All posts by Travis Crum

Mid-Decade Redistricting and the Purcell Principle

redistricting, referendum, Supreme Court

Yesterday, a three-judge district court preliminarily enjoined Texas’s mid-decade congressional redistricting map. This case will be promptly appealed to the Supreme Court, and it will be the first of many mid-decade redistricting cases on the shadow docket.

The district court’s opinion has a lengthy discussion of the Purcell principle—the notion that courts should not enjoin election laws close to an election. As Rick Hasen and Wilfred Codrington have shown, the Purcell principle is problematic. This post, however, takes Purcell on its own terms and argues that it should not apply to mid-decade redistricting plans.

As an initial matter, Purcell has more bite at the start of the decade. That is because States cannot use their previous maps under one-person, one-vote principles. If a court enjoins a map in early 2022, then the court must draw a new map for the November 2022 election. There is no democratically enacted map to fall back on that complies with the Constitution. That is not true for a mid-decade redistricting. As the three-judge district court pointed out, Texas can still use its 2021 map. Indeed, it is doing so next year for a (long-delayed) special election.

A frequent defense of the Purcell principle is that it avoids voter confusion about what law governs the election. Once again, mid-decade redistricting changes the equation. Voters are used to getting new maps at the start of the decade—a trend that had largely held since the 1960s but is quickly disintegrating. Here, Texas and other mid-decade redistricting states are the ones seeking to change the rules mid-stream.

To be sure, this particular point carries less force in situations where the People have voted on a new map. Thus, California’s Proposition 50 helps minimize voter confusion over which maps will be in place for the 2026 midterms. Similarly, if Missouri voters get to decide whether to keep their new 2025 map, then voter confusion is not a problem there either.

Moreover, applying Purcell to mid-decade redistricting would encourage such behavior, as it gives mapmakers a free bite at the apple to entrench themselves further in office. Given that Purcell is an equitable doctrine, it is capacious enough to factor in such concerns. Indeed, the three-judge district court in this case highlighted that Purcell would encourage gamesmanship by state legislatures bent on mid-decade redistricting, timing their actions to avoid judicial review. And to the extent that Purcell’s embrace of federalism principles is intended to be democracy enforcing, then Purcell is especially ill-suited for mid-decade redistricting plans. Put simply, the motive for mid-decade redistricting is almost always a power grab by politicians at the expense of the People.

One final point. The situation is different when new maps are enacted in response to a court order. That occurred in the Robinson and Callais tango, and the Supreme Court stayed the Callais district court’s injunction, allowing the post-Robinson map to go into force for the 2024 election. In an age of potential defiance of judicial rulings, we should encourage compliance. Giving States the benefit of Purcell in those situations would incentivize that behavior.  

[Disclosure: I wrote an amicus brief in support of the Robinson intervenors in Callais.]

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“Dark money groups pour cash into fight over gerrymandered Missouri congressional map”

campaign finance, redistricting, referendum

Missouri Independent reports:

Voters across Missouri late last week received a text message urging them to take their names off petitions they may have “accidentally signed.”

The message, labeled as the work of the Republican National Committee, dropped the name of Republican Secretary of State Denny Hoskins, saying he had “declared TENS OF THOUSANDS of petition signatures IMPROPERLY COLLECTED.” The text, from a number in southwest Virginia, gave a number to call in southwest Missouri to withdraw a signature.

The number, when called, goes straight to a voice mail system and promises people who leave a number that they will be called.

The mass text was the latest maneuver in the fight over Missouri’s gerrymandered redistricting map, which is drawing millions in donations from dark money groups on the right and left — including $2 million over the weekend from a pair of Republican nonprofits. The deadline is approaching for opponents of the map to submit signatures to force a referendum while the question of which signatures to count and whether a referendum is even possible remains mired in state and federal courtrooms.

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“Trial over referendum on Missouri’s gerrymandered congressional map delayed again”

redistricting, referendum

The Missouri Independent reports:

A new political action committee funded by the national Republican Party won a delay Thursday in a trial over the effort to force a statewide vote on Missouri’s gerrymandered congressional district map.

…

The case postponed on Thursday is one of six — five in state courts, one in federal court — focused on the September special session. One case, challenging the authority for the special session, has been decided at the trial court level and is under appeal.

Another, questioning whether lawmakers had the power to revise districts without new census data, was heard on Wednesday. A hearing in the federal case, which attempts to win a decision that congressional redistricting maps are protected from citizen referendum petitions by the federal Constitution, is scheduled for Nov. 25 in St. Louis.

