pace. In my new book, I illustrate how a decrease in full-time staff and budget at the FEC corresponds with a decline in fines and penalties. To effectively oversee the significant amount of campaign finance activities in the U.S., the FEC requires additional resources and the timely appointment of commissioners. Lastly, the political gridlock at the FEC must also be reduced.

One possible solution to achieving this goal is to increase the number of commissioners on the panel to seven while retaining the same requirement of four commissioners for quorum decision-making. Given the immense workload of the FEC, there is a legitimate case for adding more commissioners. Increasing the number of commissioners allows the panel to absorb the loss of a commissioner due to an untimely appointment or recusal. The extra commissioner could also be an independent to help reduce polarization. Adding one more commissioner to the panel makes this proposed reform to the FEC one of the politically easiest to pass. It requires little cost and does not change how decisions are made. It would allow the commissioner panel to proceed with agency business more flexibly when one or more commissioners are unable to vote or unwilling to agree with a decision. Additionally, if the president and Congress are unable to replace an FEC commissioner in a timely manner, perhaps the FEC could appoint an interim commissioner to serve until a commissioner is confirmed. However, given that the president and Congress are the primary targets of FEC investigations, it is unlikely that they will fulfill their responsibilities and repair the FEC.

References:

Norris, Pippa, Cameron, Sarah, and Thomas Wynter. 2019. Electoral Integrity in America:           Securing Democracy. Oxford: Oxford University Press.  

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“Democratic Texas lawmaker passes 24-hour mark on state House floor after refusing GOP demand for law enforcement escort”

chicanery, redistricting

Insanity:

Democratic Texas state Rep. Nicole Collier has now spent over 24 hours on the Texas House floor in protest after refusing a Republican demand to be placed under the watch of the state Department of Public Safety.

When Texas House Democrats returned to the Capitol in Austin on Monday, after having fled the state earlier this month in order to prevent a vote on a controversial Republican redistricting plan, House Speaker Dustin Burrows put constraints on their movements.

Burrows announced that the Democrats could only leave the House floor if they received written permission and agreed to be under law enforcement escort until the chamber reconvenes on Wednesday morning.

The Democrats who skipped out on previous attempts to meet quorum for a special session to approve the redrawn congressional maps will have an around-the-clock DPS escort to ensure their presence when the House convenes Wednesday, a legislative aide told CNN….

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“California Republicans File Suit Seeking to Block Newsom Redistricting Plan”

redistricting

NYT:

Republican lawmakers in California have filed a lawsuit asking the State Supreme Court to stop Democrats from moving ahead this week with a plan to redraw congressional districts.

It was the latest move in an escalating national battle over redistricting that began this summer when President Trump asked Texas leaders to help Republicans maintain control of the House of Representatives by reshaping congressional districts and delivering five additional seats for their party.

California Democrats responded on Monday by introducing a package of bills to create new district boundaries that could help Democrats flip five seats in their state. Democratic state lawmakers, who control more than two-thirds of the California Legislature, plan to pass the bills on Thursday and put the proposal before voters in a Nov. 4 special election.

The emergency petition, filed by four Republican state legislators, argues that the State Constitution prohibits the Legislature from acting on the redistricting bills until Sept. 18 because new legislation requires a 30-day review period. The lawmakers said that more time was needed for the public to review the proposal, which would change the way some Asian American and Hispanic communities are represented….

At issue is a technical question of whether a bill is “introduced” at the time it is first assigned a bill number and drafted with preliminary language, or whether it must be fleshed out in full to begin the 30-day clock in the State Constitution. The state’s Constitution also has a rule that requires the final text of a bill be published for 72 hours before lawmakers can vote on it.

In the final weeks of the legislative session, California lawmakers for decades have rewritten bills, top to bottom, in a process colloquially referred to as “gut and amend.”…

The 72-hour rule is a more recent requirement, intended to ensure that such last-minute bills receive at least three days of review. To adhere to that rule, the full Assembly and Senate are waiting until Thursday to vote on the redistricting bills that were introduced on Monday.

Democrats cannot afford to wait beyond this week because of the preparation time that elections officials need for a special election in November….

MORE from At the Lectern.

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New Section 2 Lawsuit Filed in Montana

Voting Rights Act

Release:

On August 14, 2025, the Chippewa Cree Indians of the Rocky Boy’s Reservation and two Native voters filed a lawsuit in the U.S. District Court for the District of Montana challenging Chouteau County’s unfair, at-large voting system for the Board of County Commissioners. The suit alleges the system unlawfully dilutes the voting strength of Native voters and has denied them any representation on the county commission for more than a decade.   

