The fate of the Voting Rights Act, at issue in Louisiana v. Callais, might depend on a devastating decision from six years ago.  

In 2019, in Rucho v. Common Cause, the Supreme Court refused to entertain partisan gerrymandering claims, declaring that “a jurisdiction may engage in constitutional political gerrymandering.” That statement could now insulate maps that harm minority voters—a move that would hollow out Section 2 of the landmark 1965 law. 

Section 2 of the Voting Rights Act is a nationwide provision that prohibits any voting rule that “results” in discrimination based on race. Congress adopted this “effects” test in 1982 after the Supreme Court interpreted the prior version to reach only discriminatory intent. Under the current formulation, intent is irrelevant; the question is whether the effect of a rule negatively impacts minorities. In 1986, in Thornburg v. Gingles, the Court set out a test that it is has used ever since to determine whether a map dilutes minority voting strength: Can the plaintiffs draw a different map that creates additional, compact majority-minority districts, is there racial bloc voting—that is, does a white majority tend to outvote a racial minority’s preferred candidate—and, under the “totality of the circumstances,” is there a history of discrimination in the state? That test has allowed courts to root out the worst abuses, especially in the South, where minority voters are often prevented from banding together and electing a candidate of their choice. 

Last term, the Court heard a Louisiana case regarding this provision. The state has six congressional districts, and roughly 33 percent of its population is Black. However, in the initial map the state drew, Black people were the majority in only one district. Applying the Court’s test for Section 2, a lower court ruled that the map violated the Voting Rights Act. To remedy the problem, Louisiana drew a new map with two majority-Black districts.  

Then, white plaintiffs sued, saying that the map was an unconstitutional racial gerrymander because the state considered race too much. The state claimed it sought to remedy the Section 2 violation while protecting two key Republican incumbents. But instead of ruling whether Louisiana’s consideration of race in the new map was unlawful because it was the predominant consideration, the Court set the case for re-argument this term, raising a much broader question: if Section 2 requires states to consider race when drawing maps, is Section 2 itself unconstitutional? Can Congress use the Fourteenth and Fifteenth Amendments, ratified after the Civil War, to ensure equality?  

The answer to that question should be easy: Congress has full authority under these Reconstruction Amendments to require racial equality in voting. A suggestion that Section 2 is unconstitutional is simply another attempt to erase race from the law, even when doing so would ignore the continuing effects of discrimination. 

Yet the Court may not state explicitly that Section 2 is unconstitutional, especially if the Court’s majority can achieve the same goal by twisting the test in a way that makes it virtually impossible for a plaintiff to win. The Court already used this tactic in 2021 in a case out of Arizona, crafting an arbitrary test for claims of outright vote denial under Section 2. It could apply a similar dismantling strategy to Section 2 claims related to maps that dilute minority voting strength.  

Early in the Louisiana v. Callais oral argument, Justice Samuel Alito asked a key question that might be the whole ballgame: “Under Rucho, isn’t seeking partisan advantage also an objective that a legislature may legitimately seek?” His query suggests that the Court might neuter Section 2 by saying that partisanship is a valid defense to a map, even if the plaintiffs show that the lines harm minority voters.  

Janai Nelson, a lawyer for the NAACP Legal Defense Fund, deftly and correctly answered that question at oral argument: “Not if it comes at the cost of the equal protection principle and the Fifteenth Amendment’s prohibition on race discrimination in voting.” Put differently, a state should not be able to cite a partisan goal to insulate itself from its map harming minority voters. Otherwise, the promise of the amendment, which prohibits racial discrimination in voting rules, would become a dead letter.  

Several justices, however, kept returning to the idea that partisanship is a “neutral” districting principle that a state may validly promote. Justice Alito once again noted that because of Rucho, a state could consider partisanship and incumbent protection as a “permissible legislative objective.” Justice Brett Kavanaugh twice asked the lawyers about the idea that the Court should hold that “Section 2 plaintiffs cannot claim a lack of equal openness where politics, rather than race, is the likely reason for the state’s refusal to create a majority-minority district.” Justice Kavanaugh did not tip his hand at how he was thinking about that issue, but his repeated mention shows that he believes it is a worthwhile argument to consider. Justice Neil Gorsuch, too, highlighted a state’s political objectives as a key consideration.  

But that inquiry turns Section 2 of the Voting Rights Act on its head and, as Nelson pointed out in response, “would swallow Section 2 whole” because “party cannot trump the responsibility of states to ensure that all voters have an equally open electoral process.” 

The case, then, should be about race, not partisanship. It might make sense to consider a state’s partisan motivation when asking about its intent (though courts should strike down maps drawn to achieve a partisan goal). Still, partisanship should have no bearing on whether the map has a discriminatory effect. Nothing is “neutral” about a state seeking to achieve a political end by skewing the maps. And as Travis Crum, a law professor at Washington University in St. Louis, pointed out, elevating partisanship isn’t a traditional redistricting criterion—it’s a judicial invention from Rucho only six years ago. 

If the Court says that partisanship insulates a state from a Section 2 claim of discriminatory effect, then this pivotal provision will have much less utility. It will be another nail in the coffin of voting rights protections, part of a long line of recent cases in which the Court has narrowed the scope of the Voting Rights Act and unduly deferred to states in their voting rules.  

Rucho, the 2019 case, was wrong when it accepted partisan gerrymandering as constitutional. Extending that principle as a defense to racial discrimination in redistricting is contrary to constitutional law, settled precedent, and the needs of a multi-racial democracy. 

The post How the Roberts Court Could Neuter the Voting Rights Act  appeared first on Washington Monthly.

Democracy is rigged when the politicians decide who wins before any vote is cast. But that is precisely what is happening in several states that are redrawing their congressional districts only a few years after they enacted maps based on the 2021 census. Ordinarily, states redraw maps once a decade, after the census, to ensure each district has roughly equal population. This process satisfies the doctrine of one person, one vote. Of course, many states gerrymander to favor one party, but at least the timing is tethered to a legal obligation: adjusting districts once every ten years. Now, states are breaking that norm with mid-decade redistricing.

Texas, encouraged by President Trump, redrew its congressional lines last month to tilt the 2026 midterms—flipping five Democratic-leaning districts into Republican ones. California, in response, put a measure on the ballot for this November to change its own map—drawn by an independent redistricting commission—to create five stronger Democratic districts. The Missouri legislature just passed a new map splitting the Kansas City area into several districts to weaken Democratic strength and likely pick up a Republican seat. Other states, such as Illinois and Nebraska, are also considering mid-decade redistricting. It’s a race to the bottom with partisan gerrymandering running rampant.

