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

This essay, a contribution to the Ohio State Law Journal symposium on the important new book Aligning Election Law by Nicholas Stephanopoulos, addresses the value of the alignment principle for evaluating alternative electoral systems.  It discusses the challenge that social choice theory—in particular, Arrow’s Impossibility Theorem—poses for the alignment principle as the guiding metric for judging electoral systems. It offers an alternative way to decide what electoral system a democracy should adopt, a way that accepts the path-dependency of electoral processes and is rooted in the idea that a constitution can choose an appropriately path-dependent electoral procedure based on constitutional values. The essay uses a distinctive version of the Rawlsian “veil of ignorance” (where constitutional drafters imagine themselves choosing constitutional provisions on behalf of citizens whose specific identities they don’t know) to show how a constitution can specify a suitable path-dependent electoral procedure. The essay describes the details of one specific electoral system, Bracket Voting, that follows from this type of Rawlsian constitutional analysis. The essay also shows that Bracket Voting accords with the alignment principle for those circumstances in which Arrow’s Theorem and path-dependency are not practical problems for the polity under consideration. 

I welcome comments as the essay is still in the editing process.

In our first week, we published three additional essays with views on several ways to address the toxic political culture of our era, in addition to Randy Kennedy’s essay excerpted earlier here entitled: NOT By Any Means Necessary.

From John Sexton, on the role of universities:

“In a time when in some quarters ignorance actually is celebrated and expertise is mocked, those of us privileged to live in universities must beware ourselves of oversimplification and binary, ideological thinking; as we opine on issues facing our communities, we must model the appreciation of complexity (and its concomitant, dialogue) that characterizes our disciplinary work at its best. As we do so, we must bring along the humility, the openness to different thoughts, and the assumption of good faith that we exercise with respected colleagues in our fields.”

From Jake Sullivan, on a vision for national service:

“Establishing a universal expectation and opportunity for service offers something rare in today’s political climate: a solution that works, that young people want, and that has a clear implementation path.”

From former D.C. Circuit judge Tom Griffith, on the Framers as a model for handling political conflict:

“The Framers became friends who were willing to engage in good faith negotiations and seek mutual accommodations for the sake of unity. They did so because their backs were against the wall. Failure to reach compromise would have posed an existential threat to the new nation. Are we in a similar moment? I fear we are. But the Constitution shows us a path forward. If we’re willing to learn from the Framers — not just what they wrote, but how they wrote it — we can begin to heal. It won’t be easy. It demands humility and generosity. But it also gives us something we’re starving for: hope.”

Courthouse News Service (via Electionline).

Votebeat (via Electionline)

NPR’s All Things Considered

Francis Fukuyama for Persuasion warning, in particular, about the latest moves from Elon Musk and especially Larry Ellison. The latter, with his son, are seeking to (in Fukuyama’s words) “control a vast array of outlets, both legacy and new media, that will allow them to directly influence American politics.” There is also this snippet:

“The Supreme Court’s 2010 Citizens United decision that declared campaign spending to be protected by the free speech provisions of the First Amendment looks worse and worse as time goes on. Context matters here: corporations and wealthy individuals may have speech rights, but concentrations of wealth in the United States have gotten so extreme that the speech of a few individuals is vastly more impactful than that of the rest of us.”

The Post and Courier reports on Rep. Ralph Norman’s proposal to eliminate through gerrymandering Rep. Jim Clyburn’s House seat.

According to the story, “a far-right faction of the S.C. Legislature says it will introduce legislation to redraw the lines to give the GOP near-guaranteed control of all of the state’s congressional seats instead of its current six.”

But it is also unclear that the plan will be successful: “Outside of the Statehouse’s far right Freedom Caucus, Norman’s idea has found no support from Republican legislative leaders to take up a mid-decade congressional map redraw even as Republicans hold supermajorities in both the S.C. House and Senate.”

The article details reasons for this reluctance: “They are not eager to revive a dispute that landed them in a long-running federal lawsuit over alleged racial gerrymandering of the 2020 congressional maps — a fight that went all the way to the U.S. Supreme Court.”

The article then reviews the recent history of redistricting in South Carolina.

A new Center for American Progress report, with this subtitle: “By using their authority to define what corporations are—and what powers they hold—states can end the era of corporate and dark money in U.S. politics.”

Send your tips and comments to Ned.

