On March 22, Elon Musk hosted conservative Wisconsin Supreme Court candidate Brad Schimel and US Senator Ron Johnson (R-Wisc.) for a discussion on X about the importance of the Wisconsin Supreme Court election on April 1. It began 36 minutes late and was beset with technical difficulties, as Musk repeatedly talked over Schimel.
But once things got straightened out, Musk made it clear why he is offering voters $100 a pop to sign a petition opposing “activist judges” and spending $18 million through various political groups—a record for any donor in a Wisconsin judicial contest—to elect Schimel and flip the ideological majority of the court.
“This is a very important race for many reasons,” Musk said. “The most consequential is that [it] will decide how congressional districts are drawn in Wisconsin, which if the other candidate wins, instead of Justice Schimel, then the Democrats will attempt to redraw the districts and cause Wisconsin to lose two Republican seats. In my opinion that’s the most important thing, which is a big deal given that the congressional majority is so razor-thin. It could cause the House to switch to Democrat if that redrawing takes place.”
Musk’s fear is that the court, if it retains a progressive majority, will strike down the congressional lines that give Republicans a 6-2 advantage in the US House delegation. (Democrats have made similar claims.) The Princeton Gerrymandering Project gave that map an F for partisan fairness, saying it had a “significant Republican advantage.” The court has yet to take up a lawsuit challenging the congressional map, but if they were to eventually strike it down, that could help Democrats retake the House, which would allow Democrats to scrutinize the unprecedented role Musk is playing in shredding the federal government, accessing sensitive personal information on millions of Americans, and the $38 billion in federal funding his businesses receive….
Category Archives: redistricting
Oral argument preview in Louisiana v. Callais
Here’s SCOTUSblog on Louisiana v. Callais (consolidated with Robinson v. Louisiana), an appeal from a three-judge panel on a racial gerrymandering claim. Argument will take place 10 am ET Monday, March 24. Some oral argument previews:
Amy Howe’s preview at SCOTUSblog
And for commentary here at the Election Law Blog, Travis Crum and Rick Pildes.
Crum: “Questioning Shaw in Callais”
The following is a guest post from Professor Travis Crum:
On Monday, the Supreme Court will hear oral argument in Louisiana v. Callais, a Shaw challenge to Louisiana’s congressional redistricting plan. This is the first time the Court will hear a voting rights case since Justice Thomas shocked the voting rights community with his renunciation of Shaw in Alexander v. South Carolina Conference of the NAACP. Thomas adopted his new position without the benefit of briefing on the subject, but Louisiana has now squarely raised the prospect that racial gerrymandering claims are non-justiciable political questions. As I predicted last year, Thomas’s Alexander concurrence means that he will side with Louisiana and the Robinson intervenors in this case. The bigger question now is whether some of the Court’s other originalist Justices—such as Gorsuch or Barrett—follow Thomas’s lead and question Shaw’s legitimacy.
Callais has a complicated procedural backstory. In separate litigation called Robinson v. Ardoin, civil rights plaintiffs challenged Louisiana’s original post-2020 map on a theory that closely resembled the one that prevailed in Allen v. Milligan. Seeing the writing on the wall, the Louisiana legislature re-drew its congressional map. But rather than place the second Black-opportunity district where the Robinson plaintiffs had requested, Louisiana drew an elongated district across the entire State to protect the seats of House Speaker Johnson and House Majority Leader Scalise. Somewhat predictably, the Callais plaintiffs challenged the district as an unconstitutional racial gerrymander.
Callais epitomizes how mapmakers are confronted with a Goldilocks problem when considering race. Mapmakers cannot consider race too much or too little. They must get it just right.
On the one hand, racial vote dilution doctrine mandates that mapmakers consider race to ensure that racial minorities are not packed or cracked. On the other hand, Shaw dictates that mapmakers cannot rely too heavily on race, lest the district be subjected to strict scrutiny. The Court has frequently acknowledged these “competing hazards of liability.”
As I recently explained in a Columbia Law Review essay entitled The Riddle of Race-Based Redistricting, the Court’s “competing” doctrines have come into conflict because they are based in the Equal Protection Clause—a provision that was not intended to apply to voting rights or redistricting. This error is confounded by the fact that the Fifteenth Amendment is curiously missing from the Court’s decisions recognizing racial vote dilution and racial gerrymandering claims. Furthermore, history cuts against Shaw. The Reconstruction Framers were explicitly race conscious in their adoption of the Fifteenth Amendment, and redistricting plans enacted by Republican state legislatures during Reconstruction sought to empower Black male voters. By re-grounding the right to vote free of racial discrimination in the Fifteenth Amendment, it becomes clear that Shaw rests on constitutional quicksand.
Shaw has all the hallmarks of a precedent that should be overturned. Shaw’s racial gerrymandering claim has no textual or historical support; the predominant factor standard is unworkable; Shaw diverges from equal-protection doctrine outside of redistricting cases; and it is in tension with racial vote dilution precedent and Congress’s considered judgment.
