Monthly Archives: November 2025

Voters Cannot Whitewash a Racial Gerrymander: A Response to Rick Hasen on CA’s Prop. 50

Uncategorized

I also have no idea whether there’s any merit in DOJ’s racial gerrymandering challenge to California’s redistricting via Prop. 50. Assessing those claims would require development of a full factual record that does not yet exist.

But I wanted to respond to a legal argument my friend Rick Hasen recently made in Slate about that challenge that I believe is wrong.  Rick asserts that DOJ has a “huge problem:” even if the legislature designed various districts as unconstitutional racial gerrymanders, he argues that doesn’t matter because CA voters ultimately approved the map.  And he argues (and here I agree) voters approved the map for partisan political purposes.  Thus, his argument runs, race cannot have predominated in the design of specific districts and hence DOJ’s racial gerrymandering challenge to various districts must fail.

I do not think voter approval can turn an unconstitutional set of districts into constitutional ones. Voter approval cannot “cure” a map that would otherwise violate the Constitution.  Suppose, for example, the mapmakers had designed districts with a racially discriminatory intent.  But when voters approve the map, the entire campaign is based on partisan appeals.  The voters themselves might not have had a racially discriminatory intent (leave aside the complexity of assigning purposes in a direct democracy process). Nonetheless, I’m confident the map would still be struck down, because a map designed for racially discriminatory reasons remains unconstitutional even if voters approve it.

Similarly, if the mapmakers design a map that violates the “results” test of Section 2 of the VRA, the map still violates Sec. 2 — even if voters must approve the map before it takes effect.

There is no reason racial gerrymander claims are any different. Racial gerrymandering doctrine prevents a State, in the absence of “sufficient justification,” from “separating its citizens into different voting districts on the basis of race.” Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___, ___ (2017) (slip op., at 6). Absent sufficient justification, race cannot be the predominant factor in how districts are designed. If districts are designed as unconstitutional racial gerrymanders, they do not become unracially gerrymandered merely because voters approve the final map. In the Texas litigation, for example, if voters in Texas had approved the new maps, after a campaign proclaiming the redistricting was done for purely partisan purposes, that would surely not have affected the district court’s recent decision that six of those districts were unconstitutional racial gerrymanders.

Moreover, voters do not design districts. They approve a map. But a racial gerrymandering claim does not challenge a “map” as a whole.  Those challenges must be made to specific districts.  Voter approval of a map does not change the way specific districts have been designed. The harm in racial gerrymandering cases, under the doctrine, is that race has been the predominant factor in how a district has been designed.

As I say, I have no idea whether the facts support DOJ’s racial gerrymandering claim.  But if those districts are racial gerrymanders, they don’t magically become unracially gerrymandered merely because voters have approved the final map. 

Share this:

The Texas Gerrymandering Decision Rests on Shaw v. Reno

Uncategorized

I have no view at this stage whether the majority is correct that six districts in Texas’s re-redistricting are unconstitutional racial gerrymanders. The dueling opinions are long; the issues are highly fact dependent. But I wanted to note that the decision is based on the anti-racial gerrymandering doctrine that the Court first established in Shaw v. Reno (1993).

At the time Shaw was decided, many voting-rights groups were sharply critical of the decision. But in the years since, Shaw has been used successfully over and over again by voting-rights groups and their allies to invalidate racially gerrymandered maps. In the Texas case, the lead plaintiff was the League of United Latin American Citizens (LULAC), which has been the major group litigating on behalf of Latino voting rights in Texas for decades.

If the majority is indeed right that these districts were racially gerrymandered, it would be far more difficult, and frequently impossible, to invalidate them on some other basis in the absence of Shaw’s constraint on racial gerrymandering. In Texas, the plaintiffs also brought vote dilution and intentional discrimination claims. But racial gerrymandering frequently happens without vote dilution taking place. And voting-rights plaintiffs have long been concerned about the difficulty of proving intentional discrimination.

The court decided the Texas case based on Shaw and the racial gerrymandering claims precisely because those claims are easier to prove. Having invalidated the districts on that basis, the court did not address these other claims.

