In light of Rick P’s post about David Shor’s current lament about the failure of Congress to redress gerrymandering back when Democrats were consumed by their efforts to enact the massive S1/HR1 reforms, I recall this column I wrote for The Washington Post on February 4, 2021, less than one month after the insurrection on January 6: Congress should make a deal to end partisan gerrymandering.

The main point of the column was that Democrats in Congress should trade away issues like voter ID, vote-by-mail, and other wish-list reforms relating to election administration in order to secure the much more important structural change of eliminating partisan gerrymandering.

The column noted, as Shor did the following year, that altering election administration rules wouldn’t make a significant difference in the capacity of the electoral system to translate voter preferences accurately into electoral results, whereas ending partisan gerrymandering would. (“Easy vote-by-mail isn’t a must for Democrats; they just need sufficient opportunities to cast a ballot — and reasonably drawn districts — for good candidates to have a chance.,” the column said.) To make this point, the column cited the then-recent Georgia Senate runoffs: “The lesson of the Georgia Senate runoffs is that Democrats don’t need their preferred set of voting rules in order to win. No voting rights advocate thinks Georgia’s electoral system, run by Republican Secretary of State Brad Raffensperger, is ideal. But it was good enough. It didn’t cause disenfranchisement that prevented voters from getting what they wanted.”

On the other hand, looking specifically at Texas, the column observed: “For reasons of self-interest alone, Democrats should see ending gerrymanders as Job One.”

At the time, I thought Democrats should strive to find 10 Republican Senators–just 3 more than voted to convict Trump in his January 6 impeachment trial–to agree on the necessity to end partisan gerrymandering, and since Senators don’t benefit from gerrymandering themselves, I thought the strategy should be to negotiate with them solely to achieve gerrymandering reform, without weighing it down with all the other provisions in S1/HR1 that were inevitably objectionable to all Republicans, including those willing to risk their political careers to cross Trump. The column ended this way: “Democrats should stay focused on what’s most important in electoral reform. Right now, that’s restoring sanity to redistricting.”

This was a theme I continued to stress in additional Washington Post columns in 2021. For example, on March 29, 2021, I repeated that Democrats should focus on the “anti-gerrymandering” provisions in S1/HR1 and jettison all provisions that were dealbreakers from a GOP perspective. The last sentence of that column: “Democrats are in danger of missing the moment, by going too big and too far.”

On May 27, 2021, I again stressed the need to focus on gerrymandering and wrote: “Senate Democrats are at risk of blowing their chance at meaningful electoral reform. Rather than ending up with nothing, because they spent too long trying to shoot the moon with S. 1, they should compromise with 10 reasonable Republicans on a set of simple measures to ensure that congressional elections genuinely implement voter preferences.”

I won’t belabor the point by quoting the additional columns along the same lines as the Democrats continued their efforts to enact their omnibus bill over unified Republican opposition.

As the effort to protect American democracy from the forces of authoritarianism continues, and indeed grows more urgent, I continue to believe that the potential window of opportunity of 2021-2022 was wasted by a misguided approach on the part of congressional Democrats.

“The majority of today should always fear that it may find itself in the minority tomorrow and that its rules can be used against it. . . . What happens when this breaks down? What happens if the majority of today sees this as the last chance to take it all?”

–Sam Issacharoff, quoted in Adam Liptak’s must-read piece, “In Election Cases, Supreme Court Keeps Removing Guardrails.”

I address this Supreme Court history, and why I told Adam I think we may be heading back to the early 1960s in terms of judicial protection of voting and elections, in Richard L. Hasen, The Stagnation, Retrogression, and Potential Pro-Voter Transformation of U.S. Election Law, 134 Yale Law Journal 1673 (2025).

for blogging this last week, which should have been quiet at the beginning of August and was anything but.

As we all know, the Callais reargument potentially poses the momentous question of Section 2’s constitutionality. But it’s worth noting how many steps the Court would have to take to reach that question. Each of these steps represents an offramp for the Court that would allow it to resolve this case without having to address Section 2’s validity.