In the case postponed Thursday, People Not Politicians is arguing that the right to seek a referendum on any law is triggered when lawmakers take a final vote on a bill. The committee is suing Secretary of State Denny Hoskins, who rejected petition forms because Gov. Mike Kehoe had not signed the redistricting legislation.

Kehoe called lawmakers into special session in September at the insistence of President Donald Trump in a bid to give Republicans seven instead of six of Missouri’s eight congressional seats.

Under the bill scheduled to take effect Dec. 12, Missourians would vote next year in revised districts. The new Missouri map targets the Kansas City-based 5th District, held by Democratic U.S. Rep. Emanuel Cleaver, to flip to the Republican Party.

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“Redistricting foes blast Hanaway for trying to stop referendum on Missouri map”

redistricting

Missouri seeks to revive the independent state legislature theory, this time its by insisting that there’s a clear-statement rule. I may have more to say about this case in the near future. In the meantime, you can find the complaint here.

STLPR reports:

Missouri Attorney General Catherine Hanaway’s efforts to block a redistricting referendum is drawing fierce criticism from backers of the vote.

At issue is a push from a group called People Not Politicians to place a recently passed congressional map up for a statewide vote in 2026. The proposal would transform Congressman Emanuel Cleaver’s Kansas City-based district into a GOP-leaning seat.

Hanaway filed a lawsuit in federal court Wednesday arguing that the referendum plan violates the federal and state constitutions. The lawsuit contends nothing in the Missouri Constitution “expressly says that federal congressional reapportionment may be subjected to a referendum.”

“Defendants cannot identify any language that ‘makes it clear’ that the Missouri Constitution transfers authority over federal redistricting away from the General Assembly,” Hanaway’s lawsuit states.

On Thursday, Chuck Hatfield, an attorney for People Not Politicians, sharply disagreed with Hanaway. He pointed to language in the Missouri Constitution stating that people “reserve the power to reject laws and reserve the power to approve or reject referendums of any act of the General Assembly.”

“I would encourage you to go look at [the bill lawmakers passed during a September special session],” Hatfield said. “At the top, it says ‘an act of the General Assembly.’ The Constitution specifically allows a referendum on that bill. And she is just absolutely wrong about that.”

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Callais Re-Argument Recap

redistricting, Supreme Court, Voting Rights Act

Earlier today, I attended the oral argument in Callais. My global takeaway is a bit more sanguine than Rick’s. When the case was set for re-argument, the new QP flagged Section 2’s constitutionality: whether it constitutes a compelling governmental interest and whether there is a temporal limit to race-based remedial redistricting. However, the conservative Justices seemed more interested in tweaking the Gingles framework than in overturning Section 2 outright. For example, in questioning NAACP LDF attorney Janai Nelson, Justices Thomas and Alito focused more on Gingles and Robinson than the constitutional question. Moreover, Nelson did not receive a question about the temporal-limit argument until she—for the second time—raised it approximately 18 minutes into her argument. This is not to say the result won’t be bad or that Section 2 as applied to redistricting won’t get the Brnovich rewrite. But as someone who also attended the oral arguments in Northwest Austin, Shelby County, and Rucho, the Callais re-argument was not catastrophic. The tea leaves are harder to read this time. Here’s some key takeaways.

First, although it might have technically been captioned as a re-argument in Louisiana v. Callais, it sounded more like a re-argument of Allen v. Milligan. The Justices and advocates spent considerable time discussing what was—and what was not—decided in Milligan. The fact that this case is a Shaw challenge was missing from large portions of the argument. Indeed, the fact that Justice Thomas repudiated Shaw claims in his 2024 Alexander concurrence went noticeably unmentioned by him or any other Justice.

Second, in a related vein, the Robinson litigation loomed large, just as in last spring’s argument. The fact that the Justices are still toying with whether the Robinson preliminary injunction was rightly decided and whether it constitutes a strong-basis-in-evidence to engage in race-based redistricting suggests (a) there’s still low stakes off-ramps and (b) that a majority disintegrated last Term rather than some pre-ordained plan to tee up the constitutional question this Term.

