In its decision rejecting the legislature’s new congressional map, the Utah trial court included a lengthy discussion of quantitative measures of partisan fairness in districting. The legislature argued that partisan asymmetry and the mean-median difference should be used to assess its new map. The court responded, correctly in my view, that these are exactly the wrong metrics to use in Utah. These metrics are inapplicable in uncompetitive states like Utah, while other approaches, like the efficiency gap and ensemble analysis, do work in Utah’s political environment. The court’s decision is here.

The Court finds that the partisan bias test is unsuitable for assessing whether a redistricting plan in Utah purposefully or unduly favors or disfavors a political party. It is not among the best available measures to assess partisan favoritism in Utah.

First, because partisan bias assesses favoritism based solely on seat shares under a hypothetical 50-50 statewide election, scholars warn that it should not be applied in states like Utah where statewide elections are uncompetitive and a tied statewide election cannot plausibly be expected. The authors of the metric, Professors Andrew Gelman and Gary King, limited its application to “competitive electoral systems,” which they defined as states in which each party had won a majority of seats or votes in at least one election during the preceding two decades. Professor Gary King has since emphasized that partisan bias “is only appropriate for competitive situations where there is a potential for change in partisan outcomes (majority control, in particular).”

The Court finds that Utah’s statewide elections are highly uncompetitive. Democrats have not received a majority of the statewide vote in congressional elections in 35 years and have not won a majority of congressional seats since at least 1970. Republicans have also won every statewide election for president, governor, and other offices included in S.B. 1011’s partisan index during the last 25 years, nearly always with 20-plus margins. Utah’s highly uncompetitive environment also undermines the validity of the partisan bias test’s uniform shift assumption—that is, the assumption that the shift to a 50-50 statewide vote share would occur uniformly across districts. Since this scenario has not even remotely occurred in decades, it is at best unclear how electoral coalitions would shift to produce a 50-50 statewide election and whether the uniform shift assumption underlying the partisan bias test is satisfied in Utah. Thus, Utah does not satisfy the electoral conditions necessary for valid application of the partisan bias test.

Second, when applied in Utah to congressional plans, the partisan bias test yields paradoxical results that advantage Republicans and disadvantage Democrats. The test treats most 3-1 maps that include one Democratic-leaning district as biased in favor of Republicans and against Democrats, because in a hypothetical tied statewide election Democrats would not win two seats. At the same time, it treats 4-0 maps that guarantee Republicans all four seats as neutral. This irrational result stems from the test’s conflict with Utah’s political geography. To pass, a map must disperse Democrats across two districts to ensure they would win two seats in the hypothetical world of a tied statewide election. But because Democrats are a small, geographically concentrated minority, doing so dilutes their only opportunity in the real world to win one seat. . . .

Scholars have recognized this effect as the “Utah paradox”—one that is known to be gameable and the reason why partisan actors in Utah would opt to use partisan bias as their metric to assess congressional plans. Notably, the Legislature applied the partisan bias test only to congressional plans. Utah Code § 20A-19-103(1)(c), (g). The Legislature did not apply the partisan bias test to its own legislative maps or the state school board maps, all of which would fail the test for exhibiting pro-Republican bias. . . .

Unlike the partisan bias and mean-median difference tests—which yield wholly incoherent results in uncompetitive states—the efficiency gap is not inapplicable in a state as uncompetitive as Utah. As Dr. Warshaw explains, the original authors of the efficiency gap acknowledged that the efficiency gap may be inapplicable in states where one party consistently wins more than 75% of the vote, “[b]ut Utah does not fall into that category. So . . . Utah is not outside of the boundary conditions of the efficiency gap.”

The Court finds that, despite its drawbacks, the efficiency gap is an appropriate symmetry measure to consider in assessing congressional maps in Utah. It correctly identifies the party favored under a proposed congressional map and permits analysis of the extent to which that party is favored via comparison with historical congressional plans in other states. The efficiency gap is thus among the best symmetry measures available to evaluate partisan favoritism in Utah congressional maps and should be considered alongside other appropriate measures.

I’ve been too busy to blog much this past week, either about my own work or the NYU Democracy Project. But here are three essays from last week in the NYU Democracy Project series of 100 essays in 100 days on challenges to democracy today.