But unlike Justice Thomas, my solution is not to declare that racial gerrymandering claims are non-justiciable political questions. Rather, it is to clarify that plaintiffs simply cannot state a claim. Put differently, it is not that such claims are unworkable or that redistricting standards are textually committed to Congress; race-based redistricting simply does not violate the Fourteenth or Fifteenth Amendments.
One last point. In rejecting Shaw, the Court need not—and indeed, should not in Callais—address racial vote dilution doctrine. But in any event, the same analysis does not apply. That is because Congress has codified that doctrine in Section 2 of the VRA. As legislation adopted pursuant to Congress’s Fifteenth Amendment enforcement authority, Section 2 need only be a rational means of preventing the denial or abridgement of the right to vote on account of race—a point the Milligan Court recognized only two years ago.
Are at-large v. single member district elections affecting how Texas school boards behave?
Interesting piece at the Texas Tribune.
“Assessing Gerrymandering after the 2020 Census”
Daniel Magleby and Michael D. McDonald have written this draft for ELJ. Here is the abstract:
The Roberts Court has turned over efforts to limit gerrymanders to politics and willing state courts. Scholars have proposed several methods for evaluating possible gerrymanders, and recent legislation that gained some traction in Congress would have enshrined some of these methods into law. We argue that these methods come with trade-offs and their utility is determined by the circumstances in which a map might be used and the values that mapmakers hope to promote or protect when they delineate district boundaries. We illustrate these trade-offs in policy maker and scholarly proposed methods for identifying the distortive effects of district lines by examining congressional maps enacted following the 2020 census. Among the 37 states with three or more congressional districts, we find consistent evidence of partisan gerrymandering in four states, consistent evidence of no partisan gerrymandering in 12 states, and mixed evidence of gerrymandering in the remaining 21. Considering the large number of mixed findings, we conclude with a discussion of the likely next step needed for confronting the pernicious effects of gerrymandering.
“Malapportionment: A Murder Mystery”
Daniel Wodak has posted this paper (forthcoming, Northwestern University Law Review). Here is the abstract:
Malapportionment—electoral districts with divergent ratios of people to representation—was ruled to be unconstitutional in a widely venerated series of cases before the Warren Court. Those cases held that a principle of political equality, ‘one person, one vote’, is required by the Constitution. But what is the content of that principle? Many Justices and commentators declare that it is vague, empty, circular, or meaningless. This creates a murder mystery. Malapportionment was killed; but by what, exactly? This Article seeks an answer by focusing on the Court’s commitments about the scope and strictness of one person, one vote: it is a broad (rather than narrow) principle of rough (rather than exact) equality. As such, one person, one vote requires an equal number of people per district and an equal number of votes per voter; and it requires a roughly equal number of people per district. These commitments are attractive in isolation. But, this Article shows, they are objectionable in conjunction: they entail that one person, one vote is too permissive, as it only requires a roughly equal number of votes per voter. If your vote is roughly equal to mine when your district is fractionally more populous than mine, your vote is also roughly equal to mine when I can cast fractionally more votes than you. Since this problem follows inexorably from the Court’s commitments about the scope and strictness of one person, one vote, there are two possible solutions. First, one person, one vote could be broad a principle of exact equality; administrability may then justify underenforcing the principle in distributing voters to districts, but not in distributing votes to voters. Second, one person, one vote could include a narrow principle requiring rough equality in apportionment, as well as a distinct principle requiring exactly equal votes per voter. These solutions have important constitutional implications—including for resolving the population baseline at issue in malapportionment, which remains uncertain after Evenwel v. Abbott. But neither provides an easy way out. Each makes one person, one vote either too restrictive or too permissive. This puzzle brings to light why the operative principle in a venerated series of cases is deeply unclear and unsettled. But it has a special significance beyond that. One person, one vote lies at the heart of America’s constitutional democracy, which is already under considerable threat. On the one hand, if the content of the principle is too restrictive (or too uncertain), then objections to its constitutionality are considerably strengthened. On the other hand, if it is too permissive, then one person, one vote provides little constraint on Vice-President J.D. Vance’s recent proposal to give extra votes to parents, as well as myriad similar policies and procedures that would erode voters’ equality at the ballot box.
“Drawing Representation from Taxation: A Tax-Based Approach to Redistricting”
Jacob Hooper has written this student note for the George Mason Law Review. Here is the abstract:
The Supreme Court’s 2023 Allen v. Milligan decision upheld Thornburg v. Gingles from 1986. Gingles established preconditions creating majority-minority districts to protect a minority population’s voting rights. This Comment will argue that the Gingles preconditions fail to produce fair and representative districts that protect a minority population’s voting rights. In its place, this Comment will argue that courts should look to taxation when faced with a racial gerrymandering claim under Section Two of the Voting Rights Act or the Fourteenth Amendment. Specifically, this Comment will propose a tax approach for evaluating racially gerrymandered districts by analyzing the degree to which (1) the constituents of a district benefit from the same or similar tax-funded institutions and (2) the district contains similar tax revenue sources. This Comment will then apply the tax approach to the heart of Allen: Alabama’s post-2020 Census congressional districts.
