All posts by Richard Pildes

“Democrats have joined Republicans in calling their opponents ‘enemies’”

From Aug. 1 piece by Philip Bump in Wash. Post:

In February 2021, soon after President Biden took office, CBS News and its pollster YouGov released data showing that most Republicans viewed Democrats in precisely that way. Asked to evaluate whether Democrats were political opponents (meaning that a Democratic win simply meant not getting desired policies) or enemies — “if they win, your life or your entire way of life may be threatened” — most Republicans identified the Democrats as enemies. Democrats, on the other hand, were more likely to call Republicans political opponents.

In research conducted last month, though, that’s changed. Now most Democrats call Republicans enemies in turn. There’s been a 17-point increase in the extent to which Democrats use that term to describe Republicans. Republicans are about as likely now to describe Democrats as “enemies” as they were 17 months ago.

There are (as CNN’s Ariel Edwards-Levy points out) some interesting demographic divides, particularly in comparison to the results in February 2021. For example, older Democrats have seen a much larger surge in their identification of Republicans as “enemies” than have younger Democrats. On the Republican side, it’s also the case that younger members of the party are less likely to identify the opposition as “enemies.”

It’s also the case that liberal Democrats are more likely to identify Republicans as “enemies” than are more moderate Democrats….

Then there’s the overlap of education and race. Whites in the Democratic Party are about as likely to call Republicans “enemies” regardless of whether they have a college degree. That’s not true among Republicans: Whites without a degree — a key bastion of Trump’s base of support — are now more likely to use the term to describe those on the left.

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No Matter What the Supreme Court Decides about the Independent State Legislature Theory, State Legislatures Will Still Be Bound by Federal Law and the U.S. Constitution

A large group of election-law experts has made this point.  Nonetheless, there continues to be confusion and misunderstanding in some public commentary about this fundamental legal fact.  This confusion has also slipped into some discussions about the Electoral Count Reform Act bill.  We will have to continue to find ways to get this basic point across effectively.  Here’s a concise effort:

State legislatures cannot ignore the popular vote and attempt to appoint electors after Election Day.  Federal law prohibits this (and if you think legislatures could get away with ignoring federal law, they could do the same with respect to any new provision that might be enacted).

State legislatures, if they insert themselves into the vote-counting process, must treat all votes equally.  They also cannot change the rules regarding voting after the election.  State and federal courts exist to enforce these constitutional requirements.

For state legislatures to insert themselves into the counting and certification process would be bad policy.  Courts are the forum most likely to resolve disputed elections consistent with the rule of law. And having to go to court to invalidate any partisan manipulation that might result from state legislatures inserting themselves into the counting process would prolong resolving the election.  But these are the minimal legal restraints under which state legislatures would operate, regardless of anything that might be decided about the independent state legislature theory.

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A Brief Response to the Tribe et. al. Op-ed on the Electoral Count Act Reform Bill

This is a joint post with Ned Foley:

            Along with a bipartisan group of election-law experts, we endorsed the bipartisan Senate draft Electoral Count Act Reform bill as a “vast improvement” over the status quo.  None of the suggestions for improvement that have emerged in public commentary so far have changed our views about that. 

In a recent op-ed, Larry Tribe and his co-authors listed a number of suggested refinements of the bill and raised one major concern about it.  We agree with some of their suggested tweaks to the bill, as long as sufficient bipartisan support exists for those clarifications.  In this brief space, we won’t go through each of those suggestions one by one.  But we do want to clarify the relevant legal framework regarding two of the specific issues they raise.

First, the Tribe op-ed suggests amending the bill to clarify that the Vice President cannot “delay” the counting of the votes in the Joint Session of Congress.  But the Electoral Count Act already prohibits that.  Once the Joint Session begins, it cannot be delayed.  3 USC Sec. 16 states:  “Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this subchapter, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at the hour of 10 o’clock in the forenoon.” (emphasis added).  Vice President Pence understood this.  There is no need to amend the bill to prohibit what existing law already prohibits, but if doing so would provide reassurance to anyone, we suppose there is no harm in that.