From Seth Masket, The Rise of Populism, Left to Right:

“The rise of populism has been a noted phenomenon in many democracies around the world in recent decades. But its development in the United States has not been even across party lines, with populism substantially transforming the modern Republican Party but only making a dent on the Democratic side. Yet this imbalance may be changing…

One could see the beginnings of this in Sen. Bernie Sanders’ (I-VT) 2016 run for the Democratic presidential nomination, as well as during the 2018 midterm elections, in which several progressive Democratic House challengers – with the backing of Sanders, Justice Democrats, and other related groups – threatened the party’s leadership. Yet, other than Alexandria Ocasio-Cortez (NY) and a few others, populist challenges largely failed on the Democratic side that year.

Yet, we could be seeing a stronger push within the Democratic Party heading into the 2026 midterms. Just as Republican elites had lost favor among their rank-and-file in 2016, so Democratic elites have lost favor among their rank-and-file in 2025. Democratic Party favorability among Democrats has been dropping steadily in 2025, while Republican Party approval among Republicans is rising. It’s only one election in one city, but Zohran Mamdani’s victory in New York City’s Democratic mayoral primary suggests a party ripe for a populist moment, with elites uncomfortable with his stances not only unable to prevent his nomination but ultimately closing ranks behind him as the nominee.

What would a left-populist takeover of the Democratic Party look like?…”

From Charles Stewart, Polarization Today: Lessons from the Gilded Age?:

Two related topics currently dominate public discourse among educated elites in the United States:  democratic backsliding and political polarization.  Although there are exceptions, this discourse tends to take the post-Watergate consensus about the rules of the political game as the benchmark for American democratic practice, bemoaning the accelerating decline in popular political civility and elite forbearance.

As important as the topic of democratic decline over the past generation is, it’s natural to ask about how the current situation fits into the larger arc of American political history.  When we answer this question, we see patterns repeating, or at least history rhyming.  This doesn’t necessarily counsel despair, but it does suggest that our current troubles aren’t entirely the doing of contemporary actors and circumstances.  And, it suggests that the path out of the current polarization and constitutional hardball will come from the inherent instability of the political coalitions that constitute the parties.

America has experienced similar eras of intense polarization to the present one.  The obvious reference point is the Civil War, both before and after the war.  The Second Party System—generally dated from 1828 to 1854—was designed in part to take slavery off the table and organize national politics along other lines, such as patronage.  The key was the maintenance of cross-sectional national political parties that contained conflict over slavery.  Social and population forces, along with the success of the regional Republican Party, eventually blew the lid off the Jacksonian system, leading to war.

The Civil War may have settled the constitutional issue of federal supremacy over the states, but it didn’t extinguish partisan polarization.  Indeed, the Republican Party, which supplanted the Whigs as the chief rival to the Democrats, was much more cohesive on national issues than the Whigs ever were.  Thus, during the Third Party System that followed, political interests became increasingly aligned with party identities in both the electorate and the government.  When we use DW-NOMINATE scores to chart political polarization (recognizing DW-NOMINATE’s limitations in charting such things), it is only in recent years that the level of party polarization has matched that of the Reconstruction and Gilded Age years…

From Michael Kang, Electoral Due Process:

In a free and fair democracy, the rules of the election need to be set before the election, but a few partisan state legislatures have begun trying to effectively change the election results after the fact when their candidates lose—shrinking the powers of newly elected officeholders and sometimes even unseating them altogether. 