When Texas attempted a similar ploy in 2003, the U.S. Supreme Court ruled that nothing in the U.S. Constitution or federal law prohibited a mid-decade districting. (However, the Court struck down the map on other grounds.) The Court then abdicated its role to ensure fairness in its 2019 Rucho v. Common Cause decision, stating that federal courts cannot hear partisan gerrymandering cases. The new mid-decade maps might violate Section 2 of the Voting Rights Act, as plaintiffs in Texas have already argued in a new lawsuit. Still, the Court has signaled that it might invalidate or severely hamper that provision in its upcoming case out of Louisiana.

That leaves state courts as the only real backstop. State courts committed to upholding the ideals of democratic representation within their state constitutions should adopt a presumption of unlawful partisanship for a mid-decade redistricting and invalidate these maps.

Three aspects of state constitutions support a presumption of unlawful partisanship.

First, nearly every state constitution includes a commitment to democracy and popular sovereignty. As law professors Miriam Seifter and Jessica Bulman-Pozen have shown, these state constitutional provisions express a commitment to the people as supreme. A mid-decade redistricting, conducted solely to achieve a partisan end, flips that principle on its head. Politicians are punishing the people for their previous choices by changing the maps. These states have no legal compulsion to do so, as they are not responding to a court order about an earlier map and do not need to adjust the lines to fix population inequality. They simply want to skew the results.

Second, some state constitutions tie the timing of redistricting to the census. For example, Missouri’s Constitution says that the legislature shall draw congressional districts after “each census . . . is certified to the governor.” The Missouri Supreme Court, in a case called Preisler v. Doherty in 1955, ruled that this provision means that redistricting may occur only once per decade following the census “because the decennial census is made the basis of reapportionment.”

Plaintiffs have already filed suit in state court against the Missouri map, invoking this provision. The Missouri courts should apply the state constitutional language to invalidate the map. Other state constitutions, such as those in Illinois and Texas, tie state legislative redistricting to the census without addressing the timing of congressional redistricting, yet the same principle could apply.

Finally, mid-decade redistricting inherently violates the principle of one person, one vote and the requirement of equal population between districts. States use census data to draw new lines, and of course, those districts will become less equal throughout the decade as people are born, die, and move. Yet the new maps rely on outdated census numbers, making them unequal.

Creating a map with population equality right after the census is one thing, even though the map will become outdated as populations shift. Using data from 2021 to draw a new map in 2025 is quite different. These maps are not equal at their start, violating many state constitutional provisions that demand elections to be “free and equal.” 

A state court should therefore apply a presumption of unlawful partisanship any time a state passes a second map before the next census, as is happening right now. Importantly, this standard would mean that courts would not have to measure the partisan effect of the new map or make a judgment about when politics was “too much” in the line-drawing process, which was the Supreme Court’s primary concern when it removed itself from policing partisan gerrymandering in the Rucho case. The partisan effect of the new map is irrelevant because there should already be a presumption of partisan intent.

A state would need to provide a non-political justification for changing its map in the middle of the decade. Perhaps a natural disaster caused a major population shift, and the districts are woefully unequal, causing skewed representation for the rest of the decade (though the state would need accurate data on population shifts to better comply with population equality). Maybe a state enacts an independent redistricting commission and wants to have that commission redraw a previous legislatively-drawn gerrymander. Most of the time, however, this presumption should lead a court to invalidate a mid-decade redistricting, which will hopefully discourage states from engaging in the practice in the first place.

There is, however, a practical problem: what if the California court strikes down its gerrymander but the Texas court upholds its map, even though the two state constitutions are substantially similar? Given that the California legislature acted explicitly to counter the Texas gerrymander, the court in California should follow the Texas court’s lead. This is not a question of constitutional law but of practical import given the nature of the re-redistricting currently taking place. It is a bad solution, to be sure, as each court should analyze its state constitution consistently with its own history, tradition, and precedent, not based on what a court in another state has done. Maybe conflicting rulings from different states on the same issue is the price to pay for our system of federalism. It would be best for each state court to rule independently that the principles from its state constitution support a presumption of unlawful partisanship for a mid-decade redistricting.

Given Supreme Court jurisprudence, which has made it harder for plaintiffs to challenge state election laws on numerous levels, state courts must fill the void. State constitutions are more explicit in offering robust protections for voters. State courts should invoke these provisions to adopt a presumption of unlawful partisanship whenever a state undertakes a mid-decade redistricting. By striking down these new maps, the 2026 midterm elections will allow voters—not politicians—to decide who controls Congress.

The post Mid-Decade Redistricting: Why State Courts Should Be Suspicious appeared first on Washington Monthly.

It’s been a month since the assassinations, yet hardly anyone seems to remember they occurred.  On June 14, an assassin murdered the leader of the Minnesota House Democratic Caucus, Melissa Hortman, and her husband in the middle of the night at their home in suburban Minneapolis. The perpetrator also shot and wounded State Senator John Hoffman and his wife, Yvette. Thankfully, Hoffman is now out of the ICU, though he has a long recovery ahead of him.

The murderer, Vance Boelter, had a “hit list” of 45 targets, all of whom were Democrats.

The politically motivated attack, however, barely made a blip in the national consciousness. People expressed shock the day it happened, but the country swiftly moved on. Similarly, almost no one is still discussing the April break-in and arson of the Pennsylvania Governor’s mansion, with the perpetrator’s goal of beating Governor Josh Shapiro with a hammer. That attack echoed a 2022 incident in which an individual broke into the home of Nancy Pelosi and assaulted her husband with a hammer. In 2020, several men plotted to kidnap Michigan Governor Gretchen Whitmer to start a civil war; two were convicted.

Just a year ago, a shooter wounded former President and then-Republican presidential nominee Donald Trump during a rally in Butler, Pennsylvania. Yet hardly anyone remembers the name of his attacker (Thomas Matthew Crooks), and we still know little about his motives. There were brief discussions of the security breaches that gave Crooks access to shoot at Trump, but no sustained public attention. Trump was almost killed, with a bullet grazing his ear, yet a year later, the fact that someone attempted to assassinate a former president who was the front-runner to retake the White House is no longer a story.

These attacks represented threats to democracy itself, spurred by today’s toxic political culture. They undermine the ideal that in America, we are supposed to settle our disputes at the ballot box.

Way too many Americans think that political violence is a necessity. A 2023 survey reported that almost a quarter of respondents agreed that “because things have gotten so far off track, true American patriots may have to resort to violence in order to save our country.” That number was up from 15% in 2021. In 2024, the U.S. Capitol police reported more threats against members of Congress and their families and staff than ever before. Judges are now the frequent targets of threats, including the murder of a federal judge’s son in 2020.

Unfortunately, the attacks are also part of the election infrastructure. Poll workers reported an increase in threats against them in 2024. Election officials now plan for potential violence on Election Day and its aftermath. The January 6 insurrectionists used violence to try to overturn the 2020 election.

To end the attacks, we must stop normalizing and then forgetting them.