1. Race or Politics: First off, if the Court concludes that politics better explains District 6’s formation than race, then strict scrutiny wouldn’t apply and the district would almost certainly be constitutional. There’s a good argument that politics — in particular, protecting Republican incumbents Mike Johnson, Steve Scalise, and Julia Letlow, and sacrificing the seat of Garret Graves — is why District 6’s shape is relatively unusual. If one of the other Republican incumbents’ seats had been sacrificed, District 6 could have been substantially more “reasonably configured.”
2. Narrow Tailoring: If the Court determines that District 6 was designed for a racially predominant reason, the Court could still avoid grappling with Section 2’s constitutionality by holding that the district is an insufficiently tailored remedy for any Section 2 violation. Again, District 6 arguably isn’t “reasonably configured,” and the Court has previously said that only a reasonably-compact minority-opportunity district can remedy a Section 2 violation. Per Bush v. Vera, “if a reasonably compact district can be created, nothing in § 2 requires the race-based creation of a district that is far from compact.”
3. Compelling Interest: Lastly, even if the Court rules that race did predominate in the creation of District 6, and that District 6 is narrowly tailored to remedy a Section 2 violation, the Court could still refrain from reaching Section 2’s constitutionality by holding that compliance with Section 2 isn’t a compelling state interest. The Court has long assumed that Section 2 compliance is a compelling interest. But the Court has never actually held as much. And if Section 2 compliance isn’t a compelling interest, then it can’t save a district drawn for a racially predominant reason — and the Court would have no occasion to comment on Section 2’s validity. Note that this resolution of Callais wouldn’t bar future Section 2 vote dilution claims since it wouldn’t change any aspect of the Gingles framework. Nor would it mean that any vote dilution remedy is necessarily an unlawful racial gerrymander. As Chief Justice Roberts made clear in Milligan, the critical line as far as racial gerrymandering is concerned is “between [race] consciousness and [racial] predominance.” Both plaintiffs’ demonstrative maps at Gingles‘s first step and jurisdictions’ ultimate remedies can — and should — exhibit race-consciousness but not racial predominance, in which they don’t trigger strict scrutiny.

Of course, if the Court is intent on addressing Section 2’s constitutionality, it can find a way to do so. The point here is just that the Court has several options at its disposal that wouldn’t raise the stakes in Callais to the maximum possible size. (Disclosure: Other attorneys in HLS’s Election Law Clinic represent the Robinson intervenors in Callais, but I haven’t been involved in that representation.)

New York Times.

Developments in recent weeks signaled that some members of the court think there is more work to be done in removing legal guardrails governing elections. There are now signs that court is considering striking down or severely constraining the remaining pillar of the Voting Rights Act, a towering achievement of the civil rights movement that has protected the rights of minority voters since it was enacted 60 years ago last week.

Taken together, the court’s actions in election cases in recent years have shown great tolerance for partisan gamesmanship and great skepticism about federal laws on campaign spending and minority rights. The court’s rulings have been of a piece with its conservative wing’s jurisprudential commitments: giving states leeway in many realms, insisting on an expansive interpretation of the First Amendment and casting a skeptical eye on government racial classifications. . . .

Richard L. Hasen, a law professor at the University of California, Los Angeles, said the Roberts court may be moving in the opposite direction.

“At least some of the conservative justices on the court seem ready to turn the clock back to the early 1960s,” he said, “when courts imposed very little constraints on the most blatant power grabs, and before Congress exercised its constitutional powers to protect voting rights.” . . .

Holding Section 2 unconstitutional could be a boon for Republicans, said Nicholas Stephanopoulos, a law professor at Harvard, as it would allow states to eliminate minority-opportunity districts altogether.

That would make it easy, he said, to draw completely Republican maps in Alabama, Louisiana, Mississippi, South Carolina and elsewhere.Even if the court stops short of holding Section 2 unconstitutional, it could do great damage to it in another case the court may consider in the term that starts in October. A theory recently adopted by the U.S. Court of Appeals for the Eighth Circuit says that only the government, not voters and other private parties, can sue to enforce the provision.

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.”