PlanScore has been updated to include 2024 partisan fairness scores for state house and state senate plans nationwide. Also coming soon will be an aggregate evaluation of the U.S. House — both current, incorporating ongoing re-redistricting nationwide, and historical for elections from 1972 onward.

In a decision this morning, the New York Court of Appeals unanimously ruled against the town of Newburgh, the defendant in an ongoing vote dilution case under the New York Voting Rights Act (NYVRA). Newburgh argued that the NYVRA’s vote dilution provision violates the Equal Protection Clause because, to comply with the law, jurisdictions must consider race. The court declined to address Newburgh’s merits argument, holding instead that, as a municipality of New York, the town lacks the capacity to mount a facial constitutional challenge. Harvard Law School’s Election Law Clinic represents the plaintiffs, and I argued the case before the court.

This case presents the question whether the Town and Town Board of Newburgh— subordinate governmental entities created by, divisible by and even extinguishable by the State Legislature—can maintain this facial constitutional challenge to the vote dilution provision of the New York Voting Rights Act (“NYVRA”) (codified at Election Law § 17-200 et seq.). They cannot. . . .

Plaintiffs allege that (1) voting patterns in Newburgh are racially polarized and (2) the at-large election system effectively disenfranchises Black and Hispanic voters, who cannot elect candidates of their choice or influence the outcome of elections. Plaintiffs seek a declaration that Newburgh’s use of an at-large election system violates Section 17-206 and an injunction ordering Newburgh to implement either a districting plan or an alternative method of election for the 2025 Town Board election.

Newburgh moved for summary judgment on the bases that (1) Section 17-206 is facially unconstitutional because it violates the Equal Protection Clause of both the U.S. and New York Constitutions and (2) its Town Board elections comply with the NYVRA. . . .

The longstanding rule in New York is that political subdivisions—as creatures of the State that “exist[] by virtue of the exercise of the power of the State through its legislative department”—cannot sue to invalidate State legislation (City of New York v State of New York, 86 NY2d 286, 289-290 [1995] . . . .

Just as the legislature has the power to create entities to perform its functions, it has the power to change, and even destroy, those entities. Separation of powers principles accordingly demand that courts do not interfere in legislative disputes raised by legislative subordinates. Those principles are the bedrock of our federal and State Constitutions alike. . . .

Newburgh’s challenge to the NYVRA does not fall within the dilemma exception. Whatever might be said as to a municipality’s ability to bring an as-applied challenge, showing that it will be forced to take a course of action that is unconstitutional, Newburgh is pursuing a facial invalidity claim. . . . For a facial constitutional challenge, principles of “judicial restraint” (World Trade Ctr., 30 NY3d at 385) counsel strongly against permitting subordinate units of state government from using the judiciary to second-guess the wisdom of enacted legislation. A municipality’s authority to raise a challenge to a State law is at its lowest ebb when that challenge is a facial constitutional challenge, seeking to invalidate a statute in all possible applications, not merely because it allegedly placed the particular municipality in an allegedly untenable position. . . .

Newburgh’s arguments about why we should hold that it meets a dilemma exception fail to persuade us. Newburgh has not shown that compliance with the NYVRA would force it into taking an unconstitutional action. The litigation has yet to even proceed to trial, making presently unknown: (1) whether Newburgh would face any liability; and (2) in the event it did, what a court would require it to do. The NYVRA’s vote-dilution provision leaves courts wide latitude in designing remedies, so that to prevail on its facial challenge, Newburgh would have to show that “every conceivable application” of the NYVRA—i.e., every possibly remedy a trial court could order—would force it to take an unconstitutional act . . . .

Newburgh contends that because, in its view, the NYVRA violates the U.S. Constitution, the Supremacy Clause overcomes New York’s bar prohibiting its subordinate local governments from suing it. Newburgh offers no authority for that novel proposition, which would authorize every local governmental entity to sue to challenge as unconstitutional any State legislation arguably affecting that subordinate entity. . . .

Newburgh argues that “any alteration of its race-neutral, at-large election system in order to comply with the NYVRA’s vote-dilution provisions would be unconstitutional.” But that contention, as explained by counsel at oral argument (see oral argument tr at 8-12), rests on the proposition that a mere finding of liability itself would place Newburgh in the position of violating the Constitution or obeying the order of the court—when there is no order of the court compelling it to do anything. And in any event, several of the potential remedies mentioned by the NYVRA to redress a finding of vote dilution—such as longer polling hours or enhanced voter education—cannot reasonably be described as alterations of an at-large election system.

I also have no idea whether there’s any merit in DOJ’s racial gerrymandering challenge to California’s redistricting via Prop. 50. Assessing those claims would require development of a full factual record that does not yet exist.