There are many causes of increased political violence. Donald Trump fanned the flames by pardoning the January 6 rioters and claiming they were engaged in a patriotic act. He refuses to accept election outcomes except when he wins, encouraging his supporters to “fight.” Trump’s violent rhetoric—which has increased over the years—contributes to the normalization of political violence. So does the perpetuation of disinformation, conspiracy theories, and deep fakes, which increases polarization and the extreme “us versus them” mentality that optimizes today’s politics. The social media landscape makes us focus on the latest scandal or injustice. And both sides fail to do enough to call out toxic rhetoric, which research shows can normalize political violence.

Sadly, political violence is nothing new. Four sitting presidents have been assassinated: Abraham Lincoln (1865), James A. Garfield (1881), William McKinley (1901), and John F. Kennedy (1963). Ronald Reagan survived an assassination attempt in 1981, though he was wounded. These acts of political violence are still discussed; many people can name both JFK and Reagan’s shooters (Lee Harvey Oswald and John Hinckley, Jr.).

Yet today, both Republicans and Democrats have allowed the political discourse to move on from the attacks on the Minnesota lawmakers and the Pennsylvania Governor, not to mention last year’s assassination attempts on Trump. Yes, Trump said the right things following the Minnesota shootings, posting on Truth Social that “Such horrific violence will not be tolerated in the United States of America.” But then he moved on, even saying that calling Minnesota Governor Tim Walz to discuss the incident would be a “waste of time” because Walz is “so whacked out” and “doesn’t have a clue.” Trump did not attend Hortman’s funeral.

Similarly, instead of immediately condemning the attacks, Republican Senator Mike Lee posted insensitive comments on social media about the assassination, writing “this is what happens When Marxists don’t get their way” and posting a picture of the shooter with the caption “Nightmare on Waltz street,” only taking them down after Senator Tina Smith, the Minnesota Democrat, confronted her colleague.

That is not how leaders should act. We needed bipartisan denunciation and meaningful action, not attempts to score political points.

The country endured the 2000 Florida recount without major violence. Former NBC Nightly News Anchor Tom Brokaw remembered the 2000 presidential dispute: “There were no tanks in the street. And there were no National Guard units that had to be called up, because people were not out in the streets, you know, ready to trash buses and businesses. That’s a great tribute to this country.” Al Gore set the peaceful tone in his concession speech after the Supreme Court ruled against him: “History gives us many examples of contests as hotly debated, as fiercely fought, with their own challenges to the popular will. Other disputes have dragged on for weeks before reaching a resolution. And each time, both the victor and the vanquished have accepted the result peacefully and in a spirit of reconciliation. So let it be with us.”

These days, that sentiment seems almost quaint.

We need a new political culture that denounces political violence in the strongest terms, with a consistent and enduring message that urges Americans to settle their disputes at the next election through peaceful means. We must actively discuss the recent political attacks, not forget them. Leaders of both sides should not just move on to the next dispute. We must foster a political culture that encourages massive voter engagement, robust civic education, and truthful and positive rhetoric. Voters should respond accordingly, turning out in record numbers to signal the importance of resolving our differences at the ballot box, not through bullets.

For American democracy to endure, Hortman’s death must not be in vain. The media should not stop talking about what happened. All Americans should know her name.

The post A Month After the Minnesota Shootings, We’re Normalizing Political Violence appeared first on Washington Monthly.

President Donald Trump just issued another executive order that violates the U.S. Constitution and federal law, attempts to aggrandize his power, and undermines the foundation of our democracy.

The entire premise of the order, “Preserving and Protecting the Integrity of American Elections,” is based on falsehoods, including the following: “The United States now fails to enforce basic and necessary election protections employed by modern, developed nations, as well as those still developing.” That’s wrong.

For one, states, not the federal government, administer elections. They all employ best practices to ensure fair and fraud-free voting, including pre-election security checks and post-election audits. No other country has such a decentralized system. Though local control of elections has flaws—such as a lack of uniform rules for registration deadlines or the number of early voting days—it also allows for greater scrutiny.

The order then purports to mandate new rules for the states. But, the president does not have the authority to regulate elections. Even if Trump did have this power, most of the order’s commands would make our elections worse, not better. Several violate federal law.

First, the U.S. Constitution does not allow the president to dictate election rules. Article I says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” States set election rules and Congress can override them. Beyond signing or vetoing a congressional enactment, the president has no say.

The executive order improperly tries to direct an independent federal agency, the Election Assistance Commission (EAC), to undertake several tasks. Congress created the EAC as an independent entity in the Help America Vote Act of 2002 (HAVA). The EAC is explicitly bipartisan: two members must be from one political party and two are from the other. The statute creating the Commission does not give the president authority to direct the Commission on its activities. Instead, HAVA explicitly calls the Commission “independent.”

Second, Trump’s executive order contradicts federal law and best practices. The heart of the EO tries to implement the Safeguard American Voter Eligibility Act (the SAVE Act), which is currently under consideration in Congress. The SAVE Act would require states to make voters show documentary proof of citizenship when registering to vote, a high hurdle for the millions of voters who do not have easy access to these documents. There is also no evidence of massive noncitizen voting, so the SAVE Act is a solution in search of a problem. Although the House may pass the act, it will likely face a filibuster in the Senate that would prevent its enactment. Trump, through his executive pen, is trying to do an end-run around Congress.

Even worse, the EO goes even further than the SAVE Act in invoking executive power to try to adopt rules that are contrary to federal law. HAVA directs the EAC to create a federal form that states must use for voter registration. The form “may require only such identifying information (including the signature of the applicant) and other information (including data relating to previous registration by the applicant), as is necessary to enable the appropriate State election official to assess the eligibility of the applicant and to administer voter registration and other parts of the election process.”

As the U.S. Supreme Court recognized in a case from Arizona in 2013, “The Federal Form developed by the EAC does not require documentary evidence of citizenship; rather, it requires that an applicant aver, under penalty of perjury, that he is a citizen.” Arizona, therefore, could not require documentary proof of citizenship from new registrants who use the federal form. Instead, Arizona now has a dual registration system: those who use the federal form and do not show proof of citizenship may vote only in federal elections. In contrast, voters who do present their proof of citizenship can vote in both federal and state elections. New Hampshire also implemented a proof of citizenship requirement and experienced significant disenfranchisement.

Notably, federal law does not give the president any authority to dictate the contents of the federal form. If Congress passes the SAVE Act, the next question is whether the rule would

violate the constitutional right to vote because it would likely preclude millions of people from registering. But at least Congress can amend federal election law; the president cannot.