Second, and more importantly, the Tribe op-ed worries that the bill’s intent could easily be circumvented in this way:  “An election-denying majority in a battleground state could adopt a law before November 2024 that might empower the legislature or secretary of state to award electors in a manner inconsistent with the popular vote.”  Since no more specific example is provided, it’s not entirely clear what nightmare scenario they envision.  Perhaps the fear is that such a law would permit state actors to decide to ignore the popular vote and appoint different electors than the ones the people chose on election day.  But if that’s the fear, federal law – again – already prohibits that.  Congress has established the date on which electors must be appointed, which is Election Day.  3 USC Sec. 1. State legislatures cannot give themselves the power to appoint electors after Election Day, whether they try to do so by a law enacted in advance of the election or one enacted after.

Once the popular vote has taken place, the electors have been appointed.  It still remains to count that vote and certify the winner.  Perhaps the fear is that state law, enacted in advance of the election, would give the legislature the power to count that vote or to review the vote count or to be the entity that certifies the winner.  But whatever role the legislature might try to give itself, at that point it still has to count the actual vote as it has been legally cast.  And just like any other state entity that would count the vote, that process is subject to all the constraints of the U.S. Constitution, which state and federal courts exist to enforce.  Those constraints include the principle of Bush v. Gore, that all ballots statewide have to be treated equally and that there cannot be any arbitrary treatment of ballots; these constraints also include due process protections that prohibit efforts after votes have been cast to attempt to change the law in the guise of applying it, as Pam Karlan summarizes here and as the scholarship from one of us elaborates more fully here.  

State legislatures cannot circumvent the requirement that electors cannot be appointed after Election Day.  They cannot circumvent the requirements of the Constitution, if they try to insert themselves into the vote counting process.

It remains the case that state legislatures could, in theory, decide not to permit their citizens to vote for President at all and appoint the electors themselves – a practice every state but South Carolina abandoned by 1832 (when Colorado first became a state, it used legislative appointment in 1876 for that election).  Electoral Count Act reform can’t prevent that, because the Constitution gives state legislatures the power to choose “the manner” of selecting electors.  But we assume the political blowback in the modern era from completely denying all citizens in the state a vote would be substantial. 

If there are still further means through Electoral Count Act reform to protect against partisan manipulation of the process that would draw sufficient bipartisan support, we would support those – though we have yet to see any concrete suggestion for how to do that for the situations the Tribe op-ed envisions.  But it is important to understand the full context of surrounding law in evaluating Electoral Count Act reform. 

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The Different Potential Versions of Any “Independent State Legislature Doctrine”

In my testimony on the independent state legislature theory (ISLT) to the House Administration Committee, I identified seven different potential versions of such a doctrine, should the Court endorse it at all.  That highlights the fact that the question is not just whether the Court endorses such a doctrine, but what the scope of that doctrine would be.  I thought it might be helpful to list those different potential versions here.

In my testimony, I address the practical consequences of each of these different versions, as well as the historical evidence, for or against, any of these versions.  Here, I will just list these versions without elaborating upon them.  One can find endorsements of each, or at least suggestions of support for them, either in statements individual Justices have issued or in well-informed commentary.  Also, if the Court endorses the doctrine, that doctrine could include more than one of these specific versions. 

I’ve listed them more or less in order of how wide-ranging the consequences would be of each version, with the most sweeping versions listed first:

1. State constitutions.  State constitutions cannot impose substantive constraints on state legislation regulating national elections

2. Voter-initiated laws.  Voter-initiated legislation cannot impose substantive constraints on state legislation regulating national elections

3. General v. Specific State Constitutional Provisions.  State constitutions or voter-initiated laws can impose substantive constraints on such legislation, but cannot transfer permanently transfer entirely out of the legislature’s hands a fundamental function involving state regulation of national elections (such as redistricting)

4. Regulating v. Permanently Displacing State Legislatures. State constitutions can impose substantive constraints on state legislation regulating national elections if those constraints are specific enough, but state courts cannot enforce more general state constitutional provisions against state legislation regulating national elections.

