U.S. Elections Under Pressure from White House

Nate Persily: 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 is something 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 to punish their opponents and reward their supporters. That’s an unstable equilibrium of tit for tat going forward. 

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. 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 Spogli 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.

Nate Persily: Thanks for having me back.

Pam Karlan: 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. 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. 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. This is one of a series of about a dozen now mid-decade redistrictings across the country. 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. 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. That’s true even in states that haven’t lost or gained a seat. People shift around. So Missouri drew its districts in 2021, after the census numbers came to them. Then they redrew, or attempted to redraw, their districts in 2025.

Why?

Nate Persily: 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. 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 on previous episodes, and then also this urge to do more partisan gerrymandering.

So they dismantled one of the Democratic districts there. At the same time, voters put up a referendum in order to essentially prevent that from happening. 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.

Pam Karlan: Yes, 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. 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. 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—sends it to the whole court.

But here, he just denied it outright.

Nate Persily: In the mail ballot case that we’ll talk about in a moment, Ketanji 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.

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.” Justice Kavanaugh rejected that as well.

Pam Karlan: Yes, that one…

Nate Persily: Now, I think in part because the secretary of state was dragging his feet so much through this process. The kind of crisis that we had at the end was in part the state’s own making.

Pam Karlan: Yes, 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’ve been challenged long before the primary election, and we would’ve known what the districts were.

And then, of course, there’s the fact that a federal district judge thought it was a good idea to put the secretary of state into this kind of no-win position. The Missouri Supreme Court then kind of announced, “We’re going to have a contempt hearing about the Missouri secretary of state,” and told him not to get too far away from the court building—which had this kind of feeling of, “we might put you in jail.”

Nate Persily: 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. These kinds of extraordinary moves to game the system at the last minute, in order to make it harder for people to vote, or to 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 something 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 to punish their opponents and reward their supporters. That’s an unstable equilibrium of tit for tat going forward.

Pam Karlan: Yes, 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. It wasn’t being done after the process was already underway. And I think that…

Nate Persily: Yes, that’s what’s new. Gerrymandering is as old as Elbridge Gerry, if not earlier than that. So it’s as old as the republic. 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, we’ve had pretty much undisturbed, regular decennial redistricting, with one or two famous examples—Texas, otherwise. But right now, it’s just the ruleless atmosphere in which people are operating. 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. Then, most recently, in their case dealing with Section 2 of the Voting Rights Act, they 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.

Pam Karlan: Yes, 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.

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. It seems like we’re returning to that in some important ways. Tennessee got rid of the one seat in Tennessee that was electing a Democrat. Missouri tried to go down to one. 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?

Nate Persily: It sort of turns the House into the Senate in a lot of respects. So 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 congresspeople from those states to be of one party or another.

Whatever Texas does, it’s not going to eliminate all Democratic districts, or the same thing with Florida. I think it would be hard…

Pam Karlan: Or California, which now, 90% of the seats are going to be held by Democrats in a state where statewide Republicans get between 35 and 45…

Nate Persily: Right.

Pam Karlan: …percent of the vote in any given election. So they…

Nate Persily: Yes, so it’s definitely…

Pam Karlan: …only get 10% of the seats.

Nate Persily: It’s over-representing the dominant party by huge margins. But you’re going to find a kind of general ticket principle applied to today’s politics. It will probably lead to greater advantages for those who can control the smaller states, because you’re just 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.

Nevertheless, your point is well taken—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. So the question is whether the statewide election is going to be determining the outcomes here. I still think you’re going to see a lot of distortion in representation as a result of 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 the lines in their state. 

Pam Karlan: Yes, and the thing you said earlier about—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…

Nate Persily: Right. That’s right.

Pam Karlan: …the people the right to elect. Prior to the 17th Amendment, the Constitution gave the state legislature the right to select the senators. Now what we have, essentially, is a state legislature selecting the House of Representatives, almost in a way, by picking…

Nate Persily: That’s right …

Pam Karlan: …by picking the configurations.

Is there any way out of this mess on redistricting?

Nate Persily: Well, I think the way out is through federal legislation, and I think you’re seeing some murmurings on both sides to do this. I met with the Problem Solvers Caucus a few months ago, and now they’ve put out a proposal 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. I sort of feel like we need to rally around some change here, because any change is better than the current system. It really depends on what happens in this election and in the next election, as to whether the 2030 redistricting process is going to be as ruleless as the current system is.

You can’t rely on states to do it individually, because as we’re seeing…

Pam Karlan: It’s a prisoner’s dilemma…

Nate Persily: Yes.

