AP:

A judge has ruled that Utah lawmakers must proceed with redrawing the state’s congressional district map right away, pointing to Texas and California in rejecting their argument that the job can’t be done in time for the 2026 midterm elections.

The ruling keeps Utah firmly among states where partisan redistricting battles stand to tilt the outcome of the next congressional election.

Utah lawmakers were wrong to disregard an independent commission’s map in drawing one that has been used for the 2022 and 2024 elections, Salt Lake County District Judge Dianna Gibson ruled Aug. 25.

The map did away with a district in the Salt Lake City area that has swung between Republicans and Democrats in favor of a map where four districts, each with a piece of the urban corridor, have been won by Republicans with wide margins….

I was reading Nick Stephanopoulos’ amicus brief in the LA v. Callais case and was struck by this statement in his summary of argument:

“Based on these [the 2020 and 2024] elections’ results, Black vote-dilution plaintiffs would be unable to prove sufficient racial polarization in most places, and Hispanic litigants would be unable to do so almost everywhere.”

Because a violation of Section 2 of the Voting Rights Act in the redistricting context requires proof that voting is racially polarized (among other factors), that would mean, if Nick is right, that less is at stake as a practical matter in the Supreme Court’s Callais case than many commentators assume. As Nick concludes, in the deep South, polarized voting and residential segregation is still strong, which means this is where Sec. 2 is likely to continue to have its most significant effects.

In theory, intentional discrimination claims could still be brought, but if voting is not racially polarized, there would be less of a partisan motivation to engage in intentional discrimination in designing districts.

I filed this amicus brief today in Callais in conjunction with lawyers from Mehri & Skalet. The brief makes three main arguments: (1) Section 2 is unlike the policies on which the Court has previously imposed temporal limits (Section 4’s coverage formula and affirmative action); (2) thanks to the Gingles framework, Section 2 is inherently self-limiting — and, in fact, has already become inoperative in many parts of the country; (3) if the Court wants to further restrict Section 2’s reach, it has several options other than the arbitrary imposition of term limits. Here are some excerpts from the brief’s introduction:

Appellees’ claim fails, first, because §2 differs in critical respects from the policies the Court has subjected to temporal limits. On its face, §4 of the VRA applied the “extraordinary measure[]” of preclearance, Shelby Cnty., 570 U.S. at 534, to certain jurisdictions based on electoral data from 1964, 1968, and 1972, 52 U.S.C. §10303(b). The text of §2 looks nothing like this. Written in the present tense, it doesn’t refer to evidence from an earlier era in American history. Nor does §2 resemble affirmative action. That policy triggers strict scrutiny because it racially classifies individuals—distributes burdens or benefits to them on the basis of their race. In contrast, §2 regulates governments at various levels, not people. And it imposes liability based on a complex set of factors, none of which is reducible to anyone’s race as such.

If §2 is unlike both §4 and affirmative action, what sort of statute is it? As this Court has long recognized, see, e.g., Chisom v. Roemer, 501 U.S. 380, 394 (1991), it’s a law that targets discriminatory results. Such laws are found throughout both the Statutes at Large and state codes. Among their ranks, they include Title VII of the Civil Rights Act (“Title VII”), the Fair Housing Act (“FHA”), and many more. Crucially, the Court has never hinted—let alone held—that statutes aimed at alleviating discriminatory results must be temporally restricted. A time limit would be inappropriate for these laws since they neither rely on outdated data nor classify individuals based on their race.

Additionally, thanks to the framework the Court established for vote-dilution claims in Thornburg v. Gingles, 478 U.S. 30 (1986), §2 already includes built-in sunset clauses that curb its reach. The first Gingles precondition involves “the dispersion of the minority population.” Bush v. Vera, 517 U.S. 952, 979 (1996) (plurality opinion). So when minority voters are sufficiently dispersed (that is, residentially integrated), they’re unable to satisfy this requirement and their vote-dilution claims fail. Likewise, the presence of racially-polarized voting is the crux of the second and third Gingles preconditions. See Gingles,478 U.S. at 52-74. So when voting isn’t highly racially-polarized, these criteria can’t be met either and vote-dilution claims again go nowhere.