Third, a significant amount of time was spent discussing the U.S. Solicitor General’s proposal to incorporate partisan outcomes in the first Gingles prong, which Nick wrote about earlier. Under this re-writing of Gingles, mapmakers could say that they had the goal of creating a 7-1 Republican congressional map, a move that would effectively create a partisan gerrymandering defense to Section 2. What I found striking about the SG’s proposal is that it couched partisan interests as a traditional redistricting principle. But the Rucho Court only greenlight partisan gerrymandering claims in 2019. It strains credulity to say that blatant partisan interests is a traditional redistricting principle. Indeed, Justice Kavanaugh alluded to this wrinkle when he correctly observed that States were reluctant to raise partisan gerrymandering defenses before Rucho. And for his part, Justice Gorsuch raised hard questions about the workability of the SG’s new standard.

In my view, the SG’s partisan outcome proposal has no place as a defense in a Section 2 case. To the extent it does find its way into some compromise opinion, it would be better considered as part of the totality-of-the-circumstances analysis, rather than at the Gingles prongs. Indeed, the totality-of-the-circumstances analysis is capacious and specifically looks to the tenuousness of a mapmaker’s explanation, which could be read to include partisan goals and why a particular partisan map was chosen over others. This would put a small thumb on the scale in favor of a mapmaker’s partisan goals while not cutting valid Section 2 claims off at Gingles’s gateway.

Fourth, unsurprisingly, Justice Kavanaugh repeatedly asked questions about temporal limits to Section 2—something that Milligan did leave unresolved, as Alabama did not raise it. Here, Nelson adeptly answered these questions, both on the meta-level of whether a temporal limit is appropriate and on the nitty-gritty level of Section 2’s self-sunsetting nature. I wrote more on this point yesterday.

Fifth, as Ned Foley already flagged, several conservative Justices asked questions that assumed Boerne’s congruence and proportionality test controlled here. That is disappointing given the weak originalist case for that standard, one that Justice Scalia renounced in his 2004 Tennessee v. Lane dissent.

A final thought on the post-pandemic argument format. This was my first time seeing an oral argument in person since the pandemic, and the new format was fascinating to observe in person. That said, it is simply too long. At two-and-a-half hours, it had the runtime of long movie. The one versus three lawyer dynamic (given Louisiana’s about-face) compounded the matter, as the Justices went down the queue with four separate lawyers.

Disclosure: I filed an amicus brief in support of the Robinson appellants in Louisiana v. Callais.

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Originalism and Expiration Dates

redistricting, Supreme Court, theory, Voting Rights Act

Tomorrow, the Supreme Court will hold a rare re-argument in Louisiana v. Callais on whether Section 2 of the VRA is unconstitutional as applied to redistricting. I’ve filed an amicus brief arguing that Shaw should be overturned—a point that my co-contributor Ned Foley recently agreed with on SCOTUSBlog. I will not rehash my amicus brief’s arguments against Shaw, which I have also made in my scholarship.

Here, I want to address the thorny question of the necessity of sunset provisions in statutes enacted pursuant to Congress’s Reconstruction Amendment enforcement authority. This claim popped up in Justice Kavanaugh’s concurrence and Justice Thomas’s dissent in Milligan. Similar versions appeared in SFFA and Shelby County. In my view, sunset provisions are not required under the original understanding of Congress’s Fifteenth Amendment enforcement authority.

One major reason that sunset clauses became the touchstone in this area of law is that Sections 4 and 5 of the VRA were time limited. The first preclearance regime was meant to last for five years. That wasn’t enough time to overcome nearly a century of disenfranchisement, so Congress reauthorized the preclearance regime in 1970, 1975, 1982, and 2006. It made perfect sense for the Court, in upholding the first four iterations of the preclearance regime, to note its temporary character. And when Justice Kennedy—who was not an originalist—announced Boerne’s congruence and proportionality test, he pointed to the VRA’s sunset provisions as evidence of a statute’s constitutionality.

Against this doctrinal backdrop, Pam Karlan explained back in the 1990s how Section 2 has a built-in expiration date. I agree with Karlan, but I would go farther. Put bluntly, the Court has confused a voluntary feature that Congress included in its most aggressive Fifteenth Amendment enforcement legislation with a requirement that must appear in all such statutes.

For an originalist Court pushing this temporal-limit theory, there is a deep irony. The Reconstruction Framers had two central motivations in ratifying the Fifteenth Amendment. The first was to enfranchise Black men in Northern and Border States. The second—and more relevant here—was to preserve congressional power over the Southern States after they were re-admitted to the Union. Congress had imposed fundamental conditions on the Southern States, but the enforceability and legality of those conditions was fiercely contested even in theRepublican Party. And prior to the Fifteenth Amendment, Congress lacked authority to regulate voting rights in the States. Thus, the Fifteenth Amendment was entrenched in the Constitution to create and maintain congressional power against States in perpetuity. Tellingly, the Reconstruction Congress’s Fifteenth Amendment enforcement legislation did not contain expiration dates. The Reconstruction Framers did not envision any temporal limit to their authority.

