All posts by Richard Pildes

NYT On the Decline of Competitive Congressional Districts

The NYT has a long story by @miwine and @NYTnickc about the decline of competitive districts in the 2024 elections. A key point from an experienced member of Congress comes at the end of the story: “As competitive districts dwindle, so do incentives to compromise,” said Steve Israel, a former Democratic congressman from New York and the former chair of the Democratic Congressional Campaign Committee.

For my similar views on the decline of competitive districts as a contributing factor in the rise of polarization and the difficulty of legislative compromise, see this essay. Here’s some of the data from the NYT story:

Competition is an endangered species in legislative elections.

A New York Times analysis of the nearly 6,000 congressional and state legislative elections in November shows just how few races were true races. Nearly all either were dominated by an incumbent or played out in a district drawn to favor one party overwhelmingly. The result was a blizzard of blowouts, even in a country that is narrowly divided on politics.

Just 8 percent of congressional races (36 of 435) and 7 percent of state legislative races (400 of 5,465) were decided by fewer than five percentage points, according to The Times’s analysis.

Consequences from the death of competition are readily apparent. Roughly 90 percent of races are now decided not by general-election voters in November but by the partisans who tend to vote in primaries months earlier. That favors candidates who appeal to ideological voters and lawmakers who are less likely to compromise. It exacerbates the polarization that has led to deadlock in Congress and in statehouses.

The Times story also reflects the decline of competitive districts in state legislatures:

There are 181 state legislative seats in Texas, with 31 senators and 150 representatives. In 2024, just four of those elections — three in the Statehouse and one in the State Senate — were decided by five points or fewer, according to The Times’s analysis….

In Georgia, just five of the 236 state legislative seats, or 2 percent, were decided by five points or fewer, and more than half of the races were uncontested. In Florida, 10 of the 160 state legislative races were within a five-point margin.

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“Democrats continue to dominate spending in competitive general elections”

From the Cook Political Report (paywalled):

In the 20 most expensive House races, Democrats outspent Republicans in all but two races, per AdImpact. That’s largely due to Democratic candidates’ fundraising advantage over Republicans. Across the 20 most expensive races, the median Democratic spent $5.8 million on ads, while the median Republican spent $2.5 million.

The Congressional Leadership Fund attempted to make up for Democrats’ advantage, providing “on average over 50% of the GOP’s broadcast TV presence” in the 20 most expensive contests. But that wasn’t enough to close the gap in most races.

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“Do We Need a Multi-Party System?”

I’ll be participating in this event tonight. Zoom link below.

Recent elections have generated interest in moving the United States toward a multiparty system. How does the 2024 election change this calculus, if at all? What would multiparty politics mean for Congress? How has multiparty politics worked for institutionally similar democracies?

Join the NYU Brademas Center and the Brennan Center for Justice for this hybrid event featuring Josep Colomer, Associate Researcher at Georgetown and author of, Constitutional Polarization (2023, Routledge), Cynthia McClintock, Professor of Political Science, George Washington University and author of, Electoral Rules and Democracy in Latin America (2018, Oxford), Richard H. Pildes, Sudler Family Professor of Constitutional Law, NYU School of Law, Daniel I. Weiner, Director, Elections and Government, Brennan Center for Justice, and Jack Santucci, NYU-DC Lecturer and author of, More Parties or No Parties (2022, Oxford), who will serve as moderator. 

Zoom link here: https://nyu.zoom.us/webinar/register/WN_S18nJv_pSXOeaHCcJDfkvg#/registration

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Campaign Finance and Political Polarization

I’ve posted this new essay on SSRN. Here’s the abstract:

In an era I have called “hyperpolarized democracy in America,” delivering effective government has become extremely difficult.  Much has been written about various institutional factors that contribute to the rise of polarization.  But campaign finance has received minimal attention in these discussions.  Most campaign finance discussion focuses on issues of political equality or the risks of political corruption.  The failure to focus on the polarizing effects of our privately-financed elections is surprising, because one of the most robust findings in the empirical literature on campaign finance is that donors are much more ideologically extreme than other citizens.  Nor has the emergence of small donors in the last several election cycles changed this pattern.  Small donors are at least as ideological as large donors, perhaps more so.

