https://x.com/RickPildes/status/1954187436021432390

Fix the Court posts an audio recording of Justice Sotomayor speaking at an interview at the University of Zurich in July of 2024. Apparently, Fix the Court just obtained this recording recently. A Justice’s talk at a university is usually a public event, but sometimes these events are done under Chatham House rules, meaning that the remarks are not supposed to be repeated. I don’t know what the context was in this respect for this interview or why the audio has just now become available.

According to the transcript, her comments about term limits for the Court included these remarks:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can’t be taken away constitutionally — I don’t believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you’ve earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

I do not agree that it would be unconstitutional to adopt term limits via a constitutional amendment that would apply to the sitting Justices. But for those who think the Supreme Court would uphold the constitutionality of a statute imposing term limits on the sitting Justices, these remarks should certainly be sobering.

Bolts Magazine:

Seattle is poised to continue its experiment in public campaign financing. Voters on Tuesday appear to have renewed the city’s democracy vouchers program, which provides each adult Seattle resident with four $25 vouchers they can donate to local candidates of their choice. 

The ballot measure, which leads by 17 percentage points in the count as of Friday evening, will generate $4.5 million in property taxes a year to fund the program for the next decade. Had it failed, the tax levy that voters approved in 2015 would have expired, winding down the democracy vouchers.

Supporters celebrated the measure’s success, which comes eight years after Seattle first implemented the program. Since then, studies have found that the vouchers have strengthened the influence of everyday residents on local politics and allowed a wider array of candidates to launch campaigns, decreasing their reliance on big-money donors.

“Seattle showed the country what’s possible when we commit to making local elections more inclusive and accountable,” said Cinthia Illan-Vazquez, executive director of the Washington Bus, an organization that promotes civic engagement among youth. “At a time when federal courts and extremist politicians are attacking voting rights and blocking campaign finance reforms, Seattle voters just sent a powerful message: We will protect our democracy and keep building toward a system that truly represents all of us.” . . .

Proponents of the program also highlight how it has increased the number and diversity of people donating to local elections, drawing in Seattleites who otherwise may be disengaged from city politics. According to a University of Washington study, over the first two cycles of the program, Seattle saw a 350 percent increase in the number of unique donors. 

Another, more recent study, conducted by researchers at Stony Brook University and Georgetown University, found that the donors using democracy vouchers were more likely to be young and lower-income. 

These changes are making local elections more competitive and creating a tougher road for incumbents to win reelection, according to the University of Washington study. Alex Gallo Brown, campaign manager of Katie Wilson, the progressive mayoral candidate who is currently leading Mayor Bruce Harell in Tuesday’s primary, thinks that democracy vouchers were critical to Wilson’s success. 

Ansley Skipper and Drew Penrose write about the obvious solution to gerrymandering: proportional representation.

Most modern democracies don’t have legislative districts represented by only one legislator — which is why most don’t struggle with gerrymandering like we do. Instead, a majority of democracies today use proportional multimember districts (we’ll get back to what this means in a bit), which makes gerrymandering “prohibitively difficult” in practice, in the words of that same study. Our decision to use single-member districts makes gerrymandering possible in the first place. . . .

But here’s one of the biggest problems: Even if we got rid of gerrymandering, biased outcomes — the thing we really care about when we talk about gerrymandering — will persist as long as we have single-member districts. . . .

But there is a solution. A system that would end boundary-drawing brawls and make our democracy more effective, inclusive, and representative. It’s called proportional representation. How it works is intuitive: Share of votes equals share of seats. . . .

Under proportional representation, we can have it all. The same map can be competitive and fair, representative and compact. Racial minorities can be represented even when they don’t live in the same area. District lines can much more easily follow existing political and real-world geography.

Plus, because it creates more competition and a more representative system, proportional representation opens the door for more politically viable parties, more coalition-building, and more cross-ideological allegiances. A more representative government with more incentives for compromise and moderation could also mean a more responsive, effective government. . . .

And proportional systems are much harder, if not impossible, to gerrymander — because voters’ representation is based on how they vote, not where they live. It’s easy to make the opposition a minority in any given district. It’s impossible to draw them out entirely.