5. Direct Conflicts with State Election Laws in the Administration and Interpretation of State Election Laws.  State executive officials and courts cannot invoke general principles or canons of interpretation that generate a result which directly contradicts or conflicts with a provision in state election law regulating national elections.

6. Straying ”Too Far” from State Election Laws in Administration and Interpretation of State Election Laws.  Even if executive action or state judicial interpretation does not generate a result that directly conflicts with state election law, the ISLT precludes executive action or state judicial interpretation that strays too far from the text of state election laws that regulate national elections.

7. Limits on State Court Remedial Relief.  State courts can enforce substantive provisions in state constitutions or voter-initiated enactments, but if the courts find a violation, they must give the legislature the first opportunity to decide how to remedy that violation, at least absent urgent time constraints.

Note that I do not include on this list a version in which state legislation regulating national elections could not be subject to gubernatorial veto.  I’m not aware of any major defender of the ISLT who argues for that version.

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My Testimony on the Independent State Legislature Theory Today to the House Committee on Administration

I have been invited to testify today to this committee at a hearing on the independent state legislature theory. My written testimony, available here, first explains that there are several different versions of what an “independent state legislature doctrine” might mean. My testimony goes on to (1) assess the historical evidence, for or against, each of these different versions and (2) describe the potential ramifications of each of these versions of such a doctrine, should the Supreme Court adopt one or more of them.

The “maximalist version” of such a doctrine would hold that state constitutions cannot impose substantive constraints on the powers of state legislatures to regulate national elections (even though state constitutions can impose those same constraints on the power of state legislatures to regulate national elections). Here’s an excerpt on that version of such a doctrine:

This is a sampling of the vast array of provisions regulating federal elections that are found in state constitutions or voter-initiated legislation, all of which would be threatened by the maximalist version of the ISLT:  provisions banning straight-ticket voting; voter identification requirements; the deadlines for voter registration; provisions establishing all-mail voting systems; provisions regulating the absentee-ballot process; provisions banning voters who failed to vote in the general election from voting in run-off elections; how to fill vacant Senate seats (by special election rather than gubernatorial appointment); provisions on the thresholds required to be elected to office (plurality-vote or majority-vote provisions); provisions for challenging the validity of votes; the criteria to be used in redistricting, such as whether districts must be compact, whether partisan considerations are banned or constrained, what weight to be given to competitiveness; whether districting is to be done by independent commissions.  A number of these provisions date to early state constitutions.

The regulation of primaries for federal elections is an area particularly worth singling out.  As voters have become dissatisfied with the nature of politics in recent years, they have sought to reform the structure of primaries in several states.  These reforms are motivated, in part, by the belief that factional candidates can win nomination in the traditional form of primaries, and in safe seats, those candidates will go on to win the general election.  These reforms seek to modify the structure of primaries and voting rules to make it more likely candidates with broad majority support, rather than more factional candidates, will be rewarded (and will also, therefore, be more likely to run in the first place).  In Washington and California, voters adopted the Top-2 structure for primaries, in which all candidates run in a single primary and the top two then go on to compete in the general election.  In Maine, voters adopted ranked-choice voting (RCV) for federal and state primaries and the general election.  Most recently, in 2020 voters in Alaska adopted the Top-4 primary structure, with RCV to be used in the general election.  Whether or not these reforms turn out to have the beneficial effects their proponents believe they will have, they are examples of the ways in which voters over the years have sought to reform the democratic process to make it more responsive to their concerns.

This brief sampling suggests how destabilizing the maximalist version of the ISLT would be.  The way in which federal elections have been conducted for many decades in states would be overturned.  The ability of voters, through voter-initiated constitutional amendments or voter-initiated legislation, to change the structure of elections would be eliminated.  In theory, Congress could legislate to approve all these provisions, or legislatures in individual states could choose to adopt through legislation all the provisions in their states currently found in state constitutions or popular enactments.  For certain rules that have become widely accepted by now, state legislatures would, if required by the federal Constitution, affirmatively enact those rules.  But that hardly seems likely for the full range of these substantive provisions, in part because legislators have a strong self-interest in structuring election rules in ways that benefit themselves and their partisan allies. In addition, nearly all these provisions apply to both state and federal elections. 