But I wanted to respond to a legal argument my friend Rick Hasen recently made in Slate about that challenge that I believe is wrong.  Rick asserts that DOJ has a “huge problem:” even if the legislature designed various districts as unconstitutional racial gerrymanders, he argues that doesn’t matter because CA voters ultimately approved the map.  And he argues (and here I agree) voters approved the map for partisan political purposes.  Thus, his argument runs, race cannot have predominated in the design of specific districts and hence DOJ’s racial gerrymandering challenge to various districts must fail.

I do not think voter approval can turn an unconstitutional set of districts into constitutional ones. Voter approval cannot “cure” a map that would otherwise violate the Constitution.  Suppose, for example, the mapmakers had designed districts with a racially discriminatory intent.  But when voters approve the map, the entire campaign is based on partisan appeals.  The voters themselves might not have had a racially discriminatory intent (leave aside the complexity of assigning purposes in a direct democracy process). Nonetheless, I’m confident the map would still be struck down, because a map designed for racially discriminatory reasons remains unconstitutional even if voters approve it.

Similarly, if the mapmakers design a map that violates the “results” test of Section 2 of the VRA, the map still violates Sec. 2 — even if voters must approve the map before it takes effect.

There is no reason racial gerrymander claims are any different. Racial gerrymandering doctrine prevents a State, in the absence of “sufficient justification,” from “separating its citizens into different voting districts on the basis of race.” Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___ (2017) (slip op., at 6). Absent sufficient justification, race cannot be the predominant factor in how districts are designed. If districts are designed as unconstitutional racial gerrymanders, they do not become unracially gerrymandered merely because voters approve the final map. In the Texas litigation, for example, if voters in Texas had approved the new maps, after a campaign proclaiming the redistricting was done for purely partisan purposes, that would surely not have affected the district court’s recent decision that six of those districts were unconstitutional racial gerrymanders.

Moreover, voters do not design districts. They approve a map. But a racial gerrymandering claim does not challenge a “map” as a whole.  Those challenges must be made to specific districts.  Voter approval of a map does not change the way specific districts have been designed. The harm in racial gerrymandering cases, under the doctrine, is that race has been the predominant factor in how a district has been designed.

As I say, I have no idea whether the facts support DOJ’s racial gerrymandering claim.  But if those districts are racial gerrymanders, they don’t magically become unracially gerrymandered merely because voters have approved the final map. 

I have no view at this stage whether the majority is correct that six districts in Texas’s re-redistricting are unconstitutional racial gerrymanders. The dueling opinions are long; the issues are highly fact dependent. But I wanted to note that the decision is based on the anti-racial gerrymandering doctrine that the Court first established in Shaw v. Reno (1993).

At the time Shaw was decided, many voting-rights groups were sharply critical of the decision. But in the years since, Shaw has been used successfully over and over again by voting-rights groups and their allies to invalidate racially gerrymandered maps. In the Texas case, the lead plaintiff was the League of United Latin American Citizens (LULAC), which has been the major group litigating on behalf of Latino voting rights in Texas for decades.

If the majority is indeed right that these districts were racially gerrymandered, it would be far more difficult, and frequently impossible, to invalidate them on some other basis in the absence of Shaw’s constraint on racial gerrymandering. In Texas, the plaintiffs also brought vote dilution and intentional discrimination claims. But racial gerrymandering frequently happens without vote dilution taking place. And voting-rights plaintiffs have long been concerned about the difficulty of proving intentional discrimination.

The court decided the Texas case based on Shaw and the racial gerrymandering claims precisely because those claims are easier to prove. Having invalidated the districts on that basis, the court did not address these other claims.

Steve Huefner, my colleague at The Ohio State University Moritz College of Law and its Election Law program, and I had a conversation about the stresses and challenges facing democracy in the United States. A recording is available. I found the discussion productive, and I hope others do as well. 

One main theme of the discussion—the nation’s electoral and political institutions that worked reasonably well in the aftermath of World War II no longer function adequately because of changes in cultural conditions affecting American elections and politics—is echoed in an essay that Bruce Cain contributed to the “100 ideas in 100 days” series at NYU Law School’s Democracy Project. (Rick Pildes blogged about Bruce’s essay earlier today.) Bruce, whose previous work has greatly influenced my own thinking on America’s “Madisonian” system, writes in this essay: “We need to ask ourselves whether the Congressional rules that worked so well in the post-WWII period are the right ones for the current polarized era.” 