Rick H. has recently lamented that more media attention is being paid to the current fight over mid-decade redistricting than over the Supreme Court’s potential ruling in the Louisiana Voting Rights Act case. Both are huge developments in the field of election law, and I’d hate to have to prioritize. Instead, I will just observe quickly that the system of “self-districting” that I proposed a few years ago would solve both problems. First, it would make partisan gerrymandering by government officials obsolete, thereby eliminating the concern over what is happening in Texas right now. Second, it would empower minority voters to form districts of their own choosing, thereby avoiding the necessity of a VRA remedy for minority vote dilution. Moreover, an adverse decision in the Louisiana case would not be an obstacle to the adoption of a self-districting system, as it would not raise any concerns about the government drawing district lines on the basis of race. Instead, the districting decisions would be the free choices of individual citizens on the basis of whatever values they choose.

Here’s the first of a periodic column I will be doing for SCOTUSblog. It comes with this introductory description:

The biggest questions in constitutional law concern the power of the Supreme Court to decide questions differently from what elected officials want. Sometimes the Supreme Court insists upon having the last word in the name of enforcing constitutional commands concerning the requirements of justice or even democracy itself. But the current court is hesitant to interfere to protect democracy, and the events taking place right now in Texas raise the pressing question of whether there is another way for the court to protect democracy without insisting upon having the last word.

ELB readers may be interested that, as stated in this first piece, a general theme of the column will be the Court’s abandonment of the democracy-enhancing theory of judicial review most famously articulated by John Hart Ely and what if anything can be done to preserve or revitalize that role for the Court under current conditions. Specifically, in light of the current race to the bottom with respect to mid-decade redistricting, this piece expands upon the point made in a previous ELB post that consideration should be given to the idea of a “dormant” Elections Clause analogous to the “dormant” Commerce Clause, so that the Supreme Court has the option of a less interventionist democracy-enhancing role than what Ely articulated.

I did this Q&A with Harvard Law Today about mid-decade re-redistricting, the reargument in Callais, and other redistricting issues. Here are some excerpts:

Redrawing districts for partisan purposes at the beginning of a decade is, unfortunately, absolutely common. What has been much more uncommon in modern times is partisan mid-decade partisan redistricting; that is, redrawing the lines for partisan purposes when you’re otherwise under no obligation to redraw the lines. There was a famous case in Texas about 20 years ago where their court-drawn plan for the 2000 election was revised after Republicans then took control of the Texas State Government in 2002. They revised and released an aggressive, redrawn partisan gerrymander. In 2006, the Supreme Court allowed that map to stand. There are a couple other minor examples of mid-decade redistricting, but in recent memory Texas has been by far the most frequent and most impactful. I should also note, however, that this kind of mid-decade redrawing was a lot more common in previous eras of American history. In the Gilded Age, states would redraw their maps all the time for partisan reasons. Lines were never stable and, as a result, representation shifted constantly. Regrettably, it seems we’re now heading back toward the redistricting world of 1880 or 1890 where both sides gerrymander without any constraints. . . .

In a book I recently wrote, I argue that the point of election law should be to give us a government that gives us government policy reflective of what people want. Under that perspective, aggressive gerrymandering is one of the most distorting, misaligning forces that exists in modern American politics. If you agree with my position — that the point of election law is to be aligning — the issues that have arisen recently are terribly concerning because misalignment is the essence of gerrymandering. This is a practice that drives an inherent wedge between what people want from the government and what the government actually does for them. While this is difficult to reconcile from an alignment standpoint, the Supreme Court has essentially said that alignment is not part of our Constitution, and these types of gerrymanders don’t outright disenfranchise anybody. The Supreme Court’s vision of election law apparently views gerrymanders as a longstanding characteristic of American democracy, but by no means a bug in the system. Existing precedent, which states are bound to uphold, essentially instructs that as long as the plain text of the U.S. Constitution has not been explicitly violated, keep doing what you’ve always historically been doing. The current state of affairs does not seem problematic to the current Roberts court. . . .

[In Callais,] [t]he issue as now presented is exactly the issue that Kavanaugh said he wanted to consider in the future, in his Milligan concurrence. This is deeply, deeply threatening to Section 2. The logic of the argument that the concurrence floated is just that Section 2 is now unconstitutional because it’s obsolete, vote dilution claims under federal law should no longer exist, and race-conscious redistricting should no longer be allowed. So, Callais has morphed from kind of a garden variety racial gerrymandering case into now possibly a huge blockbuster, landmark case with an outcome that could put Section 2 of the Voting Rights Act in serious jeopardy. Just as Shelby County v. Holder invalidated Section 5 of the Voting Rights Act a decade ago.

