U.S. Elections Under Pressure from White House

0:00Yes, there have been mid-decade redistricting in some states in the past, but this kind of wholesale redrawing of lines and no-holds-barred litigation to try to protect them, that is just new and we're sort of sinking to a new low here. We're hurtling toward a situation where those who win elections will try to use their power after each election in order to punish their opponents and to reward their supporters, and that's an unstable equilibrium of tit-for-tat going forward.

0:32This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way you'll have access to all our new episodes as soon as they're available. Well, nothing affects us more than the election in some ways. And so today we're going to be talking about some of the stuff that's already happening with regard to the 2026 midterms. And I'm going to be having this conversation with my colleague, Nate Persley. Nate is the James B. McClatchy Professor of Law here at Stanford Law School.

1:08He's co-director of the Stanford Law AI Initiative. He's a senior fellow at the Freeman Spoli Institute for International Studies. He's also a professor by courtesy of both political science and communications here at Stanford. And he's a leading expert on the law of the political process, voting rights and elections. So welcome to the show, Nate. Thanks for having me back. It's great to have you here, although it would be greater to have you here to talk about how well democracy is working rather than what I seem to mostly have you here doing, which is talking about one threat after the next.

1:41And in the past couple of days, the Supreme Court has gotten two issues in front of it that involve this election in very different ways. And I think I want to talk through both of them with you. One of them is the kerfuffle in Missouri over its mid-decade redistricting, which is one of a series of about a dozen now mid-decade redistrictings across the country. And then I want to turn to how we actually vote in this election, regardless of who it is we're now voting for, as opposed to who we thought we might be voting for at the beginning of the decennial cycle. And that is what the Supreme Court's done with regard to mail-in voting and mail ballots.

2:21So let's start with Missouri. After each census, the states get new population data and they have to redraw their congressional districts. And that's true even in states that haven't lost or gained a seat, right? I mean, people shift around. So Missouri drew its districts in 2021 after the census numbers came to them. And then they redrew or attempted to redraw their districts in 2025. Why? Well, it's part of the national trend now since President Trump urged Texas to start by redrawing its lines. We've had a tit for tap between the Democrats and Republicans in so many states, starting with Texas, then retaliating with California, then Florida chimed in.

3:06And Missouri was one of those states that tried to take advantage of both the Supreme Courts sort of stepping away from the Voting Rights Act in Section 2, which we've talked about on previous episodes, and then also this urge to do more partisan gerrymandering. And so they dismantled one of the Democratic districts there. And then at the same time, voters put up a referendum in order to essentially prevent that from happening. And the question was, which lines were going to be in place for the 2026 election? The Missouri Supreme Court, for various procedural and technical reasons, said that given the existence of the referendum, the Republican gerrymander could not be in force for the 2026 election.

3:49A federal court, for different reasons, had gone against that. But ultimately, the U.S. Supreme Court said that the Missouri Supreme Court's decision would be upheld and that the 2022 lines would be the ones that would be in place for 2026. Yeah, the thing that I thought was most interesting about this was after the Missouri Supreme Court ruled on this, the state raced to the Supreme Court to try and get the U.S. Supreme Court to overturn it. And Justice Kavanaugh denied that motion to stay the Missouri Supreme Court's decision without even sending it formally to the other eight justices, which is unusual.

4:28Because usually in these kinds of cases, the justice who gets the request, who's the circuit justice and Justice Kavanaugh is the circuit justice for the Eighth Circuit, usually sends it to the whole court. But here, he just denied it outright. And that's when the mail ballot case that we'll talk about in a moment, Katanya Brown-Jackson sent it to the whole court both times that it came up there. I'll say that there were two interventions by the Supreme Court here because you had first the attempt to directly overturn the state Supreme Court's decision, suggesting in some respects that the state Supreme Court's decision on the gerrymandering issue was violating the independent state legislature theory, the idea that the state Supreme Court might have gone so far beyond what the rules were that there is a federal question.

