Category Archives: election law and constitutional law

Texas calls second special session for redistricting

election law and constitutional law, political parties, redistricting

Gov. Abbott called a second special session Friday morning, calling the legislature into action for a second shot at redistricting maps (and, at least in theory, other issues).

The call for the first special session asked the legislature to consider “[l]egislation that provides a revised congressional redistricting plan in light of constitutional concerns raised by the U.S. Department of Justice.”

The call for the second special session just asks the legislature to consider “[l]egislation that provides a congressional redistricting plan.”

Guess they finally realized the DOJ’s pretext didn’t pass the laugh test.

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The TBD details on California’s redistricting special election

election law and constitutional law, political parties, redistricting, The Voting Wars

Justin here. Today, California Gov. Newsom announced what he’d been foreshadowing for a while now — an effort to seek voters’ approval for new congressional district lines in a Nov. 4 special election. (Rick noted the border patrol “escort” for the press conference. I can’t help note that the Japanese American National Museum – for those who haven’t been, it’s got a tremendously powerful series of exhibits on the WWII internment — is a little on the nose as a backdrop for a militarized show of force at a political event.)

The exact contours of the legislative package to make the redistricting initiative happen probably won’t be crystal clear until the legislature gets back next week. But among the pieces I’ll be watching:

  • Timing. Current law seems to say that the governor can call a special election 148 days out. The legislature, of course, can change that law — and it’ll have to in order to hit a November 4 special election target (82 days away from today). (That timing provision can be changed by statute, I believe – the date change doesn’t have to itself go on the ballot.) I’ll be looking for whether this is a one-time-only change or whether there are more general conditions for the exception.
    (Update: Derek Mueller reminds me that there’s another statute that doesn’t regulate when an election can be scheduled, but does say that the legislature can only put an initiative on the ballot for a scheduled election if that election is at least 131 days away. That statute would also need amending to run this Nov. 4 – and I’ve got the same questions as above.)
  • Funding. Part of the reason for leaving time before a special election is to give election officials the runway they need to run the thing. As Doug Chapin used to hammer home on the regular — fast, accurate, cheap: pick any two. This schedule will be fast, and the results have to be accurate. I’ll be looking to see who’s picking up the extra tab for the pre-election prep overtime.
  • Substance. The best reading of the state constitution is that maps are drawn by an independent commission, once per decade. That authority can be changed with a ballot initiative. But the reporting says that Newsom also plans to “put a new map” in front of voters on Nov. 4. The change to authority has to be in the constitution, but I imagine the map would be an initiated statute (and not itself constitutionalized). There’s nothing inherently weird about having both a constitutional change and a statutory change in the same measure — the proposition to put the commission in place in the first instance combined the two. But a single initiative to both change the process and pass a new specific map has some risks under the state’s single-subject rule. Two separate initiatives create questions about what happens if the electorate passes one but not the other. I’ll be looking to see how the package resolves those questions.
  • Additional constraints. Article XXI is the part of the state constitution that gives authority to the commission. It also has a bunch of other constraints, procedural and substantive. If the new initiative is effectively a temporary contingent carveout, how temporary? What’s the threshold of the contingency? How complete a carveout? Texas has essentially no state rules for drawing congressional districts – the only rules are the few rules in federal law. For its response, does California do the same?
  • Additional triggers. Newsom has said that California will respond to Texas in the maps he puts forward. I’m told that California and Texas aren’t the only two states in the Union. If another state says that it’s re-redrawing its maps to respond to California, does the initiative include provisions for re-re-redrawing the maps to respond to the response? Does the initiative include a provision allowing for later legislative amendment of the (presumably statutory) map?

Lots still TBD here.

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Election case curriculum videos

election law and constitutional law, Supreme Court, theory

Justin here. With the semester either beginning or around the corner, I wanted to lift up a series of great videos (illustrated, annotated, featuring case text, etc.) that the incomparable Guy-Uriel Charles and Sasha Natapoff have pulled together. Leading scholars (and also me!) each explain and analyze the text of a different seminal Supreme Court case. The videos are all shorter than 15 minutes long, and as the series editors suggest, “can be used to supplement the traditional written casebook and/or to deepen students’ engagement with key cases and doctrines.”