This essay begins with a focus on the relationship between individual donors and political polarization.  In recent years, we have learned much more about the motivations and ideological preferences of individual donors.  Part II then argues that, once we recognize the relationship between individual donors and polarization, there are implications for the appropriate direction of political reform.  In particular, if we want to minimize corruption and advance political equality, without further fueling the dangerous tendencies toward polarization and extremism, traditional forms of public financing best satisfy that range of goals.

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“Skepticism About Proportional Representation for Congress”

The published version of this article is now available, as part of a political reform symposium published at the Univ. of Illinois Law Review. Here’s the abstract:

In recent years political reform advocates and advocacy groups have proposed a form of proportional representation (PR) for the U.S. House. In their view, the U.S. system of plurality winner, single-member election districts is a major reason for our increasingly tribalistic politics and toxic political culture. The proposed cure is the creation of a five or six party Congress, enabled by electing Congress from multi-member districts of five to seven members. This article reflects skepticism about this proposal. The article first shows the scope of changes to Congress and the voting system that would be required to institutionalize this proposal. A transition to multi-member districts is no simple matter and would require numerous other accompanying changes.

The article then turns to comparative perspective to challenge the accuracy of the diagnosis PR proponents offer to motivate their proposal. Other democracies with our same election system do not have our tribalistic politics and levels of affective polarization. This strongly suggests other factors about the way American politics is institutionally structured, along with distinct features of American political culture, are the source of our current political ailments.

The article then advances an even more important reason to reject the proposal for a PR House. This “cure,” it suggests, is worse than the disease itself. By exploring the extraordinarily turbulent multi-party governments that exist today in Western Europe, the article argues that a five or six party Congress would make the political process even more dysfunctional than it is already.

The ability to deliver effective government is the most important challenge democracies across the West face today. When democratic governments are perceived by many citizens to be failing, it can lead, and has led, to rejection of the institutional structures and norms of democratic government. Proposals for a PR House face serious implementation challenges; are motivated by a flawed understanding of why American politics is more polarized and tribalistic today; and most troubling of all, would make it even harder for Congress to meet this era’s fundamental challenge, which is delivering effective government.

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I Had Said the PA Fight Over Provisional Ballots Might Return to the Courts. It has, in the Senate Race

After the Supreme Court declined to take on issues concerning rules on provisional ballots in PA, including the independent state legislature claim, I had said this issue might return after the election. The margin in the Senate race is close enough that we are now seeing this happen. The McCormick campaign has brought two suits concerning these ballots in Philly. I have not yet reviewed the complaints to see the theories they raise, and whether the independent state legislature claim is one of them.

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Global Interest in the Election

Not surprisingly, many people overseas are as anxious about the election as Americans. In the last week, I’ve done media in the UK, France, Germany, the Netherlands, Australia and others. You can’t escape it by running to New Zealand, either. Today I did a 15-minute segment on their version of Meet the Press, because New Zealanders are apparently just as obsessed with the outcome as everyone else:

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Might the PA Provisional Ballots Issue and the Independent State Legislature Claim Come Back to the Supreme Court?

The RNC must have known the Genser case was a long shot as a means to get the Supreme Court to address this issue.  The case did not directly involve the 2024 election.  It involved a primary election that had long ago ended and in which only one county board was a party to the case.  The RNC was trying a bank shot to get the issue to the Court.

But if the RNC believes enough is at stake, I wouldn’t be surprised to see a new lawsuit that the RNC initiates that now would directly challenge the policy in the context of the 2024 election.  The fact that three of the Justices who voted to deny the stay went out of their way to make clear their votes were not a rejection of the ISL claim might encourage the RNC to continue to pursue the issue (that other Justices didn’t join that three-Justice statement might cut the other way, but if the stakes are perceived as significant, I don’t know if that silence would be enough for the RNC to decide to stand down).

On the timing of any such suit, PA does not start processing and counting provisional ballots until the Friday after election day.  An RNC lawsuit might seek to enjoin election officials from counting those ballots. 