Consider events in North Carolina and Wisconsin. Under Republican governors, Republican legislatures there expanded gubernatorial powers while their party held the office. When Democrats won the governor’s races in those states, though, the same legislatures convened rushed lame-duck sessions to strip away executive authority before the newly elected Democrats could take office. In Wisconsin, the legislature waited to see the result of the governor’s election and when a Democrat won, it hurriedly transferred key executive powers to the legislature, restricted the governor’s ability to handle lawsuits, and eliminated the newly created position of solicitor general.  In North Carolina, after a Democrat won the governor’s election, lawmakers abruptly cut his control over key state institutions, including the board of elections, required legislative approval over his cabinet appointments, and slashed his administration from 1,500 employees down to 425—exactly reversing the increase they enacted with a Republican in power.  And more recently last year, after a Democrat was elected again as governor, the legislature called another lame duck session to once more cut back the governor’s powers by making last-second use of a veto-proof supermajority they had just lost in the elections.  In other words, partisan legislative majorities have retroactively stripped power from elected offices when their political opponents win, in lame duck sessions before the newly elected officeholders can even oppose them legislatively.  Other state legislatures have abused their censure, expulsion, and impeachment discretion to strip away powers from, or outright remove, elected officeholders from the opposing party under circumstances that are basically unprecedented in their states’ history.  The worry is that these incidents will become commonplace in our hyperpartisan and politically hypercompetitive country…

The WSJ published an article on Friday, based on last week’s elections, rightly titled: Americans See a Government That Can’t Solve Their Problems. Here’s the opening line: “U.S. elections are sending a consistent message: Americans are deeply frustrated with their government’s inability to solve problems.”

This is a theme I’ve been writing about for a decade or so now, based not just on what’s happening in the US, but with democratic governments across the West. There has been pervasive dissatisfaction with government, no matter which parties are in power, for the last 10-15 years across most Western democracies. Governments no longer seem able to deliver for large segments of their populations on the economic, social, and cultural issues many of their citizens consider most urgent.

At least two phenomena that characterize our democratic era have emerged from this pervasive dissatisfaction. One is that politics has become extremely turbulent, as voters regularly throw out of office those in power in the search for alternative parties or figures they believe will deliver needed change. Second, voters are drawn to political outsiders and more extreme options on both the right and the left.

The appeal of Trump and Mandami is surely a reflection of all that. In addition, the communications revolution is almost certainly central to their success. It’s hard to imagine Donald Trump winning in 2016 without cable television and Twitter (as it was known then). Similarly, social media was the dominant messaging tool of Zohran Mandami’s campaign.

Here are some thoughts from the closing of one of my articles, Democracies in the Age of Fragmentation, on these issues:

With so much attention on misinformation, we do not yet recognize that the new information age has helped make political fragmentation a defining feature of, and a major challenge to, democracies today. This fragmentation is both the effect and cause of the perceived inability of democratic governments to deliver effective governance.
Perhaps this fragmentation is a temporary fact of democratic life. Perhaps, though, our era will be one in which new technologies will enable many more people to engage in forms of politics, individually and in groups or parties. Opposition to government action, or demands for the government to act or act differently, will be easy to mobilize and constant. Politics and government will be continually turbulent, but less able to deliver effective responses on the issues roiling the day….

[T]he importance of effective government is often ignored in political and legal theory. But if democratic governments cannot overcome the profound challenge political fragmentation now poses and deliver on the issues their citizens find most urgent, dysfunction and distrust could give way to worse.

Here’s the motion. More from Michael Li.

New at Bolts.

Here on Youtube:

I did this extended interview for the European Center for Populism Studies. Here is their summary:

In an interview with the ECPS, Professor Richard H. Pildes, one of America’s leading constitutional scholars, warns that democracy’s survival depends not only on equality and participation but also on its capacity to deliver effective governance. “Democracy,” he says, “rests on two simple promises: equal voice and better lives. When governments fail in that second task, it profoundly undermines democracy itself.” Professor Pildes argues that excessive focus on participation, coupled with digital fragmentation and weakened political parties, have eroded governments’ ability to act decisively. The rise of “free-agent politicians,” algorithmic outrage, and social media-driven polarization, he cautions, threaten to make democracy less capable of solving problems. “Effective government,” Professor Pildes insists, “is the forgotten pillar of democracy.”

Here is the full interview, text is available here.

This is a story in Sportico about HLS’s Election Law Clinic’s amicus brief on behalf of a group of billionaires arguing that Maine’s limit on Super PAC contributions doesn’t burden their speech and serves important goals including preventing corruption and avoiding the distortion of the political system.

Dallas Mavericks minority owner Mark Cuban has teamed up with four other billionaires—hedge fund manager William von Mueffling, LinkedIn co-founder Reid Hoffman, and venture capitalists Steve Jurvetson and Vin Ryan—to argue in an amicus brief that their enormous wealth shouldn’t provide them more political influence than other Americans and that a Maine campaign finance law limiting contributions to super political action committees (super PACs) is both sensible and constitutional.

