All posts by Richard Pildes

Justices with Political Backgrounds, such as Justice O’Connor, and Judicial Oversight of Districting

As many have noted, Justice O’Connor was the last Justice on the Court who had a political background. She was the majority leader of the Arizona state senate, before becoming a judge and then Justice.

Can we say anything about how that type of background influences a judge’s view about whether courts have a role to play in constraining the political process of drawing election districts? In Justice O’Connor’s case, it led her to conclude that partisan gerrymandering claims should not be justiciable in the federal courts. When the Court first recognized a cause of action for partisan gerrymandering under the federal constitution, in Davis v. Bandemer, (1986), she wrote the principal dissent. Then in Vieth v. Jubelirer, (2004), she joined Justice Scalia’s plurality opinion that would have held such claims non-justiciable. Her dissent in Bandemer ultimately won a majority on the Court after she had left, in Rucho v. Common Cause, (2019) [disclosure: I represented Common Cause in that litigation].

To give a flavor of her view, this is one the opening paragraphs in her Bandemer dissent:

There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. The preservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change. The opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States, and one that plays no small role in fostering active participation in the political parties at every level. Thus, the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out — by the very parties that are responsible for this process — present a political question in the truest sense of the term.

Does this mean Justices with political backgrounds tend to see the area of districting as off-limits to the Courts?

Not at all. When the Court was first asked to hold that malapportioned legislative districts were unconstitutional, the Court in Colegrove v. Green (1946), refrained on the ground this too was a political question. But it’s noteworthy that of the three Justices in dissent, two had political backgrounds. Justice Black had been a Senator from Alabama and Justice Murphy, the Governor of Michigan. And when the Court finally did overturn this political question holding and established the one-person, one-vote principle, it was CJ Earl Warren, former Governor of California, who wrote Reynolds v. Sims (1964).

If anything, this pattern suggests it has been judges with political backgrounds who have been most strongly of the view that the courts have a role to play in overseeing political linedrawing. But that was not the case for Justice O’Connor, in the context of partisan gerrymandering claims.

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“Republicans again target Democrat Lucy McBath in Georgia congressional map that keeps 9-5 GOP edge”


Georgia Republicans on Friday proposed to redraw the state’s congressional districts to create a new court-ordered Black majority district, maintaining the current 9-5 Republican congressional majority and again targeting Democratic U.S. Rep. Lucy McBath’s district for wholesale transformation.

It’s unlikely any of the proposed districts would produce competitive races between Republicans and Democrats. That’s also true of Georgia’s current map.

If it passes, the map could set up a court fight over whether the federal Voting Rights Act protects McBath’s current district from being wiped out. She currently represents Atlanta suburbs including southern Gwinnett County and northern Fulton County. No ethnic group has a majority in the district, but Black, Asian and Hispanic voters collectively favor Democrats….

Republicans said in debate Friday that their plans comply with Jones’ order. Democrats though, predict Jones will find the Republican plans are still illegal and draw his own maps.

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“Biden campaign prepares legal fight against election deepfakes”


President Joe Biden’s 2024 campaign has assembled a special task force to ready its responses to misleading AI-generated images and videos, drafting court filings and preparing novel legal theories it could deploy to counter potential disinformation efforts that technology experts have warned could disrupt the vote.

The task force, which is composed of the campaign’s top lawyers and outside experts such as a former senior legal advisor to the Department of Homeland Security, is exploring what steps Biden could take if, for example, a fake video emerged of a state election official falsely claiming that polls are closed, or if an AI-generated image falsely portrayed Biden as urging non-citizens to cross the US border to cast ballots illegally.

The effort aims to produce a “legal toolkit” that can allow the campaign to quickly respond to virtually any scenario involving political misinformation and particularly AI-created deepfakes — convincing audio, video or images made using artificial intelligence tools.

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“Federal Judge Rejects Trump’s Immunity Claims in Election Case”


A federal judge on Friday rejected claims by former President Donald J. Trump that he enjoyed absolute immunity from criminal charges accusing him of seeking to reverse the 2020 election, slapping down his argument that the indictment should be tossed out because it was based on actions he took while he was in office.

The ruling by the judge, Tanya S. Chutkan, was her first denying one of Mr. Trump’s many motions to dismiss the election interference case, which is set to go to trial in Federal District Court in Washington in about three months. It offered a sweeping condemnation of what Judge Chutkan called Mr. Trump’s attempts to “usurp the reins of government” and cited foundational American texts like the Federalist Papers and George Washington’s farewell address.

Mr. Trump’s lawyers had expected the immunity motion to fail. They have, in fact, been planning for weeks to use the defeat to begin a long-shot strategy to put off the impending trial. They intend to appeal Judge Chutkan’s ruling all the way to the Supreme Court if they can, hoping that even if they lose, their challenges will eat up time and keep the case from going in front of a jury until after the 2024 election.