I’ve been wondering about the procedural route through which such an RNC suit might be brought.  Perhaps the RNC would file in state court, seeking an injunction against county boards and the Secretary of State.  The RNC would argue these are not legal votes; the election officials would say the state supreme court has held already they are; and the RNC would argue that ruling violates the ISL doctrine.  The case would move rapidly through the state courts, since the state supreme court has resolved these issues already, and the RNC would then seek Supreme Court action.  Most cases raising the ISL issue, of which there are few, began in the state courts. 

Alternatively, the RNC might file an initial action in federal district court, arguing that state officials should be enjoined from counting these provisional ballots.  The RNC would present their claim as arising directly under the Electors Clause of the Constitution (that is, as an ISL claim).  Of course, once those provisional ballots are counted and mingled with all the other ballots, it would be too late for any litigation.

But the RNC would face a major standing problem in either context.  In Lance v. Coffman, the Supreme Court held that individual voters do not have standing to enforce the Elections Clause.  I assume the same would be true of the similarly written Electors Clause, which applies to presidential elections.  The Court seemed to suggest that the only injured party that could bring such suits is the state legislature, whose federal constitutional power the state courts (or state executive officials) have allegedly violated, or some actor the legislature has authorized to act on its behalf. 

But the state legislature in PA was not a party with the RNC in its effort to challenge the Genser decision – and the PA legislature is divided, with Democrats controlling one chamber.  So the PA legislature is not going to claim injury here and be part of this litigation.  In 2020, the Eighth Circuit held that presidential electors do have standing to raise ISL claims; whether this is consistent with Lance v. Coffman  is an open question.   

Derek Muller, anticipating these procedural issues in potential ISL cases, has an excellent post from 2023 working through a number of these issues.   We will see whether yesterday’s stay denial from the Supreme Court is the last word or not on the PA provisional ballot issue and the ISL challenge concerning those ballots.

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Pildes: My NYT Essay On Tuesday’s Importance for Some of the Most Significant Political Reforms in Many Years on the Ballot in a Number of States

In case you want to think about something other than the presidential election, there are some of the most important political reform items in many years on the agenda this Tuesday in at least 8 states. I published this essay in the New York Times today to focus attention on these issues:

As we move closer to Election Day, most Americans are angry, exhausted and dissatisfied by the current state of our politics. Only 4 percent say the political system is working “extremely” or even “very well.” Sixteen percent say they trust the federal government always or most of the time, a historical low going back nearly 70 years. Trust in Congress is near record lows.

A silver lining is that eras of widespread dissatisfaction are often eras of major political reform. And while nearly all attention is fixated on the presidential race, Americans in a number of states will also be voting on some of the most significant sets of political reforms in decades. Taken together, these ballot measures — in red, blue and purple states — constitute a major referendum on whether we can reduce political extremism through institutional change.

These proposals are intended to make the political system more responsive to the preferences of a majority of voters, rather than continuing a system that has become easy prey for factional minorities.

The major reform, on the ballot in six states and Washington, D.C., would do away with traditional party primaries. Primaries have become a significant force in driving politics to the extremes and making governing more difficult. Turnout in midterm primaries is notoriously low — as low as about 14 percent of eligible voters in 2014, and rarely above 20 percent in the last decade (2022 marked a high of 21 percent). Moreover, studies show that primary voters tend to be unrepresentative of general-election voters. They are older, wealthier and whiter; there is more debate over whether primary voters are more ideologically extreme, but the most recent analyses of the past three midterms concludes that they are.

More important, politicians certainly believe primary voters are more extreme, and those in office behave accordingly. Research in the 2020 book, “Rejecting Compromise: Legislators’ Fear of Primary Voters,” is based on interviews with dozens of members of Congress and state legislatures, who said they know that “primary voters are much more likely to punish them for compromising than general election voters or donors….

To restore the principle of majority rule, voters in Arizona, Colorado, Idaho, Montana, Nevada and South Dakota will be voting on ballot measures that would replace traditional primaries with a single, unified primary in which all candidates would run (Nevada voters already approved that change once, but a second approval is required for it to take effect). The top few candidates (typically, top four or five) would then go on to the general election. That ensures that candidates who would have significant appeal in the general election are not prematurely eliminated at the early, primary stage….

