You can find the brief at this link.
All posts by Rick Hasen
“Originalism’s Racist Birth and Subsequent Death”
I bring all of this up again because of a new article about Machen sent to me by historian Austin Steelman titled: “The Birth of the Dead Constitution: Arthur Machen Jr.’s Early Twentieth-Century Originalism.” Steelman credits me with shedding new light on this article and agrees that originalism that can discard known expected applications is an originalism capacious enough to justify virtually any result an originalist wants to reach (as the Roberts Court has shown again and again),
But what I did not know about Machen was that he was steadfastly opposed to equal rights for Black Americans and spent the decades after writing his article fighting against giving Black people the right to vote. He put forth obviously inaccurate views of the 15th Amendment that: it a) was not lawfully enacted; and b) even if it were, it did not apply to state elections.
We now have two amendments to the traditional narrative about the history of originalism. Although most people, including myself, usually traced the beginning of the doctrine to the 1970’s and the Robert Bork/Raul Berger responses to the Warren Court, Calvin Teerbeek has shown that the desire to employ the original intentions (now meaning) of the Constitution actually begun as a racist response to Brown v. Board of Education in the 1950’s.
But it turns out, Teerbeek did not go back far enough. Machen’s 1900 article, the first to ever use the phrase the “Living Constitution,” would to a great extent lead to his racist rewriting of the 15th Amendment and his efforts to justify denying Black voters the franchise. I did not know this history when I first wrote about his article.
I strongly recommend Austin Steelman’s article which contains far more about originalism’s birth than I am relating here. Not only does he persuasively argue that originalism was born in racism but that Machen’s 1900 originalism suffers from all the same flaws today’s originalism suffers from. According to Steelman, originalism then and now has the following defects (he supports all of these conclusions in great detail):
1) Originalists often incorrectly treat the 1791 Constitution more reverently than the Reconstruction Amendments (this was how Machen argued the 15th Amendment itself was unconstitutional);
2) Originalists favor the will of the anti-democratic Founders and Ratifiers over the desires of today’s popular majorities to make America more democratic and equal for everyone;
3) There is a strong relationship between originalism and faith (Machen was deeply religious. I believe someone recently wrote a book called “Originalism as Faith”);
4) Originalism as espoused by both Machen and today’s originalists is capacious enough to justify just about any result anyone wants to reach in any real case. There is simply no constraint there; and
5) Originalism then and now almost always takes a back seat to the values, politics, and preferences of whoever is using originalism as an interpretative tool.
To be clear, I am not saying today’s originalists are racists or liars. I am saying that originalism was born and raised arm-in-arm with racism, and today’s originalists should recognize that and distance themselves from the theory’s origins….
“X Displays Users’ Locations, Fueling Scrutiny Over Political Accounts”
NYT:
X launched a feature over the weekend that displays users’ locations, renewing scrutiny of the provenance of many accounts, including those that post frequently about American politics.
The new feature displays the country or region an account is based in, as well as when it was created and how many times its username was changed. It was announced by Nikita Bier, X’s head of product, in a post on the social media site on Saturday.
“This is an important first step to securing the integrity of the global town square,” Mr. Bier said, adding that the platform was working on more ways for users to verify the authenticity of content on the platform.
Users in countries where freedom of speech is limited can choose to show only their region, Mr. Bier said, in order to protect themselves from retribution. He added that location data will be updated “periodically,” on a “delayed and randomized schedule to preserve privacy.”…
After the feature launched, online sleuths quickly used it to determine that some accounts that post content supporting President Trump and the MAGA movement are not based in the United States.
One account called “MAGA NATION,” which has nearly 400,000 followers and posts multiple times a day, is based in Eastern Europe. Other similar accounts are based in places like Thailand, Nigeria and Bangladesh.
X has long struggled with fake and automated accounts spreading misinformation on the platform. Researchers have found that such bots have posted misinformation related to elections and the coronavirus pandemic, and promoted conspiracy theories. Bots have been used by groups trying to foment discord in past elections in the United States and abroad….
Thanks to Tabatha for Her Excellent Blogging Last Week
“Scoop: Dems eye ranked-choice voting for primaries”
Democratic politicians and activists are quietly lobbying to upend the way the party picks its presidential nominee by urging the use of ranked-choice voting.
- It’s a tool that drew national attention when it propelled New York City Mayor-elect Zohran Mamdani to a decisive primary win.
Driving the news: Democratic National Committee chair Ken Martin and other top party officials have met privately with advocates who are pushing for the voting method to be expanded for the 2028 presidential primaries, three sources tell Axios.
- Rep. Jamie Raskin (D-Md.), Joe Biden pollster Celinda Lake, the nonprofit FairVote Action and other Democrats pitched the idea at a late October meeting, the sources said….