5:16Justice Kavanaugh denied that. And then in what I thought was actually a more serious complaint against the Missouri situation, you had voters going into federal court to say, look, they've already run the primaries under these new lines. And so therefore you're gonna sort of disenfranchise people or overturn the primary election. If you go with the old lines and Justice Kavanaugh rejected that as well. Yeah, I mean, I think in part because the secretary of state was dragging his feet so much through this process so that the kind of crisis that we had at the end was in part the state's own making.

5:50Yeah, I mean, it really had this feeling of I killed my parents. Now I throw myself on the mercy of the court as an orphan. If the Missouri Secretary of State had timely issued his decision saying that the lines could go into effect, all of this would have been challenged long before the primary election, and we would have known what the districts are. And then, of course, to have a federal district judge think that it was a good idea to put the Secretary of State into this kind of no-win position where the Missouri Supreme Court then kind of announced, we're going to have a contempt hearing about the Missouri Secretary of State, and then told him not to get too far away from the court building, which had this kind of feel of, we might put you in jail.

6:37Well, and I think it's important, given the insanity that we're now becoming numb to when it comes to the electoral process, to indicate that this hasn't happened much in the past, right? I mean, these kind of extraordinary moves to game the system at the last minute in order to make it harder for people to vote or to make it reorganize representational systems and redistricting. We are in new constitutional territory here. Yes, there have been mid-decade redistrictings in some states in the past, but this kind of wholesale redrawing of lines and no-holds-barred litigation to try to protect them, that is just new, and we're sort of sinking to a new low here.

7:18We're hurtling toward a situation where those who win elections will try to use their power after each election in order to punish their opponents and to reward their supporters, and that's a sort of unstable equilibrium of tit-for-tat going forward. Yeah, I mean, it's interesting because in the 19th century, there was a period of about 40 years where there was at least one redistricting every year in that cycle. But you didn't have this litigation and it wasn't being done after the process was already underway. And I think that's what's new. Gerrymandering is as old as Elvage Jerry, right? If not earlier than that, right?

7:56So it's as old as the Republic. And there are certainly examples of whether it's partisan gerrymandering or not drawing lines or all kinds of other machinations in the redistricting process. Since the one person, one vote rule, right, we've had pretty much undisturbed regular decennial redistricting with one or two famous examples, Texas, otherwise. But right now, it's just the rule-less atmosphere in which people are operating so that the Supreme Court basically gave its blessing to unconstrained partisan gerrymandering, saying in Rucho that there's no federal claim against it. Then they cut back on Section 5 of the Voting Rights Act in Shelby County, making sure that the federal government would not be able to restrict some of these excessive gerrymanders in the race context.

8:40And then most recently, in their case dealing with Section 2 of the Voting Rights Act, have hollowed that out. And so the states are more and more unconstrained, and they're also more and more shameless in their willingness to maximize partisan advantage. Yeah, I'm working on a piece right now that talks a little bit about the imposition of single-member districts for the first time by Congress, which happened in 1842. And before that, a lot of states used what was called the general ticket, and they would produce a congressional delegation that was made up entirely of members of one party. And it seems like we're returning to that in some important ways.

9:17I mean, Tennessee got rid of the one seat in Tennessee that was electing a Democrat. Missouri tried to go down to one. And in states like Mississippi, they may get rid of the one Democratic seat fairly soon. Alabama might go after the one remaining majority Democratic seat. Is this good for our politics to have a two-party Congress made up of delegations from one-party states? It sort of turns the House into the Senate in a lot of respects, right? So that you're basically removing the kind of districting feature of the House. Now, I don't want to overstate this because different states are better or worse situated to redraw lines that will lead to all of the Congress people from those states to be of one party or another.

10:02Whatever Texas does, it's not going to eliminate all Democratic districts, right? Or same thing with Florida. And I think it'd be hard, though not as hard. California, which now is 90 % of the seats are going to be held by Democrats in a state where, you know, statewide Republicans get between 35 and 45 % of the vote in any given election. Yeah, and so it's definitely overrepresenting the dominant party by huge margins. But you're going to find a kind of general ticket principle applied to today's politics will probably lead to greater advantages for those who can control the smaller states. because you just are able to eliminate the other party much easier if you've just got to splice them up into, say, three districts than if you've got California, where it'd be hard to do 100 % of the districts.