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“Florida Democratic Party says Biden is the only candidate, angering rivals”

From the Washington Post, this can be viewed as a story about how parties seek to recapture control of the nominations process in an age of primaries:

With presidential primaries looming, there is only one name on the official list of Democratic presidential candidates in Florida — President Biden — a move that angered the incumbent’s long-shot challengers, who say they’re being unfairly left out.

The decision is the latest setback for Rep. Dean Phillips (D-Minn.) and Marianne Williamson, both of whom trail Biden in public polling and fundraising.

Under Florida rules, the state’s party votes on who will appear on primary ballots. Florida’s Democratic Party said in a statement Friday that the executive committee voted unanimously late last month to name Biden, and only Biden, to its list of candidates.

If a presidential primary has a single candidate, state election law says that the uncontested race will not appear on the state’s primary ballot.

“Americans would expect the absence of democracy in Tehran, not Tallahassee,” Phillips said in a statement. “Our mission as Democrats is to defeat authoritarians, not become them.”

Williamson said in a statement that the move in Florida is meant to help Biden win the nomination “without any opposition.” Both candidates’ statements said their campaigns are considering legal options to gain access to Florida’s ballot.

In its statement, the Florida Democratic Party said the party’s actions were part of a “standard process,” and that “it is not uncommon for an incumbent President to be declared the automatic winner of a presidential primary.” The last time it happened was in 2012, when President Barack Obama ran for reelection, according to the statement.

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“Florida court upholds DeSantis’ congressional redistricting map”

From The Tributary. Note that a separate lawsuit challenging this same part of the congressional map is pending in federal court, where the trial has been completed.

A Florida appeals court upheld Gov. Ron DeSantis’ congressional redistricting map, finding a lower state court should have dismissed a lawsuit challenging North Florida’s districts.

Even though DeSantis’ lawyers admitted his map violated the state constitution by diminishing Black voting power, the 1st District Court of Appeal said state voting protections shouldn’t apply to a Jacksonville-to-Tallahassee congressional district ordered by the Florida Supreme Court last decade.

In 2021, DeSantis vetoed an earlier attempt by the Florida Legislature to comply with anti-gerrymandering protections in the state constitution, arguing one of those protections, the “non-diminishment” clause, violated the U.S. Constitution by protecting Black voters’ ability to elect candidates of their choice.

Instead, he replaced the map with one of his own, which created whiter, more Republican districts in North Florida.

Friday’s decision was eight-to-two in favor of upholding DeSantis’ contested districts and striking down the lower court decision. Three judges recused. The plaintiffs will likely appeal the case to the Florida Supreme Court.

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“How Did We Get Here: Primaries, Polarization, and Party Control”

Important essay that summarizes a lot of the literature on primary elections and suggests the need for greater party control. From Protect Democracy:

Parties are increasingly nominating candidates with little experience in politics, undermining the functionality of government and prioritizing posturing over legislating. This trend has been sharper among Republicans, but both parties have found the experience necessary for governing and coalition-building to be in shorter supply in recent years. One-term U.S. Rep. Madison Cawthorn’s (R-NC) claim that “I have built my staff around comms rather than legislation” could apply to quite a few members of his class. . . .

t also suggests a real weakness for American democracy. As Levitsky and Ziblatt describe, parties play a vital role in limiting the access of would-be authoritarians to power. Indeed, early 20th century figures like Charles Lindbergh, Huey Long, and Henry Ford considered seeking national office but were essentially rebuffed by party leaders who were concerned about their dictatorial potential. In an age of primaries, however, parties are far more likely to nominate such leaders….

It is possible, as Kamarck suggests, for parties to assert a level of “peer review” to the nomination process, requiring party officials to approve of candidates before those candidates can run. Parties could raise thresholds for participation in debates or even for voting in primaries. Somewhat surprisingly, state parties often raise or lower primary voting participation thresholds without producing massive legitimacy crises; perhaps they could do more in this direction.

As 2022 drew to a close, the Republican National Committee announced an internal review commission to examine a disappointing midterm election and proposed new paths forward for the party.Meanwhile, the Democratic National Commission prepared to overhaul its approach to presidential nominations, dethroning the first-in-the- nation Iowa caucuses in favor of the South Carolina primary. Both major American parties, that is, have signaled that they are open to changes to the status quo in order to preserve their long term viability and protect American democracy. This is an encouraging sign, and suggests that some of these reforms may indeed be considered.

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“Haley and DeSantis are relying more on outside campaign groups with time running out to stop Trump”

From the AP:

Florida Gov. Ron DeSantis and former United Nations Ambassador Nikki Haley are increasingly outsourcing central parts of their campaigns, drawing on the growing urgency of Donald Trump opponents to find a single alternative to the former president.