“The Federalist Society Is Torn Between Its Legal Philosophy and Trump’s Demands”
During President Trump’s first term, he effectively outsourced the task of picking judges to lawyers closely associated with the Federalist Society, a 43-year-old conservative legal group, and Leonard Leo, then its executive vice president.
But in his second term, after some of those judges failed to rule in his favor in cases testing the legality of his policy moves, Mr. Trump has lashed out against the organization. In a lengthy social media post in May, he called Mr. Leo a “sleazebag” who “openly brags how he controls Judges.” The Federalist Society, he said, had given him “bad advice.”
Considering the crowd that assembled earlier this month in Washington for the Federalist Society’s annual lawyers’ convention — including many close allies of Mr. Trump — it was clear that the organization still commands influence.
Dozens of federal judges from across the country attended the event at the Washington Hilton. Justices Brett M. Kavanaugh and Amy Coney Barrett of the Supreme Court spoke at the gala dinner and a third justice, Samuel A. Alito Jr., sat among the crowd of 2,300.
What was less clear was if the organization was ready to fully embrace the hyperaggressive legal views of the president who had empowered it like never before….
Even after his complaint about Mr. Leo’s influence over first-term picks, Mr. Trump has continued to use the Federalist Society’s pipeline of judicial talent. The size of the group’s network means that most qualified, Republican-friendly judicial nominees will have some ties to it. Indeed, out of six nominees to the appellate courts that Mr. Trump has chosen in his second term, five have spoken at a society event, according to its website.
But for a society that claims the Constitution as the uniting force for its varied membership, some longtime allies have warned Mr. Trump’s second term poses an unusual challenge. Actions like killing people suspected of trafficking drugs at sea, ordering up investigations of his political opponents and excoriating judges who rule against him, they say, violate both the letter and spirit of America’s founding document.
“There’s a real tension, from a rule-of-law perspective, between some members of the Federalist Society and the Trump administration,” said Edward Whelan, an attorney who has spoken at dozens of the society’s events, and clerked for Justice Antonin Scalia.
“Good judges will make the hard calls they’re obligated to make without worrying what people will say about them. MAGA-oriented voices say that they want fearless judges — but many of them seem really to want judges who will do Trump’s bidding,” he said….
“One Decade, One Map: State Constitutional Limits on Mid-Decade Redistricting”
Josh Douglas has posted this draft on SSRN (forthcoming, Minnesota Law Review). Here is the abstract:
In 2019, the U.S. Supreme Court closed the federal courthouse doors to claims of partisan gerrymandering, effectively permitting states to engage in what it called “constitutional political gerrymandering.” By 2025, several states embraced this invitation, redrawing maps mid-decade for openly partisan ends. With federal courts entertaining racial gerrymandering claims but not partisan gerrymandering challenges, state courts will confront a different and more fundamental question: when a state engages in mid-decade redistricting, is pure partisanship allowable under the state constitution?
This Essay argues that state courts should adopt a presumption of unlawful partisanship under state constitutions. Virtually all state constitutions say that power is inherent in the people or that the people are sovereign. In addition, some state constitutions tie redistricting to the decennial census. Under these provisions, courts should deem partisan-based mid-decade redistricting unconstitutional. Rather than evaluating the projected partisan performance of a new map and debating how much distortion is “too much,” courts should simply ask whether the state can identify a valid, non-political reason for redrawing the lines before the next census. Absent a compelling neutral justification, legislatures or other map-drawing bodies should have at most one chance to draw a map each decade.
State courts that wish to meaningfully vindicate the protections of their state constitutions should adopt standards that protect democracy without falling victim to concerns of seeming too political. As this Essay shows, a presumption of unlawful partisanship under state constitutions offers an administrable path.
ELB Podcast 7:3: The Supreme Court, the Voting Rights Act, and the 2026 Elections (Blencke, Katz, Ross)
Season 7, Episode 3 of The ELB Podcast:
What’s at stake for the Voting Rights Act at the Supreme Court in the pending Louisiana v. Callais case?
Will the Court weigh in on the question whether private parties can sue to enforce Section 2 of the VRA, as was assumed by all until recently?
What’s the big picture on the Voting Rights Act and the 2026 elections?
On Season 7, Episode 3 of the ELB Podcast, we speak with Samantha Blencke, of the Native American Rights Fund, Ellen Katz of the University of Michigan, and Deuel Ross of the Legal Defense Fund.
You can subscribe on Soundcloud, Apple Podcasts, and Spotify.