The order also attacks the rules of 18 states and the District of Columbia that accept ballots received after Election Day but are postmarked before then. That practice, which has existed in some places for years, ensures postal delays do not cost citizens their vote. The EO is correct that the conservative Fifth Circuit Court of Appeals recently held that the practice contradicts federal law, which sets a uniform Election Day for federal elections. Still, the reasoning of that judicial opinion was highly flawed. Election law expert Rick Hasen called the decision “bonkers.” A uniform Election Day means that voters cannot cast their ballots after Election Day, but it says nothing about when election officials must receive those ballots. Trump’s hyperbolic EO claims that counting ballots postmarked by Election Day but arriving a few days later is “like allowing persons who arrive 3 days after Election Day, perhaps after a winner has been declared, to vote in person at a former voting precinct, which would be absurd.” Of course, a voter who mails a ballot by Election Day is not casting a vote after the winner is known. No state allows voters to cast ballots after the fact. Moreover, the EO once again invokes power the president does not have by directing the EAC to implement this policy, saying that the Commission must withhold funding from states that do not comply. The federal government allocates very little money to states to administer elections in the first place, and Congress, not the president, controls EAC funding.

The EO also directs DOGE (the Elon Musk-backed Department of Government Efficiency) and the Department of Homeland Security to review states’ voter registration lists, raising privacy concerns. During Trump’s first term, his Election Integrity Commission sought voter registration information from states, which almost uniformly refused to comply because of the privacy implications. Many election officials, including Republicans, said they would not send the federal government this data. Those privacy concerns still exist.

Then there are the voting machines. The EO raises the specter that voting machines might be connected to the internet (they are not). It directs the EAC to “review and, if appropriate, re-certify voting systems” within 180 days under new standards. The problem, as Votebeat points out, is that “there are currently no voting machines on the market that have been certified to these standards. So, no jurisdiction in the country currently uses such systems—nor could they begin to within 180 days, because none are available for purchase.” And once again, the president has no authority to tell states which voting machines to use or to direct the EAC on its certification process.

Perhaps the entire thrust of the EO is encapsulated in how it rescinds a Joe Biden-era Executive Order, “Promoting Access to Voting,” and instead peddles the myth of noncitizen voting and massive voter fraud to justify voter suppression. There is nothing here about voter access. It is all about voter suppression and sowing doubt in our election processes.

The EO will indeed be challenged in court. If the courts follow the U.S. Constitution and federal law, they will swiftly strike it down. Congress should scuttle this attempt to aggrandize power in the executive branch. If checks and balances mean anything, then the president cannot simply order a bipartisan, independent agency to do his bidding to thwart democracy.

The post What’s Wrong with the Trump Administration’s New Election Rules? appeared first on Washington Monthly.

As a professor of voting rights and constitutional law, my phone has been ablaze in the past few weeks with texts from friends and family about the latest legal atrocity. “Will Trump try to run for a third term?” they ask. “Will we still have a Constitution?” 

My typical response is that we should not indulge the president’s wild notions that keep us spinning our wheels. No, he can’t run for a third term (absent a constitutional amendment, which would have virtually zero chance of passing). Yes, the Constitution—at least in a formal sense—will endure. We will have federal elections in 2026 and again in 2028.  

But here’s what keeps me up at night: What if Trump, Elon Musk, or someone else in the Trump administration refuses to follow a court order? That’s the looming constitutional crisis.  On Monday, a federal judge in Rhode Island determined that the Trump administration was not fully complying with its prior order to pause its funding freeze and demanded that the administration unfreeze funds.

What if the Trump administration simply ignores that order?

Already, there are signs that those in Trump’s orbit are setting the groundwork to undermine judicial decisions.  

Litigants have gone to court to stop the flurry of executive orders that are fundamentally reshaping our government, filing over 40 lawsuits in the past few weeks. For their part, jurists have stopped the spending freeze; paused an order that purports to end birthright citizenship, which is a key tenet of the Fourteenth Amendment; rejected a deadline for federal employees to accept a buy-out stemming from the infamous “Fork in the Road” email; and more.  

As a federal judge in Seattle, appointed by President Ronald Reagan, explained in one of the birthright citizenship cases, “The President cannot change, limit, or qualify this Constitutional right via an executive order.”  

In response, the Trump administration is attacking the judiciary. Vice President JD Vance posted on X, “Judges aren’t allowed to control the executive’s legitimate power.” Of course, the very question is whether the executive’s actions are within its “legitimate power.” If not, then courts must step in to declare the orders unlawful. Vance also retweeted conservative Harvard Law Professor Adrian Vermeule, who posted, “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”  

That’s wrong. Judicial oversight of a co-equal branch is precisely the role of separation of powers.  

Musk retweeted a post saying, “I don’t like the precedent it sets when you defy a judicial ruling, but I’m just wondering what other options are these judges leaving us if they’re going to blatantly disregard the constitution for their own partisan political goals?” Vance retweeted a post from columnist Kurt Schlichter, which said, “What if the judicial decision is lawless? A key component of the constitutional framework is judicial modesty, which is backed up by the fact that the judiciary has nothing to compel obedience, except its credibility.” 

That last sentence is correct: the judiciary has little to compel compliance except the norms that have sustained our democracy for over 200 years. The first part of the post is scary: is the Vice President suggesting that the administration should not comply with court orders because he believes they are somehow “lawless”?  

The way to challenge a decision is to appeal to a higher court, not to claim that courts are “lawless” and their rulings unworthy of respect. A failure to comply with court rulings would create the most serious constitutional crisis.  

The idea of judicial review goes back to the Founding. In 1803, in Marbury v. Madison, the Supreme Court explained that “a Law repugnant to the Constitution is void” and famously declared, “It is emphatically the duty of the Judicial Department to say what the law is.” 

The Court also curtailed the President’s powers in 1952 in the Youngstown Sheet & Tube Company v. Sawyer case, with Justice Robert Jackson’s concurrence offering a poignant reminder of the concerns that accompany an unchecked president: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.” 

The statements from Vance and his allies may be political posturing. Vance did not, after all, outright call for a refusal to follow court orders. But the implications of his posts are concerning enough that they demand a strong rebuke—especially from Republicans. Pro-democracy Republicans must emphasize to the Trump administration that it’s still bound by the law. The people should call their representatives to remind them of their fidelity to the Constitution. By all means, the executive branch should appeal decisions with which it disagrees. But if it continues to lose, the administration must comply with those rulings.  

As Alexander Hamilton wrote in Federalist 78, the executive has the power of the sword, and Congress has the power of the purse, but “the judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”  

If the Trump administration refuses to comply with a court order, the court could hold it in contempt. Would it try to fine or even jail those who fail to carry out its directives? Those options, though necessary, would further the constitutional crisis.  

The American experiment—declaring independence from the king and creating a government with co-equal branches that balance and check each other—will not work if the executive branch ignores judicial mandates. Refusing to comply is itself lawlessness.  

The post I’m a Law School Professor. Here’s What Keeps Me Up at Night appeared first on Washington Monthly.

Donald Trump has bold ideas for changing our elections. While most of his proposals would make our voting rules worse, there’s a silver lining. Given the decentralized nature of our election system, he has little official power to implement the new rules he supports.  