Indeed, to the extent there is post-ratification evidence in support of sunset provisions, it comes for the Redemption-era Court, not the Reconstruction Congress. In The Civil Rights Cases, the Court invalidated the Civil Rights Act of 1875’s ban on racial discrimination in public accommodations. When discussing Congress’s ThirteenthAmendment enforcement authority less than two decades after emancipation, the Court notoriously opined: “When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.”

To be clear, I am not making a genealogical claim that sunset provisions are problematic simply because they were endorsed by the Redemption-era Court, though the parallels between the dismantling of the First Reconstruction and the potential demise of the Second Reconstruction are difficult to ignore. More fundamentally, my claims are historical and institutional. Historically, sunset provisions are products of the doctrine—not the Constitution’s original public meaning. Institutionally, it is Congress—not the Court—that is tasked with enforcing the Fifteenth Amendment’s protections.

In this originalist age, it is imperative that we accurately reconstruct the past. If the past is going to rule us, we need to know what the past requires and what it permits. Requiring Congress to include a sunset provision when enforcing the Fifteenth Amendment is deeply ahistorical and indefensible on originalist grounds.

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Section 2’s Limits

redistricting, Supreme Court, Voting Rights Act

Sparked by Nick Stephanopolous’s amicus brief, there’s been discussion on this blog about Section 2’s limits and how that might impact tomorrow’s re-argument in Callais. To help readers understand the import of this controversy with a real-world example, I want to highlight Missouri’s mid-decade congressional redistricting to illustrate Section 2’s importance and its limits.

For those unfamiliar with the Show Me State, some basic facts. Missouri is 77% White and 11.4% Black. While Missouri was a swing state a couple decades ago, it is now solidly red. However, the St. Louis and Kansas City metro areas are blue enclaves at opposite ends of the State. After the 2020 Census, Missouri had eight congressional districts, and Missouri’s Republican-controlled state legislature drew a 6-2 map. But Missouri got caught up in the mid-decade redistricting wave sweeping the country, and Republicans enacted—what they hope to be—a 7-1 map. The question, then, was which of the two Democratic districts was dismantled?

District 1 is centered in St. Louis. At 46% Black, it is a Black-plurality or Black-opportunity district. District 1 is currently represented by Wes Bell, who is Black and the former progressive prosecutor of St. Louis County. By contrast, District 5 is based in Kansas City. District 5 is majority White and only 21.7% Black. It is represented by Emanuel Cleaver, who is Black and the former mayor of Kansas City.

Missouri dismantled District 5. Why? The straightforward explanation is that District 1 is protected by Section 2. District 5 is not. The Black population in Kansas City is not sufficiently large or compact to satisfy Gingles prong 1. So what does this tell us about Section 2?

For starters, Missouri’s mid-decade redistricting is a salient example of Section 2’s limits. The VRA does not perpetually protect all Democratic districts or even those represented by Black officeholders. It only protects those that satisfy the Gingles prongs, and District 5 could not satisfy the compactness requirement.

District 1 has lessons as well. District 1 is not majority-Black. Nor is the remedial district that ended up being drawn in Alabama after the Court’s 2023 decision in Milligan. Thus, Section 2 has plenty of play in the joints. The VRA does not require the mechanical creation of 50%+1 majority-minority districts.

Although District 1 is reliably blue, the general election is not the only site of democratic contestation. Indeed, District 1 has witnessed a fair amount of turnover in the Democratic Party primary in recent years. In 2020, progressive Cori Bush defeated long-serving Representative Lacy Clay. Then, in 2024, Bush was herself unseated by the more moderate Bell. Bush recently announced that she’s going to seek her seat again in 2026, setting up another primary fight. District 1 is anything but a “safe” seat within the Democratic Party.

What happens in a world without Section 2? Missouri could target District 1, creating the possibility of an 8-0 map. Somewhat unbelievably a decade ago, we could see re-re-redistricting in Missouri. In addition, Louisiana and Alabama will almost certainly redraw their maps. The Court, therefore, may exacerbate the redistricting wars rather than calm them.

Disclosure: I filed an amicus brief in support of the Robinson appellants in Louisiana v. Callais.