If they are unconstitutional as applied to federal elections, another consequence is that states would face the prospect of running dual election-administrative systems, with different rules governing state and federal elections (unless the legislature adopted these provisions for federal elections).  It would also mean state legislatures have more power to regulate federal elections than they do their own state elections. 

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“LOST, NOT STOLEN: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election”

This extremely detailed report, just released, was put together by eight prominent conservatives, including three former federal judges. It carefully examines “every claim of fraud and miscount put
forward by former President Trump and his advocates, and now put the results of those
investigations before the American people, and especially before fellow conservatives who may
be uncertain about what and whom to believe.”

Our conclusion is unequivocal: Joe Biden was the choice of a majority of the Electors, who themselves were the choice of the majority of voters in their states. Biden’s victory is easily explained by a political landscape that was much different in 2020 than it was when President Trump narrowly won the presidency in 2016. President Trump waged his campaign for re-election during a devastating worldwide pandemic that caused a severe downturn in the global economy. This, coupled with an electorate that included a small but statistically significant number willing to vote for other Republican candidates on the ballot but not for President Trump, are the reasons his campaign fell short, not a fraudulent election.
Donald Trump and his supporters have failed to present evidence of fraud or inaccurate results significant enough to invalidate the results of the 2020 Presidential Election. We do not claim that election administration is perfect. Election fraud is a real thing; there are prosecutions in almost every election year, and no doubt some election fraud goes undetected. Nor do we disparage attempts to reduce fraud. States should continue to do what they can do to eliminate opportunities for election fraud and to punish it when it occurs. But there is absolutely no evidence of fraud in the 2020 Presidential Election on the magnitude necessary to shift the result in any state, let alone the nation as a whole. In fact, there was no fraud that changed the outcome in even a single precinct. It is wrong, and bad for our country, for people to propagate baseless claims that President Biden’s election was not legitimate.

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6th Edition of “The Law of Democracy” Now Available

Foundation Press Release with description of changes in this edition below:

This edition represents a significant revision that reflects the embattled state of democracy in the U.S. and abroad. With the addition of Franita Tolson as well as Nathaniel Persily to the prior edition, the book now turns to a changed legal environment following the radical reconfiguration of the Voting Rights Act, the rise of social media and circumvention of the formal channels of campaign finance, and the increased fragmentation of political parties. Strikingly, in the current political environment the right to register and vote passes from being a largely historical inquiry to a source of front-burner legal challenge. This edition further streamlines the coverage of the Voting Rights Act, expands the scope of coverage of campaign finance and political corruption issues, and turns to the new dispute over voter access to the ballot. The section on election litigation and remedies has been expanded to address the expanded range of legal challenges to election results. For the first time, this book isolates the distinct problems of presidential elections, ranging from the conflict over federal and state law in Bush v. Gore, to the distinct challenges to the 2020 presidential elections, to the renewed focus on the Electoral Count Act.

The basic structure of the book continues to follow the historical development of the individual right to vote; current struggles over gerrymandering; the relationship of the state to political parties; the constitutional and policy issues surrounding campaign-finance reform; and the tension between majority rule and fair representation of minorities in democratic bodies.

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“Ranked-choice voting could help Murkowski in Alaska race, poll finds”

From the Wash. Post:

An Alaska Survey Research poll found that ranked-choice voting could help incumbent Sen. Lisa Murkowski (R-Alaska) in the race against Trump-backed challenger Kelly Tshibaka.

Alaska will conduct a nonpartisan primary on Aug. 16 with the top four candidates moving onto a ranked-choice general election on Nov. 8. The ASR poll presented a scenario in which four candidates — Murkowski, Tshibaka and Democrat Pat Chesbro and independent candidate Dustin Darden — advance from this primary to the general election. The poll asked voters to list who their first, second and third choice for the Senate would be.