Not only are the phenomena highlighted by the Gingles framework capable of change, they have been changing—dramatically so, and consistently in ways that confine the operation of §2. The 2020 Census revealed that, for the fifth consecutive decade, residential segregation fell throughout the country. See, e.g., William Frey, A 2020 Census Portrait of America’s Largest Metro Areas: Population Growth, Diversity, Segregation, and Youth 17-18 (2022). In many areas, it’s therefore more difficult than in the past to draw reasonably-configured majority-minority districts, as required by the first Gingles precondition. Similarly, the 2020 and 2024 elections saw large declines in racially-polarized voting, especially in diverse states like Florida and Texas. See, e.g., Stephanopoulos, New Electorate, supra, at 55-57. Based on these elections’ results, Black vote-dilution plaintiffs would be unable to prove sufficient racial polarization in most places, and Hispanic litigants would be unable to do so almost everywhere.

Given these trends, it’s unsurprising that “§ 2 litigation in recent years has rarely been successful,” Allen v. Milligan, 599 U.S. 1, 29 (2023), and that “proportional representation of minority voters is absent from nearly every corner of this country,” id. at 29 n.4. These observations remain as accurate today as in 2023. Minority voters are still disproportionally underrepresented in most states and at all electoral levels. See, e.g., Christopher Warshaw et al., Districts for a New Decade—Partisan Outcomes and Racial Representation in the 2021–22 Redistricting Cycle, 52 Publius: J. Federalism 428, 445-46 (2022). And while the success rate of vote-dilution claims has ticked up after the Court confirmed their viability in Milligan, they continue to affect very few districts. This decade, §2 litigation has led to the creation of only two more congressional minority-opportunity districts (out of 435) and just ten more state-legislative minority-opportunity districts (out of more than 7,000). SeeSection 2 Cases Database, Univ. Mich. L. Sch. Voting Rights Initiative (Jan. 1, 2025), https://voting.law.umich.edu/ database/.

My article on ongoing shifts in voter behavior and what they mean for election law is now out in the Journal of Legal Analysis. Here’s the abstract:

The American electorate is transforming—undergoing its most sweeping changes in half a century. These shifts include the disappearance of income as a partisan cleavage, the emergence of education as a new partisan axis, a decline in racially polarized voting, and a more neutral political geography. This Article is the first to explore the implications of the new electorate for election policy and law. As to policy, the parties’ longstanding positions on numerous electoral issues have become obsolete. As to law, an array of electoral claims and defenses now operate differently than in the past.

This is an important new study from Andrew C. W. Myers, Maria Silfa, Alexander Fouirnaies,
and Andrew B. Hall.

The paper also illustrates, though it doesn’t emphasize, the role that the rise of donations from individuals — including especially small donors — contributes to polarization. Donors have different motivations. Corporate PACs mainly donate to seek access to officeholders; as a result, they tend to give to incumbents and do so with much less emphasis on ideology. Individual donors, by contrast, are ideologically motivated. I have explored the rise of individual donors and the connection to polarization in my essay, Campaign Finance and Political Polarization.

Here’s the abstract from this new empirical paper:

Incumbents have long enjoyed a substantial fundraising advantage in American elections, but it remains unclear whether this advantage has persisted as elections have become more partisan and nationalized in recent years. Pairing a regression discontinuity design with a comprehensive dataset covering U.S. House, U.S. Senate, gubernatorial, statewide executive, and state legislative elections, we present the first systematic evidence on the evolution of the financial incumbency advantage. Overall, we find that the financial advantage enjoyed by incumbents at all levels of government has declined
25% to 50% over the last decade. This decline, however, is driven entirely by individual donors, and especially small-dollar donors; in contrast, the advantage among corporate PACs has remained stable—or even increased. Taken together, these shifts reveal a campaign finance landscape that is increasingly shaped by partisanship on one side and strategic investment on the other.

And here is part of the abstract from Campaign Finance and Polarization:

In an era I have called “hyperpolarized democracy in America,” delivering effective government has become extremely difficult. Much has been written about various institutional factors that contribute to the rise of polarization. But campaign finance has received minimal attention in these discussions. Most campaign finance discussion focuses on issues of political equality or the risks of political corruption. The failure to focus on the polarizing effects of our privately-financed elections is surprising, because one of the most robust findings in the empirical literature on campaign finance is that donors are much more ideologically extreme than other citizens. Nor has the emergence of small donors in the last several election cycles changed this pattern. Small donors are at least as ideological as large donors, perhaps more so…{This essay} then argues that, once we recognize the relationship between individual donors and polarization, there are implications for the appropriate direction of political reform.