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The 2025 Election Law Conference at Florida State University

election law biz

This weekend, FSU will host the 2025 Election Law Conference. Jacob Eisler is the organizer, and I am serving as an informal advisor. This conference is a sequel to last year’s Election Law Conference at Washington University in St. Louis, which primarily featured the work of junior scholars. My hope is that our field will have an annual conference going forward and that it will continue to grow over time.

You can find the fantastic line-up of speakers here and below:

Friday, September 12

12:30 p.m. – Lunch and Welcome Remarks (Erin O’Hara O’Connor) – D’Alemberte Rotunda

2:15 p.m. – Theorizing Representation (Jacob Eisler, moderator) – MCB 208

  • Ash Ahmed, Two Faces of Representation
  • Josh Sellers, Hollow Parties Reconsidered

3:30 p.m. – Break (Coffee) – D’Alemberte Rotunda

4:00 p.m. – Electoral Process under Strain (Alex Tsesis, moderator) – MCB208

  • Rebecca Green, Administering Election Disputes
  • Josh Douglas, Voter Turnout and Nonvoters
  • Charquia Fegins, Race in Partisan Gerrymandering Claims

5:30 p.m. – Break (Snacks/Beverages) – D’Alemberte Rotunda

6:00 p.m. – Keynote Speaker Stephanopoulos, Redistricting Without Tradeoffs, (Jacob Eisler intro) – D’Alemberte Rotunda

Saturday, September 13

8:30 a.m. – Breakfast – D’Alemberte Rotunda

9:15 a.m. – Democratic Process in the Shadow of Economic Power (Amanda Driscoll, moderator) – MCB 208

  • Yunsieg Kim, Public Campaign Financing Paradox
  • Sarah Haan, Alternative Democracy

10:30 a.m. – Break (Coffee) – D’Alemberte Rotunda

11:00 a.m. – Districting and Democracy (Travis Crum, moderator) – MCB 208

  • Wilfred Codrington, Panoramic Redistricting in Constitutional Design
  • Lori Ringhand, Misrepresentation

12:15 p.m. – Final Remarks & Lunch – D’Alemberte Rotunda

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Amicus Brief on the Fifteenth Amendment in Louisiana v. Callais

election law and constitutional law, redistricting, Supreme Court, Voting Rights Act

Another ELB contributor has entered the Callais fray. Today, I filed an amicus brief in support of the Robinson appellants in this fall’s blockbuster voting rights case, Louisiana v. Callais. You can find my amicus brief here. Thanks to Rakesh Kilaru, Dan Epps, Allison Walter, and the paralegal team at Wilkinson Stekloff LLP for help with the brief.

Drawing on my scholarship about the Fifteenth Amendment, the amicus brief makes three arguments. First, as originally understood, the Equal Protection Clause did not apply to voting rights. Rather, it was the Fifteenth Amendment that enfranchised Black men nationwide and granted Congress robust enforcement authority. Thus, the Fifteenth—not the Fourteenth—Amendment is the constitutional touchstone for the fight against racial discrimination in voting.

Second, when viewed through the lens of the Fifteenth Amendment, Shaw should be overturned. I suspect that this claim will spark some controversy in the field and among voting rights lawyers. Although Shaw was briefly used to advance minority voting rights in the 2010s, it is not worth the candle. Callais demonstrates that Shaw’s colorblind approach to redistricting threatens Section 2’s constitutionality. Moreover, Shaw is indefensible as written from an originalist perspective, something that Justice Thomas recognized last year in his Alexander concurrence but the other originalist Justices have not yet grappled with. For starters, the Shaw Court reached for the wrong constitutional provision. It applied equal protection principles to what should be a Fifteenth Amendment case. More fundamentally, the Reconstruction Framers’ views on racially polarized voting would have been labelled by the Shaw Court as impermissible racial stereotypes.Stated bluntly, the Shaw Court’s approach reflects modern, normative views on racial politics, not the views of the Reconstruction generation. The other stare decisis factors also militate in favor of overruling: Shaw and its predominant factor standard are unworkable, inconsistent with precedent, and have been undermined by recent factual and legal developments.

Third, Section 2 is a constitutional exercise of Congress’s Fifteenth Amendment enforcement authority. Because that power is governed by Katzenbach’s deferential standard, the Court need not answer the antecedent question of whether racial vote dilution is prohibited by Section One of the Fifteenth Amendment. Rather, the question is whether Congress could have reasonably concluded that racial vote dilution is a denial or abridgment of the right to vote free of racial discrimination. It assuredly is.