Share this:

On Blexit’s efforts to urge Black voters to leave the Democratic Party

political parties, voting, Voting Rights Act

The Washington Post has a fascinating, relatively short podcast exploring larger questions about where Black voters fit within the two-party system through a story about Blexit’s arrival at Howard University’s homecoming weekend. Blexit, a conservative group currently tied to Charlie Kirk’s Turning Point USA, seeks to persuade black voters to leave the Democratic Party, an argument that is not without appeal to many voters of color, who question what the party to which they have been so loyal has actually done for them.

The podcast resonated with me because it reconfirms my argument that for many voters of color, the shortfalls of American democracy today are substantive, not procedural–a point I made in a forthcoming chapter. It also reinforces points made by Lee Drutman and others that our two-party system does not map well onto the diversity of our society, racial or ideological.

Blexit was co-founded by influencer Candace Owens to coax Black people away from the Democratic Party during Trump’s first term. Owens, however, stepped away from the movement since it merged with Turning Point in 2023. The podcast elaborates on a much shorter, earlier article.

Share this:

Development in Alabama Racial Gerrymander Case

Voting Rights Act

AP News has an update on Alabama’s racial gerrymander case:

“U.S. District Judge Anna Manasco, appointed by President Donald Trump during his first term, issued the ruling Monday putting a new court-selected map in place for the 2026 and 2030 elections. Manasco ruled in August that the state had violated the Voting Rights Act by “packing” Black voters into Montgomery’s Senate District 26 to limit their influence elsewhere. Manasco selected one of three proposed plans drawn by a court-appointed expert.

‘The Court orders the use of a remedial map that was prepared race-blind and affords Black voters in the Montgomery area an equal opportunity, but certainly not a guarantee, to elect Senators of their choice,’ Manasco wrote.”

Share this:

Judge Jerry Smith Issues His 104-Page Dissent to Yesterday’s 3-Judge District Court Holding that Texas’s Re-Redistricting is Likely an Unconstitutional Racial Gerrymander. Along the Way He Calls Out the “Pernicious” and “Outrageous” Behavior of Judge Brown in the Majority

redistricting

You can find the dissent at this link.

It begins with a remarkable attack on Judge Brown (a Trump appointee) explaining that Smith was not responsible for any delay in issuing the decision:

In my 37 years on the federal bench, this is the most outrageous conduct by a judge that I have ever encountered in a case in which I have been involved.
In summary, Judge Brown has issued a 160-page opinion without giving me any reasonable opportunity to respond. I will set forth the details. The readers can judge for themselves.

And then turning to the merits:

The main winners from Judge Brown’s opinion are George Soros and Gavin Newsom. The obvious losers are the People of Texas and the Rule of Law. I dissent.

In the interest of time, this dissent is, admittedly, disjointed. Usually, in dissenting from an opinion of this length, I would spend more days refining and reorganizing the dissent for purposes of impact and readability. But that approach is not reasonably possible here because these two judges have not allowed it.


The resulting dissent is far from a literary masterpiece. If, however, there were a Nobel Prize for Fiction, Judge Brown’s opinion would be a prime candidate.

I have now had a chance to skim both the majority opinion and the dissent in this case. I don’t feel like I’m already steeped enough in the details to make a confident prediction about who is right on the merits of whether race predominated in drawing these maps.

But I do want to comment on the risky strategy of Judge Smith’s dissent. On the one hand, if the facts are as Judge Smith describes them, then there’s a good case to be made that Judge Brown did not afford Judge Smith a fair opportunity to write a dissent in time that would be responsive to the specific claims of the majority. (Judge Brown saw the press of time because of the Purcell principle—at some point it will be too late to interfere with the adoption of maps.

On the other hand Judge Smith’s opinion is not only dripping with anger, it includes a lot of gratuitous, personal attacks on the experts and lawyers on the plaintiffs’ side of the case. He tars many of them as being “Soros operatives,” as if the person paying services or backing a legal organization is somehow illegitimate because of who funds them. Judge Smith says he is doing so to show this was all about partisanship, rather than race, but I don’t think it shows it at all. Instead, it shows Judge Smith’s disdain for George Soros and Gavin Newsom.