Pam Karlan: It’s a prisoner’s dilemma for the states. Yes. 

Nate Persily: It’s got to be done at the federal level.

Pam Karlan: Yes. 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 what the Constitution refers to as the “inhabitants.”

Nate Persily: Right.

Pam Karlan: There are a bunch of people he wants to disinhabit. 

Nate Persily: Well, we went through this fight in…

Pam Karlan: With the citizenship question the last time…

Nate Persily: Yes, 10 years ago, essentially, during the first Trump administration. Not 10 years ago, but right before the last census. And so, as you said, the question is: could you limit the census, the head count, to citizens, when the Constitution says inhabitants or people? As a constitutional matter, I think that’s wrong.

Pam Karlan: Well, it has got to be wrong because of the Three-Fifths Clause, which is the original Constitution counted enslaved Black people as part of the population.

Nate Persily: Yes.

Pam Karlan: Yet they clearly were not citizens. So it can’t be that inhabitants is the same word as citizens, right?

Nate Persily: Well, that’s obviously right for purposes of apportionment. The question that had been litigated before was: 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?

Pam Karlan: Yes, and then there was Evenwel as well.

Nate Persily: Right. Well, you can say what the Evenwel 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: 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. But 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.

Pam Karlan: Right.

Nate Persily: 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.

Pam Karlan: Yes, 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. So 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 they want to take all questions about race or sexual orientation off the census. It’s kind of odd to say we want more demographic information about some things and much less about others.

Nate Persily: Well, and as you were suggesting before—you were talking about the Three-Fifths Clause—the issue of the census and race is as old as the Republic. 

Pam Karlan: Yes.

Nate Persily: The idea of counting race was essentially imbued in the Constitution, not just with respect to African Americans, but also Native Americans.

If you look, the racial categories have changed over time, and in some ways in kind of wild ways. It’s a story of American history and how we construct race, where you’d have questions of what percentage Black a person was, et cetera, and they’d have to put that on the forms.

But race has always been a part of this—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.

Pam Karlan: 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. 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 cast their ballot in person. But now there are a number of states that no longer even conduct in-person voting at all. And then, even in the other states, a huge proportion of people vote by mail.

I think the estimate now is that 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.

The way 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 8,000 jurisdictions…

Nate Persily: Right.

Pam Karlan: …in the United States that actually have some finger in the pie of running elections.

The way it’s been done in the past is states send 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. 

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.

Nate Persily: So 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-run elections, and, within sort of lateral separation of powers, the fact that the president is unilaterally trying to do it.

So, federal control over state elections—there are statutes, of course, like the Voting Rights Act, like the Motor Voter Rule, the National Voter Registration Act, issues dealing with military voting, the Help America Vote Act. There are federal statutes, but they’re sort of few and far between. As 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 célèbre 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.

After the executive order was passed and mostly enjoined, the Postal Service developed its own set of regulations for mail balloting. They were developed pursuant to the executive order, and those have now been at least suspended by the Supreme Court.

Pam Karlan: 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. So 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.

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. If those two things didn’t match, it would reject the mailing.

There 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—I love postcards, I love stamps, I love the Postal Museum in Washington.

Nate Persily: I should just interject here to validate your love of the Postal Service. People should know that when Pam Karlan got the teaching award here and had to give the speech at graduation, she put a postcard under each of the graduates’ seats, so that they would thank their parents or someone else who brought them there.

Pam Karlan: I gave them each a pen as well.

Nate Persily: Yes, that’s right.

Pam Karlan: A pen and a postcard…

Nate Persily: …to add even more credibility to your love of the Postal Service.

Pam Karlan: But I do love the Postal Service. They are not always the swiftest, and they had not yet created the portal.

About a week ago, states started sending out ballots, and there was no portal to which they could upload their materials. 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 from us is really problematic.”

It turns out that even one of the states that bought the envelopes—there was a gap of 1/100 of an inch too much between one of the numbers that the Postal Service wanted on the ballot envelope and another—and so those were rejected. So a number of states, plus a number of voters, said, “Look, we want a preliminary injunction stopping this from going into effect.”

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?

Nate Persily: Well, the first time… it was before there was a promulgation of a final rule, and the argument was that this case was not ripe—that no one had been injured yet, and we don’t know the specifics of what the Postal Service is going to do.

So the court basically punted until the Postal Service did something, and then…

Pam Karlan: Yes, the weird thing about that, 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— 

Nate Persily: Well, that’s right.