At an event on December 7, Trump stated, “We want to have paper ballots, one-day voting, voter ID, and proof of citizenship.” This statement echoed one of the priorities he listed on his campaign website: “Secure our elections, including same day voting, voter identification, paper ballots, and proof of citizenship.” 

But as president, Trump does not have the authority to administer elections. The U.S. Constitution says that state legislatures determine the “times, places, and manner of holding elections” for Congress, though Congress can step in to “make or alter” those rules. The Constitution gives the president no power over voting beyond signing or vetoing congressional laws. States scrupulously guard their constitutional authority to regulate elections, often opposing federal statutes that dictate rules for administering elections.  

To be sure, Congress has passed some of the most critical voting rules in our history. The Voting Rights Act of 1965 broke down barriers to the ballot box for minority individuals. The National Voter Registration Act of 1993 (often called the “motor-voter law”) increased registration opportunities. The Help America Vote Act of 2002 responded to problems from the disputed 2000 election in Florida. The Military and Overseas Voter Empowerment (“MOVE”) Act, enacted in 2009, makes it easier for voters living overseas to cast a ballot. 

But states still dictate the day-to-day aspects of election administration. That decentralized process has flaws, especially as it can lead to unequal treatment of voters. Yet, it also can stand as a bulwark to the incoming president’s initiatives to narrow the scope of voting rights.  

Moreover, most of Trump’s proposals are either already in use or are nonstarters for many jurisdictions.  

Trump says he wants paper ballots. Good news: virtually all jurisdictions—around 98 percent—already use paper ballots. Voters either mark their choices on a paper ballot that they feed into a machine to count, or they mark their selections on a machine that creates a paper record. Election officials say that these processes are the best practices for election administration. Hand counting of all votes, by contrast, often introduces inaccuracies.  

Trump says he wants “one-day voting,” seeking to eliminate early and no excuse absentee voting. But many voters, including those of his party, strongly support early voting opportunities. And even if Trump convinced Congress to pass a law that bans early voting for federal elections, Congress has no power to eliminate early or absentee voting for state elections. Most states align their federal and state election rules so that they can administer the election all at once without separate processes. It would be a shame if states could not let voters cast their ballots for federal races when they allow early voting for state and local elections. Indeed, some state constitutions mandate absentee balloting or early voting. The concern for efficient election administration will make it harder for Trump to convince Congress to enact this kind of change. In addition, Republicans embraced early voting in 2024 and won, so the idea of taking it away should be unpopular even among Trump supporters.  

Trump says he wants to implement “voter ID.” Almost three-quarters of states already require voters to show an ID when voting. Once again, this is a state-by-state determination, and Trump cannot simply mandate a strict voter ID law for the states that have chosen other methods to secure their elections.  

Finally, Trump wants “proof of citizenship” for voters. This is the one area where he might see success, as Congress considered a law this year, the SAVE Act, that would have required states to ask voters to show proof of citizenship when they register to vote for federal elections. Congress did not have the votes to pass this law in 2024, and the Republicans’ advantage in the House in 2025 will be slimmer, so it is unclear whether there will be a path to enactment once Trump takes office. But if it passes, it could make it harder for certain people—especially some racial minorities—to vote, as they simply do not have easy access to documentary proof of citizenship. Plus, it is already illegal for noncitizens to vote in federal elections and there is no evidence that a significant number of noncitizens try to cast a ballot.  

Could Trump use executive orders to implement these changes? Likely no. The Constitution clearly states that legislatures have the initial authority to regulate federal elections, with Congress able to enact nationwide rules if it wants. A president’s inherent authority should not extend to an area where the Constitution explicitly delineates power to others.  

None of this suggests that Trump’s presidency will not have a major effect on voting rights. It certainly will. He plans to nominate officials to the Department of Justice who have denied the accuracy of the 2020 election and have exhibited their fidelity to Trump over all other considerations. The DOJ will likely refuse to make robust and equal voting rights a priority. His judicial nominees will probably exhibit a very narrow view of voting rights. He can pardon the January 6 rioters, meaning that they (like him) will face few consequences for seeking to undermine democracy. He could wreak havoc through disinformation and discord. He has already suggested—in a shocking statement in a democracy—that he wants to jail those who opposed him, though again, he could not do so unilaterally.  

But, on the specific policies regarding voting rights, the states are still paramount. Of course, Trump can use the presidential bully pulpit, but there’s a big difference between rhetoric and reality. The reality is that states themselves would have to implement the changes he seeks, and courts would have to uphold them. 

Voters play a significant role in this debate. State legislatures and state courts may become even more crucial in upholding the ideals of democracy. Republicans, especially, must speak up to support the election rules they prefer, such as early voting.  

Elections have consequences. Given that Trump cannot do it by himself, state legislators should know the consequences if they go along with Trump’s ideas to curtail our democratic processes.  

The post Trump Has Little Power to Make Drastic Voting Changes appeared first on Washington Monthly.

Election Day is here, and all eyes will be on the presidential results, even though we may not know the winner for a few days. Control of Congress is also up for grabs and will take time to determine. These offices impact the right to vote, given the differing views of the two presidential candidates and the jurists they will nominate and confirm.

As an election law professor, I will also be attuned to the ballot measures that will impact elections for years. As Professor Richard Pildes wrote in The New York Times, “Americans in a number of states will also be voting on some of the most significant sets of political reforms in decades. . . . These ballot measures — in red, blue and purple states — constitute a major referendum on whether we can reduce political extremism through institutional change.”

Beyond reforms to party primaries (the central focus of Pildes’s piece), numerous states and localities have ballot initiatives impacting democracy. The indispensable Bolts Magazine “What’s on the Ballot” guide lists 28 ballot measures that address voting and election rules.

Ranked Choice Voting (RCV) will have its “biggest election day yet,” according to the advocacy group FairVote, as voters in four states and four cities will decide whether to implement this voting system. RCV lets voters rank-order their preferences instead of choosing just one candidate, minimizing the “lesser of two evils” conundrum that voters often face. The American iteration of this system began in 2004 in San Francisco. It then spread to other cities and eventually statewide in Alaska and Maine. Now, Colorado, Idaho, Nevada, and Oregon voters will determine whether to use RCV for future elections. (Nevada voters already approved it once, in 2022, but it must pass twice to become law.) Richmond, California; Oak Park, Illinois; Peoria, Illinois (in a non-binding referendum); and Washington, D.C. will also decide whether to adopt RCV for its future local elections; they would join the 50 jurisdictions that already use RCV—including Alaska, Maine, and 12 cities and counties that are employing it this November. Meanwhile, Alaska, which uses RCV and a top-4 primary system—in which voters choose among all candidates in a primary and the top four, regardless of party affiliation, move on to the general election—will decide whether to repeal the measure. Arizona, Missouri, and Bloomington, Minnesota, voters will also determine whether to ban RCV for all elections.