Ohio Journal:

The women’s political organization Red Wine and Blue has sued Ohio Secretary of State Frank LaRose over changes to the voter registration process at the Bureau of Motor Vehicles.

Thanks to the federal “motor voter” law, car registration agencies around the U.S. have offered voter registration services to applicants since the early 1990s. New state law in Ohio requires applicants provide proof of citizenship before the bureau registers them or updates their registration.

Red Wine and Blue argued the change, passed as part of Ohio’s two-year transportation budget, “makes it harder for lawful, eligible Ohio citizens to exercise their fundamental right to vote.”

“Frank LaRose and Republicans in the state legislature should not be able to disenfranchise anyone,” she continued. “Especially not the rural Ohioans, elderly voters, students, and women who have changed their legal names through marriage and divorce who are disproportionately affected by this legislation.”

In a press release LaRose dismissed the case as a “baseless” and “activist” lawsuit. He added the state of Wyoming instituted similar changes and courts there have already upheld the policy.

“It’s common sense that only U.S. citizens should be on our voter rolls,” LaRose said. “I won’t apologize for, or back down from the work we do to ensure the integrity of our voter rolls.”

“We will win this case,” he insisted, “just like we’ve fought off the other baseless actions that such groups have brought against us.”

At root, the changes shift the burden from state agencies to individuals.

Under prior law, registrants had to attest under penalty of perjury that they are a citizen. Verification then happened behind the scenes with elections officials at the state and local level.

Brad Smith, former FEC Commissioner and (retired) professor of law at Capital University, has long been one of the major advocates for the view that much of campaign-finance regulation violates the First Amendment. In an amicus brief in the NRSC v. FEC case on party-coordinated expenditures, the Institute for Free Speech, which Brad founded and chairs, along with the Manhattan Institute, now takes the position that the Elections Clause, which is the source of Congress’ power to regulate campaign finance, does not permit Congress to regulate political campaigns at all, as opposed to the voting process itself.

The Elections Clause, located in Article I, Section 4 of the Constitution, states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators”. Brad argues that the “time, place, and manner of holding Elections” does not include the campaign process.

I want to point some of the consequences, were this position to be accepted. Because states only have power to regulate national elections through the Elections Clause, this position would mean no government would be able to regulate the campaign process for federal elections. It would seem to mean that even congressional regulation that requires disclosure of the source of large (or any) campaign contributions would be unconstitutional. Legislatures could not ban or regulate direct contributions of unlimited amounts from the general treasury of corporations or unions (current federal law bans those contributions in federal campaigns).

I don’t think there’s much the chance the Court would endorse this position. But it’s worth considering the consequences were the Court to do so.

Update: I meant to explain that unlike in certain areas, where states have reserved police powers they can invoke if Congress does not or cannot act, in the area of national elections, states have no reserved powers. The states only have power to regulate national elections due to the enumerated grant of power in the Elections Clause. That’s why their power over national elections cannot be broader than Congress’ powers.

The poll also finds that only 25% of independents are satisfied with the way things are going in the US:

I was the guest and enjoyed a productive conversation on a Lawyer-2-Lawyer podcast.

Axios:

President Trump took to Truth Social on Wednesday afternoon to attack a Utah court ruling that ordered new congressional maps pursuant to an anti-gerrymandering lawsuit.

What they’re saying: Trump claimed Monday’s order by state judge Dianna Gibson is “absolutely” unconstitutional.

• “How did such a wonderful Republican State like Utah, which I won in every Election, end up with so many Radical Left Judges?” he continued. “All Citizens of Utah should be outraged at their activist Judiciary, which wants to take away our Congressional advantage, and will do everything possible to do so,” Trump added.
• “This incredible State sent four great Republicans to Congress, and we want to keep it that way,” Trump concluded. “The Utah GOP has to STAY UNITED, and make sure their four terrific Republican Congressmen stay right where they are!”