The most immediate consequence of that ruling would be dozens, maybe hundreds, of districts everyone assumes are required by Section 2 could be eliminated. Take a state like Louisiana, the state at issue in Callais, that had one Black majority district since the 1990s. There was an effort in litigation over the last couple of years to get a second Black majority district in Louisiana, but all of those efforts were under Section 2. Without Section 2, nothing is stopping Louisiana from replacing those two Black majority districts with an all-white, all-Republican congressional delegation. The same thing would be true in South Carolina, Alabama, Mississippi, and Tennessee and many other jurisdictions. If there is no legal requirement to guard against vote dilution, many states will seize the opportunity to engage in widespread vote dilution for partisan purposes. I think we’ll see substantial redistricting to get rid of these majority-minority districts that currently exist but would no longer be protected if Section 2 is found unconstitutional.

Michigan Public Radio:

The Michigan Court of Appeals has tossed out a Republican lawsuit challenging Democratic Secretary of State Jocelyn Benson’s official guidance for many overseas voters.

The lawsuit filed by the Republican National Committee, the Michigan Republican Party and a township clerk claimed the guidance would clear the way for former spouses and dependents who have no tangible connection to Michigan to vote in state elections. But the appeals court panel’s decision did not turn on the substance of the guidance, but the fact that the lawsuit was filed less than a month before the November 2024 election and after absentee ballots to overseas voters were in the mail.

“This case challenges the breadth of one of the rights foundational to our democracy—the right to vote. But it does so narrowly. First, this case concerns itself with only a select group of voters: individuals who vote in Michigan elections who do not presently live in Michigan,” read the unsigned opinion. “Second, this case is temporally limited, too, focusing exclusively on obtaining relief in advance of the 2024 election, which has since come and gone and been certified.”

Politico:

The New York City Campaign Finance Board denied Mayor Eric Adams millions of dollars in matching funds for the tenth time Wednesday — and suggested in a strongly worded statement that Adams will not be getting a penny anytime soon.

The regulatory body denied Adams the public funding he’s seeking for his general election bid on two grounds: His campaign has not submitted required paperwork, and the board has reason to believe the campaign violated the law.

“The board finds the campaign has provided incomplete and misleading information to the CFB and has impeded the CFB staff’s ability to complete its investigation,” Board Chair Frederick Schaffer said during Wednesday morning’s board meeting. “With respect to the second ground, the board’s conclusion is based upon its review of all of the available evidence, including, but not limited to, its own independent investigation.”The board’s decision escalates a long-simmering standoff with the incumbent and hobbles Adams’ ability to compete at a time when he is already at a severe disadvantage. The mayor dropped out of the Democratic primary after the controversial dismissal of a federal bribery case against him. He is now running in the crowded general election as an independent.

Washington Post:

Texas Republicans plan to ramp up the pressure Friday on Democratic state lawmakers who fled to suburban Chicago and other Democratic areas this week to prevent the GOP from giving themselves five more safe congressional districts.

Republican state legislators and Attorney General Ken Paxton (R) have set a Friday deadline for Democrats to return, and Paxton has said he’ll go to court to try to remove them from office if they do not. Democrats said they are committed to staying out of state. Gov. Greg Abbott (R) has already sued the Democratic leader of the state House, who is required to respond Friday to the lawsuit before the Republican-dominated state Supreme Court. 

The brawl over congressional lines in Texas has set off a nationwide political clash, with red and blue states preparing to engage in an unprecedented round of map drawing for political gain. Republicans hold a narrow 219-212 majority in the U.S. House and a handful of redrawn seats could help decide the balance of power in Congress for the second half of President Donald Trump’s second term.

Trump is at the center of the fight. He urged Texas to act, insisting he’s “entitled” to five more seats there while calling for other GOP-led states to shift more districts from Democrats to Republicans. On Thursday, he said he would conduct a census that excluded people in the United States illegally. Doing so would reshuffle how many congressional districts each state gets and would likely draw litigation.