Ohio and Los Angeles, California, will decide whether to adopt independent redistricting commissions. The Ohio measure is sorely needed after the partisan commission drew skewed maps after the 2020 census, which the Ohio Supreme Court struck down several times. The Los Angeles measure responds to a scandal involving city council members making racist comments as they discussed the maps they would draw.

The electorate could be expanded or restricted in several places: eight states (Idaho, Iowa, Kentucky, Missouri, North Carolina, Oklahoma, South Carolina, and Wisconsin) will decide whether to amend their state constitutions so that only citizens may vote, which would preclude their localities from allowing noncitizens to vote in local elections. These measures would also soften the strong protection that state constitutions provide to the right to vote. They are especially concerning given that noncitizens are not illegally voting to any measurable degree. In the opposite direction, Santa Ana, California residents will decide whether to follow a few other jurisdictions that legally allow noncitizens to vote in municipal elections.

Iowa voters will determine whether to let 17-year-olds vote in a primary election if they are 18 by the general election. Albany, California, voters will decide whether to lower the voting age to 16 for local elections, following several cities in California, Maryland, and Vermont that have adopted this reform for all local elections or school board elections. (Newark, N.J., will implement a voting age of 16 for its school board elections next year.)

Connecticut voters will decide whether to enshrine no-excuse absentee voting in its state constitution. If the measure passes, Connecticut will join 36 other states and D.C., which either allow no-excuse absentee voting or automatically mail a ballot to all voters. Meanwhile, a Nevada measure could restrict access by amending the state constitution to require voters to present a photo ID. The initiative would cut against the Nevada constitution’s voters’ bill of rights, which is a list of safeguards that Nevada voters passed in 2020.

Arizona and North Dakota voters will decide whether to make it more challenging to enact citizen-led initiatives, an obvious pushback against efforts to go around the legislature to enact pro-voter reforms. Advocates in Dallas, Texas, want to move in the opposite direction and make it easier to enact local ballot initiatives, extending the time to obtain citizen petitions and lowering the signature threshold from 10 percent of the city’s qualified voters to 5 percent.

Campaign finance is on the ballot in two places: Florida voters will decide whether to repeal public financing of campaigns, while Maine will determine whether to restrict donations to PACs to $5,000, though if it passes, the measure might violate the legal principle behind the D.C. Circuit Court of Appeals decision that came a few months after the Supreme Court’s 2010 ruling in Citizens United; that D.C. Circuit decision, however, was about federal law, not a state law, and proponents have said they are seeking to set up a legal challenge that could create favorable precedent on limiting outside money in campaigns—though with the current Supreme Court, the maneuver could well backfire by dismantling the campaign finance regime even further.

This year is not necessarily unique in asking voters to decide how our elections should operate. 2023 saw numerous ballot initiatives to reform our voting process. So did 2022. Given that many people lack confidence in our election system, these measures are more critical than ever.

We may not know the presidential election winner on Tuesday night, but these ballot measures will tell us more about the strength of our democracy and the rules that will govern the next elections.

The post What I’m Watching on Election Night appeared first on Washington Monthly.

Democracy itself is on the ballot this year. So is the fundamental right to vote.

Beyond stark differences in their fidelity to democratic principles, Kamala Harris and Donald Trump have divergent approaches to voting rights. As I’ve long advocated, bipartisanship in voting rules is best. Hopefully, whoever wins will work across the aisle to enact meaningful, bipartisan reforms that make voting more accessible and secure. That said, the two candidates have vastly different views. Here is a rundown based on what they have said, done, and promised on voting rights.

Kamala Harris

The vice president’s record and statements show that if she takes office in January, she will continue to focus on expanded voting rights opportunities.

In her acceptance speech at the Democratic National Convention in August, Harris referred to the “freedom to vote” as “the freedom that unlocks all the others.” As senator and vice president, she strongly supported the John Lewis Voting Rights Act and the Freedom to Vote Act, two laws that could transform how states run elections. President Joe Biden tapped Harris to lead his administration’s focus on voting rights, including passage of these two laws. Both laws stalled because of objections from Senate Republicans.

The John Lewis Act would reinstitute some of the 1965 Voting Rights Act protections that Supreme Court rulings have harmed. The Freedom to Vote Act would mandate expanded early voting, vote-by-mail, and independent redistricting commissions to minimize gerrymandering, among other reforms. Harris has also discussed improving voter access for Native American communities and was a co-sponsor of the Native American Voting Rights Act when she was in the Senate. She remarked, “Democracy is strongest for our country when everyone participates; it is weaker when anyone is denied the ability to participate.”

During a meeting in February 2024 with leaders on voting rights, Harris dedicated three “National Days of Action on Voting”—Juneteenth (June 19), the anniversary of the Voting Rights Act (Aug. 6), and National Voter Registration Day (Sept. 17). She also announced that federal agencies would undertake various actions during this election year to promote voter registration and education, such as displaying signs with Vote.gov at Social Security offices and National Parks. In addition, those who signed up for health care on HealthCare.gov received follow-up emails about registering to vote.

Ultimately, a Harris presidency would likely push for more voting opportunities through expanded early voting and vote-by-mail, an end to partisan gerrymandering, and the adoption of other election-related policies that could lead to higher turnout. She has long called voting rights a top priority. She would likely use her presidency to push Congress to pass new voting rights legislation to break down barriers and impose more expansive voting rules. She would also almost certainly nominate jurists who would robustly construe the constitutional protection for the right to vote.

Donald Trump

Trump sees things differently. The 45^th president’s record and rhetoric primarily focus on what he and his supporters call election integrity. Yet his view of “integrity” is narrow, used most often to challenge an election result he does not like. State and federal judges—including some of his own appointees—soundly rejected his extensive efforts to seek judicial relief following what he said was a “stolen” 2020 presidential election. He has continued to focus on “integrity” concerns, saying he will only accept the election results this year if there is a “fair and legal and good election.”

He has also addressed election policy during his 2024 campaign. Number 19 on his platform’s list of 20 priorities is to “secure our elections, including same day voting, voter identification, paper ballots, and proof of citizenship.”

The proposal for “same day voting” presumably means that he would seek to restrict early voting and vote-by-mail policies. While Trump used to fulminate against early voting and voting by mail, he has warmed up to the idea in this election season. The audience at his Madison Square Garden rally repeatedly saw “Vote Early” signs on the Jumbotron. If Trump cools to early voting, he would probably face bipartisan opposition. Surveys show that both Democrats and Republicans favor early voting days—though Democrats support it at higher numbers than Republicans do. Views on universal vote-by-mail fall more along partisan lines, with most Democrats supporting the idea and most Republicans in opposition. A recent academic study found that “states with greater usage of mail voting experience higher overall voter turnout.”