Brendan Schneiderman in Slate on the potential of cumulative voting to curb gerrymandering:

It doesn’t have to be like this. There is a way to avoid line drawing altogether, and to do it constitutionally. Yes, the Constitution requires that the number of House seats be apportioned among the states according to their respective populations, but it says nothing of congressional districts—and nothing about line drawing. . . .

Fortunately, there’s a readily available solution to address this: Congress could also enact what’s known as cumulative voting. Under a cumulative voting scheme, rather than having Texans merely fill in ovals next to their 38 favorite candidates (i.e., giving each candidate one vote apiece), voters would have 38 votes to assign however they see fit. If there is only one candidate a voter supports, that voter could give the candidate all 38 votes, improving the odds that they get elected, but leaving the remaining seats up to other voters. Or imagine that a non-major party, like the Libertarian Party, endorsed a slate of 10 candidates; then, pro–Libertarian Party voters could allocate three or four votes apiece across those 10. This reform would protect party minorities, like Democrats in Texas, because it would allow Democratic voters to distribute their votes across a smaller but mightier group of candidates. . . .

And although it may sound grandiose, Congress can enact just such a multimember-district, cumulative voting model: The Constitution grants that the body “may at any time” enact voting regulations, something it has done occasionally, most prominently with the Voting Rights Act of 1965. Indeed, multimember districts have already been introduced in Congress by Virginia Democrat Donald Beyer via a bill that, while not eliminating line drawing altogether, would mitigate its worst effects. And cumulative voting already exists at the county level. Together, they provide a comprehensive, pro-democracy reform for electing members of the House—without drawing a single line.

I was honored to be a Miegunyah Distinguished Visiting Fellow at the University of Melbourne this summer (well, winter in Australia). The fellowship was a wonderful opportunity to get to know members of the university’s superb faculty, especially at its law school, and to discuss with them and their students matters of mutual interest on the nature and sustenance of democracy. The main event associated with the fellowship was delivery of a public lecture. The video of the lecture is now available. 

The specific focus of the lecture concerns the work of Edward Nanson, a professor at the University of Melbourne, who was the one to rediscover Condorcet’s analysis of elections, which had been lost to history after Condorcet’s death during the Reign of Terror in the French Revolution. Nanson also significantly improved upon Condorcet’s work, and the main point of the lecture was to explain how America could benefit from Nanson’s ideas. As Australians themselves no longer know of Nanson’s important contributions, the lecture’s audience at the University of Melbourne appreciated learning about one of their own. The rest of us can, and should, appreciate what Nanson did to advance the modern understanding of electoral democracy and majority rule.

(This notice of the lecture originally appeared on Common Ground Democracy.)

In preparing for a class on presidential powers I’ll be teaching this fall with Bob Bauer, I made this chart of the average number of executive orders per year each President has issued over the course of their presidency. The data comes from the American Presidency project. Having made it, I thought it would be interesting to share:

Troubling story out of Hawaii, hat tip to Charles Stewart for flagging this:

The next meeting of the Hawaiʻi Elections Commission on Wednesday is expected to be dominated by recent findings of discrepancies in the number of drop box and mail-in ballots cast on Kauaʻi during the 2024 general election.  

That the state’s official count of those ballots exceeded the number that the county said it collected and submitted is not in dispute.

But accounts of just how great that discrepancy was vary — a lot.

The numbers range from 25 according to the state’s chief elections officer to 39 according to the Hawaiʻi Supreme Court to 661 according to an Elections Commission permitted interaction group and up to 3,772 based on the initial Kauaʻi County ballot envelope count.

Civil Beat has reviewed the tranche of public records, correspondence and court submissions and confirmed there were inconsistencies that raise questions about the management of mail-in ballots in Hawaiʻi.

However, gaps in the chain of custody records during the county’s ballot collection all the way through the state’s counting make it impossible to say with certainty who’s right about how big the difference really was. 

Hawaii's difficulties reconciling mail ballots in the 2024 election will undermine confidence in mail-balloting nationwide and illustrate the reality that a skeptical world is watching. Jen Morrell has good quotes in this article. I hope this leads to serious reforms.…

— Charles Stewart III (@cstewartiii) August 25, 2025