10:54Nevertheless, your point is well taken, right, which is that now we're going into a world where redistricting is just a proxy for trying to do the general election in the state, right? And so the question is whether the statewide election is going to be determining the outcomes here, I still think that you're going to see a lot of distortion in representation as a result of that, that it's not going to even out so that you'll have accurate proportions of, say, Democrats or Republicans represented, because it's all going to come down to how able they are to redraw all the lines in their state. Yeah.

11:27And the thing you said earlier about, you know, we've now turned the House into the Senate, in a way it's even worse than that. We've now turned the House into the Senate pre-17th Amendment, which gave the people the right to elect, because prior to the 17th Amendment, the Constitution gave the state legislature the right to select the senators. And now what we have essentially is a state legislature selecting the House of Representatives almost in a way by picking the configurations. And so is there any way out of this mess? Well, I think the way out is through federal legislation. And I think you're seeing some murmurings on both sides to do this.

12:04I met with the Problem Solvers Caucus a few months ago. Now They put out a proposal that's for certain types of national redistricting legislation with neutral principles and that kind of thing. It's the kind of thing that historically, as an academic, I might have poked a lot of holes in, but I sort of feel like we need to rally around some change here because any change is better than the current system. It really, I think, depends on what happens in this election and in the next election as to whether the 2030 redistricting process is going to be as rule-less as the current system is. But that's going to because you can't rely on states to do it individually because it's a prisoner's dilemma.

12:43Yeah. And so it's got to be done at the federal level. Yeah. And I'm sure I will have you back to talk about what's going on with the 2030 census. We've already seen the first rumblings there, although the litigation hasn't really begun over the president's attempt to not count various people in the count of the what the Constitution refers to as the inhabitants. Right. There are a bunch of people he wants to disinhabit, I guess. Well, we went through this fight. With the citizenship question. the last time. Already, you know, 10 years ago, essentially, during the first Trump administration, actually not 10 years ago, but right before the last census.

13:24And so, as you said, the question is, could you limit the census, the headcount to citizens when the Constitution says inhabitants are people? And, you know, as a constitutional matter, I think that's wrong. Well, it's got, it's got to be wrong because of the three-fifths clause, right? Which is the original Constitution counted enslaved black people as part of the population, and yet they clearly were not citizens. So it can't be that inhabitants is the same word as citizens, right? Well, that's obviously right from purposes of apportionment. The question that had been litigated before was even if you weren't going to count, even if you would count all people for purposes of apportionment, would you have a citizenship question on the census that then might deter certain types of people from filling it out.

14:10And so - And then there was Evanwell as well, right? Well, you can say what the Evanwell case is, but that's also about whether you have to draw districts on some basis other than population. Just for those who aren't in the weeds on this, right? The basic lesson here is that the Supreme Court has never suggested that the census could be a count of anything other than the inhabitants that exist in a state, because that's what the Constitution says. There are attempts, as was true with, say, the birthright citizenship case, to try to rewrite that constitutional provision so that it means something else.

14:46But even apart from that, there's all kinds of things you could do in the census process that could have an impact on who fills it out. And one way is if you turn it into basically a citizenship test or a surveillance operation, then it could really screw with the accuracy of the census and lead to biased results. Yeah, I mean, the last time around when the Trump administration tried to do that and put the citizenship question on, they said they wanted to put it on in order to enforce Section 2 of the Voting Rights Act. So the irony now is if we're really not enforcing Section 2 of the Voting Rights Act at all, you wouldn't be able to claim that anymore.

15:18So they'll have to come up with some other rationale for why they want to do this, especially if they want to ask about citizenship. At the same time, they're saying we want to take all questions about race or sexual orientation off of the census. It's kind of odd to say we want more demographic information about some things and much less about others. Well, and as you were suggesting before, you're talking about the three fifths clause, right? The issue of the census and race is as old as the republic, right? I mean, the idea of counting race was essentially imbued in the Constitution, not just with respect to African Americans, but also Native Americans, right?