The poll found Tshibaka leading during the first round as the voters’ top choice, ahead of Murkowski 43 percent to 35 percent. The two other candidates on the race would trail them by at least 18 percent, with Darden out of contention on that round.

In the second round, Tshibaka would still lead Murkowski by nine points and Chesbro would be out of the race at 20 percent.

On the third matchup, Murkowski would get the support that the two other candidates received, moving her ahead of Tshibaka by four points — 52 percent to 48 percent.

The poll suggests Murkowski could win reelection with the backing of Democratic and independent voters in Alaska.

Tshibaka, who secured former president Donald Trump’s endorsement in November, has already proved divisive even within the GOP. In December, she said she would not support Senate Minority Leader Mitch McConnell (R-Ky.), echoing Trump’s own attacks on McConnell.

Trump is scheduled to hold a rally for Tshibaka and other Republicans in Alaska on Saturday.

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How Social Media and Small Donors Fuel Extremism and the Decline of Effective Governance

From Jason Zingerle’s NYT Magazine essay on The Vanishing Moderate Democrat:

Murphy told me that the negative advertising against her and other moderates, including New York’s Kathleen Rice, who is retiring, and Maine’s Jared Golden, who is a Frontliner, “takes money to repair,” and she maintained that in a world where online small-dollar donations are the coin of the realm, money can be difficult for moderates to raise. “I’m a member who has been repeatedly named as one of the most effective and bipartisan members on the Hill,” Murphy, who serves on the House Jan. 6 committee, said. “Nobody knows who I am.” Colleagues she deemed far less effective legislators, meanwhile, had Twitter and Facebook followings in the millions while hers were stuck in the mid-five figures. “Social media platforms provide folks the ability to focus more on making statements than making law,” she said. “The crazier things you say, the more money you raise. The more antagonistic you are to the other party, the more money you raise.”

This has put Murphy and her fellow moderates in a bind. They tend to represent or run in competitive districts, which require a lot of campaign money but also punish extremism.

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“State Institutions and Democratic Opportunity”

Appropos of the post from Bruce Cain and Emily Zhang about abortion politics at the state level and the more majoritarian options that exist at that level for policymaking, see this excellent recent article by Miriam Seifter that analyzes exactly this set of issues in some detail. Here’s the abstract: The burgeoning commentary on democratic decline in the United States focuses disproportionately on the national level. And seeing a national problem, reformers understandably seek to bolster democracy through large-scale federal solutions. Although their efforts hold popular appeal, they face strong institutional headwinds. As scholars have extensively documented, the Senate, the Electoral College, and the Supreme Court today are skewed against majority rule. Despair grows.

This Article urges legal scholars and reformers to turn their gaze to state-level institutions. State institutions, the Article shows, offer democratic opportunity that federal institutions do not. By design, they more readily give popular majorities a chance to rule on equal terms. Utilizing these opportunities can help stave off democratic decline in the short term and build a healthier democracy in the long term. But these opportunities are not guarantees, and they are in danger. State majoritarian institutions today face active threats from antidemocratic forces. These attacks—on state courts, ballot initiatives, and elected executives—have largely flown under radar or been noticed only in isolation. Their proponents, moreover, have sought to disguise them as good-governance reforms, exploiting the muddled dialogue surrounding democracy generally.

After highlighting the vital role of state institutions in American democracy, the Article provides a holistic account of the attacks they face today. It then offers a theoretical framework for distinguishing appropriate constraints on popular majorities from those that should be out of bounds— because, for example, they would install minority-party rule. The Article suggests steps that state courts, state officials, and organizers can take to protect state institutions. At the highest level, it shows how a richer theory and discourse surrounding state institutions can advance both state and national democracy.