Under the current at-large system, all voters in Chouteau County cast ballots for all three commissioners, instead of electing commissioners by district. As a result, Native voters — who now make up approximately one-third of the county’s voting-age population — have consistently been unable to elect a candidate of their choice. The three current commissioners have all been elected and re-elected under this system since at least 2010. 

“We’re filing this lawsuit because Choteau County continues to hold elections in which the Native votes don’t count,” said Chippewa Cree Tribe Chairman Harlan Gopher. “The Chippewa Cree Tribe filed this lawsuit to prevent this local government from trampling on the civil rights of our people. A fair redistricting process must respect the boundaries and voice of our Nation.” …

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“Can Federalism Protect Subnational Liberal Democracy from Central Authoritarianism?”

authoritarian threats in US

Jim Gardner has posted this draft on SSRN. Here is the abstract:

Liberal democracy is eroding rapidly around the globe, including in the United States, raising alarming questions about whether American democratic institutions will endure. Nevertheless, some have speculated that federalism may protect liberal democracy at the subnational level when the central government turns authoritarian. This article argues that such optimism is premature: there is no a priori basis on which to predict the effect of central democratic backsliding on the quality of subnational democracy. Federal theory does suggest that internal heterogeneity in basic political commitments is likely to produce an escalating pattern of severe and possibly intractable intergovernmental conflict. Empirical evidence bears this out: while subnational governments often resist nationally authoritarian policies, authoritarian central governments tend to punish and suppress this resistance. Nevertheless, although successful subnational resistance in particular cases cannot be ruled out, the most likely outcome of central democratic backsliding appears to be some kind of competitive authoritarianism regardless of whether the state is federal or unitary. Thus, federalism may offer little meaningful protection against long-term democratic backsliding.  Additional research is needed to reach firmer conclusions.

Looking forward to reading this!

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“Republicans say they’ll sue to block California redistricting plan. Do they have a case?”

direct democracy, redistricting

Bob Egelko for the SF Chronicle:

“By concocting this partisan redistricting scam, Gavin Newsom and Democrat politicians are openly violating the California Constitution and their oath of office,” DeMaio said in a news release. “Any vote … on this corrupt plan would be unlawful and unconstitutional.”

He argued that the state Constitution, under a ballot measure approved by the voters in 2008, allows only a bipartisan commission to draw district lines and does not permit them to be redrafted for political purposes.

The National Republican Congressional Committee also said Newsom’s plan would be challenged in court as well as the ballot box. Newsom “is shredding California’s Constitution and disenfranchising voters to prop up his Presidential ambitions,” Rep. Richard Hudson, R-N.C., chair of the committee, said on X.

But Rick Hasen, a professor of law and political science at UCLA who has written widely on election law issues, said the Legislature can ask California voters to change the state Constitution by placing an amendment on the ballot with two-thirds majority votes in each house. Newsom and legislative Democrats introduced their measure on Monday.

“If it’s a constitutional amendment approved by voters, then there is no state law problem with amending the earlier constitutional amendment,” Hasen said….

Another election law professor, Justin Levitt of Loyola Law School in Los Angeles, who was a national policy adviser for democracy and voting rights under President Joe Biden, said DeMaio was correct that the California Constitution currently prohibits legislators from redrawing district lines.

“But that’s exactly why the Legislature is proposing a constitutional amendment,” Levitt said. “And I’m not aware of any limitation on the Legislature to propose such an amendment for the voters to consider.”…

Hasen of UCLA said Newsom’s proposal might be challenged on other legal grounds, such as the rule limiting California ballot measures to a single subject. But he said opponents’ strongest argument would probably be a political one – that the voters should reject a plan to suspend the nonpartisan redistricting program they approved 17 years ago.

DeMaio appeared to agree on Monday. 

“If we stop it in court, fine,” he said at a press conference in the state Capitol. “But more than likely it will have to be stopped at the ballot box.”…

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ELB Book Corner: Karen Sebold: “The Foxes Are Guarding the Henhouse: How Elected Officials Weakened the Federal Election Commission”

campaign finance, ELB Book Corner, federal election commission

I am pleased to welcome Karen Sebold to ELB Book Corner, writing about her new book, Evaluating Campaign Finance Oversight: An Assessment of the Federal Election Commission. (Use that link with code LXFANDF30 for a 30 percent discount). Here is the second of three posts:

I want to thank Rick Hasen for the opportunity to post about my new book, “Evaluating Campaign Finance Oversight: An Assessment of the Federal Election Commission.” My posts explore the book’s main themes using edited excerpts from the text.

