…who went above and beyond in blogging for much of the month of July, giving me time for both a bit of a break and for work on this project.
A few months ago, Rick and others celebrated the 20th anniversary of this blog with a series of guest posts. Serving as dean of a law school doesn’t usually allow me to keep up with day-to-day developments in the field as I once did, so I wasn’t able to write something at the time. But finishing up three weeks in the ELB driver’s seat gives me an opportunity to offer some reflections on where we’ve been, where we are, and where we might be going.
The first observation is that Donald J. Trump continues to dominate daily news in the field. Over the past three weeks , 70 ELB posts have mentioned Trump’s name, an average of over three each day. By way of comparison, I count only 13 that mention Biden and just 8 that mention DeSantis. So like it or not, we in the field of election law are still living in the age of Trump, more than two and one-half years after he reluctantly relinquished the presidency.
Now of course, deciding what news is worth including on the blog involves subjective judgment. Like others who started out studying election law, my interests have gravitated toward structural weaknesses in American democracy over the years. That includes political polarization, persistent racial divisions, and rising economic inequality, as well as the vulnerability of electoral institutions to partisan manipulation. I’m also worried by the increasing receptivity toward politically motivated violence, most graphically illustrated by the events of January 6, 2021.
It bears emphasis that much of the current coverage of Trump is involuntary, on his part. Over the past few weeks and months, we’ve seen numerous charges and convictions for people associated with the attack on the Capitol during the counting of electoral votes. And at times, it seems as though the walls are closing in on Trump himself. The pending cases against him — not to mention a potential new federal indictment over his role in January 6 and another potential criminal case in Georgia — will make for a busy campaign/courtroom calendar in 2024. As the recent coverage of Trump’s legal expenses reveals, it’s becoming difficult to distinguish his attempt to regain the presidency from his attempt to fight criminal charges against him.
The proliferation of pending and potential criminal charges against a former/aspiring President present an unprecedented challenge for American democracy. That’s all the more true in light of the growing body of evidence that all the criminal and civil cases against him aren’t hurting his standing with the Republican primary electorate and may actually be helping.
Amidst all this, it’s easy to lose sight of the considerable progress that has been made over the past twenty years. That’s particularly true in the area of election administration, which has been a main focus of my academic career. I became a law professor in 2003, just a few months after Rick started this blog. Hard as it may be to believe now, not many scholars were writing about the “nuts and bolts” of elections — things like voting technology, voter registration, and voter ID — at the time. Bush v. Gore was still a new decision, and the Help America Vote Act had just been enacted into law. Back then, it was mostly left-leaning Democrats who were worried that electronic voting machines would steal their votes. (How things have changed.)
When it comes to election administration, there is much to celebrate in what’s happened over the past two decades. We’ve moved to more reliable voting technology and statewide voter registration lists. The professionalization of election officials has increased dramatically over the intervening years. A testament to that fact is the miracle of the 2020 election, as Nate Persily and Charles Stewart have called it, when the country successfully managed a massive shift toward remote voting in the midst of a global pandemic and record turnout. Our judicial system also held up well to the challenge that the 2020 election posed. Judges across the ideological spectrum — including both Republican and Democratic appointees — rejecting the specious legal cases brought by Trump’s allies (traced in my contribution to this book on January 6). Some of those lawyers are now facing the consequences of their actions.
The tragedy of the 2020 election, borrowing again from Persily and Stewart, is that so many Americans believed — and continue to believe — that the election was stolen. Not only has there been a massive loss of trust in our election system, but we’ve also seen escalating threats toward the people responsible for running our elections. That’s led many of these dedicated public servants to conclude that it’s just not worth it, leaving their jobs in large numbers. This too is a tragedy, especially given the progress is professionalizing election administration over the past twenty years.
Despite all this, I’m hopeful about the future of election law and, more broadly, of our democracy. Although we’ve lost some great election officials, public awareness of the serious challenges that our system faces has increased dramatically. I’m talking not only about the risk of election subversion — the tag of so many recent ELB posts — but also about gerrymandering, money in politics, and the institutions responsible for running elections. The election law community, including both academics and practitioners, has never been more robust. I’m not sure of the solutions to the enormous challenges we face. But the diversity of new voices in the field increases my confidence that we’ll find a way through them together.