Simply as a matter of strategy, if Judge Smith’s audience is the Supreme Court, I think he would have been far more effective if he had been measured and focused more attention on what he sees as the defects in the merits of the case, rather than to continually cast aspersions on the other judges, experts, and lawyers in the case. Maybe what he says will resonate with some of the Supreme Court justices, but I expect some will be turned off by this ranting.

Share this:

Mid-Decade Redistricting and the Purcell Principle

redistricting, referendum, Supreme Court

Yesterday, a three-judge district court preliminarily enjoined Texas’s mid-decade congressional redistricting map. This case will be promptly appealed to the Supreme Court, and it will be the first of many mid-decade redistricting cases on the shadow docket.

The district court’s opinion has a lengthy discussion of the Purcell principle—the notion that courts should not enjoin election laws close to an election. As Rick Hasen and Wilfred Codrington have shown, the Purcell principle is problematic. This post, however, takes Purcell on its own terms and argues that it should not apply to mid-decade redistricting plans.

As an initial matter, Purcell has more bite at the start of the decade. That is because States cannot use their previous maps under one-person, one-vote principles. If a court enjoins a map in early 2022, then the court must draw a new map for the November 2022 election. There is no democratically enacted map to fall back on that complies with the Constitution. That is not true for a mid-decade redistricting. As the three-judge district court pointed out, Texas can still use its 2021 map. Indeed, it is doing so next year for a (long-delayed) special election.

A frequent defense of the Purcell principle is that it avoids voter confusion about what law governs the election. Once again, mid-decade redistricting changes the equation. Voters are used to getting new maps at the start of the decade—a trend that had largely held since the 1960s but is quickly disintegrating. Here, Texas and other mid-decade redistricting states are the ones seeking to change the rules mid-stream.

To be sure, this particular point carries less force in situations where the People have voted on a new map. Thus, California’s Proposition 50 helps minimize voter confusion over which maps will be in place for the 2026 midterms. Similarly, if Missouri voters get to decide whether to keep their new 2025 map, then voter confusion is not a problem there either.

Moreover, applying Purcell to mid-decade redistricting would encourage such behavior, as it gives mapmakers a free bite at the apple to entrench themselves further in office. Given that Purcell is an equitable doctrine, it is capacious enough to factor in such concerns. Indeed, the three-judge district court in this case highlighted that Purcell would encourage gamesmanship by state legislatures bent on mid-decade redistricting, timing their actions to avoid judicial review. And to the extent that Purcell’s embrace of federalism principles is intended to be democracy enforcing, then Purcell is especially ill-suited for mid-decade redistricting plans. Put simply, the motive for mid-decade redistricting is almost always a power grab by politicians at the expense of the People.

One final point. The situation is different when new maps are enacted in response to a court order. That occurred in the Robinson and Callais tango, and the Supreme Court stayed the Callais district court’s injunction, allowing the post-Robinson map to go into force for the 2024 election. In an age of potential defiance of judicial rulings, we should encourage compliance. Giving States the benefit of Purcell in those situations would incentivize that behavior.  

[Disclosure: I wrote an amicus brief in support of the Robinson intervenors in Callais.]

Share this:

New Article: Increasing Turnout in Prisons

absentee ballots, voting

MIchael W. Sances (Temple University) has a new article, In-Person Voting Increases Turnout Among Incarcerated Persons: Evidence From the Cook County Jail in the Election Law Journal.

The vast majority of persons incarcerated in jails are eligible to vote, but only via absentee ballot. . . . . I examine the case of the Cook County Jail, which in 2020 became one of the few jurisdictions to allow incarcerated persons to vote in-person. Using data on the ballots cast from jail, I compare the turnout between incarcerated and nonincarcerated Cook County voters, before and after the reform. I show that the reform increased the turnout between 7 and 33 percentage points depending on the election or between 170% and 440% over pre-reform baselines. These findings are not driven by fluctuations in the jail population due to the pandemic or state and local bail reforms, as excluding elections affected by these events yields similar results. . . .

Share this:

“Dark money groups pour cash into fight over gerrymandered Missouri congressional map”

campaign finance, redistricting, referendum

Missouri Independent reports:

Voters across Missouri late last week received a text message urging them to take their names off petitions they may have “accidentally signed.”

