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.]

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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. . . .

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“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.

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

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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.”

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“Why is American democracy in such peril?”

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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. 

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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….

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