15:56And so if you look, the racial categories have changed over time in some ways in kind of wild ways. And it's a story of American history and how we construct race where you'd have questions of what percentage black was a person, et cetera. And they'd have to put that on the forums. But race has always been a part of this. Right. And both for malign reasons like the three fifths rule, but also when it came to enforcement of the Voting Rights Act to figure out whether you were discriminating, say, in a redistricting plan. Right. Right. So let's turn now to the other issue that has already gotten to the Supreme Court, because I'm pretty sure there will be dozens more by the end of this.

16:35And that is how people vote. It used to be that on Election Day, which was the first Tuesday after the first Monday in November, people showed up at the polls and they cast their ballot in person. But now there are a number of states that no longer even conduct really in-person voting at all. And then even in the other states, a huge proportion of people vote by mail. I think that estimate now is about a third of Americans are going to cast their ballots by mail in this upcoming election, including among other Americans, Donald Trump himself, who's going to vote by mail. Even though he goes down to Mar-a-Lago all the time, he's not going to go down on election day to stand in line with his fellow citizens and cast a ballot.

17:18And the way that this has been done is states run the elections. Indeed, a lot of states devolve the actual responsibility for running the elections down to counties or townships. I think there are, what, 8 ,000 jurisdictions in the United States that actually have some finger in the pie of running elections. So the way it's been done in the past is states that are sending people ballots by mail, they send the ballot to them. And usually inside the envelope that they've sent to the people is a ballot, some instructions and another envelope in which you return your ballot. But what did the Postal Service, let's start with Donald Trump's executive order and then turn to what the Postal Service did and talk about how this went through the system.

18:09So let's sort of start with first principles here, which is that we are living in unprecedented times, both when it comes to attempts to assert federal control over state elections, state-run elections, and within sort of lateral separation of powers, the fact that the president is unilaterally trying to do it. Right. And so federal control over state elections. There are statutes, of course, like the Voting Rights Act, like the Motor Voter Rule, National Voter Registration Act, issues dealing with military voting, the Help America Vote Act. There are federal statutes, but there are sort of few and far between.

18:43As you were saying, most of the time we're talking about the states running elections, but we've never had the problem that we have now, which is that you've got unilateral attempts by the president or, in this case, also the Postal Service, to try to regulate the process of voting. Of course, this feeds on the conspiracy theories about mail voting in the 2020 election and other elections, and so it's been a kind of cause celeb of the president to try to roll back mail voting. The executive order has many different provisions and directions to do just that, to make it harder for people to vote by mail, to have more sort of citizenship inquiries, in part done by the states and others done by the federal government, and also to try to have greater federal oversight and potential criminal prosecution of state officials.

19:34And then after the executive order was passed and mostly enjoined, the Postal Service developed its own set of regulations for mail balloting that were trying to sort of develop pursuant to the executive order. And those have now been at least suspended by the Supreme Court. Right. And there were two big pieces, I think it's safe to say, of the Postal Service piece of this. One was the Postal Service was going to create a so-called portal, and states were expected to send the Postal Service a list of all the people that were going to vote by mail in that state with a huge amount of identifying information about the people.

20:13So it wasn't just names, it was addresses. I think it was the unique identifier that the state was using, which might be the last four of somebody's social security number, or it might be their driver's license or the like. And the states would have to upload their information into this portal. Then when they showed up with the envelopes they wanted to mail to these voters, the Postal Service at the retail clerk's desk in some places was going to run a match between the envelopes that the state showed up with to mail out and the list the state had uploaded ahead of time. And if those two things didn't match, it would reject the mailing.

20:51There was a whistleblower who suggested it wouldn't just reject the envelopes that were being sent to people not on the list, but it might reject all the envelopes. And I love the Postal Service. You know, I love postcards. I love stamps. I love the Postal Museum in Washington. I should just interject here to validate your love of the Postal Service that people should know that when Pam Carlin got the teaching award here and had to give the speech at graduation, she put a postcard under each of the graduates' desks, under their seats, in order so that they would thank their parents or someone else who brought them there.