I’ll close this post, and my stint as guest blogger, with a big “thank you” to everyone else in the election law community. Thanks especially to Rick for keeping this blog going over the past twenty years. And to all of you for caring enough about our democracy to keep reading and responding.
Justin here. I’m delighted to join the roster of reflections on the 20th anniversary of the Election Law Blog. Travis and Ellen have already noted how indispensable the blog is — how indispensable it’s been from the day of its debut — and I’ll add a hearty amen. There’s no better place to get a regular sense of developments affecting the way we do democracy, and to browse the archives is to browse an immensely rich chronicle of an immensely rich field. The blog’s range is enormous, from abstract musings on political philosophy to incisive analysis of pending legal disputes to the weediest of weedy details, like the weather report that kicked things off. And we’re all better informed as a result.
I’ve had the privilege and responsibility of stepping in as one of the guest masters of ceremonies for the blog from time to time. But just like early-00s series Cheap Seats never lived up to its potential when host Ron Parker was on leave, I know I’ve been a pale substitute for the real thing. Each and every time I’ve had the keys, I’m surprised by how much time it takes to curate, how much work is involved in culling the meaningful updates from the fire hose of news, and how much thought has to be behind presenting the important bits in a digestible way. I’ve only ever been at the helm for a week or two at a shot. The fact that Rick has been able to maintain the blog on the regular for twenty years is a marvel.
But though I couldn’t let the moment pass without acknowledging the central importance of the forum, what Rick actually requested in this series is reflections on developments in the field over the last twenty years. The first three posts in the series, in different ways, discussed the mammoth impact of changes in the Supreme Court’s approach to election law. There’s abundant there there. I’ve compared this Court to the T. rex from Jurassic Park: even its smaller steps reverberate, and the Court’s decisions in this arena have been anything but small. (Maybe, for a 2003 throwback, the more appropriate reference to an even more aggressive Court is another outsized personality. Don’t make the Court angry. You wouldn’t like it when it’s angry.) There’s plenty more SCOTUS fodder for commentary beyond the legal holdings, including the election-law impact of the shadow docket that scholars like Will Baude and Stephen Vladeck have chronicled.
However, I’d like to use my entry in the retrospective to call attention to one of the ways in which the blog has embraced the importance of the election law in spaces beyond judicial review and beneath elite commentary, just as firmly as the importance of that within.
Just two days after Rick’s first blog post, President Bush signed into law an appropriations omnibus delivered by a Republican Congress — and in so doing, invested more than $1.5 billion in the country’s elections infrastructure. That would be about $2.5 billion in 2023 dollars. The same President signed the same Congress’s appropriation of another $1.5 billion the following year, in further implementation of the Help America Vote Act.
And then the national will to pay for the elections we desire and deserve vanished right along with my hairline.
That extraordinary effort of 2003 and 2004 marks the last federal foray into reliable, sustained funding of the election process. There has been some money in the meantime, in episodic and crisis-driven fits and starts — most notably in 2018 and 2020, both before and after the onset of COVID. And it’s great news that DHS has required 3% of upcoming security grants to focus on elections. But while welcome, and important, this funding hasn’t remotely measured up to the real need.
Local budgets are tightening even as election procedures have become more complex and the threat environment has expanded. At least as of last year, the principal voting systems in 23 states are so old that the systems have been discontinued by the manufacturer. New cyberthreats require upgraded defenses. Mailings — not just ballots, but notices and address verifications — need to be translated and printed and shipped. Officials need communications support to help the public understand the rules and to fight misinformation — intentional and un- — and the need increases whenever there’s a change. It’s possible to have well-run election offices where access and security, for both physical places and systemic processes, fit hand-in-hand — but not at scale for free.
And please don’t discount the human resources: in this environment, it’s a struggle to recruit and retain both full-time talent and part-time help. That’s true both for larger offices and offices where you only need the fingers on one hand to count the elections staff … who may also be responsible for functions like registering businesses, recording deeds and marriages, assessing taxes, and handling adoption and probate.
We’ve been relying on election officials to make stone soup for so long — and we’ve been luckier than we deserve in what they’ve managed to conjure, relying on charity and ingenuity — that we’ve forgotten that we’ve been running on fumes. It’s only a matter of time until we get what we pay for, in the least pleasant sense of the phrase.