Politico:

Alabama must use independently drawn congressional maps that created a second Black-majority district more favorable to Democrats in the state for the rest of the decade, a federal court said Thursday.

A three-judge panel of the U.S. District Court for the Northern District of Alabama ruled unanimously that the state must use the map drawn up by a court-appointed special master until regular redistricting is scheduled to be done in 2030.

The decision, which enabled Democrats to gain a seat in the last election, comes as both parties gear up for competing redistricting efforts in response to a move by Texas to redraw boundaries to improve the chances that Republicans will pick up five additional seats. The court in Alabama barred the state from using a map drawn in 2023 that did not include a second Black-majority district in defiance of a Supreme Court ruling.

From Politico:

The last time House Democrats held the majority, they made a sweeping package of good-government reforms — including an attempt to end partisan gerrymandering — a centerpiece of their legislative agenda.

“The people should choose their politicians,” then-Speaker Nancy Pelosi said in 2021, moments before the House passed the bill that would later die in the Senate. “Politicians should not be choosing their voters.”

Now, as President Donald Trump pushes Republicans in red states to redraw congressional district lines to their benefit, some Democrats are abandoning their past push for reforms. Instead, they’re cheering on leaders like California Gov. Gavin Newsom who say their party must fight fire with fire.

Pelosi, in a statement to POLITICO, said she backs Newsom’s effort to overrule a bipartisan California map and counter GOP attempts to “rig the elections in their favor.”

Her U-turn is emblematic of the larger rethinking underway within the Democratic Party, where leaders who once embraced anti-gerrymandering initiatives and feared a race to the bottom in partisan warfare between red and blue states are now increasingly willing to set aside their lofty goals — at least temporarily.

NPR:

With preparations for the 2030 census already underway, President Trump said Thursday he has instructed his administration to start work on a “new” census.

According to a social media post by Trump, that census would exclude millions of people living in the country without legal status — an unprecedented change to how the country has conducted population tallies since the first U.S. census in 1790.

The 14th Amendment requires the “whole number of persons in each state” to be included in a key set of census numbers used to determine how presidents and members of Congress are elected.

The Trump administration has released no details about the plan. As a result, much is unclear, such as whether Trump — who, according to the Constitution, does not have final authority over the census — is referring to the regularly scheduled national head count in 2030 or an earlier tally.

Trump said he’s instructed the Commerce Department, which oversees the Census Bureau, to “immediately begin work” on a census using “the results and information gained from the Presidential Election of 2024.” It’s unclear why the election results would matter to the census.

In Common Cause v. Rucho, Chief Justice Roberts pointed to the significant reforms to redistricting that had been taking place in the states, as a way of asserting that the federal courts and constitutional doctrine were not the only avenues to address the issue. As we are now seeing with the prospect of mid-decade redistricting, a state-by-state approach might turn out to be an unstable equilibrium.

If red states like Texas go ahead with mid-decade redistricting, and blue states like CA and NY decide to adopt measures that respond in kind, there will now be questions about what will happen after the 2030 Census and round of redistricting. Will the states with commissions go back to using them or will they attempt to take measures, such as new voter initiatives, to repeal the reforms they had enacted?

This collective action dynamic is what led Congress to pass the Apportionment Act of 1842, which required all states to use single-member districts to elect members of Congress. Before that, some states wanted to use single-member districts, other states wanted to use at-large elections. But “state choice” was an unstable equilibrium. As a partisan matter, states that used single-member districts weakened themselves in Congress compared to those that used at-large elections. If a state using single-member districts had five representatives, it might end up with a 3-2 delegation in partisan terms (say a net of 1 seat for Party A). If a smaller state with only three representatives used at-large elections, it would be likely to have all three represent the same party (so at net of 3 for, say, Party B). So even the first state would be driven to using at-large elections, even if it preferred to use single-member districts.

That’s why Congress imposed a uniform, national requirement. In the redistricting context, such a uniform, national requirement to constrain partisan gerrymandering could have come from the Court or could come from Congress. And absent a nationally uniform requirement, it’s unclear how “free” states will be as a practical matter to choose to constrain partisan gerrymandering. Absent a national solution, we will see how much unraveling of prior state reforms takes place, both in the short term and in the run-up to the 2030 round of redistricting.

Disclosure: I represented Common Cause in Common Cause v. Rucho.