The Bost Argument Today on Election Law Standing

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In the pre-argument essay I published on the Bost v. Illinois State Board of Elections case, which was argued today, I concluded with the view that the Court would be likely to reverse the lower court and find standing for candidates to challenge election law rules prospectively. Here’s how I ended that essay:

Given the strong institutional imperatives courts face in the election context to settle the rules clearly in advance of the election, the court is likely to find Bost has standing to bring his prospective challenge. But just as important, the precise basis on which the court concludes he has standing will have significant implications for who can bring election law challenges, and when, for the future of election law litigation in the federal courts.

I did not have a chance to listen to the argument, but from the early reports, it appears that commentators believe that’s where the Court is going to end up — holding that Bost has standing. Of course, these reading of the oral argument tea leaves can be wrong.

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My New One at MSNBC Opinion on How the Supreme Court Seems Poised to Kill Off What Remains of the Voting Rights Act While Few Pay Attention–With Implications for 2026 Redistricting

Supreme Court, Voting Rights Act

I have written this piece for MSNBC Opinion. It begins:

With President Donald Trump flooding the zone with attacks on American democracy and the rule of law, it’s easy to lose sight of the damage that the Supreme Court is doing on its own to weaken voting rights protections. Late on a Friday afternoon in August, the Supreme Court — on its own initiative and via a cryptic order — transformed a ho-hum redistricting case into a potential vehicle to take down the remaining key section of the Voting Rights Act.

The case, which concerns the drawing of Louisiana’s six congressional districts, could decimate minority representation in Congress and state and local government. And if the court rules quickly enough, it may even allow yet another round of partisan redistricting that could affect which party controls Congress after the 2026 midterm elections. Yet few outside of Supreme Court lawyers and voting rights experts seem to be paying much attention….

Now, in Callais, Roberts has engineered the chance to take down Section 2. In its extreme amicus brief, the Trump administration offers a number of ways for the court to deprive Section 2 of its power while potentially avoiding headlines saying that the court struck down another part of the VRA. The brief suggests that the court reject Gingles and reinterpret Section 2 so that it only applies to cases involving discriminatory intent, not effects. This would mangle Section 2’s text and ignore congressional intent, while giving Roberts and Reagan a much-belated victory.

The risks in the Callais case for minority voters are dire, with the case potentially leading to the bleaching of legislative bodies throughout the United States. But the risks are raised even higher by the timing. The court quickly reset the case for oral argument in October, potentially leading to a decision in time for states like Louisiana to re-redistrict and eliminate black, Latino, Asian and Native American opportunity congressional districts before voting in the 2026 midterm elections and thereby affect control of Congress. Trump’s Justice Department was granted permission from the Supreme Court to weigh in against the Voting Rights Act at oral argument, probably the first time that the United States has taken a position against the Act.

When Mr. Trump attacks democratic institutions, he does so in the manner of a car wreck — so flagrantly destructive as to command public attention. When the Supreme Court undermines our democracy, as it seems poised to do in Callais, it feels more like a slow poisoning: the attacks may be harder to notice, but they are just as deadly.

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NY Historical Event Tonight: “Experimenting with Democracy”

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Tonight I’ll be participating in this program at the NY Historical (formerly NY Historical Society) on political reform issues. I’ll be joined by Scott Kendall, a key figure in the enactment of Alaska’s Top-4 primary system, along with Lauren Karallunas from the Brennan Center.

The event will be livestreamed for those who register for it. Registration is available at: https://www.nyhistory.org/programs/experimenting-with-democracy-ballot-innovations-in-nyc-and-beyond?date=2025-10-08

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“Justice Kennedy, Off the Bench but Still Rendering Opinions” (Including a New Revelation About Bush v. Gore)

Bush v. Gore reflections, Supreme Court

Adam Liptak interviews Justice Kennedy:

As a justice, he leaned mostly right, siding with the court’s conservatives to strike down campaign finance laws, to gut the Voting Rights Act and to expand the scope of the Second Amendment. But he joined the court’s liberals in cases on abortion, affirmative action and the death penalty.

Justice Kennedy also turned out to be the greatest judicial champion of gay rights in the nation’s history, the author of the majority opinions in four of the court’s landmark gay rights rulings, culminating in the 2015 decision establishing a constitutional right to same-sex marriage….

In his book, Justice Kennedy disclosed that Chief Justice William H. Rehnquist had assigned him the majority opinion in Bush v. Gore, the 2000 decision that delivered the presidency to President George W. Bush. It was “a close case” and “a close call,” he wrote, and he concluded that the majority opinion should be unsigned, which it was.

The court issued its decision, by a 5-to-4 vote on the key issue, the day after the case was argued. Justice Kennedy said that sort of quick action, like the court’s recent spate of emergency rulings, was not ideal.

“The court just has to do the best that it can,” he said. “But it does need time.”…

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“Republicans could draw 19 more House seats after an upcoming Supreme Court ruling”

redistricting, Voting Rights Act

Politico:

Democratic voting rights groups are preparing for a nightmare scenario if the Supreme Court guts a key part of the landmark civil rights-era legislation, the Voting Rights Act — a very real possibility this term.

Ahead of the court’s Oct. 15 rehearing of Louisiana v. Callais — a case that has major implications for the VRA — two voting rights groups are sounding the alarm, warning that eliminating Section 2, a provision that prohibits racial gerrymandering when it dilutes minority voting power, would let Republicans redraw up to 19 House seats to favor the party and crush minority representation in Congress.

That calculation, made in a new report from Fair Fight Action and Black Voters Matter Fund shared exclusively with POLITICO, would all but guarantee Republican control of Congress.

While a ruling in time for next year’s midterms is unlikely, the organizations behind the report said that it’s not out of the question. Taken together, the groups identified 27 total seats that Republicans could redistrict in their favor ahead of the midterms — 19 of which stem from Section 2 being overturned….

Without Section 2, up to 30 percent of the Congressional Black Caucus and 11 percent of the Congressional Hispanic Caucus could be drawn out of their seats, according to the report….

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October 16 Safeguarding Democracy Project Webinar: “Redistricting and Re-Redistricting Controversies and the 2026 Election”

redistricting, Supreme Court
Thursday, October 16
Redistricting and Re-Redistricting Controversies and the 2026 Elections (webinar)
12:15pm-1:15pm PT
Register here.
Guy-Uriel Charles, Harvard Law School, Moon Duchin, Director, Data and Democracy Research Initiative, University of Chicago, Michael Li, NYU Law Brennan Center for Justice, and Nicholas Stephanopoulos, Harvard Law School.
Richard L. Hasen, moderator (Director, Safeguarding Democracy Project, UCLA)
UCLA School of Law is a State Bar of California approved MCLE provider. This session is approved for  1  hour of MCLE credit. MCLE readings for each session are available here.
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