The direct link is https://CRBW.law.harvard.edu, and it’s all free for educators and nonprofits. Just register on the website if you’d like to take a look. (For crim pro faculty, there’s a crim pro version too.)

The roster (so far):

Get ’em while there’s still law to discuss!

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As redistricting eyes turn again to California

election law and constitutional law, redistricting,

Justin here. I find much of the work of the UCLA Voting Rights Project to be really valuable — but I have to say, I agree with Rick’s take on their read of the California Constitution‘s provisions on redistricting. The California Constitution can be amended (as Rick says, it takes approval by the voters), but I don’t think current law permits the legislature to just draw maps on their own. And I think following the Project’s memo would end up putting the legislature in a worst-case bind.

Rick says that the memo uses a sort of “wooden textualism” — the same sort of methodology, giving overly short shrift to what drafters clearly intended, that has produced the 8th Circuit’s dead-wrong decisions on private rights to enforce the VRA. But I think it’s even less persuasive than that. The memo describes portions of the California Constitution that “retain for [the] Legislature the power to adopt ‘a statute establishing or changing boundaries of any legislative, congressional, or other election district.’” That’s not what I read those sections to be doing.

The memo cites two sections of Article IV of the California Constitution – section 8(c) and section 10(b) – as giving the legislature power to draw redistricting statutes (and override the state’s independent commission) whenever it wants. Article IV, section 8, subsection (c) is about effective dates for legislation. It has a default, a special exception (I think) for bills passed at the end of the first year of a two-year session, and an exception to the exception for redistricting statutes. Article IV, section 10, subsection (b) is about bills becoming laws without the governor’s signature if he sits on them long enough. It too has a default, and an exception for redistricting statutes.

Neither of those sections purports to assign the legislature a role in drafting redistricting statutes. It just says what the effective dates and law-without-signature timing might be for legislative redistricting statutes … if such statutes existed. And the best read of the constitution, I think, is that Article XXI just means there are none of those legislative redistricting statutes now (because the redistricting commission has the power to do that work instead). That doesn’t make these procedural bits superfluous: if the commission provisions are withdrawn or modified, they kick back in.

It’s very hard to read those small procedural exceptions in 8(c) and 10(b) to imply a giant substantive power when the much much much clearer provision on substantive power gives that power instead to the independent commission. Also, it sure seems weird for Article XXI of the California Constitution to go to all the trouble to specifically take the pen away from the legislature and prescribe a bunch of criteria for the commission to use, if a different part of the constitution just lets the legislature undo that work however they want whenever they want.

I am, of course, not a court. And maybe a court would disagree with me. But I think it’s far more likely that a court would read these provisions of Article IV as vestigial procedural caveats rather than affirmative authorization. And if that’s true, then a legislature acting on this theory (and not, say, putting a measure before the public if they really want to effectuate a retaliatory gerrymander) is putting itself in a worst-case scenario.

If the legislature draws a radically gerrymandered map on this theory, it ticks off all of the reform voters who put the commission in place in the first instance, and anyone who doesn’t love the idea of a Democratic gerrymander. And if a court (as I think most likely) then strikes the map down for lack of legislative authority, it ticks off all of the Democrats gunning for pure partisanship – because now the legislature has accomplished nothing, and it’s too late for a special election that would actually change the rules before 2026. I think this is a recipe to claiming action while actually affecting nothing, and ticking _everyone_ off in the process.

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Crum: “The Curiously Minor Role of Minor v. Happersett”

19th Amendment, election law and constitutional law, Supreme Court

Along with my co-authors (Professor Susan Appleton and Hannah Keidan (WashU Law ’25)), I have posted this draft on SSRN. It is part of a symposium that will be published later this summer in the Washington University Law Review. It is a short Foreword, but it should be of interest to anyone who wants to learn more about legal history, election law, women’s rights, law school pedagogy, or the history of St. Louis–where Minor v. Happersett was initially filed. The abstract is below:

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment’s Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women’s suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas Dred Scott is the quintessential anti-canon case, Minor is a footnote in legal education. On the flip side, Dred Scott was overturned by the Fourteenth Amendment, but Minor remains good law. The Nineteenth Amendment merely adopted an anti-discrimination workaround to Minor’s holding that suffrage is not a privilege or immunity of citizenship.