One last aside. We should probably start calling this case Robinson v. Callais after Louisiana flipped sides and attacked Section 2’s constitutionality. It’s not terribly surprising that Louisiana did so, but the Louisiana v. Callais captioning gives a false impression of what the case is now about.

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Alabama Dodges Bail-in

court decisions, redistricting, Voting Rights Act

Yesterday, the three-judge district court in the Alabama congressional redistricting litigation declined to bail-in the State to the VRA’s preclearance regime. You can find the district court’s decision here.

Recall that the district court had previously found that Alabama’s 2023 defiance of the Supreme Court’s decision in Allen v. Milligan constituted intentional discrimination. Based on the district court’s obvious frustration with Alabama’s recalcitrance, it appeared that the State was a prime candidate for bail-in under Section 3(c) of the VRA. Moreover, plaintiffs’ bail-in request was limited: only for congressional redistricting and only through the post-2030 redistricting map. Bail-in was designed to stop the game of whack-a-mole that was Southern defiance of federal court decrees. Unfortunately, Alabama dodged the hammer once again.

For prior analysis of bail-in in this case, see here, here, and here. Here’s some takeaways from the district court’s opinion and recent bail-in litigation overall:

1.         The district court’s fifteen-page opinion is mostly a summary of the litigation and last week’s bail-in hearing. Its analysis of the bail-in issue is cursory. The court sidestepped contentious questions about whether multiple constitutional violations are necessary for bail-in; whether Shaw violations count; and whether constitutional violations by political subdivisions are part of the inquiry. Instead, the district court relied heavily on its retention of jurisdiction over the case through the 2030 redistricting cycle and its injunction that Alabama must use the Special Master’s remedial maps. It observed that this “largely obviate[d]” the need to delve into the “intrusive waters” of preclearance.  Indeed, the district court’s approach recalls the Fourth Circuit’s minimal analysis of the bail-in question in McCrory, the North Carolina voter-suppression case.

Furthermore, the district court appears to conflate the question of retaining jurisdiction and bail-in. For example, the district court’s opinion could be read to express concern about dealing with the case through the entire 2030 redistricting process—that is, through 2041. But that is emphatically not how bail-in under Section 3(c) would have worked. Alabama would have been required to preclear the first map that it drew after the 2030 Census. So long as Alabama met its burden to show by a preponderance of the evidence that it had not intentionally discriminated and had not retrogressed Black voting strength, the bail-in would have ended. Any Section 2 or Shaw claims would have been heard by a separate court. And the bail-in would not have applied to a 2030 mid-decade redistricting either.

To be clear, some of this confusion could be attributable to plaintiffs’ back-up request for the court to retain jurisdiction. But the substantive standard and process for how preclearance would work under Section 3(c) is distinct from how the same court hearing a potential Section 2 case in the 2030s would work.

2.         Although the district court declined to bail-in Alabama, it did mandate that it use the Special Master’s remedial map until the 2030 redistricting cycle. Thus, for now, Alabama cannot take part in the potential wave of mid-decade redistricting that might occur. However, Alabama has appealed the underlying merits determination to the Supreme Court, and with the Callais re-argument next Term, it is possible Alabama may be freed from this permanent injunction.

3.        The lightning bolt of the Callais re-argument order looms large here. The short time frame between last week’s hearing and yesterday’s decision hints at a district court that thinks it’s gone as far as it can go without being rebuked by the Supreme Court.

4.         Finally, one cannot help but wonder what might have been in these post-Shelby County bail-in suits if the Supreme Court had not become considerably more conservative during the first Trump administration. Put differently, if the Senate had not successfully blockaded Merrick Garland or if Justice Ginsburg had retired in a timely manner, the preclearance regime might have been partially rebuilt. We have seen district courts issue intentional discrimination findings against two States that were previously fully covered (Alabama and twice against Texas) and two States that were previously partially covered (Florida and North Carolina). But when it came to pull the trigger on Section 3(c) relief, the lower courts blinked.

Perhaps one upshot of yesterday’s decision is that bail-in’s constitutionality will continue to escape Supreme Court review. Although I still believe that this is the best post-Shelby County vehicle for addressing Section 3(c)’s constitutionality, one need not look far for other voting/civil rights cases—such as Brnovich—in which an aggressive litigation posture ended up backfiring. We will have to wait and see what remains of the Voting Rights Act after next Term, which is shaping up to be monumental.