And we haven’t even discussed counting the results. Fast, accurate, cheap: pick any two. Nobody’s calling for the process to be slower or sloppier.
In addressing the challenges above, partial and unpredictable one-time crisis outlays aren’t the answer, in elections any more than they are in public health. Most of the costs are recurring. Even capital improvements carry related continuing obligations for maintenance and supplies. Congress has grudgingly offered only an occasional portion of a downpayment to would-be homeowners with no means to meet the mortgage, and no prospect of more support on the horizon.
Charity — which was never a desirable Plan A — is no longer an option in many jurisdictions. And I’d welcome that development, IF it meant that public dollars stepped into the breach to cover the gap for this quintessentially public function. (I believe that only one of the 23 states recently banning or cutting back on philanthropic funding of elections did so while making an appropriation of its own.)
Infrastructure needs investment: sustained and reliable funding to facilitate meaningful planning for more than just the cycle ahead. Elections infrastructure is no different in that respect from the infrastructure we’ve heard so much about. The need in the elections space is just as dire, and just as bipartisan. Every member of Congress got to work by traveling over the election bridge that so desperately needs basic upkeep to stay upright.
This past Thursday, President Biden — something of an infrastructure aficionado — put forward a budget which, for the second year in a row, proposed (and proposed a way to pay for) a real investment in elections infrastructure. The total allocation this time is $5 billion: the equivalent of HAVA’s outlay in today’s dollars, disbursed predictably over ten years. I hope that Congress rediscovers the wisdom of that approach. It’d make a great opportunity to celebrate another twenty-year anniversary that benefits everyone in the field.
The following is a guest blog post from Travis Crum, part of the ELB 20th Anniversary:
I was honored when Rick asked me to participate in the Election Law Blog’s 20th anniversary celebration. When considering what to write, I took a trip down memory lane. I first encountered ELB back in 2007, when I was a twenty-two-year-old reader and research assistant for Judge David Tatel. Little did I know that Rick would graciously feature my own work—even before I became a tenure-track professor—and that I would become part of the broader ELB community.
The 2000s and early 2010s were the heyday of legal blogging. The giants of generalist constitutional law were the libertarian-leaning Volokh Conspiracy and the left-wing Balkinization. One could also go to How Appealing or SCOTUSblog for news round-ups and briefs. But ELB filled a distinctive niche, and not just because it focused on voting rights and campaign finance. ELB’s target audience was not only law professors and gunner law students, but also lawyers, journalists, and policymakers. One could find articles about developments in Congress or state houses, abstracts of forthcoming articles, and recent court opinions—always with a hyperlink—with nuanced commentary. Unlike many other bloggers in the 2010s, Rick successfully moved over to Twitter, while simultaneously expanding ELB’s role in the public debate.
In ELB’s early years, election law looked very different: Section Five of the VRA was still operative, partisan gerrymandering claims were theoretically justiciable, and no one had even heard of the VRA’s bail-in provision. Fast forward to Spring 2020, when I taught my first seminar on voting rights. While prepping for the class, I pulled out the syllabus for Heather Gerken’s Law of Democracy class that I took in Spring 2009. As I went through the assignments, I crossed out what was no longer good law. The syllabus was in tatters.
So how did we get here? As I’ve expanded on elsewhere, the Supreme Court has withdrawn from the political thicket on every front except race. And even there, the Court’s pending decision in Allen v. Milligan (née Merrill v. Milligan) looms large and threatens the effectiveness of Section 2 of the VRA.
Through all of these dramatic changes, ELB has been there and hasn’t missed a beat. ELB has chronicled the aftermath of Citizens United, the demise of the VRA’s coverage formula, the questionable revival of Shaw’s racial gerrymandering cause of action, the death knell of federal partisan gerrymandering claims, President Trump’s Big Lie about the 2020 election, and efforts to reform the Electoral Count Act. The list goes on. One day far into the future, when historians are writing about American democracy in the early 21st century, ELB will be a treasure trove of information.
Rick has been called the “Dean of Election Law,” and in some ways his blog resembles a virtual faculty. Today, ELB hosts a wide array of voices who disagree on important topics like the role of race in redistricting, how to regulate social media, and litigation strategy in the shadow of the increasingly conservative Roberts Court. But all of us are united in trying to make our democracy work. And like a law school, ELB has shaped the legal education of the next generation of voting rights lawyers and scholars, myself included. Put differently, we don’t know a world without the Election Law Blog. Hopefully we never will.