21:30And I gave them each a pen as well. Yeah, that's right. A pen and a postcard. Even more credibility to you. But I do love the Postal Service, but they are not always the swiftest, have not yet created the portal. So states started about a week ago sending out ballots and there was no portal to which they could upload their materials or the like. And the Postal Service, a number of states came in and said, look, we've already bought our envelopes. Having to buy these new envelopes that you're requiring for us is really problematic. It turns out that even one of the states that bought the envelopes, there was like one one hundredth of an inch too, there was a gap of one one hundredth of an inch too much between one of the numbers that the Postal Service wanted on the ballot, and a ballot envelope, and another, and so those were rejected.

22:24And so a number of states, plus a number of voters, said, look, we want a preliminary injunction stopping this from going into effect. And the first time this went up to the Supreme Court, the Supreme Court rejected those claims. Why did the Supreme Court reject those challenges the first time? Well, the first time, it was before there was a promulgation of a final rule. And the argument was that this case was not right, that no one had been injured yet. And we don't know the specifics of what the Postal Service is going to do. And so the court basically punted until the Postal Service did something.

23:00Yeah, the weird thing about that, though, Nate, is that by the time the Supreme Court issued its ruling saying nothing's gone into effect yet, there's no final order, the Postal Service had issued the final order. Well, that's right. While it was all being litigated right at the Supreme Court. And so the question was, you know, to what extent should they be closing their eyes here? This is a larger problem in election litigation, which is that sometimes, you know, these issues are not ripe until they're moot. And here you've got the problem where it's like technically maybe it's right that at the time that the case was filed in the Supreme Court that no one had been injured yet.

23:37But when it comes to elections, you've got to have clear rules before the ballots are mailed out. And so, I mean, that was one of the things that Justice Ketanji Brown-Jackson was talking about in her dissent, which is that, you know, this is ingredients for chaos here. And let me just say at a larger level, which is that there is nothing in the abstract, if we're behind the veil of ignorance, of having a national voter list that would somehow be enforced by a nonpartisan authority to make sure the right people get ballots. The problem is we don't have any of that. We don't have that architecture in place.

24:09And there are good reasons why we've relied on the states, especially if we're afraid of a national election authority behaving in a partisan way. But what we had here was the worst of all worlds, which is that you were trying to build an entire new system to be administered by an entity that has never had as its role enforcing election law, right, the Postal Service, to then do this, you know, within a month's time to build what would be, I wouldn't say exactly like the Obamacare website, which we know had all kinds of problems being rolled out. But, you know, a new piece of technology where the matching of voters to some list could always lead to, as we know, anyone who does matching knows, there's always going to be false positives when you do that.

24:52And if that could then lead to batches of votes being thrown out, that would have been a disaster. Yeah. So that was the first litigation. And then after the rule came out, the district court, and I think this is important to emphasize to people, didn't say this rule is invalid forever, said it's likely we'll find it invalid. But all we're going to say right now is you can't require states to go through this process for the election that's already underway in 2026. And now the government went back to the Supreme Court. And I thought the most interesting thing here, and this goes back to something you said earlier about the problem with some election cases is they're not ripe until they're moot, is the government, having argued before it's too soon for you to bring a lawsuit, now argue it's too late for the states and the voters to bring a lawsuit.

25:43And the other thing that was striking, I thought about the Silster General's arguments to this Supreme Court, is he didn't really argue about the equities at all. That is, he didn't spend any time to explain how this would actually make the election safer. He didn't care at all about the fact that it would disenfranchise large numbers of voters. I mean, I was quite struck by the offhandedness of the government's argument as to why they should be able to put this into effect, which was essentially, there might be some fraud out there. We don't know how much. That outweighs whatever interest voters and states have.

26:22The crazy thing is this wouldn't have, even if there was fraud in the system and unregistered voters, ineligible voters, that this is not going to prevent that. I mean, it was such a strange sort of rule, but it did provide the kind of federal nose under the tent of the state election system. And so, as you were saying before, roughly a third of the ballots are going to be handled by the U.S. mail in some respect. Now, about half of those, it depends on the state, will end up being deposited by voters either in drop boxes or given to election officials, even deposited in the polling place. But this would have been a pretty unprecedented move and a reorganization of federal and state authority.