Today’s post examines one of the primary themes of the book: campaign finance laws are only effective if the Federal Election Commission (FEC) is effective. In the U.S., the FEC is the primary agency enforcing campaign finance law. The FEC regulates and oversees the campaign finances of presidential candidates and members of Congress. These elected officials are the primary fundraisers and spenders of campaign contributions in U.S. elections; therefore, they, or their surrogates, are also the primary focus of FEC investigations. These officials could easily exploit the agency, as they control its administrative resources. This leads many observers to believe that the foxes are guarding the henhouse (Oldaker 1986; La Forge 1996; Sheppard 2007).

In my book, I illustrate how the agency’s resources do not match the major increases in election spending. Since 2000, most election cycles have surpassed the previous cycle’s spending level, with over $5 billion spent in the 2000 election and more than $18 billion by the 2020 election (https://www.opensecrets.org/elections-overview/cost-of-election). Yet, the FEC’s budget and staff have minimally increased, if not stagnated, over the last two decades. The structure of the agency and legal requirements for decision-making exacerbate the issues at the agency. The agency is led by a panel of six partisan commissioners, with up to three Democrats and up to three Republicans. Four commissioners must agree on a decision when enforcing campaign finance law.  The requirement that four commissioners agree to an enforcement decision, while only three are allowed from one party, is challenging, especially given that the commissioners are deciding on claims of potential violations against their parties, candidates, or the independent political committees and nonprofit groups that support them. If an investigation is blocked or an enforcement action is stopped because four of the commissioners can not agree, that is as good as getting a case dismissed for the alleged violator. According to Citizens for Responsibility and Ethics in Washington (CREW), the GOP commissioners employed this tactic 29 times as of March 2024 to block the FEC from investigating or taking action against President Trump (https://www.citizensforethics.org/reports-investigations/crew-investigations/gop-commissioners-have-single-handedly-blocked-fec-action-against-trump-29-times/).

The appointment of commissioners has been notoriously a slow process that often leaves the FEC without a quorum (i.e., four commissioners). This leads to a partisan imbalance from the appointment of too few commissioners (especially Democratic commissioners), as the Republicans have dominated the commissioner panel for years. I found these Republican commissioners were more likely to vote against enforcing the law. Critics of the agency (La Forge 1996; Skahan 2018) argue that the commissioner panel is structurally flawed, and as a result, alleged violators often go unchecked. The past few years do not inspire hope that it will improve, as the foxes in charge of the agency continue to undermine it. The FEC was essentially shut down during the majority of Trump’s first administration, and as of May 2025, it is now shut down again due to a lack of a quorum. In December 2024, Republican Sean Cooksey left before his term expired. In February 2025, Trump fired Democratic Commissioner Weintraub. Weintraub was serving well past the expiration of her term, but President Trump has given no indication that he will be appointing her replacement anytime soon. Republican Commissioner Allen Dickerson left in April 2025 before his term expired. The numerous shutdowns at the FEC lead me to believe the easiest way for the foxes to guard the henhouse is to keep the hens out of it.

UPDATE: “Dickerson and Cooksey did not exit early as mistakenly stated in the post but left when their terms expired.”

References:

La Forge, Amanda S. 1996. “The Toothless Tiger – Structural, Political and Legal Barriers to        Effective FEC Enforcement: An Overview and Recommendations.” The Administrative        Law Journal 10, 1: 351- 384. 

Oldaker, William, C. 1986. “Of Philosophers, Foxes, and Finances: Can the Federal Election        Commission Ever Do an Adequate Job?” The Annals of the American Academy of Political            and Social Science 486, 1: 132-145. 

Sheppard, Maurice C. 2007. The Federal Election Commission: Policy, Politics, and        Administration. Lanham, MD.: University of America Press Inc. 

Skahan, Kelly Ann. 2018. “Ineffective by Design: A Critique of Campaign Finance Law   Enforcement in the United States, Australia, and the United Kingdom.” Washington          International Law Journal 27, 2: 577-607. 

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