I joined Archon Fung and Stephen Richer on the Harvard Kennedy School’s “Terms of Engagement” podcast to talk about the brewing battle over mid-decade re-redistricting.

Texas GOP lawmakers recently unveiled a new draft district map, created to flip several House seats from blue to red. In response, California Governor Gavin Newsom announced his intention to respond with a California map that favored Democrats, despite California’s existing independent redistricting commission. Maryland, Illinois, and New York could also be poised to engineer maps to produce more House seats likely to be won by Democrats.

On Tuesday, August 5, 2025, Harvard Law School’s Nicholas Stephanopoulos, Kirkland & Ellis Professor of Law, joined Archon Fung and Stephen Richer on Terms of Engagement to discuss redistricting, how these map (re)drawing efforts will impact voters, and answer the question: Can we ever put a stop to gerrymandering in the U.S.?

From the Boston Globe:

On first blush, the fund-raising solicitation sure looked like it was coming from US Senator Adam Schiff, the California Democrat well known for tangling with Donald Trump.

“Hi — this is Adam Schiff,” the email read, according to a screenshot shared with the Globe. “Josh Kraft said I could reach out with this urgent message.”

But the email came from “[email protected]‚” and it was paid for by the campaign of Josh Kraft, who is running for mayor of Boston, several thousand miles east of Schiff’s district.

And, it turns out, Schiff never said Kraft could reach out with that urgent message.

The Kraft fund-raising email sporting Schiff’s name and likeness is one of at least five the campaign has sent in recent weeks that feature prominent national Democrats who have not publicly weighed in on the Boston mayor’s race. At least two of those politicians have now asked the Kraft campaign to stop using their names and likenesses in the email fund-raising solicitations.

“Immediately after being informed that the Kraft campaign sent an email we did not approve of in Schiff’s name, we reached out to the campaign to ask them to stop,” said a spokesperson for the Schiff campaign. “While an unfortunate situation, the Kraft campaign let us know that it would not happen again.”

While some political and campaign finance experts called the Kraft campaign’s fund-raising blitz unorthodox or even potentially misleading — and rival Mayor Michelle Wu’s campaign questioned whether it violated campaign finance laws — a spokesperson for the Kraft campaign defended its legality.

The unauthorized emails were “an error on the part of our vendor,” said the spokesperson, Eileen O’Connor.

From Stanford Law:

Stanford’s Pamela Karlan and Nathaniel Persily on the redistricting push in Texas, recent signals from the Supreme Court about the Voting Rights Act, and the future of voting and redistricting in America.

The episode can be found here.

NPR:

Contrary to decades of precedent, Republican state officials in at least 15 states contend that private individuals and groups do not have the right to sue to enforce Section 2 because they are not explicitly named in the landmark law’s text. Only the head of the Justice Department, they argue, can bring this kind of lawsuit.

The issue is at the heart of a North Dakota legislative redistricting case that was brought by two tribal nations. A federal appeals court ruled against the Native American voters, and the case may be up for a full review soon at the Supreme Court. The justices may also be preparing to take up a broader question about the constitutionality of Section 2 protections, based on an order last week for legal briefs in a Louisiana congressional redistricting case originally filed by Black voters.

At a time when the Justice Department under the Trump administration has backed off from voting rights lawsuits the department had brought when former President Joe Biden was in office, the prospect of voters of color no longer being allowed to bring their own cases has supporters of the Voting Rights Act concerned about the law’s survival.

Politico:

A federal judge on Tuesday struck down a California law restricting AI-generated, deepfake content during elections — among the strictest such measures in the country — notching a win for Elon Musk and his X platform, which challenged the rules.

But Judge John Mendez also declined to give an opinion on the free speech arguments that were central to the plaintiffs’ case, instead citing federal rules for online platforms for his decision.

Mendez also said he intended to overrule a second law, which would require labels on digitally altered campaign materials and ads, for violating the First Amendment. The judge’s decisions Tuesday deal a blow to California Gov. Gavin Newsom, who signed the laws last year in a rebuke of Musk, vowing to take action after the tech billionaire and then-Donald Trump supporter shared a doctored video of former Vice President Kamala Harris ahead of the election.
The first law would have blocked online platforms from hosting deceptive, AI-generated content related to an election in the run-up to the vote. It came amid heightened concerns about the rapid advancement and accessibility of artificial intelligence, allowing everyday users to quickly create more realistic images and videos, and the potential political impacts.

But opponents of the measures, like Musk, also argued the restrictions could infringe upon freedom of expression.

Washington Post:

The fight over Republicans’ push to redraw the Texas congressional map has widened into a national political war, with red and blue states moving to counteract each other and ambitious politicians around the country vowing aggressive partisan combat.

From California to New York, Democrats are pushing to redraw their state’s maps to add more blue seats if Texas Republicans carve out five more red ones, as they are trying to do this month. Republicans from Missouri to Ohio have expressed interest in changing their U.S. House district lines to benefit the GOP, and Vice President JD Vance is headed Thursday to Indiana, another state that could boost his party.