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“[County Executive] Sam Page indicted on election and theft charges over St. Louis County proposition mailer”

campaign finance, direct democracy

STLPR reports:

A St. Louis County grand jury on Wednesday indicted County Executive Sam Page on charges involving the use of public money to campaign against Proposition B ahead of the April election.

The measure would have allowed the St. Louis County Council to fire certain department heads with five of seven votes. Six of the council’s seven members are generally combative with Page.

The county sent out a mailer in the weeks leading up to the election outlining consequences of the issue. The front of the mailer listed groups that opposed Proposition B and included wording from a court ruling ordering a change in the language appearing on the ballot. The “paid for” line said St. Louis County.

…

State law forbids any elected official to spend public funds to campaign for or against a ballot measure. Page faces two misdemeanor election offenses and two counts of felony theft “by deceit” over the spending of county money.

Page has said the mailer was informational only and did not advocate a position.

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The Prospect of Bailing-in Alabama

redistricting, Voting Rights Act

Tomorrow, the three-judge district court in the Alabama congressional redistricting litigation will hold a hearing on whether to bail-in Alabama to the VRA’s preclearance regime. If bailed-in, Alabama would have to seek preapproval for any redistricting changes from either DOJ or that court through the 2030 redistricting cycle.

Readers may remember this case as the Supreme Court’s surprising 5-4 ruling in Allen v. Milligan back in 2023. More recently, this past May, the district court found that Alabama’s proposed remedial map—which flagrantly disobeyed Milligan by failing to create a second Black-opportunity district—was enacted with discriminatory intent. I’ve previously argued on this blog (see here and here) why Alabama’s defiance necessitates bail-in as a remedy. Right now, I want to make some global comments and flag some points from the briefs that readers might find interesting.

1. We are twelve years out from Shelby County, and this is the fifth time that a State has been under a credible bail-in threat. Unfortunately, no State has been bailed-in during this time. In the 2010s, Texas twice escaped being bailed-in for its voter ID law and its redistricting plan after passing animus laundering laws that took off the roughest edges of the prior statutes. Around the same time, North Carolina was not bailed-in by the Fourth Circuit notwithstanding a finding that its voter-suppression law had been enacted with invidious intent. That strategic move helped evade Supreme Court review. And in 2022, Florida was bailed-in by a district court for its third-party voter registration law, but the Eleventh Circuit overturned the predicate finding of intentional discrimination thereby avoiding the Section 3(c) question.

The Alabama fact pattern is far worse than these unsuccessful bail-ins. Unlike Texas—which ameliorated its problematic laws—Alabama doubled down and defied a court order by failing to draw a second Black-opportunity district. Indeed, the three-judge district court had very harsh words on this very point back in May, suggesting that it was open to a bail-in remedy. Given Alabama’s bluster about gamesmanship being a prerequisite for bail-in, it appears that Alabama thinks States should get one free pass in evading court orders. If one is fine, what’s the line for triggering bail-in? Two, three, or four redistricting maps that defy court orders?

2. The specter of mid-decade redistricting now haunts the political landscape. President Trump is pushing Red States like Texas and Missouri to redraw their maps, and Blue States are threatening to do so in retaliation. If the norm against mid-decade redistricting were to evaporate, Alabama may face considerable political pressure to eliminate its second Black-opportunity district. And here is where the rubber hits the road. Alabama’s purported concession that it will not engage in mid-decade redistricting is from the current leaders of the state house and state senate. But those leaders cannot bind a future legislature—nor are they guaranteed to remain as leaders if politics dictated their replacement to draw another 6-1 Republican map.

3. The Milligan plaintiffs have alternatively requested that the three-judge district court retain jurisdiction to hear challenges to any new redistricting plans through the 2030 census. Put simply, this would not be a bail-in because Alabama would not have to preclear any changes. Rather, the same panel would hear any new challenges. This is an interesting litigation strategy, and it is obvious why the plaintiffs would want to keep this panel. However, it could raise interesting post-CASA questions about federal courts’ equitable powers, ones that dovetail with the points raised about Article III in Justice Thomas’s Alexander concurrence.