Well, while it was all being litigated, at the Supreme Court. So the question was: to what extent should they be closing their eyes here? This is a larger problem in election litigation, which is that sometimes these issues are not ripe until they’re moot.

Pam Karlan: Yes.

Nate Persily: And here you’ve got the problem where it’s like, technically, maybe it’s right that at the time the case was filed to the Supreme Court, no one had been injured yet. But when it comes to elections, you’ve got to have clear rules before the ballots are mailed out. That was one of the things that Justice Ketanji Brown Jackson was talking about in her dissent—that these are the ingredients for chaos.

Let me just say, at a larger level: there is nothing in the abstract, if we’re behind the veil of ignorance, wrong with 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. 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. You were trying to build an entire new system, to be administered by an entity whose role has never been enforcing election law—the Postal Service. And to do this 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 a new piece of technology where the matching of voters to some list could always lead to…Anyone who does matching knows there’s always going to be false positives when you do that. And if that could then lead to batches of votes being thrown out, that would have been a disaster.

Pam Karlan: Yes, so that was the first litigation. 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.”

Nate Persily: Right.

Pam Karlan: 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.

Now the government went back to the Supreme Court. I thought the most interesting thing here—and this goes back to something you said earlier about the problem with some election cases, that they’re not ripe until they’re moot—is the government, having argued before that it’s too soon to bring a lawsuit, now argued that it’s too late for the states and the voters to bring a lawsuit.

The other thing that was striking, I thought, about the Solicitor General’s arguments to the Supreme Court is he didn’t really argue about the equities at all. That is, he didn’t spend any time explaining 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 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, and that outweighs whatever interest voters and states have.

Nate Persily: The crazy thing is this wouldn’t have…Even if there was fraud in the system and unregistered voters, ineligible voters, this is not going to prevent that.

Pam Karlan: No, of course not.

Nate Persily: 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.

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, or even deposited at the polling place.

But this would have been a pretty unprecedented move and reorganization of federal and state authority. I often say we don’t have a federal overseer of elections in the U.S. like most countries do. If you had to identify one federal agency that has the greatest impact on elections, it’s going to be the Postal Service, and that’s increasingly true as we move away from Election Day voting.

But all of these shenanigans at the last minute unearth issues that we’ve been talking about as election law people for some time—whether you call it the Purcell principle, or just sort of dealing with the equities of chaos in the system—that these kinds of last-minute changes threaten the right to vote. We need to have the rules of the game be clear well before the election is underway.

What was happening here is that not only did you not have the rules being clear before the elections were underway, but the rules were going to change while the votes were already being sent out. So the Supreme Court, at least, saved us from that specter. But there is a lot that’s going to happen between now and Election Day.

Pam Karlan: One of the other things worth sort of saying about the Supreme Court here— this was true also in the Watson case, which was the case about whether states could count ballots that were cast and postmarked by Election Day but that arrived a little bit late. You’re now seeing fracturing on the Supreme Court on issues that I would have expected 10 years ago, the Court would have decided unanimously. 

It seems like, especially Justice Alito—because he did the dissent both in the Watson case and here—he really has bought into this narrative that there’s all of this fraud out there, almost a narrative of “there must be fraud out there because we don’t see any fraud out there.” 

Should we be worried that the Supreme Court itself is sort of retreating from a position of neutrality on election law issues?

Nate Persily: Well, I think that what you’ve identified about how this kind of general conspiracy theory is now finding legitimation in the court is true—and that sort of “damn the data” here. There’s a story out there of widespread fraud. We’re going to allow these kinds of countermeasures to go through the system, as you were saying, without a weighing of the equities as to how many people could end up not voting as a result of these countermeasures. 

There are the clear cases of voter suppression, where people end up not being able to vote because of a rule change. What we’re seeing now is sort of suppression through chaos. If you  have uncertain rules, and if you have great discretion being lodged in different political actors, and you have uncertainty as we approach the election, that also has a suppressive effect, because this environment of chaos could lead people not to trust the elections. It could lead people maybe not to turn out to vote. They might worry about even their security if they were to vote—whether their vote is going to be counted.

What we need is for everybody to find a chair, and the music needs to stop before the election, and then run the election under preexisting rules.

Pam Karlan: Well, I’m going to have you come back to play more musical chairs with me later here on Stanford Legal.

I want to thank our guest, Nate Persily. This is Stanford Legal. If you’re enjoying the show, tell a friend, and please leave us a rating or review on your favorite podcast app. Your feedback improves the show, and it helps new listeners to discover us. I’m Pam Karlan. See you next time.