I’ve written a new “Justice, Democracy, and Law” column for SCOTUSblog. Here’s its summary:

There’s a widespread belief that the Supreme Court is poised to invalidate the core provision of the 1965 Voting Rights Act. But that belief is based on conflating two distinct issues that need to be kept separate. Once that distinction is made clear, then the core provision of this landmark law can be preserved and enforced effectively even if the Court narrows the range of available remedies. 

In light of yesterday’s tragic events, I am posting an excerpt here from Randy Kennedy’s essay we published earlier this week at the NYU Democracy Project:

Because proponents of democracy are constantly battling its enemies, the ethics of fighting should be an important subject for its champions….

The arguments over the ethics of political struggle in which I have been involved have often taken place, figuratively or sometimes literally, under posters picturing a stern-looking Malcolm X alongside the slogan “By Any Means Necessary!” I object to that slogan if it means abjuring limits that morally bind dissidents. I insist upon recognizing boundaries by which to judge even terribly oppressed rebels as they struggle against repression. Acquiescing to a practice of no judgment when it involves oppressed people entails condoning a destructive sentimentality regarding the humanity of the deprived. It involves overlooking the all too obvious fact that oppressed people, too, can engage in conduct that is foolish, selfish, cruel, and otherwise reprehensible. It also involves overlooking strengths latent in people condemned to the most desperate, degraded circumstances.

Thinking back upon Nat Turner’s struggle against an absolute nullification of democracy, I insist upon holding him and his comrades accountable. I do not know precisely what the moral judgment should be, though I find it difficult to imagine an excuse for decapitating the infant. My main point, though, focuses not on the substance of any particular judgment but on the imperative that there be some judgment. The morality or immorality of figures caught up in struggles over democracy should not be overlooked either because of their downtrodden status or because of the desperate circumstances in which they find themselves. Decent struggle for democracy – the only sort of struggle that can produce decent democracy – requires that everyone’s conduct be subject to judgment – those on the bottom as well as those on top. No one should receive a pass insulating their conduct from moral assessment. The abject deprivations imposed upon Palestinians in Gaza does not free them and their allies to do anything they want in the name of resistance. Nor do the atrocities that gave rise to the State of Israel and that have been visited upon Israelis for decades free them and their allies to do anything they want in the name of self-defense. There must be limits that must be respected. Setting forth precisely the coordinates of those limits is beyond my ken, at least at this moment in this forum. For now, all I can manage is to urge those fighting for democracy to forswear the uninhibited ruthlessness connoted by boasts of being willing to use all means necessary to attain one’s aims.

Once again I condemn the use of political violence. It is equally repugnant when directed at liberals or conservatives, Democrats or Republicans, governors, presidents, or activists like Kirk.

I have had to post sentiments like this far too often in the last few years, and I fear this will not be the last.

A democracy cannot fairly function with political violence and fears of violence becoming routine.

My condolences to Kirk’s family, friends, and supporters.

I’m excited to announce we are launching The Democracy Project at NYU School of Law. Bob Bauer, Sam Issacharoff, and I will lead The Project. Here’s link to the Project’s website.

Dissatisfaction with democratic government has been pervasive for the last decade throughout the West.  We believe meeting this challenge requires engaging with diverse ideological perspectives, as well as putting the challenges to democracy here in the context of challenges to democracy in the international context.  

We are launching this Project with a series of “100 ideas in 100 days.” An exceptionally rich range of perspectives includes voices from the business community, such as Mark Cuban; former high-ranking elected or appointed government officials, such as Jake Sullivan and Chris Sununu; comparative scholars of democracy and former high-court judges in other countries, including Pratap Mehta, Kim Lane Scheppele, Larry Diamond, and Jonathan Sumption; scholars of Congress, such as Sarah Binder, Molly Reynolds; voices from civil society, including Eboo Patel; and numerous scholars and others on American democracy.

The series begins with three provocative essays:

Frances Lee, who argues we need an honest assessment of the failings of expertise and experts during Covid

Randy Kennedy, who argues against the view that those fighting for democracy should use the means their opponents use.

Nick Bagley, who argues that liberal proceduralism and excessive participatory rights have tied government in knots and caused a loss of faith that democratic governments can do things effectively.

We plan to build on these initial 100 essays over 100 days to address in many ways this era’s challenges to democratic government.

It starts with an episode, “What America Can Learn from Australia” available on YouTube and Apple Podcasts, in which I discuss with the Election Law at Ohio State team my reflections from spending a month this summer on a fellowship at the University of Melbourne. The main one concerns Australia’s compulsory voting and the effect it has on attitudes towards democratic participation. But there are many other takeaways as well. It was a very fun conversation and hopefully beneficial to listeners.