Studies suggest that Americans might be less polarized than members of Congress. The initiatives on the ballot next week will not solve all the problems of American politics — but they can at least start to diminish some of the forces that are leaving so many Americans alienated from the democratic process.

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Purcell and the Stay Application in the PA Case

In its emergency stay application in this case, the RNC argues that the PA supreme court decision should be stayed, in part due to Purcell considerations.  Purcell thus far applies only to federal courts, as the RNC acknowledges, but it makes arguments as to why Purcell should apply also to state court decisions involving federal elections.

Leaving that issue aside, the question is also – as in so many Purcell cases – what the relevant status quo baseline should be for determining how Purcell applies. Here, the status quo in PA seems to have been that most counties already followed the understanding of state law that the PA supreme court decision endorsed. An amicus brief from a bipartisan group of county and other election administrators in PA makes that clear. In addition, it appears a number of lower court decisions in PA had also affirmed that interpretation of state law. The amicus brief also asserts that the few counties that did not accept the provisional ballots at issue can easily manage to comply with the state supreme court’s interpretation of the election code.

So the status quo seems to have been some variation in the counties, with most counties already following the practice the PA supreme court endorsed. Against that baseline, the PA decision is a clarification of the situation or an affirmation of the predominant practice in the state. Moreover, it is a clarification that brings uniformity and consistency to the issue on a statewide basis. That’s a good thing. Put another way, if the Court were to stay the decision based on Purcell, it would mean that we would revert to a situation in which different counties had different policies on whether to permit voters to cast these provisional ballots. I’m not going to say that would be a literal violation of Bush v. Gore, but the fact that the PA supreme court decision will bring statewide uniformity to the issue certainly has to be a plus.

More generally, I think the Purcell issue is a red herring here. The case involves state court interpretation of state election law. Issues about the meaning of state election law are inevitably going to arise, and Purcell can’t mean that state courts are under a flat bar prohibiting the interpretation of state election statutes close to an election — especially when different counties have different views. If a late-breaking state court decision would undermine the reliance interests of voters, that would be a different matter (that’s not involved here). But the mere interpretation of a state statute close to an election can’t sensibly be a basis for a stay under Purcell.

Yet here, that’s essentially what the RNC is arguing. The RNC asserts the relevant baseline is the election code itself, not what the general practice has been in PA for many years. Thus, the RNC’s position is basically that (1) we disagree with the state court’s interpretation of state law (2) therefore the PA court has changed election law too close to the election.

If this view were accepted, Purcell would lead to an even more expansive federal court role in second-guessing state interpretations of state election law than is the case under the independent state legislature doctrine from Moore v. Harper. After Moore, federal courts can invalidate such interpretations only if they “transgress the ordinary bounds of judicial review.” But to extend Purcell in the way the RNC suggest would mean that the Court would be in the business of second-guessing routine disputes over statutory interpretation if they arise late in the election cycle — and blocking state court decisions merely because the Court would interpret the statute differently than the state supreme court. That’s a far more expansive role than the one the Court carved out in Moore v. Harper.

Thus, the real substantive issue here (apart from various procedural issues) is whether a majority of the Court thinks there’s a serious independent state legislature doctrine issue here, along with the other requirements for a stay. I won’t address that issue here. But if there isn’t such an issue, Purcell shouldn’t be a basis for a stay (and if there is, Purcell is irrelevant). That’s why I consider the Purcell issue a red herring.

In sum, there’s an issue whether Purcell applies at all to state court decisions. Even if it does, the relevant status quo baseline here appears to be that most counties accepted the provisional ballots at issue, and the PA supreme court’s decision confirms and clarifies for all counties that that’s the correct practice under state law. Finally, Moore v. Harper defines the boundaries of federal court oversight of state judicial interpretation of state law in federal elections, and Purcell should not become a vehicle for dramatically expanding that federal role.

Update: To add a bit of detail, the decision has minimal burden on the minority of counties that don’t already count these provisional ballots. It only affects a decision they make at the very last stage of the canvassing process, as to whether to count a certain provisional or not. Given the small number of “naked ballot” voters statewide who come in to cast a provisional, these numbers are also quite small for the counties that would now need to include them in the count.

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