The message, labeled as the work of the Republican National Committee, dropped the name of Republican Secretary of State Denny Hoskins, saying he had “declared TENS OF THOUSANDS of petition signatures IMPROPERLY COLLECTED.” The text, from a number in southwest Virginia, gave a number to call in southwest Missouri to withdraw a signature.

The number, when called, goes straight to a voice mail system and promises people who leave a number that they will be called.

The mass text was the latest maneuver in the fight over Missouri’s gerrymandered redistricting map, which is drawing millions in donations from dark money groups on the right and left — including $2 million over the weekend from a pair of Republican nonprofits. The deadline is approaching for opponents of the map to submit signatures to force a referendum while the question of which signatures to count and whether a referendum is even possible remains mired in state and federal courtrooms.

Share this:

“Citing extraordinary circumstances, Chester County will count the vast majority of provisional ballots cast after Election Day chaos”

election administration, provisional ballots

Philadelphia Inquirer. Last month, officials mistakenly sent poll books to precincts in Chester County (PA) that did not include the names of independent and third-party voters. As a consequence, over 12,000 voters (mostly independent and third-party voters) were forced to vote on provisional ballots until the supplemental poll books arrived.

“The Chester County Board of Elections rejected Republican challenges to provisional ballots Monday as the board prepares to launch an investigation into a poll book error that forced thousands of independent and third-party voters to cast provisional ballots during this month’s election.

In a nearly six-hour meeting, the Democratic-led board heard from dozens of voters and poll workers who described the chaos they endured on Nov. 4 during the high-turnout municipal election. . . .

. . . .

The Chester County Republican Committee objected to the counting of more than 1,000 ballots ahead of Monday’s meeting. That number whittled down as the committee withdrew objections to ballots where the error was likely caused by election workers. But the GOP committee’s attorney argued that it would be illegal to count ballots missing the first required voter signature or a secrecy envelope.

The election board . . . argu[ed] that the county’s mistake allowed the board to accept ballots that would be rejected under normal circumstances.”

Share this:

“Why is American democracy in such peril?”

Uncategorized

Steve Huefner, my colleague at The Ohio State University Moritz College of Law and its Election Law program, and I had a conversation about the stresses and challenges facing democracy in the United States. A recording is available. I found the discussion productive, and I hope others do as well. 

One main theme of the discussion—the nation’s electoral and political institutions that worked reasonably well in the aftermath of World War II no longer function adequately because of changes in cultural conditions affecting American elections and politics—is echoed in an essay that Bruce Cain contributed to the “100 ideas in 100 days” series at NYU Law School’s Democracy Project. (Rick Pildes blogged about Bruce’s essay earlier today.) Bruce, whose previous work has greatly influenced my own thinking on America’s “Madisonian” system, writes in this essay: “We need to ask ourselves whether the Congressional rules that worked so well in the post-WWII period are the right ones for the current polarized era.” 

Bruce ends his essay with the intriguing suggestion that the United States would benefit from a “28th Amendment” that would require members of Congress to “go without pay if they could not pass the budget on time.” I’m not sure that would be a sufficient fix for the current problems caused by partisan polarization. I would add the necessity for the kind of electoral reform that former Senator Joe Manchin embraced this weekend, which I wrote about in my recent Common Ground Democracy post. But I wholeheartedly agree with Bruce that all of us should be brainstorming about what institutional innovations would restore our Madisonian system to the kind of well-functioning equilibrium that existed in the post-WWII period. 

Share this:

My New One at Slate with Matthew Cooke: “Republicans Are Suing to Kill California’s Pro-Democratic Gerrymander. They Have a Huge Problem.”

redistricting, Supreme Court

My student Matthew Cooke and I have written this piece for Slate. It begins:

California Republicans, now joined by the Trump administration’s Department of Justice, have sued California in federal court to stop implementation of Proposition 50, a voter-passed ballot measure that creates a Democratic gerrymander of the state’s congressional districts, adding up to five more Democratic seats. The lawsuit argues that the Legislature had an unconstitutional race-focused intent on the state’s Latino voters when it passed the maps. In fact, whatever the Legislature intended should be irrelevant to the Republicans’ claim, and they likely will lose because California voters were acting with a predominantly political, not racial, intent.