Bruce ends his essay with the intriguing suggestion that the United States would benefit from a “28th Amendment” that would require members of Congress to “go without pay if they could not pass the budget on time.” I’m not sure that would be a sufficient fix for the current problems caused by partisan polarization. I would add the necessity for the kind of electoral reform that former Senator Joe Manchin embraced this weekend, which I wrote about in my recent Common Ground Democracy post. But I wholeheartedly agree with Bruce that all of us should be brainstorming about what institutional innovations would restore our Madisonian system to the kind of well-functioning equilibrium that existed in the post-WWII period. 

A new Justice, Democracy, and Law essay at SCOTUSblog. Focusing on the new cert grant in Watson v. RNC, which concerns the deadline for submitting absentee ballots postmarked by Election Day, the essay considers two different jurisprudential perspectives the Court could employ for deciding the case: (1) a “representation-reinforcing” posture of the kind advocated by John Hart Ely and employed in earlier SCOTUS precedents; or (2) a “democracy-neutral” textualism favored by the current Court and exhibited in such cases as Rucho v. Common Cause. Contending that the Court will and indeed should eschew the former jurisprudential posture in this case because of the partisan polarization that presently afflicts the role of absentee voting in American democracy, the essay explains why the latter jurisprudential perspective of democracy-neutral textualism should yield the conclusion that states are entitled under federal law to set the deadline for receiving cast absentee ballots after Election Day as long as they are postmarked by then.

From Bruce Cain’s essay, appearing today at the NYU Democracy Project:

At Caltech, I was asked to assist a group of distinguished physicists who were evaluating the technical feasibility of President Reagan’s Strategic Defense Initiative (SDI, aka “Star Wars”).  The group ultimately concluded that SDI would not work because a sophisticated missile offense could easily overwhelm a missile defense with decoys. There was no AI yet to separate the missiles from the chaff.  We are in a similar situation today with President Trump’s numerous attempts to refashion American democracy, i.e., he generates so much offense it is hard to defend effectively.

 In Democracy More or Less, I distinguish between first and second order democracy issues. The first concerns systemic features that distinguish democracy from autocracies, such as holding free and open elections, First Amendment speech and association rights, accepting office turnover after electoral defeat, and the like. At the time, I did not believe that such matters were still controversial in America. January 6^th was a wakeup call for me.  Second order democratic design issues are disputes over the relative merits of various democracy design choices such as parliamentary or presidential, highly federalized or unitary, and proportional representation or single member simple plurality. President Trump has willy-nilly taken on both types of questions.

Some of Trump’s ideas such as annexing Canada or renaming the Gulf of Mexico are the political equivalent of the chaff that my physicist colleagues feared would confuse SDI.  Other proposals like reinstituting tariffs conflate a policy debate with a procedural question about whether tariff power resides with the Congress or the President. In such instances, policy, not procedure, usually matters more to the public and activists. We count on officials in the system to defend their powers. But when they don’t, as in the case of Republican members of Congress, a crucial assumption behind checks and balances breaks down. Tribalism and getting policy wins are pulling institutional turf protection into a political black hole.

I’ve posted a short Common Ground Democracy essay on the event in Austin over this past weekend at which Joe Manchin, the former Senator from (and governor of) West Virginia, embraced the fundamental principle of Condorcet Voting, called “Consensus Choice Voting” at the event–which elects the candidate whom a majority of voters prefer over each other candidate when compared head-to-head. As I say in the essay, Manchin is the most prominent politician to support Condorcet Voting as the electoral method best suited for tackling the problem of partisan polarization.

Judge Stras is the author.

John Samples, a vice president at the Cato Institute, argues in A Fourth Republic? that the New Deal era characterized a Third Republic dominated by experts and that this era has come to an end. He raises questions about how a Fourth Republic might be constituted and structured:

These changes meant the Third Republic would be a technocracy. …

The rule of experts had its successes and failures; space does not permit naming them in any persuasive way. But at the height of their power – the 1960s and 1970s – the technocrats began to lose public confidence. By 1980, only a minority thought the federal government would do what was right most of the time. In the ensuing four decades, public confidence in government recovered modestly at times only to fall again. Then came the failed war in Iraq and the global financial crisis of 2008. By then, the Third Republic was as old as the Second Republic when it died.

People were right to doubt the experts, but the latter had failed on their own terms. Max Weber had reconciled popular rule with science by arguing that elected politicians should determine the ends of policy while experts informed leaders about the consequences of their chosen means to those ends. Over the past two decades, and especially since 2016, the policy advice of experts has become more predictable and partisan. Experts rarely tell the leaders of the party of the left things they do not wish to hear; the same is true of the right, perhaps more so, but the relatively few right-wing experts played second fiddle during the Third Republic. In the home of expertise, the universities, only one set of ends was increasingly heard, and those who dissented were suppressed or discarded. And intellectuals became more cynical and more ambitious.