“Because of their wealth,” the brief says of the billionaires, “amici have the capacity to be extraordinarily influential in America’s political system. But amici didn’t ask for this power. And they don’t want it.”

The brief concerns Dinner Table Action & For Our Future v. William J. Schneider et al., a case brought by two Maine super PACs that accept contributions exceeding Maine’s limit. Several Maine officials, including Maine Commission on Governmental Ethics and Election Practices chairman William J. Schneider, are the defendants.

The case centers on whether a citizen referendum, overwhelmingly approved by Maine voters last year, complies with First Amendment political speech protections. The resulting act sets a $5,000 limit for super PACs. It also includes disclosure requirements regarding the identity of donors and donations related to funding communications that advocate for the election or defeat of a particular candidate. The referendum was backed by Equal Citizens and its founder, Harvard Law School professor Lawrence Lessig. . . .

Last Thursday, professors Samuel Jacob Davis and Ruth Greenwood of the Election Law Clinic at Harvard Law School submitted an amicus brief on behalf of Cuban and his colleagues. . . .

Cuban’s group sees Maine’s law as “reasonable” and “necessary to protect” democracy from “the kind of corruption that plagues too many elections.” That is especially important in a sparsely populated state like Maine, where “a relatively small amount of outside money can play an outsized role in local races that should be focused on local issues.”

The brief contends that regulating super PAC contributions imposes minimal constraints on free speech rights. It asserts that super PACs “give voters little useful information and often express a muddled political message,” with donations “often funneled through shell entities” known as “dark money organizations.” . . .

Further, the brief warns that unlimited super PAC contributions “create a serious risk of actual quid pro quo corruption and its appearance.” It cites former U.S. Senator—and now convicted felon—Bob Menendez (D-N.J.), who was accused of using super PAC contributions as payoffs for influencing a Medicare billing dispute involving a friend. The brief also points out that super PAC contributors have been appointed to high-ranking positions. For instance, current U.S. Secretary of Education Linda McMahon “had no teaching experience prior to her appointment, but she had donated tens of millions of dollars to various super PACs supporting the president who appointed her.”

AP reports.

Press release:

National civil rights organization Advancement Project and the NAACP Virginia State Conference filed a lawsuit against the Virginia Department of Elections on October 31 for unlawfully disenfranchising college and university students, including those attending Historically Black Colleges and Universities (HBCUs). Recent reports indicate that several jurisdictions in Virginia are currently rejecting voter registration applications from students residing on campus because they did not include dormitory names or room numbers, despite otherwise providing valid campus addresses.

The impact reaches across colleges and universities across Virginia, from George Mason University, James Madison University, Old Dominion University, University of Richmond, and Virginia Commonwealth University to historically Black colleges and universities, including  Norfolk State University and Virginia State University. The NAACP Virginia State Conference has college chapters on all of the impacted campuses.

Advocates warn that the failure to provide timely and accurate guidance ahead of the November 2025 election could likely result in widespread disenfranchisement, rejected provisional ballots, and long lines at polling places as officials attempt to resolve discrepancies at check-in…

The lawsuit can be found here.

You can find the careful and well reasoned district court opinion at this link. From the introduction:

The first question presented in these consolidated cases is whether the President, acting unilaterally, may direct changes to federal election procedures. Because our Constitution assigns responsibility for election regulation to the States and to Congress, this Court holds that the President lacks the authority to direct such changes.

In Section 2(a) of Executive Order No. 14,248, the President directed the Election Assistance Commission to “take appropriate action” to alter the national mail voter registration form to require documentary proof of United States citizenship. The several Plaintiffs in these consolidated cases have moved for partial summary judgment, arguing that Section 2(a) of Executive Order No. 14,248 cannot lawfully be implemented because our Constitution entrusts Congress and the States—not the President—with the power to regulate federal elections.