Trump’s website also says he wants “voter identification.” Voter ID laws already exist in 36 states, though the specific requirements vary. Trump says he supports stricter rules to reduce voter “fraud.” Studies show that strict voter ID laws can disenfranchise some voters, especially minority individuals and poorer people, while there is virtually no evidence of in-person voter fraud.

Next, Trump’s platform says he wants “paper ballots.” Virtually all jurisdictions already use paper ballots. Presumably, given the lawsuits his supporters have brought, he means that he supports hand counting of ballots. Election officials and experts have demonstrated why hand-counting every vote is a bad idea. The process introduces inaccuracies, as machines are better than humans at rote tasks like counting thousands of ballots. Hand counting could also cause massive delays in reporting results, which might sow confusion or distrust.

Finally, Trump supports requiring voters to provide documentary proof of citizenship when registering for federal elections, urging Congress to pass the Republican-backed Safeguard American Voter Eligibility (SAVE) Act. Earlier this year, he called on Congress not to keep the government funded unless it also passed this law. Congress did not have the votes to do as Trump wished, and it ultimately enacted a funding bill without the SAVE Act. One can presume that the law would be a renewed priority in a second Trump administration—despite the evidence that such a requirement could disenfranchise valid voters who do not have the necessary documents and even though noncitizens hardly ever vote illegally.

A president’s judicial appointees also impact the scope of voting rights. Trump nominated three Supreme Court justices and hundreds of federal judges. Those jurists have generally ruled quite narrowly on voting rights protections, deferring to state lawmakers over the rights of individual voters. For instance, all three of his Court picks—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—joined in a 6-3 decision to limit plaintiffs’ ability to bring discrimination claims under Section 2 of the Voting Rights Act. Similarly, in 2020, the Eleventh Circuit Court of Appeals issued a 6-4 ruling—with five of the six judges in the majority being Trump selections—that upheld a Florida statute requiring people with a felony conviction who had served their time to pay back all “fines and fees” before they regained their voting rights. The decision minimized the reach of Amendment 4, a constitutional amendment overwhelmingly backed by Florida voters in 2018 to restore voting rights to persons who had them taken away because of a felony conviction.

Just last week, three Trump-chosen judges on the Fifth Circuit Court of Appeals unanimously held that Mississippi may not count absentee ballots postmarked before Election Day but received within five days after because federal law requires a single “Election Day” (The ruling will likely not go into effect for 2024.) The decision was contrary to the rulings of all other courts that have considered the issue. We can assume that Trump, in a second term, would appoint similar judges with a narrow view of voting rights.

A Trump White House would also likely alter the federal government’s activities toward voting rights. He could direct the Department of Justice’s Civil Rights Division to change its focus and no longer bring voting rights claims; the Project 2025 agenda (on page 562 of the 922-page document) says that the next president should “reassign responsibility for prosecuting violations of 18 U.S. Code § 24176 from the Civil Rights Division to the Criminal Division where it belongs. Otherwise, voter registration fraud and unlawful ballot correction will remain federal election offenses that are never appropriately investigated and prosecuted.”

As president, Trump could renew his first-term efforts to add a Citizenship Question to the Census, this time for 2030, which might cause an undercount of minority communities and harm their level of representation. He could create yet another voter fraud commission, though his first was mired in controversy and was eventually disbanded after finding no evidence of massive fraud. And he could continue to peddle falsehoods about the security of the election process and cast doubts on results he does not like.

He has even indicated that he would target those engaged in election fraud, posting on Truth Social that “legal exposure extends to Lawyers, Political Operatives, Donors, Illegal Voters, & Corrupt Election Officials. Those involved in unscrupulous behavior will be sought out, caught, and prosecuted at levels, unfortunately, never seen before in our Country.”

This analysis reveals that the two candidates have divergent views of elections and democracy. The fundamental right to vote, the cornerstone of democracy, could look vastly different depending on who wins the election.

We live in a democracy. It is up to the voters to decide which approach is best.

The post On Voting Rights, Trump and Harris Couldn’t Be Farther Apart appeared first on Washington Monthly.

Misinformation and disinformation are everywhere. Some people still think the 2020 election was not secure. (It was.) They believe noncitizens are voting in massive numbers. (They aren’t.) They think fraud is a major plague on our elections. (Wrong again.) Social media exacerbates the problem. AI and deepfakes infect our campaigns. People do not know where to look to find accurate information.

But facts do exist. It’s vital to ensure that voters understand the details about the candidates and their positions so that they can make informed choices when they go to the polls.

That’s where nonpartisan media and civic health organizations come in. They present fact-based reporting on the biggest issues in democracy—such as the Washington Monthly’s extensive coverage of how voting by mail and drop boxes is safe and efficient.

Civic health organizations also offer numerous guides that voters can and should trust, especially to learn what is on their ballot.

The Bolts Magazine “cheat sheet” is a great example. The chart identifies over 500 races nationwide, from the president to local referenda, impacting all aspects of policy and governance. Did you know, for instance, that 11 states will elect Governors this fall? Or that 14 states have important state supreme court elections? There are also statewide ballot initiatives covering issues such as abortion, legalizing marijuana, education policy, taxation, and more. On democracy itself, the Bolts guide shows that several states and localities will decide whether to adopt Ranked Choice Voting for their elections. The cheat sheet links trusted sources that offer facts about these issues.

But maybe you just want to know what is on your ballot. After all, most voters will choose not only the presidential electors for their state but also candidates for a slew of state and local positions. That’s where TurboVote comes in. TurboVote is a project of the nonpartisan organization Democracy Works, which aims to provide reliable and helpful voting information for all voters. Enter your address, and—Boom!—you’ll see every candidate race and initiative on the ballot this year. Clicking on a candidate brings up links to their website and social media pages. This resource is handy as voters research their local races, which often receive less coverage than the federal and statewide elections. There’s even a tool to set up an email or text reminder to vote and to send this information to a friend.

BallotReady is another valuable resource, especially for researching local elections. By inputting one’s address, voters will see all candidates on the ballot, including their background, education, and the key issues underlying their campaigns. There are links to reputable news sources that offer further details about their policy positions. The website also provides this same kind of detailed information on state and local ballot measures.

State and local news organizations can also make a difference. For example, in my home state of Kentucky, public radio stations created a comprehensive voter guide that offers information about each candidate, including a brief biography, their top priority, and key endorsements. Citizens can select the candidates they plan to vote for and bring their printed “cheat sheet” to the polls. The site notes that the public radio stations “believe in the value of local journalism providing accurate information to our readers and listeners.” Similarly, my hometown of Lexington has a nonprofit local civic health organization, CivicLex, that hosts Lex.vote. This website dives deeply into candidates for local office such as city council and school board. (Disclosure: I’m on the board of CivicLex.)