4. Alabama does not contest Section 3(c)’s constitutionality. Tellingly, Texas made the same decision back in the 2010s. Nonetheless, Alabama argues that it does not qualify for bail-in because there have not been multiple constitutional violations. On this front, Alabama’s arguments mirror Texas’s once again—and I have covered and refuted them extensively before (see here, here, here, here, here, and here). That said, I continue to believe that Shaw violations—which concern excessive use of race—are not the type of unconstitutional conduct that should count in the bail-in analysis, thereby taking the 2010s ALBC litigation off the table for the Milligan plaintiffs. In a similar vein, the 1990s DOJ objection should also not count, as it was based on the now repudiated “Black maximization” policy.

5. Alabama’s potential bail-in is happening against the backdrop of the Eighth Circuit’s twin holdings that Section 2 lacks a private cause of action and that Section 1983 cannot be used as a substitute. This matters for two reasons. First, Section 3(c) is some of the best textual evidence that the VRA is supposed to be enforced by private parties, as it authorizes bail-in relief in suits brought by the Attorney General and “aggrieved person[s].” Second, the Trump administration’s amicus brief opposing bail-in showcases the absurdity of the federal government—particularly this administration—being the sole actor empowered to bring Section 2 suits.

6. Because there’s a direct right to appeal to the Supreme Court, an Alabama bail-in is almost certain to get heard on the merits calendar. But as I wrote previously, this is an ideal case for a bail-in to go to the Supreme Court given Alabama’s defiance of the first Milligan decision. This case, therefore, could well decide if preclearance remains a viable mechanism post-Shelby County, which will set the stage for any future VRA revisions.

Unfortunately, the court is not live streaming the hearing, but I hope to post additional thoughts once a transcript becomes available.

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Waiting for Callais

redistricting, Supreme Court, Voting Rights Act

Earlier today, Rick Pildes flagged the Court’s inexplicable month-long delay in issuing a re-argument order in Louisiana v. Callais, last Term’s—and now next Term’s—major Shaw case. I agree with Pildes’s concerns and want to add a few points.

First, to further speculate, it is possible the Court wants to pair Callais with a Section 2 case. Indeed, the Alabama redistricting case—known to blog readers as Allen v. Milligan—is heading back to the Court soon. Recall that in May the three-judge district court found that Alabama’s 2023 redistricting plan was enacted with discriminatory intent. Coincidentally(?), Alabama filed its notice of appeal from that injunction on June 6, 2025. That notice of appeal is available on the district court docket, but I have been unable to locate a jurisdictional statement on the Supreme Court’s electronic docket. There’s also a bail-in hearing in Milligan scheduled for this Tuesday—about which I will have a preview post on Monday. This would further raise the stakes in Milligan. And if we add the Eighth Circuit implied cause of action/Section 1983 case to the docket, the October 2025 Term could be a monumental one for voting rights.

Second, assuming that the Court will order supplemental briefing, this case could be delayed well into the fall. Of course, supplemental briefs might be on a shorter timetable than normal merits briefs. But it seems counter-productive to push a case that proved impossible for the Court to decide in one Term even deeper into the next.

Third, I want to highlight something odd about Justice Thomas’s dissent from the Court postponing the case to next Term. Characteristically, he calls for a complete re-assessment of the Court’s voting rights jurisprudence and lambasts Section 2 of the VRA. What is striking is the complete absence of his change-of-face in his Alexander concurrence from 2024. Indeed, he doesn’t even cite it. If, as Thomas claimed in Alexander, racial gerrymandering claims are non-justiciable political questions, then Callais seem like an odd vehicle to invalidate Section 2 of the VRA. Moreover, Thomas’s questions at the Callais oral argument memory-holed the Alexander concurrence. I’ve previously written about how Thomas failed to reconcile his new position on Shaw claims with the VRA’s constitutionality, and his Callais dissent only raises more questions.

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“Could Missouri get caught up in a redistricting frenzy? It’s looking likely”

redistricting

STLPR reports:

President Donald Trump wants Missouri to join in on a mid-decade redistricting extravaganza ahead of the midterm elections, according to a Missouri GOP congressman.

But if Missouri Republicans do target Missouri’s Kansas City-based 5th District at the behest of Trump, they’d not only be abandoning their own impassioned arguments from just a couple of years ago – but possibly plunging the state into judicial limbo.

…

Congressman Eric Burlison told St. Louis Public Radio on Thursday that he heard directly from the White House that the president wants the GOP-controlled Missouri legislature to revamp its map to make it difficult, if not impossible, for Democratic Congressman Emanuel Cleaver of Kansas City to win re-election.

“I literally just got off the phone with the White House – and they do want that,” said Burlison, R-Greene County. “And this is the first that I’ve heard it directly from them, because before that I heard it through rumors – through other people.”

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