“Big changes to the agency charged with securing elections lead to midterm worries”
AP:
Since it was created in 2018, the federal government’s cybersecurity agency has helped warn state and local election officials about potential threats from foreign governments, showed officials how to protect polling places from attacks and gamed out how to respond to the unexpected, such as an Election Day bomb threat or sudden disinformation campaign
The agency was largely absent from that space for elections this month in several states, a potential preview for the 2026 midterms. Shifting priorities of the Trump administration, staffing reductions and budget cuts have many election officials concerned about how engaged the Cybersecurity and Infrastructure Security Agency will be next year, when control of Congress will be at stake in those elections.
Some officials say they have begun scrambling to fill the anticipated gaps….
“The Legal Misstep That Imperiled Trump’s Midterm Strategy”
When Harmeet Dhillon, the Justice Department’s top civil-rights attorney, sent a letter this summer telling Texas officials that their congressional map was unconstitutional, it set off a nationwide battle between the political parties to gain an edge in next year’s elections by redrawing their House districts.
This past week, that letter created major legal problems for Republicans and a setback for the Trump administration.
Dhillon’s warning to Texas was the central evidence a federal court cited in blocking a House district map that could have yielded Republicans as many as five additional seats. The result: President Trump’s push to protect his party’s House majority through gerrymandering is now at risk of costing the GOP seats, rather than producing a net gain.
The Texas ruling left the White House working to shore up the firewall it has been trying to build to ensure that Democrats are unable to gain control of the House, where Republicans currently hold a narrow, six-seat majority, with three seats vacant. With four GOP-led states already putting maps in place that are more Republican-friendly, the White House is pushing Indiana, Florida and other states to follow suit, aware that a Democratic-led House would stymie the president’s agenda in Congress and possibly impeach him.
Late Friday, the administration got good news as Supreme Court Justice Samuel Alito issued a temporary pause on the lower-court ruling, restoring the contested map for now. Alito, the justice who handles emergency appeals from Texas, ordered the groups that challenged the map to respond by Monday.
Still, the Dhillon letter “was clearly an unforced error,” said Jacob Rubashkin, an editor at Inside Elections, a nonpartisan newsletter….
UPDATE: Justice Alito Grants Administrative Stay: Texas Files Emergency Supreme Court Motion to Stay District Court Order Throwing Out 2026 Gerrymandered Maps for Congressional Elections; Justice Alito Asks for Response by Monday at 5 pm ET: What Should We Expect at SCOTUS and When?
The State of Texas, as expected, has filed an application for a stay at the Supreme Court of the 2-1 racial gerrymandering decision issued earlier this week (over a fiery dissent by Judge Smith). Justice Alito has already requested a response by 5 pm Monday and will almost certainly refer the question to the entire court.
Also as expected, Texas makes two primary arguments: first, this case comes too late under Purcell, with candidates filing for office under the 2026 lines now and the filing deadline coming December 8. If the Supreme Court does not intervene, it’s possible the timing of Texas primaries could be pushed back. The second argument is that this was all about politics to help Republicans, not race, and therefore the Texas legislature did not have the intent to do a racial gerrymander.
If I had to bet, I think the Court will likely put the district court ruling on ice, for three reasons. First, the election season is already underway, and the Court in cases like Milligan put the lower court ruling on hold when the election was even further away. Second, there’s a fair chance a majority of Justices see this as politics, not race, that predominates. Third, Judge Smith’s dissent may convince some of the more conservative justices that the majority did not give the dissent a chance to make a fair case, and that the ruling was rushed and should be reversed.
I also think we will hear something soon, maybe even before Thanksgiving.
Nothing is for certain, of course. And if the Texas ruling comes too late for the 2026 elections, this could well be true for the California maps enacted via Prop. 50 that are a Democratic gerrymander, which has been challenged by California Republicans.
Stay tuned.
UPDATE: Justice Alito, not unsurprisingly, has granted an administrative stay, which keeps the 2026 maps in place until the full court can decide what to do on the request for a stay. I would not read too much into it on the merits, but as I said above, I think there’s a good chance of a stay being issued when the full court considers the case.
A Reply to Rick Pildes on Proposition 50 and Voters’ Intent to Engage in a Racial Gerrymander
Rick Pildes has a characteristically thoughtful post responding to my Slate piece with Matthew Cooke arguing that when the three-judge court assesses whether California voters approved a racial gerrymander, we need to consider the voters’ intent, not the intent of the Legislature (or mapmaker hired by the Legislature) who proposed the maps to voters via Prop. 50. Rick P. argues that my argument would allow a “whitewash,” whereby a legislature acts with an unconstitutional intent that is then cleansed by the voters’ approving it. (Rick does not argue that the Legislature had an unconstitutional intent in California; he’s instead making a general point about whose intent should matter.)