More recently, the Court’s decision in Dobbs demonstrates Minor’s continuing resonance. Indeed, Dobbs and its aftermath demonstrate that the issues contested in Minor in 1875 remain hotly debated today: the rights of citizenship, the role of women in society, and the meaning of the Privileges or Immunities Clause.

Finally, this Foreword briefly summarizes the interdisciplinary papers presented at the conference, covering diverse topics such as election law, feminist studies, legal history, and substantive due process.

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Charles, Fuentes-Rohwer & Peale, “Reconstructing (the Law of) Democracy”

election law and constitutional law

Guy Charles, Luis Fuentes-Rohwer, and Farris Peale have posted this paper on SSRN. The abstract:

American democracy is experiencing a stress test, but the field that ought to be preoccupied with democracy seems to have little to say about it.  The law of democracy has long grappled with fundamental challenges over political inequality, racial exclusion, and clientelism.  For much of its history, the field of election law adjudicated these and similar issues more or less successfully.  That mode of adjudication succeeded primarily because the problems of democratic politics could be addressed, for the most part, by applying the core commitments of the extant constitutional order.  Significantly, American democracy relied on the Supreme Court to excavate, articulate, and implement those commitments. 

In the last few years, however, the challenges to democratic politics have changed.  Our politics have become more existential, and so have our constitutional disputes.  As a result, in an emergent category of law and democracy cases, the parties now fight over divergent partisan conceptions of democracy.  Each side contends that the other is antidemocratic and effectively asks the Court to arbitrate between their competing claims.  Because these emergent challenges are about defining liberal democracy itself, they cannot be resolved by invoking the commitments of America’s liberal constitutional democracy.  These new challenges question the content of the polity’s commitments, not its failure to apply them. 

The familiar tools of election law were forged under different political conditions.  Those tools have limited utility in our era of existential politics.  Students and practitioners of the law of democracy need to develop an agenda for reforming our political systems.  Election law can no longer depend upon the Court to resolve democracy’s pathologies.  Courts can buy us time.  But to meet the challenge of structural reform, our politics must do much more.  In short, the law of democracy is now in its reconstruction era.

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Supreme Court sets Louisiana congressional case for reargument

election law and constitutional law, redistricting, Supreme Court, Voting Rights Act

Well, that was unexpected.  As mentioned a moment ago, the Court today punted on the Louisiana congressional case, Louisiana v. Callais, setting it for reargument next Term.  The order says that the Court will “issue an order scheduling argument and specifying any additional questions to be addressed in supplemental briefing” “in due course.”

That’s an odd outcome in a case that’s already taken a wild path to get to the Court.  Louisiana’s first set of congressional lines were passed over a gubernatorial veto, and enjoined as a VRA violation in mid-June 2022, in a decision put on pause by the Supreme Court awaiting Alabama’s Milligan case.  When the Supreme Court upheld Milligan in 2023, it vacated the stay — but that meant that Louisiana’s 2022 elections were held under the unlawful lines.  A bit more nuttiness ensued with different 5th Circuit panels stopping and starting different facets of the case, but eventually we got to a clear need, affirmed by the 5th Circuit, for a remedial plan.

In January 2024, the legislature passed that remedial plan — not in the part of the state where the VRA plaintiffs had asked for a remedial district, but in a part of the state where it felt more politically useful.  Plaintiffs in Callais noted that the remedial district looked a lot like one that had been enjoined in 1996 as unjustifiably based predominantly on race.  And so these plaintiffs challenged the new remedial district, along with a swipe at the VRA in the process — not in the same court that had been overseeing the VRA case, but in a different district.  The three-judge trial court enjoined the new remedial district … and that led to the decision I was expecting today.

I think this case should be pretty easy (and that’s backed up by the fact that Louisiana and the NAACP LDF are on the same side of the case, which is … unusual).  Yes, race was a factor in drawing the remedial map, because the state had an obligation to draw a district compliant with the VRA (which plaintiffs in the original case established after an enormous amount of fact-specific evidence, confirmed by the not-notoriously-liberal 5th Circuit, in an opinion itself in line with exactly how the Supreme Court said these cases should go in Milligan).  But as to how the remedial map was drawn, that seems shot through with political calculations, including how to best rearrange the seat of the Speaker of the House.  (Indeed, the hardest part of this case is whether the State got so political in its line drawing that it didn’t actually remedy the VRA problem … but that’s not what these plaintiffs are challenging.)  And after the Court’s decision in Alexander v. SC NAACP last year, I’d think that the evidence here would be comparatively straightforward that if the State’s going to go all in on politics, it can permissibly decide on the particular political composition on the district it wanted to draw.