If Republicans lose the Prop 50 lawsuit and the United States Supreme Court does not interfere with a new federal district court ruling putting Texas’ new gerrymander on hold for 2026, Democrats could have an advantage going into 2026, even as the Supreme Court contemplates even more changes in redistricting rules in its pending case out of Louisiana….

The Republicans’ complaint in California will likely focus on evidence regarding the supposed intent of members of the state Legislature and particularly the intent of Paul Mitchell, a redistricting consultant who drew the new lines for the Legislature. Republicans argue that the evidence shows that racial considerations predominated in drawing those lines. It’s a tough argument to make, because the Legislature seemed motivated to do a Democratic partisan gerrymander to counter Texas’ partisan gerrymander of congressional maps favoring Republicans. Any racial considerations were simply to make sure that the new proposed maps did not violate the Voting Rights Act, as it currently stands.

But there is a far more serious threat to Republicans’ argument about racial predominance—they may be focusing on the wrong actors’ intent. To understand this argument, we need to look at the kind of law Proposition 50 was. Back in 2008 and 2010, California voters adopted plans through voter initiatives to have redistricting done by independent commissions, not the Legislature. Under the California Constitution, the Legislature could not simply pass its own law reversing the voter-approved use of commissions for the state’s congressional districts. Instead, the Legislature had to authorize a ballot measure to be approved or rejected by voters suspending use of the commission-drawn lines for Congress. Proposition 50 asked voters to approve the new maps that Mitchell drew and the Legislature proposed, maps that would only come into effect if California voters approved. This is key: Because California voters’ were the ultimate decision-makers, we should be asking in any racial gerrymandering case if California voters, not the state Legislature, had a predominantly racial focus.

So how to prove the intent of the voters? After all, voters don’t meet like a legislature in a great hall and debate the finer points of legislation. Under California law, courts look first to the text of a ballot measure. When that text does not unambiguously disclose the electorate’s intent, courts next look to official ballot materials to clarify the electorate’s understanding of the measure’s impact. These materials can include the official summaries of the impact, which the California attorney general is required to prepare, or text included in the “voter information guide,” also known as the “ballot pamphlet” mailed to every registered voter in California. Indeed, the California Supreme Court has held in the analogous context of interpreting the meaning of a voter initiative that the “opinion of drafters or legislators who sponsor an initiative is not relevant since such opinion does not represent the intent of the electorate and we cannot say with assurance that the voters were aware of the drafters’ intent.” As another California appeals court wrote in 2005, the only materials for courts to look at when it comes to voter intent are those ballot materials.

With respect to Proposition 50, the California ballot materials show exclusively partisan intentions. Beginning with the quick-reference guide at the very start of the 2025 ballot pamphlet, voters were met with a set of explicitly partisan arguments. The quick-reference guide provided an argument in support of Proposition 50 on the grounds that it would “counter Donald Trump’s scheme to rig next year’s congressional election.” Meanwhile, the quick-reference guide describes Proposition 50 as follows: “AUTHORIZES TEMPORARY CHANGES TO CONGRESSIONAL DISTRICT MAPS IN RESPONSE TO TEXAS’ PARTISAN REDISTRICTING.” It also includes an argument against adoption on the grounds that Proposition 50 would remove “protections that ban maps designed to favor political parties.” Neither argument identifies nor even alludes to racial considerations. Instead, concerns over partisan advantage predominate. Likewise, the attorney general’s summary (included in the ballot pamphlet) describes Proposition 50 as a response to “Texas’ mid-decade partisan redistricting.” (Importantly, nothing in the Proposition requires Texas’ gerrymander to be upheld for Proposition 50 to remain in effect.)….

Whether or not California voters were justified in “fighting fire with fire” by engaging in a Democratic partisan gerrymander to counter Republicans’ partisan gerrymander in Texas—and if the Texas plan is blocked and the California plan upheld, Donald Trump will have made things far worse for Republicans—the point here is that it was California voters who made the ultimate call. And the evidence leaves no doubt they were acting as naked partisans, not motivated at all by the racial considerations necessary to make out a claim for racial gerrymandering as the Supreme Court has explained it….