I think Rick P. is incorrect under the Supreme Court’s current doctrine. To begin with, motive or intent is key to the question of whether something is a racial gerrymander. As the Supreme Court indicated in the lead case, Miller v. Johnson:
The plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can “defeat a claim that a district has been gerrymandered on racial lines.” Shaw, supra, at 647.
(my emphases)
So we are looking at the intent of those who passed the maps, which in the Prop. 50 California case is the voters. In Abbott v. Perez, Justice Alito for the Court majority engaged in what’s been termed “animus laundering” or animus “cleansing” by passing again after court review a map that in the past had been found to have been to have been intentionally discriminatory. I write about that in this Georgetown LJ piece.
Surely if the Legislature can cure its own animus by repassing a map after it had been found to be discriminatory, any improper attempt of the legislature can be “cleansed” through the voters. (I know that the racial gerrymandering claim is not about animus, but about racial predominance. But I would argue the same theory should apply.)
Further in another Justice Alito opinion, Brnovich v. DNC, the Court refused to use a “cat’s paw” theory to infer the full legislature had a racial intent even if a sponsor of a bill had such intent:
The Court of Appeals did not dispute the District Court’s assessment of the sincerity of HB 2023’s proponents. It even agreed that some members of the legislature had a “sincere, though mistaken, non-race-based belief that there had been fraud in third-party ballot collection, and that the problem needed to be addressed.” 948 F. 3d, at 1040. The Court of Appeals nevertheless concluded that the District Court committed clear error by failing to apply a “‘cat’s paw’” theory sometimes used in employment discrimination cases. Id., at 1040–1041. A “cat’s paw” is a “dupe” who is “used by another to accomplish his purposes.” Webster’s New International Dictionary 425 (2d ed. 1934). A plaintiff in a “cat’s paw” case typically seeks to hold the plaintiff ’ employer liable for “the animus of a supervisor who was not charged with making the ultimate [adverse] employment decision.” Staub v. Proctor Hospital, 562 U. S. 411, 415 (2011).
The “cat’s paw” theory has no application to legislative bodies. The theory rests on the agency relationship that exists between an employer and a supervisor, but the legislators who vote to adopt a bill are not the agents of the bill’s sponsor or proponents. Under our form of government, legislators have a duty to exercise their judgment and to represent their constituents. It is insulting to suggest that they are mere dupes or tools
Just like legislators are not dupes or fools, neither are voters. They made the ultimate decision, and as our Slate piece shows, that decision was imbued with partisan intent, with almost no mention, much less predominance of racial motives in the material California courts use to interpret voter intent.
Finally, in a number of cases (many written by Justice Alito) we are told that legislators should be afforded a “presumption of good faith” when they engage in districting, and there should not be a presumption that they had unconstitutional motives or intent to violate the Voting Rights Act. Surely voters, who are not politicians acting in self interest, are entitled to as much a presumption of good faith when they redistrict.
“Uncharitable Think Tanks”
Faith Stevelman has written this paper for the FIU Law Review, on the intersection of tax law and lobbying/policy advocacy.
My Contribution to NYU’s Democracy Project: “Making Civil Society Great Again to Protect the 2026 Elections”
A snippet:
What can be done? As I explained more fully in an August guest commentary in the New York Times, states, the courts, and ultimately the American people must serve as the bulwarks against election subversion. In this follow-up post, I want to explore more deeply what the American people can do, and what it means when I wrote in the Times that to “keep us from sliding further into autocracy, it is civil society we must make great again.”
American elections are hyperdecentralized and fragmented. Federal law controls some things about how elections are run, but administration is mostly a local matter, with states designating counties or other smaller units to actually run elections. It falls to election administrators and local boards, some of whom are chosen on a partisan basis, to do things like assuring there are adequate procedures protecting the chain of custody of ballots, choosing the most suitable voting machines, and setting rules for resolving challenges to ballots or voters.
These local administrators and bodies are the front line of defense against efforts to subvert election results. Subversion can happen in a number of ways including by changing voting rules to disenfranchise classes of voters, accepting non-meritorious challenges to ballots in close elections, closing or moving polling places to make it harder for people to vote, allowing federal officials near or into polling locations in ways that can intimidate voters, and much more.
Election administrators are professionals, and most are imbued with a deep commitment to free and fair elections. Partisan boards can be more of a mix in terms of their commitments. But both administrators and boards might succumb to pressure to bend or break election rules if Trump himself directs or endorses such interference in the Orwellian name of protecting “election integrity.”
The solution is to rely on civil society. Community leaders—including business people, religious leaders, and educators—need to clearly and repeatedly call for transparency and a commitment to free and fair elections. Everyday people should be aware of decisions being made by state and local election administrators and boards, attend public meetings of these bodies, submit public comments, observe election procedures, and let everyone in charge know that anything short of free and fair elections is unacceptable….