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Lee Drutman Bemoans the Decline of Competitive Districts

I was glad to see this piece by Lee, which Rick H. flagged earlier.  At the start of this redistricting cycle, I argued that creating more competitive districts was one means, among several, to increase the election prospects of more moderate candidates and mitigate the forces of extremism in our politics.  Lee initially responded by tweeting back the conventional political science wisdom, based on roll call voting patterns, that members from safe and competitive seats do not vote significantly differently when measures are brought to the floor for a vote.  I then wrote a lengthy response, explaining why this conventional wisdom – which focuses only on roll call voting patterns – misses extremely important aspects concerning how Congress functions, and the key differences that do in fact exist between members from safe seats and competitive districts.

I was gratified to see that Lee now recognizes the importance of competitive districts in enabling moderation and a greater willingness to engage in the political compromises usually necessary to enact significant legislation.  Some excerpts from Lee’s piece:

“The representatives holding competitive districts often still pursue cross-party compromise. More moderate members — as defined by DW-Nominate, which quantifies the ideology of every member of Congress based on roll call votes cast in a legislative session — do often hail from more competitive districts, as you can see in the chart below…”

“Governing in America requires compromise. But when over 90 percent of congressional districts lean toward one of the two major parties, that means most representatives have little incentive to compromise. In fact, representatives increasingly face strong pressures to be very partisan, which has made governing very difficult.”

“The presence of competitive districts, meanwhile, is the weak force pulling the parties closer together. These districts encourage incumbents to demonstrate at least some modicum of bipartisanship. But the trends that strengthen partisanship also make competitive districts even rarer, further undermining their potential ability to encourage problem-solving cross-partisanship.”

“This disappearance of cross-partisan compromise has made governing in America challenging. Without the possibility of building broad legislative coalitions, little gets done in Congress on the most urgent issues , and that’s because all the most urgent issues inevitably become high-stakes issues for the next election, where compromise would only muddy the message.

Lee argues there are many other benefits that flow from competitive districts, including increased voter engagement and turnout.  But I’m glad to see Lee concurs that competitive districts are good for the political system and that we both view the decline of competitive districts in this round of redistricting to bode badly for the ability of Congress to forge “problem-solving cross-partisanship.”

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Non-Partisan Primaries Versus Top-4, Top-2 Primaries

There’s an important distinction between non-partisan elections and primary-election reforms, such as Alaska’s adoption of the Top-4 primary (followed by RCV in the general election). Because this distinction is sometimes lost in discussions of reforms like that in Alaska, I wanted to explain the distinction.

In non-partisan elections, the candidates appear on the ballot without any party identification or association. Although Progressive Era reformers thought non-partisan elections were a “good government” reform, which would encourage voters to vote based on the characteristics of individual candidates, political scientists are highly critical (rightly so, in my view) of non-partisan voters. Contrary to romantic Progressive Era views, many voters need the party cue as an important filter to help inform their vote. That’s especially true in the United States, where the individual voter is asked to vote in far more elections than in other democracies. For this reason, most political scientists who study elections consider non-partisan elections to be bad policy.

In contrast, in primaries like CA’s Top-2 or Alaska’s Top-4, candidates can list themselves on the ballot as “prefers Republican Party” or “prefers Democratic Party” or “independent” or “non-partisan.” Voters therefore have the cue of the party a candidate prefers to be associated with. It is true that these are not the candidates of the Republican or Democratic party, because they have not been chosen by the party or its voters. But the way the candidates identify on the ballot gives voters important partisan information that voters lack in non-partisan primaries (indeed, dissenting Justices in the Supreme Court case upholding Top-2 primaries thought this structure was unconstitutional precisely because voters would associate the candidates with specific political parties).

Thus, Top-2 or Top-4 primaries are not non-partisan primaries. They are ones in which the candidates identify the parties with which they want voters to associate them. To be sure, there are empirical questions it would be interesting to explore about whether voters identify these candidates as strongly with the relevant political party as they do candidates who emerge from traditional party primaries (though as just noted, dissenting Justices feared voters would identify these candidates too strongly with the political parties with which the candidates identified themselves). But these primaries are not the non-partisan elections that the Progressive Era extolled and that are still with us for some local government elections.

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