Midterm candidates and potential 2028 presidential contenders are playing to their base and raising their profile while jumping into the fray. And President Donald Trump is weighing in, declaring this week that Republicans are “entitled” to redraw the maps in Texas.

Officials in both parties are embracing raw partisan tactics, with Democrats repeatedly promising to “fight fire with fire” despite some past opposition to gerrymandering. Some Democrats see an especially pivotal moment for their leaders, who have struggled this year to convince the frustrated rank-and-file that they are pushing back hard enough against Trump.

Politico:

Donald Trump’s victory in 2024 largely shattered the efforts to prosecute him for his efforts to subvert the 2020 election.

But dozens of his allies still face state-level criminal charges for their roles in the plot. The five cases against them have plodded along for years, mired in procedural gridlock, prosecutorial bungles and appellate review.

None of those cases is anywhere near a trial, yet they all remain pending — a state of legal limbo that exemplifies the nation’s halting struggle to reckon with, and achieve accountability for, Trump’s failed bid to seize a second term despite Joe Biden’s victory nearly five years ago.

On Wednesday, one of the cases will be at the Nevada Supreme Court for arguments on a key procedural issue. Two others, after long stretches of dormancy, could be revitalized in the next several months. The upcoming developments could determine whether any of the defendants ever have to face a jury for meddling in the election — even as Trump uses his office to perpetuate the bogus claim that the 2020 election was stolen from him.

At the core of all the cases is the effort, in December 2020, to assemble false slates of Trump electors in states he narrowly lost. Dozens of the Republicans activists who posed as electors remain under indictment. But some of the cases also sweep in more prominent Trump allies, like his former White House chief of staff Mark Meadows and conservative attorneys John Eastman and Rudy Giuliani.

According to some of the most prominent scholars in the field, the answer is yes.

Earlier this year, Nick Stephanopoulos, Eric McGhee, and Chris Warshaw published an essay in the Washington Post which showed that after the 2020 round of redistricting, the net effect of state gerrymanders on the House was relatively low. Their study concluded that the House in 2024 had a 7 seat bias in favor of the Democrats.

This work is based on using the efficiency gap as a measure of partisan gerrymandering, which is also a principal basis that the widely-used Plan Score site uses to assess the degree of gerrymandering in a state map. My sense is that journalists rely heavily on Plan Score for information about gerrymandering.

My own view is that the efficiency gap, while convenient, is not the best measure of gerrymandering. But it is widely used and these authors are well-respected scholars of gerrymandering. I’m opposed to mid-decade redistricting; it’s extremely destabilizing and will only accelerate the redistricting wars. As I noted yesterday, I filed an amicus brief in the Supreme Court a number of years ago urging the Court to bar the practice except when done pursuant to judicial order or, possibly, extraordinary circumstances. I flagged this study when it first came out and in light of current issues, I thought it worth noting again.

The last time Texas engaged in mid-decade re-redistricting, back in 2006, I filed an amicus brief in the Supreme Court for myself, Burt Neuborne, and Sam Issacharoff. Our brief urged the Court to hold that states have no power under the Elections Clause to engage in mid-decade redistricting absent court order (or possibly extraordinary circumstances).

We argued that if states were permitted to do so, it would likely trigger a retaliatory set of responses in other states:

“Moreover, were mid-decade redistricting to be permitted, the political parties would inevitably engage in retaliatory re-redistricting — particularly when partisan control of the House is closely divided. In the dormant commerce clause context, this Court recognized long ago that the appropriate means to address discriminatory state commercial laws was not for states to enact retaliatory discriminatory laws of their own; instead, this Court declares such laws unconstitutional, lest a downward spiral of retaliation, in which national prosperity is drained, ensue. See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390 (1994) (condemning “local economic protectionism, laws that would excite those jealousies and retaliatory measures that the Constitution was de- signed to prevent. See THE FEDERALIST NO. 22 143-145 (C. Rossiter ed. 1961) (A. Hamilton); James Madison, Vices of the Political System of the United States, in 2 WRITINGS OF JAMES MADISON 362-363 (G. Hunt ed. 1901).”). The Court should instead stop this cycle in its inception by recognizing that the Constitution does not authorize states to engage in mid-decade redistricting, at least absent judicial compulsion or extraordinary circumstance.”