Upon consideration of the parties’ submissions, the relevant legal authority, and the entire record, this Court agrees. Because there is no genuine dispute as to any material fact and Plaintiffs are entitled to judgment in their favor on their constitutional separation-of-powers claims regarding Section 2(a) as a matter of law, the Court shall enter partial summary judgment in Plaintiffs’ favor and deny both the Federal Defendants’ and Defendant-Intervenor’s cross-motions for summary judgment as to those claims. The Court shall permanently enjoin the proper Federal Defendants from implementing Section 2(a) of the President’s Executive Order. Because there is no just reason for delaying the ultimate resolution of Plaintiffs’ constitutional separation-of-powers claims regarding Section 2(a), the Court shall enter a final, appealable judgment on those claims. Finally, because Plaintiffs have not alleged that there is yet a final agency action implementing Section 2(a), the Court shall dismiss without prejudice the Democratic Party Plaintiffs’ Administrative Procedure Act claims regarding that provision…

Yesterday, Robert Boatright and Catherine Tolbert’s essay argued that we should hold primary elections on a single, national primary day:

When America adopted primary elections, primaries were hailed as a way to give the public a say in choosing our leaders. Today, fewer than twenty percent of Americans vote in primaries. Primary voters are unrepresentative of the population, registered voters, and even the other members of their parties. Turnout of younger people is extremely low. Turnout fluctuates wildly, depending on whether there is competition in high-profile races. To improve primaries, we must increase the participation, representativeness, and consistency of primary voters. The best way to do this is to hold all congressional and state primaries (though not necessarily presidential primaries) on the same day: a National Primary Day.

Primaries for state and federal office are spread across eighteen dates from March to September.  If all primaries were held on the same day, people would know when to vote. A single-day primary would also attract more national media coverage.  People would know there is a primary even if they knew little about their local candidates. A national primary would also simplify mobilization efforts by parties or interest groups. An organization seeking to increase turnout by a particular demographic group or to highlight the salience of an issue could engage in a nationwide campaign or publicize lists of endorsed candidates. These effects would be felt the most among lower propensity voters, who tend to be younger, less wealthy, and less ideologically extreme than today’s primary voters. The primary electorate would look more like the American population.

There are many secondary effects from having a single-day primary as well. A single-day primary would limit the power of organized interests. The sequential nature of contemporary, low-turnout primaries gives undue power to groups that have sought to encourage extreme candidates and to selectively “primary” incumbents. An increase in turnout would make it more likely that primary victories would be a consequence of voter mobilization, not voter inattention. When primaries do yield unexpected results, we would understand these outcomes in the context of all of the year’s primaries, not as harbingers of what might take place in primaries later in the year.

AJC:

For much of the last decade, it was Republicans who questioned the integrity of Georgia’s elections. Now a growing share of Democrats are voicing doubts of their own.

In the latest Atlanta Journal-Constitution poll, more than one-third of Democratic primary voters say they’re either “not so confident” or “not at all confident” that the 2026 primary will be conducted fairly and accurately.

That’s more than double the share from October 2024, when just 16% of Democrats said they lacked faith in the election system.

Meanwhile, 80% of likely GOP primary voters say they have faith in the integrity of next year’s vote, and only 6% say they’re not confident at all. It’s almost the inverse of where the parties stood last year, when as many as two-thirds of GOP voters expressed doubts about Georgia’s elections.

Washington State Standard:

Facebook’s parent company is asking Washington’s high court to overturn what the state’s attorney general has called the largest campaign finance penalty in the nation’s history.

Meta argues the Washington campaign finance law used to justify the $35 million fine violates the First Amendment to the U.S. Constitution. The company also argues that the punishment, for not providing required records for digital campaign advertisements hosted on its platform, is excessive and misguided. 

The state attorney general’s office, which sued Meta in 2020, says provisions of the law are necessary to inform voters about who is spending money to influence Washington elections. Gov. Bob Ferguson was leading the attorney general’s office when the case was filed. 

“This purpose is even more urgent today, given the targeted and ephemeral nature of digital media, yet Meta has repeatedly and intentionally violated our law,” said deputy solicitor general Cristina Sepe, as the state and Meta argued their cases before state Supreme Court justices Tuesday.

Meta was represented in court by Rob McKenna, the former two-term Republican state attorney general and 2012 gubernatorial candidate.