Justice Thomas, in a solo dissent from today’s rescheduling order, thinks this case is also easy, but in an entirely different direction.  As he points out, “[f]or over three decades, I have called for “a systematic reassessment of our interpretation of §2 [of the Voting Rights Act].”  And that’s true, he has.  But mostly because he has an impression of §2 that is, as I’ve written before, a completely fictional construct.  In today’s dissent, Justice Thomas says that “[i]n effect, the upshot of Milligan is that whenever a State feasibly can create an additional majority-minority district, it must do so.”  That’s … not even close to how the law works right now (as a bunch of unsuccessful VRA claims this very cycle should attest).

And so I worry a bit that Justice Thomas’s view of this appeal as an easy case may be pulling some of the Justices away from what I think should make this appeal an easy case, leading to an opportunity in re-argument for the fictional version of the VRA to once again overcomplicate the Court’s decisionmaking.  We’ll see soon enough.

In the meantime, the status quo leaves the existing January 2024 Louisiana congressional map in place.  The Court stayed the three-judge trial court’s order in May 2024, and I don’t think anything in today’s rescheduling order interferes with that continuing stay.

Halfway through the 2021 redistricting cycle, there are still 35 pending cases challenging congressional or state legislative lines in 11 states, and at least one (Ohio) where lines will have to be redrawn even without pending litigation.  Buckle up.

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“Amid upcoming redistricting deadline, massive changes could soon be coming for Ohio’s congressional map”

conflict of interest laws, election law and constitutional law, political parties, redistricting

Ohio’s redistricting process has been, charitably, a mess. 

WLWT in Ohio focuses on the coming summer redraw of Ohio’s congressional lines, which were valid only for 2022 and 2024 under Ohio’s constitution, because they were passed by a simple legislative majority rather than by bipartisan consensus.  The article picks up on the national pressure for both Texas and Ohio to redraw congressional lines to maximize partisan gain.

Seems like a useful time for a reminder that the Supreme Court called “excessive partisanship in redistricting” “incompatible with democratic principles,” even as it closed federal courthouse doors to hearing partisan gerrymandering claims.  Whether something is constitutional or not – or consistent with elected officials’ oaths of office – is a question emphatically different from whether a judicial dispute resolution forum is available.

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“Tarrant County Judge Tim O’Hare Speaks on Redistricting Effort, Partisanship Claims”

election law and constitutional law, political parties, redistricting,

A coming vote on new mid-decade maps for Tarrant County, Texas (where Ft. Worth is the county seat) has been quite controversial, with charges of racial and partisan impropriety, and likely litigation on the horizon.

County Judge Tim O’Hare has initiated the redistricting process.  (In Texas counties with fewer than 225,000 people, the “county judge” is a judicial official, but in counties like Ft. Worth, the “county judge” is both a member of the legislature and the chief executive; the policymaking body consists of four commissioners elected from precincts and the county judge elected at-large.)

And Judge O’Hare has been in the news quite a bit this week based on the rationale for the new maps.  Per The Texan: “The only reason O’Hare said he is looking for three Republican precincts in the county is because he can’t figure out a way to have four.”   And CBS recounts: “O’Hare said, ‘This is about partisan politics. You can legally in this country, according to the U.S. Supreme Court, draw maps for partisan purposes. So for me, it’s 100% about partisan politics.’”

O’Hare’s dead wrong about that latter point, but his confusion is understandable, and that’s absolutely the Supreme Court’s fault.  In Rucho v. Common Cause, citing dicta from racial gerrymandering cases and improperly conflating “partisan” and “political,” the Supreme Court did say that securing partisan advantage to some degree is constitutionally permissible.  (I still think that was both unnecessary and wrong, but I’m not the one in the robes.) 

But – and this is a critical point that some legislators of both parties have willfully misunderstood — the Court did NOT say that excessive partisan gerrymandering was legal.  Quite the opposite: the Court recognized as “fact” that “excessive partisanship in districting” is “incompatible with democratic principles.”  Rucho held only that the federal courts were unavailable to hear claims of excessive partisanship. 