Knowledge was power, a weapon to rule over the rubes. So confident were the professors that they no longer bothered to cover their ambitions with high-minded rhetoric.

The legacies of the Third Republic will live on in the Fourth. Presidential power in service to the most recent electoral majority will define the new regime. Progressives have yet to find their Donald Trump, but they will. The Madisonian in me fears this tendency, but we have not been a Madisonian nation for some time. Rather than indulge my pessimism, I will end with hope. In a republic, the people are allowed to fail and, thereby, to learn. Experts might conclude that their loss of credibility counsels a return to tend their own gardens of policy advice shorn of political ambitions. The people and their champions may eventually learn that achieving their ends demands better knowledge of means. The arc of history, in other words, may tend toward humility and thereby to a better world. Intellectuals have it in their power to move first toward that happy future.

NYT:

In the recent New Jersey governor’s race, the Democratic Party clawed back much of the ground it had lost with Hispanic voters in the 2024 presidential race, according to a township-level analysis of results by The New York Times.

The results are stark: The heavily Hispanic areas that shifted the most to the left in 2025 were virtually a mirror image of the places that had swung the farthest to the right in 2024. The outcome suggests that President Trump’s surge of support among Hispanic voters last year may have been fleeting, or at least not transferable to other candidates in his party.

Mr. Trump’s strength among Hispanic voters in 2024 stunned Democrats. Exit polls showed Vice President Kamala Harris slipping to the narrowest of majorities, winning only 51 percent of Hispanic voters. And a wave of heavily Hispanic areas, from the border counties of Texas to the Bronx, swung decidedly to the right, raising the possibility of a racial realignment.

The New Jersey governor’s race was the first big test of how enduring those changes might be.

The stakes were heightened by the fact that both the Democratic winner, Representative Mikie Sherrill, and her Republican rival, Jack Ciattarelli, had competed aggressively for the support of the state’s growing Latino population….

From Marquette’s Julia Azari, To Save Democracy, We Can’t Shy Away From the Toughest Issues:

“[N]ot confronting the racial realities of American society only pushes the problem further down the road, leaving us vulnerable to a repeat of the backlash cycle. In the wake of the 2016 and 2024 elections, Democrats are especially susceptible to election narratives that emphasize how they should have been more cautious and less bold about the interests of marginalized people – whether it’s the rights of transgender Americans, Black Americans, or immigrants. History shows that this will not work, and will impoverish rather than save democracy. Efforts to keep slavery off the national agenda or compromise the issue away, to dodge civil rights are not high points in our national story, and these efforts didn’t prevent crisis in the long run.”

From Columbia Law’s David Pozen, A Conventional Solution to Constitutional Stagnation?

“Making the U.S. Constitution amendable again, then, is likely to require a legal mechanism that does not depend on two-thirds majorities in the House and Senate, along with a cultural shift that makes constitutional reform seem more natural and desirable to more people. As it turns out, there is a potential solution to both requirements sitting in plain sight: the never-used provision of Article V that allows state legislatures to ‘call a convention for proposing amendments.’ The most straightforward way to reinvigorate ordinary Americans’ relationship to their fundamental law would be to call such a convention.”

Any scheme to make conventions more common will strike some as “extreme.” I feel trepidation about it as well. Yet almost everything about contemporary U.S. constitutional politics is extreme, from rampant gerrymandering and runaway inequality to hyper-partisanship and an administration that grows more authoritarian by the week. Insofar as changes to our structure of government are needed to break out of this doom loop, constitutional conventions deserve consideration.

From Heath Mayo, Executive Director of Principles First, Democracy’s Last Line of Defense: Us —

Principles First was founded on this idea: that principled citizens must lead the way in restoring democratic norms. We’ve seen firsthand how powerful it can be when people of different backgrounds come together around shared values — not just to talk, but to act. We’ve hosted town halls, built coalitions, and supported candidates who put country over party. And we’ve done it without asking anyone to abandon their core beliefs — only to prioritize the rule of law and the integrity of our institutions.

That’s the model we need. Not a unity of ideology, but a unity of purpose. A recognition that democracy depends on more than policy wins. It depends on the character of our civic life. And that character is shaped by what we tolerate, what we reward, and what we’re willing to fight for.

So yes, we need reform. We need better laws, stronger guardrails, and more responsive institutions. But none of that will matter if citizens aren’t engaged. If we want a democracy that works, we have to work for it — not just once every four years, but every day. We have to show up, speak out, and vote with our principles intact.

Because in the end, the Constitution doesn’t enforce itself. Norms don’t police themselves. Institutions don’t protect themselves. We do.

And if we’re serious about preserving democracy, we have to be serious about organizing — across party lines, across differences, and across the country. That’s the last line of defense. And it’s the one we can’t afford to neglect.