News organizations can also provide easy access to voter registration forms and links to online registration portals as the registration deadline nears. (Although the deadlines have passed in some states, it’s never too early to start planning for the next election.) Media entities can also offer easy access to absentee ballot request websites.

Voters should use these resources, but funding is also required to sustain them. Those who care about democracy should invest in local journalism by subscribing to local news organizations. We can and should trust nonpartisan media; it can serve as the lifeblood of democracy.

Voter education may not be the sexiest aspect of the election process, but it could be the most important. It is especially vital given our social media and AI-based world. Don’t necessarily trust information you see on social media or generated through AI. Do trust the voter guides from nonpartisan civic health entities, especially when they provide citations and links to their sources.

The Declaration of Independence states that a government enjoys its legitimacy from the consent of the governed. That consent should come from all of us based on truthful, verified information.

People often ask me what they can do to help support democracy in these perilous times. One simple answer is to point people—especially those who may not vote—to these voter guides and tell them to look up the races on their ballot. You just might convince them to cast an educated vote.

The post Do You Have Questions About When and Where to Vote, Candidates and Issues Up and Down the Ballot? We’ve Got You Covered. appeared first on Washington Monthly.

Suppose you were to believe the narrative from certain candidates, social media, high-profile lawsuits, and numerous ballot initiatives this year. In that case, you might think that noncitizen voting is a major problem. As with most issues these days, the facts are obscured in favor of false narratives aimed at stirring up a frenzy.

But facts should matter: Noncitizens are not voting in massive numbers, and our elections are secure.

That reality has not stopped those who sow divisiveness and undermine people’s confidence in our elections. The false narrative can also create negative changes in the law that undermine the constitutional protection for the right to vote. We must disseminate the truth so that the American public can distinguish fact from myth.

Federal law already prohibits noncitizens from voting in federal elections. Several state laws forbid it as well. From a practical perspective, it is unlikely that noncitizens will flout these laws purposefully and vote en masse, as they will probably be caught and face both criminal and immigration consequences.

It is true that sometimes, noncitizens mistakenly appear on voter registration lists, usually because they validly obtain a driver’s license, and the lists are copied over to the voter registration database. States routinely audit those lists to remove ineligible voters. And reports of noncitizens on the rolls are almost always inflated. For example, Texas officials likely embellished the number of noncitizens it purged from its voter rolls; news organizations found that the number Texas cited almost certainly included valid U.S. citizens. Alabama’s Secretary of State admitted that his initial allegation of 3,200 noncitizens on the voter rolls was massively wrong—at least 2,000 of the people he flagged were citizens. Of course, people often don’t hear the correction; they only focus on the initial claim.

In 2022, Georgia Secretary of State Brad Raffensperger announced he was referring for investigation 1,634 cases of potential noncitizens attempting to register between 1997 and 2022—a paltry number given the millions of valid Georgia voters. None of those people voted because of the various safeguards in place. Raffensperger noted, “The audit proved that Georgia’s citizenship check procedures are working and are vital to ensuring secure elections.”

Moreover, state and local election officials routinely perform post-election audits to verify the results. They have also specifically looked for noncitizen voting and found hardly any instances of it. Even the conservative Heritage Foundation lists only 21 cases of ineligible voting in its entire “election fraud” database. Numerous other studies also show that noncitizen voting is minuscule.

But the claims persist. A recent survey found that 67 percent of respondents said they encountered information on social media about noncitizen voting, with 77 percent of Republicans reporting that they had seen this content, compared to 63 percent of Democrats and 49 percent of independents who saw it. These false claims will likely be part of any post-election attempt to sow seeds of doubt about the election’s outcome. Maybe that’s the whole point,

Some states have attempted aggressive purges of their voter rolls, only to end up in court. The Department of Justice, for example, was forced to sue Alabama and Virginia for trying to flag potential noncitizens in their rolls too close to the election. Florida sued the federal government, alleging that the Department of Homeland Security had not provided the requisite information for Florida to review its voter registration list. But creating this kind of dispute so close to the election—during the 90 days before Election Day when federal law prohibits voter purges—does little but sow doubt about the voting process. Representative Matt Gaetz of Florida wants to add further uncertainty by introducing a bill that would let states remove noncitizens from the rolls at any time.

Meanwhile, eight states (Idaho, Iowa, Kentucky, Missouri, North Carolina, Oklahoma, South Carolina, and Wisconsin) will vote on ballot initiatives to amend their state constitutions to prohibit noncitizens from voting. These initiatives follow similar measures that passed in 2020 and 2022 in six states—Alabama, Colorado, Florida, Louisiana, North Dakota, and Ohio. The Arizona Constitution also prohibits noncitizens from voting.

The ballot propositions will impose a very minor change in the constitutional language.

Virtually every state’s constitution before 2020 said that “every” citizen shall be entitled to vote. The amendments alter that language to “only a citizen” may vote. But the change is not mere semantics. State constitutions provide much stronger protection for the right to vote than does the U.S. Constitution, especially given the restrictive rulings from the U.S. Supreme Court. Changing the language of state constitutions will water down these vital sources of protection. Already, some state judges are reluctant to apply their state constitutions robustly, preferring instead to follow the U.S. Supreme Court’s lead—even though state constitutions textually and explicitly confer broader rights. Narrowing the protection of state constitutions will give these judges even further reason not to construe their state constitutions as more protective of voters. Refusing to apply the state constitution properly leads to deference to state politicians, who often craft voting rules to help keep themselves in power.

If passed, these “noncitizen voting” ballot propositions will also forbid localities in these states from allowing noncitizens to vote in local or school board elections. A few cities in California, Maryland, and Vermont currently—and legally—let noncitizens vote in these municipal elections. New York City also passed a similar ordinance, but it has been held up in court.

A state constitution that says “every” citizen may vote does not necessarily preclude a locality from legally adding noncitizens to the voter rolls for local elections, as the state constitution is a floor, not a ceiling, of voter eligibility. A change in the state constitutional language to say that “only” a citizen may vote in any elections in the state would outlaw that practice by imposing a strict limitation for all elections. We can debate whether it’s a good idea to let noncitizens vote in local elections, though the idea of federalism would suggest that it really should be up to each city to decide for itself. Moreover, many states considering these ballot propositions already have state statutes that forbid noncitizens from voting in any election, so the constitutional change will have no legal effect. The propositions instead are a solution in search of a problem.

They also create their own problem: fostering the false claim that noncitizen voting is happening. It is not. Perhaps, instead of chasing the boogeyman of noncitizen voting, our elected leaders should focus on improving turnout among the U.S. citizens who routinely do not vote. After all, even in the best years, about one-third of eligible voters do not cast a ballot. If they participate, millions of nonvoters could fundamentally alter our elections. A few noncitizens who might mistakenly end up on the voter registration lists and almost never vote have little effect.

The post Noncitizens Are Not Voting in Massive Numbers appeared first on Washington Monthly.