Struggling to energize his campaign, DeSantis this week privately encouraged his donor network to support a newly formed super PAC that’s taking over advertising responsibilities. That’s after a leadership shakeup at the pro-DeSantis super PAC that for months has been handling the bulk of both his advertising and his get-out-the-vote operation.

At the same time, Haley’s self-described “scrappy” political campaign, which has never enjoyed the same level of funding or manpower as DeSantis’ operation, won the support of the the Koch network, the largest conservative grassroots organization in the nation. By week’s end, scores of Koch-backed activists are expected to begin advocating on Haley’s behalf at the doorsteps of tens of thousands of Republican primary voters.

The extraordinary reliance on independent groups for the two Republicans who increasingly appear to be Trump’s closest challengers is testing the practical and legal limits of modern-day presidential campaigns.

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“Georgia vs. Trump: Mega-Hearing Set for Friday in Fani Willis’ RICO Case”

From the Messenger:

Friday is set to be a packed day for Fulton County Superior Court Judge Scott McAfee with morning and afternoon hearings scheduled to sort through a raft of pretrial motions in the ongoing Georgia election racketeering criminal case against Donald Trump and the former president’s 14 remaining co-defendants. 

The morning session will cover eight pre-trial motions to dismiss the charges or quash the entire 41-count Fulton County grand jury indictment originally brought in August against 19 people overall, including the former president. It also marks the first time that Trump’s Georgia-based legal team of Steve Sadow and co-counsel Jennifer Little will be in position to go directly toe-to-toe with District Attorney Fani Willis’ prosecutors.

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Supreme Court weighs hearing Jan. 6 cases that could affect Trump prosecution

From Lawrence Hurley at NBC News:

The Supreme Court on Friday is set to consider for the first time whether to hear appeals brought by people charged with offenses relating to the Jan. 6, 2021, assault on the U.S. Capitol in cases that could have a major impact on the criminal prosecution of former President Donald Trump.

The justices, in their regular private meeting to discuss which new cases to take up, are scheduled to consider three different appeals brought by defendants Joseph Fischer, Edward Lang and Garret Miller.

The three men are seeking to dismiss a charge accusing them of obstructing an official proceeding, namely the certification by Congress of President Joe Biden’s election victory, which was disrupted by a mob of Trump supporters

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“GOP will allocate a clear majority of delegates before Trump’s D.C. trial ends”

NBC News:

It’s now official: The day after former President Donald Trump’s federal election-interference trial begins in DC on March 4 — so after Super Tuesday — Republicans will have allocated nearly half of their delegates (47%) from the contests in the 2024 GOP presidential race. 

A week later, by March 12, that percentage will grow to 54%. After the primaries on March 19, it will be 69%. And after Louisiana’s primary on March 23, 71% of all delegates in the Republican race will have been allocated.  

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“Certification and Non-Discretion: A Guide to Protecting the 2024 Election”

This is a new draft article forthcoming in the Stanford Law and Policy Review. Important analysis of the certification process. Here’s part of the abstract:

The 2022 election cycle previewed one such attack with alarming frequency: rogue officials in several states refused to certify election results or attempted to otherwise interfere with certification—the statutory process by which election officials attest to the accuracy and completeness of election results.

While efforts to impede certification are not new, never before have they been deployed on such a large and coordinated scale. For this reason, little academic attention has been paid to the mechanics of state certification frameworks. This Article fills that gap to demonstrate why, and how, state certification frameworks can combat the ongoing threats against them. It begins by providing a detailed overview of how election certification works and how recent attacks on the process have targeted and disrupted certification using false claims of widespread election fraud. It then delves into the rich but often overlooked history of certification as a non-discretionary duty to demonstrate that those attacks flouted hundreds of years of well-established American legal history; recognizing that discretion created opportunities for crises and election fraud, early courts and legislatures purposefully shaped certification into a mandatory, non-discretionary duty. The Article concludes with a roadmap for election officials, candidates, and advocates to resolve future attacks on the certification process in eight key battleground states likely to play significant roles in the 2024 election cycle.

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“Republican officials consider shaking up presidential debate system”

Washington Post:

Top officials at the Republican National Committee will consider a proposal next week to allow candidates to participate in presidential debates that have not been approved by the national party, a potential shift in the nominating process rules as campaigning heats up in Iowa, New Hampshire and South Carolina.

The decision to explore dropping the RNC’s exclusivity pledge — described by multiple people who spoke on the condition of anonymity to describe private deliberations — comes as former president Donald Trump has been hammering the party to cancel all remaining official debates, while other candidates have criticized the party for not allowing candidates to confront each other in additional forums.

The party has not scheduled any additional debates after next week in Tuscaloosa, Ala., according to people familiar with the matter.

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