“The Death of Competition in American Elections”
NYT:
President Trump’s return to Washington has tested the bounds of presidential power and set off alarms among Democrats, historians and legal scholars who are warning that the country’s democratic order is under threat.
But a close review of the 2024 election shows just how undemocratic the country’s legislative bodies already are.
After decades of gerrymandering and political polarization, a vast majority of members of Congress and state legislatures did not face competitive general elections last year.
Instead, they were effectively elected through low-turnout or otherwise meaningless primary contests. Vanishingly few voters cast a ballot in those races, according to a New York Times analysis of more than 9,000 congressional and state legislative primary elections held last year. On average, just 57,000 people voted for politicians in U.S. House primaries who went on to win the general election — a small fraction of the more than 700,000 Americans each of those winners now represents.
Increasingly, members of Congress are not even facing primary challenges. About a third of the current members of the House ran unopposed in their primary. All but 12 of those districts were “safe” seats, meaning 124 House members essentially faced no challenge to their election.
The absence of primaries is even more striking in state legislatures. More than three-quarters of those primary races in 2024 were uncontested, according to voting data from The Associated Press.
Lawmakers who do face primaries are often left beholden to a small number of ideologically aligned, fiercely partisan voters — a group all too willing to drag elected representatives to the fringes and to punish them for compromise with the other side.
Supreme Court Rejects Racial Gerrymandering Claim Out of North Dakota Redistricting
“The Good, the Bad, and the Ugly: Redistricting Commissions in the 2021 Cycle”
Sam Wang and Zacharia Sippy have posted this draft on SSRN (forthcoming, Duke Journal of Constitutional Law & Public Policy). here is the abstract:
In the last decade, redistricting commissions have proliferated across the United States as a means of reducing partisan gerrymandering. This article provides a comprehensive evaluation of their performance through both qualitative and quantitative analysis. Drawing on redistricting data from all fifty states between 2021 and 2024, we analyze how different commission designs impact partisan fairness, competitiveness, and adherence to traditional principles like compactness and preservation of communities of interest. Our analysis reveals that autonomous commissions with final map-drawing authority, balanced bipartisan processes with multiple non-partisan actors, and binding judicial review consistently produced redistricting plans with lower partisan bias and higher electoral competition. These successful commissions were typically established through popular ballot initiatives. Conversely, commissions serving only in an advisory role or lacking clear judicial oversight frequently saw their work undermined by legislatures pursuing partisan advantage. We conclude that autonomous commissions, created by and composed of citizens, provide the most effective available approach for curbing gerrymandering. The article concludes with recommendations for expanding the commission model for the 2030 redistricting cycle.
“Analysis: How redistricting helped Nevada Democrats — but not enough to gain supermajority”
The Nevada Independent goes deep on redistricting in Nevada — one of only four states, I believe, with no constraints in state law on how the lines are drawn.
“Ohioans Reject Redistricting Reform, Protecting GOP Gerrymanders”
Ohioans on Tuesday rejected Issue 1, a ballot measure that would have created a new independent redistricting commission and stripped elected politicians of their power to draw congressional and legislative districts.
The result is a blow to the democracy organizations that have been combating gerrymandering in the state. They mobilized on behalf of Issue 1 after the lengthy legal standoff with Ohio Republicans in 2022, when the GOP, in a repeat of the prior decade, drew maps that locked in comfortable majorities for their candidates.
It’s also a repeat of two prior defeats for similar ballot measures that would have created independent commissions in both 2005 and 2012.
“It’s incredibly sad, and it’s not clear to me what the next steps are to improve our democracy,” said Catherine Turcer, executive director of Common Cause, an organization that was part of the coalition that collected hundreds of thousands of signatures that qualify Issue 1 for the ballot. “Addressing gerrymandering is so much about holding elected officials accountable and creating fair districts and fair elections so that we can actually have a functional government.”
As of publication, the measure is trailing by roughly eight percentage points, with some ballots remaining to be counted.
While several polls in October showed Issue 1 with very large leads, those surveys were simply asking voters if they wanted to create an independent redistricting commission. The official language Ohioans saw on their ballot was very different: GOP officials wrote an official summary that characterized the measure as requiring gerrymandering rather than restricting it. A rare poll that tested the official language found the race effectively tied….
Ranked Choice Voting Measures on Track to Lose in at Least Some States; Redistricting Reform Goes Down in Ohio
Breaking: Supreme Court Will Hear Louisiana Racial Gerrymandering Case, with Implications for Section 2 of the Voting Rights Act
The Court noted probable jurisdiction both the state’s and the LDF’s appeals. The cases are consolidated for argument. It will present another opportunity for the Court to address the “race or party” problem endemic in these racial gerrymandering cases.