Don’t Change A Thing?
I found myself humming this early 80s INXS song shortly after receiving Rick’s kind invitation to post something marking the 20th anniversary of the Election Law Blog. Blogging was a new form of communication when Rick got started in 2003, and through his truly tireless efforts, ELB grew into both a central tool for keeping up with election law news and commentary and a jumping off point for scholarship of varied sorts. Don’t Change a Thing may be an apt instruction for ELB going forward.
I’ll admit, however, it was not the expectation that Rick will keep at it that evoked this old song (or, if you prefer, the more recent Bruce Springsteen cover). It was instead Rick’s suggestion that contributors explore an election law issue from 2003. In this context, and in an admittedly less celebratory sense, the song’s mantra captures what has become the dominant judicial stance in a certain set of election-related cases. More precisely, federal courts, and the Supreme Court in particular, presently approach cases in which a state electoral practice is challenged under federal law with the presumption that the State, well, need not change a thing. Federal law, be it statutory or constitutional, is viewed as largely agnostic as to which practice among many a State might select when structuring elections. It is a stance with roots, and perhaps even an origin story, in a case decided only months after ELB got going.
Just short of twenty years ago—on June 26, 2003, to be precise—the Supreme Court decided that Georgia need not change a thing in the state senate redistricting plan it had adopted following the 2000 Census. Georgia v. Ashcroftreverseda lower court decision that had found the plan, which reduced the Black population in various newly-drawn districts, to be discriminatory under Section 5 of the Voting Rights Act. Justice O’Connor’s majority opinion did not deny that the plan left Black voters with diminished ability to elect candidates of choice, but nevertheless concluded that, under the VRA, Georgia could choose to enact a plan that did just that. Georgia might have opted to concentrate minority voters in fewer districts or, as it opted to do, distribute them more widely among a greater number. Either way, the Court explained, “Section 5 does not dictate that a State must pick one of these methods of redistricting over another.”
Credible, albeit not indisputable, arguments supported the claim that the challenged plan better served Georgia’s Black residents than one that would have left Black voters more concentrated in fewer districts. Georgia v. Ashcroft, however, did not rest on that judgment. Instead, the Court read the VRA to leave Georgia with discretion to select whichever plan it preferred. The Court saw either approach as nondiscriminatory within the meaning of Section 5.
The determination that Georgia had such discretion struck many as not only novel, but wholly incompatible with the premise of Section 5 that covered jurisdictions must demonstrate new electoral rules to be nondiscriminatory before implementing them. Indeed, Justice Souter’s dissent charged that the decision would cause Section 5 to “simply drop out as a safeguard against the ‘unremitting and ingenious defiance of the Constitution’ that required the procedure of preclearance in the first place.”
Congress pushed back, overruling Georgia v. Ashcroft with a statutory amendment that prioritized the ability of minority voters to elect preferred representatives, however defined. That amendment, however, became inoperative after Shelby County v. Holder scrapped the VRA’s coverage formula and, with it, active enforcement of the Section 5 preclearance requirement. Perhaps needless to say, doing soleft States like Georgia free to exercise the discretion Georgia v. Ashcroft had recognized.
This hands-off approach has since spread well beyond the now-defunct preclearance regime. Over the last two decades, States and localities have come to enjoy similar discretion under Section 2 of the VRA. Here, too, Don’t Change a Thing has become the operating premise when electoral practices are challenged under Section 2 in federal court.Scores of decisions since Georgia v. Ashcroft have upheld state discretion to adopt redistricting plans and other practices alleged to be dilutive and hence discriminatory under Section 2. Courts have likewise found that, with few exceptions, Section 2 does not restrict state power to adopt strict voter identification requirements, restrictive early voting and absentee ballot procedures, and polling place limitations of various sorts. For these latter vote denial claims, the Supreme Court has recently announced several “guideposts,” some novel, some derived from lower court decisions, and all of which effectively direct courts to sustain challenged practices without modification.
The primacy of state discretion has also found expression in numerous cases involving claims that electoral practices unconstitutionally infringe the right vote. In this context as well, Don’t Change a Thing aptly captures the federal judicial stance. Applying the Anderson-Burdick test—which balances “the character and magnitude” of the burden imposed against “the precise interests put forward by the State as justifications for the burden imposed by its rule”—federal courts have repeatedly upheld state discretion to adopt the challenged practices. Because these cases typically involve concurrent challenges brought under Section 2, it is perhaps unsurprising that critical elements of the Anderson-Burdick inquiry have coalesced with the statutory analysis under Section 2, both directing federal courts to leave the challenged state practices unchanged.
Merrill v. Milligan, now pending in the Supreme Court, is likely to entrench Don’t Change a Thing yet further. Last year, a three-judge panel held that Alabama violated Section 2 by failing to include a second majority-Black district in its new congressional redistricting plan when longstanding Section 2 criteria indicated such a district was required.Chief Justice Roberts’s observation that the lower court “properly applied existing law” suggests Merrill will alter the statute significantly. To be sure, Alabama’s particular proposal for doing so—arguing that maps drawn without consideration of race can never violate Section 2–gained little traction at oral argument last fall. More likely, the Justices will immunize such race-neutral conduct from Section 2 liability as long as the conduct comports with traditional districting principles. Notably, to create the second Black-majority district the lower court read Section 2 to require, Alabama would have needed both to consider race expressly and to deviate from what it said were its traditional districting principles.And because reliance on those principles would not have produced a plan that contained the disputed district,the Court is unlikely to read Section 2 to require one. Don’t Change a Thing suggests as much, even if settled Section 2 doctrine presently requires precisely such deviation from traditional practices.
Such a ruling in Merrill would fall short of the broadest relief Alabama requests, and, thus, as a formal matter, leave Section 2 technically on the books. Still, much like Georgia v. Ashcroft did two decades ago, the decision would render the statute a shell of what Congress enacted it to be. Like Section 5, Section 2 (as amended in 1982) was not designed to be a mild salve but a decidedly forceful remedy for a wide range of electoral practices. And as Section 5 once was, Section 2 has been deployed in years past to disrupt and displace a myriad of discriminatory electoral structures nationwide. Don’t Change A Thing was not the premise on which Section 2 – or the VRA more broadly – was crafted and implemented for decades, but it defines its present trajectory with precision.
Twenty years ago this month, I began the Election Law Blog. It was a continuation of sorts of news and commentary that I had been sharing with election law professors, first via a listserv Dan Lowenstein and I created that was housed at Chicago-Kent, starting in 1995, when I first began teaching. It seemed much more efficient than cutting and pasting in emails to post the material on a weblog, an innovative type of website introduced to me by my then-Loyola Law School colleague Larry Solum. I modeled it after the new website How Appealing by Howard Bashman, and content first was posted at blogspot (https://electionlaw.blogspot.com). You can still see the early posts there. I’d now call the look ugly but functional. One observer called it “early mySpace.”
ELB has been a labor of love and a fourth child, always demanding my attention. Being the first mover in the field certainly helped me solidify my reputation, as I pitched blog posts to new bloggers like Ben Smith to help spread the word. Blog posts also did (and still do) go out to an election law listserv community made up of about 1300 people. There, blog posts often generate spirited debate but also a sense of shared purpose and, usually, a commitment to disagree civilly.
Later, Twitter became the most common way that people found my blog posts, and I posted there a lot (too much!) until the Elon Musk takeover convinced me to scale back. ELB started as a solo blog but I have gradually added contributors and guest blog posts, both to lessen the load and to increase the diversity of voices in the field. Today it is a far richer site because of these additional voices.
The next month will feature posts from ELB contributors and other friends of ELB, reflecting on changes in election law over the 20 years of the blog. I will open with this first post with my observations on how things have changed in the last two decades, and I may chime in again at the end of the period to respond to some of the reflections.
Ronald Reagan was famous for asking during the 1980 presidential campaign, “Are you better off now than you were 4 years ago?” If we ask this question about the state of American democracy comparing now to 20 years ago, and particularly the role of the Supreme Court, we would have to say we have seen a slow but steady deterioration.
Consider first voting rights. In 2003, when this blog started, jurisdictions with a history of racial discrimination in voting had to submit their voting changes for federal approval (or “preclearance”) and had to prove changes would not make minority voters protected by the Voting Rights Act worse off. In 2013, the Supreme Court killed off the precelarance regime in its Shelby County v. Holder decision. In 2003, Section 2 of the Voting Rights Act was read (thanks to the Supreme Court’s 1986 decision, Thornburgh v. Gingles) to give minority voters a fair opportunity to elect candidates of their choice it legislative districts. Today, that ruling is under a shadow as the Supreme Court considers the Milligan case (expected by June). It has already been undermined by earlier decisions such as Abbott v. Perez. And the Court has already severely weakened Section 2 in the vote denial context in the Brnovich decision of 2021.
In 2003, as the blog started, Congress had passed the first meaningful campaign finance law in a generation in the McCain-Feingold law. We were waiting to see in February 2003 of what the courts were was going to do with a law that was meant to limit the role of big money in politics and provide voters with an effective system of campaign finance disclosure. Later in 2003, the Supreme Court upheld the key parts of the law in McConnell v. FEC, confirming and expanding an earlier ruling (Austin) limiting independent spending by corporations and labor unions.
By 2010, after Justice Sandra Day O’Connor left the Supreme Court and was replaced by Justice Alito, the Court’s campaign finance rulings have done a 180 degree turn toward deregulation. The Court in the 2010 Citizens United v. FEC case reversed Austin and parts of McConnell, freeing corporate spending with language that inexorably led to the creation of super PACs and the effective demise of meaningful campaign finance limits for political players.
At the time of McConnell, opponents of limits touted disclosure as a more narrowly tailored solution to issues of money in politics. Today, disclosure has become porous once again, as creative lawyers funnel money through nondisclosing nonprofits such as 501(c)(4)s. At the same time, the Supreme Court in cases like AFPF v. Bonta has signalled it is going to take a harsh look at campaign finance laws going forward. As I recently wrote in a draft law review article honoring the scholarship of nonprofit law professor Ellen Aprill, it is easy to imagine, though the use of nonprofit plaintiffs, “a world in which many of the remaining regulations of money in politics could well be struck down as unconstitutional or rendered wholly ineffective by a Supreme Court increasingly hostile to the goals of campaign finance law and extremely solicitous of religious freedom.”
There are other troubling signs on the horizon too such as a threat that the Supreme Court will shut down efforts by state supreme courts (and perhaps voters acting through the initiative process to rein in partisan gerrymandering). Attacks on the initiative process by state legislatures shuts off one of the few avenues to counter democratic backsliding.
These threats are about the slow devolution of American democracy, brought on by a judiciary increasingly hostile to democratic initiatives and intense partisan competition that has raised incentives for partisan manipulation of election rules.
But things are in fact much worse than just the slow devolution. I never expected to see it when I began blogging in 2003, but we cannot take peaceful transitions of power for granted anymore in the United States. No one wondered whether conservative Republican George W. Bush would leave office in early 2009 when he was being replaced with liberal Democrat Barack Obama. On the day of Obama’s inauguration, I blogged: “Regardless of your politics, today is a day to celebrate the remarkable peaceful transitions to power that occur in this country with each presidential transition. It is something we should not take for granted.”
This is no longer true. The events during and after the 2020 election showed that much of our hyperdecentralized, partisan system of election administration is open to manipulation. The new threat of election subversion, a term I never even thought of in relation to the United States in 2003, is the main focus of my scholarly concerns today.
It would be easy to become defeated by the slow and fast threats. But I flag them here, and write about them in my general work, as a wake-up call that we cannot take democracy for granted and it needs work. The defeat of many election deniers in the 2020 elections is one hopeful sign, as is bipartisan congressional action to fix the Electoral Count Act. These took organizing and perseverance, and cross-ideological coalition building. Now is the time for more work, not less.
I hope my next project can help take us there. But whether it only gets us a little out of the starting gate or moves us much further along, I plan on continuing the ride, at least for now, with help from many friends.
Thanks as always for reading, for passing along tips, and for sharing your feedback.
Twenty years is a long time for anything, especially a blog.
The first post appeared on February 18, 2003, and it looked like this:
Starting in the middle of this month, ELB contributors and friends of ELB will offer some reflections on election law, writ large, over the last 20 years.
So stay tuned!