That’s a big difference.  Or, at least, it should be to anyone who takes an oath to uphold the Constitution.  If local law enforcement won’t arrest or prosecute you for shoplifting, that forbearance doesn’t make shoplifting legal.  (See, e.g., federal appropriations riders preventing federal prosecution of some marijuana-related crimes; federal executive orders temporarily declining to enforce a very clear statutory social media ban) 

So while O’Hare’s correct that blatant use of government power to punish opposing partisans represents a weird lacuna in the redistricting context for federal court enforcement, it’s not true that 100% partisanship in the drawing of district lines is “legal.”

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“Maryland’s primary elections are unconstitutional, lawsuit alleges”

election law and constitutional law, legislation and legislatures, political parties, primaries

The WaPo has a story on independent voters claiming a right to participate in primary elections under the state constitution.  The complaint is here.

Existing Supreme Court precedent on the primary process and the First Amendment mostly gives the keys to parties to choose their electorates by opening or closing primaries as they wish.  But nothing in federal law requires the state to hold a partisan primary at all.  (States with “top X” primaries generally indicate candidates’ partisan preference without purporting to choose a frontrunner on the party’s behalf.)

Meanwhile, Nevada’s Assembly speaker introduced a last-minute bill (the session ends next week) to open up primaries to independent voters, over the apparent objections of state Republicans.  (See the opening sentence of the last paragraph.)

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NC elections, due process, and a friendly (?) amendment

absentee ballots, chicanery, election law and constitutional law, election subversion risk, voter registration

Hi. Justin here. Rick Pildes just posted here about the significant federal due process problems with Friday’s state appellate opinion on the North Carolina state supreme court race.

I’ll go further: I think that the appellate decision raises a number of additional federal issues, all stemming from the fact that the only ballots challenged were early or mail ballots, despite the fact that the principal challenge (60,273 out of the 61,949 challenged ballots) has nothing to do with any invalidity in the method of voting. Instead, the challenges are based on allegedly missing voter registration data (more on that in a sec) also likely missing from unchallenged voters who went to the polls on election day. Because for purposes of whether their registrations are valid or invalid, the challenged voters and unchallenged voters are similarly situated, I don’t know why this isn’t an equal protection concern and a problem under 52 U.S.C. 10101(a)(2)(A). (There are other problems beyond these, as well – I don’t mean to be listing them all.)

But I agree with Rick that the federal due process problems are unmistakably front and center. Indeed, I think it may be even worse than he suggests.

Much of the reporting that has ventured into the weeds of these allegations says that the 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license number or social security digits when registering. As Rick P. points out, that’s in part because the state registration form in the relevant period didn’t ask the voters for that info. Voters did what they were told to do, were told they were registered, and some had been voting for years. (There’s no indication anywhere in the case that any of these 60,273 voters are substantively ineligible under NC’s constitution.)

But there’s a further problem: in a passage wholly unrebutted by the majority, the dissenting opinion says that the description above just isn’t true. It’s not that 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license or social security digits when registering. It’s that 60,273 challenged ballots don’t have those digits listed in the state database. Those things are NOT the same.

The dissent notes that, among other reasons, digits that are supplied but not matched to other systems aren’t kept in the state database. There are many reasons why the numbers for eligible voters may not match up, including typos by temps doing data entry, and discrepancies in how different databases store naming patterns. (All of these voters must show documentation of their identity before they vote for the first time, pursuant to both state law and HAVA.)

Put differently: some portion of these voters now presumptively disenfranchised by the appellate court’s opinion likely complied perfectly with state law. Judge Griffin apparently produced no evidence about how many voters are in this category, and how many are in the category Rick notes, in which the failure was the state’s fault and the voters did everything the state asked them to do. (On p. 32 of the dissent, Judge Hampson notes that the Board produced “evidence tending to show” that almost half of the voters likely did provide digits that aren’t now reflected in the database.)

I think that makes the due process problem that Rick P. highlighted even worse. If the dissent’s characterization of the evidence is accurate, for a set of the challenged voters, it’s not just that the rules have changed with respect to the notion that they might now, in rules shifting after the election, be held responsible for the state’s mistake. It’s that the rules have changed such that the court of appeals has ordered their ballots to be invalidated, after the election, without proof of any violation of North Carolina law.

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