We also pointed out that there was no history and practice of mid-decade redistricting in the 20th century and that absent any judicial constraints, but was emerging in this era for specific reasons:

“No constitutional compulsion — indeed, no legal compulsion of any sort — exists for state legislatures to engage in redistricting during the decade as partisan political prospects wax and wane in particular states. Indeed, nothing in our historical experience compels this extraordinary assumption of power by the state legislatures. In the 20th century, there had been no practice of mid-decade congressional redistricting of which we are aware before mid-decade redistricting efforts suddenly erupted this decade. Rather, the emergence of this practice results from a combination of (1) closely balanced partisan control of the House and (2) technological breakthroughs in election data bases and computer technology that enable “perfecting” the self-interested creation of overwhelmingly safe districts. The partisan margin of power in the House has hung in the balance for a more sustained period than at any time over the past 100 years; when partisan control was last divided as closely, numerous state legislative schemes sprung up to manipulate congressional elections.²⁰ National legislation and constitutional law now prohibit most of the offending historical practices, such as legislative manipulations of suffrage rules and vote fraud. But given the allure of political power, efforts to invent new practices not yet prohibited — such as mid-decade redistricting — will inevitably arise again when partisan control of the House is at stake.”
 

Rather than arguing for this position under the Equal Protection Clause, we argued the Court should recognize the Elections Clause as an enumerated power. Just as the Court had been enforcing limits on Congress’ enumerated powers since the 1990s, we argued the Court should enforce limits on the enumerated power state legislatures have to draw congressional districts.

Washington Post:

Attorney General Pam Bondi has ordered a grand jury investigation into allegations that Obama administration officials broke federal laws while investigating Russia’s involvement in the 2016 election, according to a person familiar with the matter, who spoke on the condition of anonymity to discuss the ongoing probe.

The Justice Department declined to comment on the investigation, and it remained unclear whether prosecutors had settled on specific targets or crimes they believe occurred.
Still, the development marked a significant escalation in the Justice Department’s push to relitigate one of President Donald Trump’s long-standing grievances and comes as critics have argued those efforts are an attempt by the White House to use the department to punish Trump’s political foes.

Politico:

A federal appeals court has ruled that Texas may enforce a state law that invalidates mail-in ballots submitted without a voter’s state identification number or partial Social Security number.

A three-judge panel of the 5th Circuit Court of Appeals ruled unanimously that the requirement the Texas Legislature enacted in 2021 as part of an election-integrity bill known as SB1 did not violate a federal law preventing states from imposing voting requirements “not material” to the validity of ballots.

In a brusque, nine-page opinion, Judge James Ho twice said the appeals panel had “little difficulty” concluding that Texas’ law was valid.

“The number-matching requirements are obviously designed to confirm that every mail-in voter is who he claims he is,” Ho wrote for the panel. “And that is plainly material to determining whether an individual is qualified to vote.”

The judges said that merely requiring applications to list the voter’s name and address was insufficient to address security concerns.

“That information is easily available to anyone who simply requests it,” wrote Ho, a Trump appointee. “As a result, any person can request and receive that information about a registered voter, use that information to apply for a mail-in ballot, and then cast the ballot, with minimal risk of detection.”

Washington Post:

Over four months, I’ve drafted 65 notes debunking conspiracy theories on topics ranging from airplane crashes to Ben & Jerry’s ice cream. I’ve tried to flag fake artificial intelligence-generated video clips, viral hoax security threats and false reports about an ICE partnership with DoorDash.

Only three of them got published, all related to July’s Texas floods. That’s an overall success rate of less than 5 percent. My proposed notes were on topics other news outlets — including Snopes, NewsGuard and Bloomberg News — had decided were worth publishing their own fact checks about.

Zuckerberg fired professional fact-checkers, leaving users to fight falsehoods with community notes. As the main line of defense against hoaxes and deliberate liars exploiting our attention, community notes appear — so far — nowhere near up to the task.

Feeds filled with inaccurate information matter for the 54 percent of American adults who, according to Pew Research Center, get news from social media.

Zuckerberg’s decision to fire fact-checkers was widely criticized as a craven attempt to appeal to President Donald Trump. He said Meta was adopting the crowdsourced community notes system used by Elon Musk’s X because users would be more trustworthy and less biased than fact-checkers. Before notes get published to posts, enough users have to agree they’re helpful. But agreement turns out to be more complicated than it sounds.

New Hampshire Statesman

For New Hampshire disability rights advocates, the slate of election-related bills signed by Gov. Kelly Ayotte last week represents a mixed bag. 

On the one hand, Ayotte signed bipartisan legislation to require that all cities and towns provide accessible voting machines at local elections — not just those with state and federal candidates.

On the other, Ayotte also approved a bill that would include more documentation requirements for absentee voters. 

Republicans and other supporters of that bill say the new registration requirements bring in needed oversight in New Hampshire’s elections, and make absentee voters face the same process as in-person voters. Disability rights groups say they could be difficult for some to comply with and could discourage them from voting.

New York Times:

[A]s far as they are from the political action this week, towns like Laredo along the Southwestern border are crucial to Republicans’ plans to flip five of Texas’ U.S. House seats from blue to red.

Texas Republicans are hoping that the surge of Hispanic support for President Trump in 2024, which was especially sharp in South Texas, will last through the 2026 midterm elections. They also hope that voters, Hispanic or not, in districts like the currently Democratic one around Laredo will not be overly angry about the Republicans’ aggressive mid-decade redistricting push, a hardball tactic to retain power in Washington that is being pressed by Mr. Trump.