Share this:

11th Circuit Affirms District Court’s Dismissal of Trump’s Defamation Case Against CNN

authoritarian threats in US, First Amendment theory

In an unpublished per curiam opinion, the 11th Circuit affirmed the District Court’s dismissal with prejudice of Donald Trump’s defamation suit against Cable News Network, Inc. (CNN) based on the use of the phrase “Big Lie” to describe his claims about the 2020 elections. A few quick highlights:

“First, although he concedes that CNN’s use of the term “Big Lie” is, to some extent, ambiguous, he assumes that it is unambiguous enough to constitute a statement of fact. This assumption is untenable. Although we haven’t squarely addressed the point, case law from other circuits is persuasive. In Buckley v. Littell, the Second Circuit held that, by using the terms “fascist,” “fellow traveler,” and “radical right” to describe William F. Buckley, Jr., the defendant was not publishing “statements of fact.” Rather, the court ruled, the terms were “so debatable, loose and varying[] that they [we]re insusceptible to proof of truth or falsity.” Similarly, in Ollman v. Evans (1985), the D.C. Circuit held that when the defendant called the plaintiff “an outspoken proponent of political Marxism,” his statement was “obviously unverifiable.”

Trump argues that the term “Big Lie” is less ambiguous than the terms “fascist,” “fellow traveler,” “radical right,” and “outspoken proponent of political Marxism.” But he does not explain this assertion. If “fascist”—a term that is, by definition, political—is ambiguous, then it follows that “Big Lie”—a term that is facially apolitical—is at least as ambiguous.

. . . .

Trump also contends that a jury should decide whether
CNN’s publications are defamatory. We disagree. “Whether the statement is one of fact or opinion and whether a statement of fact is susceptible to defamatory interpretation are questions of law for the court.”

(internal citations omitted)

Share this:

Breaking: Federal Court on 2-1 Vote Blocks Texas from using new Congressional Gerrymander for 2026 Midterms, Requires Using 2021 Maps (Link to ruling)

redistricting, Supreme Court

Texas Tribune:

Texas cannot use its new congressional map for the 2026 election and will instead need to stick with the lines passed in 2021, a three-judge panel ruled Tuesday.

The decision is a major blow for Republicans, in Texas and nationally, who pushed through this unusual mid-decade redistricting at the behest of President Donald Trump. They were hoping the new map would yield control of 30 of the state’s 38 congressional districts — up from the 25 they currently hold — and help protect the narrow GOP majority in the U.S. House.

The map cleared the GOP-controlled Legislature in August and was quickly signed into law by Gov. Greg Abbott. Several advocacy groups sued over the new district lines, saying lawmakers intentionally diluted the voting power of Black and Hispanic Texans and drew racially gerrymandered maps. Over the course of a nine-day hearing in El Paso earlier this month, they aimed to convince the judges that it was in voters’ best interest to shelve the new map until a full trial could be held…

.

You can find the 160 page ruling at this link. There will be a dissenting opinion issued by Judge Jerry Smith that is not out yet. The plan includes a detailed analysis of why the majority concluded that race, rather than partisanship, predominated in drawing the district lines.

I fully expect Texas to appeal to the Supreme Court to block this preliminary injunction, both arguing on the merits that the lower court is wrong and arguing that the Purcell principle should block the timing of this ruling. The majority has an extensive discussion of Purcell.

Without having reviewed the full 160 pages yet, and without the benefit of Judge Smith’s dissent, it is hard to handicap the chances of a Supreme Court stay of this ruling at this point.

Share this:

“Election Officials Press Trump Administration Over Voter Data”

election administration

N.Y. Times:

“We write to express our immense concern with recent reporting that the Department of Justice (D.O.J.) has shared voter data with the Department of Homeland Security (D.H.S.), and to seek clarity on whether D.O.J. and D.H.S. actively misled election officials regarding the uses of voter data,” the secretaries of state, who are all Democrats, write.

The letter from 10 Democratic election officials is the latest in the effort to resist and call attention to the Justice Department’s initiative “to compile the largest set of national voter roll data it has ever collected, to essentially establish a national voting database.” The urge to resist arises from a reasonable concern that the initiative is designed to bolster the administration’s unsubstantiated claims about rampant voter fraud.

Share this: