U.S. Elections Under Pressure from White House

Stanford Legal

Nate Persily and Pam Karlan discuss the escalating legal battles surrounding the 2026 midterm elections. They examine mid-decade redistricti

Key takeaways

• Missouri's attempt at mid-decade redistricting was blocked by the state Supreme Court, a decision upheld by the U.S. Supreme Court.
• The Supreme Court has effectively weakened the Voting Rights Act through decisions like Shelby County and Rucho.

Main topics

• Mid-decade redistricting
• Supreme Court election rulings

Notable quotes

We're sort of sinking to a new low here.

Conclusion

The episode highlights the profound instability entering the American

Transcript preview

Speaker 1 (0:00) 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. 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. Speaker 2 (0:33) This 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 Persily. Nate is the James B. McClatchy Professor of Law here at Stanford Law School. He'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. Speaker 1 (1:28) Thanks for having me back. Speaker 2 (1:30) 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. And 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. So 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? Speaker 1 (2:50) 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-tat between the Democrats and Republicans in so many states. Starting with Texas, then retaliating with California, then Florida chimed in, and Missouri was one of those states that tried to take advantage of both the Supreme Court's sort of stepping away from the Voting Rights Act in Section 2, which we've talked about in 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 enforced for the 2026 election. A 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. Speaker 2 (4:03) 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 because usually in these kinds of cases, the justice who gets the 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. Speaker 1 (4:41) 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, you know, 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. Justice 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 going to sort of disenfranchise people or overturn the primary election if you go with the old lines. And Justice Kavanaugh rejected that as well. Yeah, Speaker 2 (5:40) I mean, that one— No, I think in Speaker 1 (5:41) 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. Speaker 2 (5:50) Yeah, 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 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 Speaker 1 (6:35) of feel of, we might put you in jail. Well, 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, to reorganize representational systems and redistricting, right? 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. 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 a sort of unstable equilibrium of tit for tat going forward. Speaker 2 (7:34) 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. Speaker 1 (7:52) Gerrymandering is as old as Elvish Gerry, right? If not earlier than that, right? So 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