Voting & Election Law: Current Issues Ahead of the 2026 Midterm Elections

Episode Notes

Transcript

Nicholas Stephanopoulos:

If you look at the Latino majority, black majority districts in much of the country, they only exist. They were only created because of the Voting Rights Act. And so if the Voting Rights Act no longer protects those districts, then many states may decide to just eliminate, wipe out those districts. So that’s a very big deal. If this all comes to pass, it would be the single biggest drop in minority representation in about 140 years. So the stakes are really high here depending on what the court does in Clay.

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J. Craig Williams:

And welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. As the 2026 midterm elections inch closer and closer, controversial issues surrounding voting have become the focus of a national debate. Voter identification laws, mail-in voting, redistricting, and election security are just some of the current issues ahead of the elections. Today on Lawyer to Lawyer will spotlight voting. We will touch upon mail-in voting, redistricting the Voting Rights Act, the Electoral College versus the popular vote, SCOTUS’s potential interference and influence with elections and various voting issues leading up to the midterm elections. And without further ado, we’re joined by returning guest Nicholas Stephanopoulos. Kirkland Ellis, a professor of law at Harvard Law School and Director of Strategy of the Election Law Clinic. Nick focuses on the intersection of Democratic theory, empirical political science and the American electoral system.

Welcome back to the show, Nick.

Nicholas Stephanopoulos:

Thanks for having me. It’s a pleasure to be here.

J. Craig Williams:

Let’s talk a little bit about voter identification laws and mail-in voting. What’s going

Nicholas Stephanopoulos:

On? Not much is happening at the state level where states are the entities that generally regulate mail-in voting and photo IDs for voting, but we’ve seen various efforts at the federal level to change the rules around photo ID and mail-in voting. There was a Trump executive order last year that purported to require people to prove their citizenship with some documentary evidence before they could register to vote. And that executive order also purported to direct states with mail-in ballots, not to count mail-in ballots received after election day. The courts froze all of that executive order and so it hasn’t gone into effect. Congress debated a bill called the SAVE Act that also would have required proof of citizenship to register to vote and photo ID to vote. But that bill, as everyone expected, went nowhere in the Senate where it couldn’t overcome a filibuster. So there’s been a lot of attempted change at the federal level, but so far nothing that has actually happened over the last year or two.

J. Craig Williams:

What gives President Trump the idea that he has the ability to issue an executive order regarding this?

Nicholas Stephanopoulos:

I think President Trump thinks it would be nice if the president had the power to regulate elections. And so thinking it would be nice to have that power, he’s issued a bunch of regulations in the form of executive orders, but there is no constitutional authority for the president to regulate elections, federal or state. And Congress also hasn’t delegated that power to the president. So these are basically efforts that go way beyond his actual authority and that’s exactly why the courts have ruled against these executive orders.

J. Craig Williams:

Why even try them? What is the purpose of issuing these orders if he knows that he doesn’t have this power?

Nicholas Stephanopoulos:

Yeah, it’s a good question. I don’t know to what extent the executive orders are just theater and to what extent either Trump or lawyers in the administration think they might actually be valid. So it is the case. The federal courts, especially the Supreme Court, have gone along with a lot of Trump orders and efforts that were a fairly dubious legality. And so maybe Trump and those around him thought that the executive orders about voting were on the same footing as a lot of other executive orders, but I think they really should have known that there’s less legal wiggle room here than in other areas. There’s just no textual presidential power over elections. Whereas by comparison, there’s a lot of presidential authority over the administrative state. So it’s one thing to assert aggressive new powers with respect to federal agencies and it’s a totally different thing to assert novel claims of presidential power with respect to elections.

So it might just be theater where Trump campaigned on restricting voting in these ways. He would like to do something in this area, but Congress won’t do it. And so he might be issuing these executive orders knowing they’re going to be struck down, but still enjoying the appearance of action and hoping people will remember the action, not the invalidation of those orders by courts after they were issued.

J. Craig Williams:

President Trump has also put his fingers into the mix in terms of redistricting. Tell us about what’s going on there and how he seems to have that power.

Nicholas Stephanopoulos:

Redistricting normally happens right after a new census comes out, so at the beginning of a decade. And so all the states of the country redrew their districts back in 2021 and 2022. And then Republicans didn’t do as well as they might have liked in the 2022 and 2024 House elections. They won majorities in the House, but very, very slim majorities. And so Trump knew that with the likely midterm penalty for the President’s Party, Republicans were highly likely to lose control of the House in the upcoming 2026 election, but then Trump realized that there’s no constitutional or statutory bar against mid-decade redistricting. And so Trump directed red states, Texas, Missouri, Ohio and North Carolina to redraw their congressional maps in the middle of the decade in the hopes of squeezing some more Republican seats out of those states. So here, Trump didn’t purport to do anything himself.

He just made it known that he wanted red states to do this remapping. And so it wasn’t Trump doing it. It was the state legislatures and the governors of Texas, Missouri, North Carolina, Ohio that did it. But what’s happened is that red states aren’t the only ones that can redraw their lines in the middle of the decade. And so California and more recently Virginia have now responded to the remapping by red states by redrawing their own congressional district. And the ultimate outcome of all of this mid-decade redistricting is likely to be very close to a wash. We’re basically where we started in net partisan terms, except now we have much more skewed maps toward Republicans in red states and much more skewed maps toward Democrats in blue states.

J. Craig Williams:

You’re the founder of REIT Districting website Plan Score. Tell us how redistricting works and how it came into being and why it even exists and also gerrymandering that famous word.

Nicholas Stephanopoulos:

Yeah. Redistricting exists because we use single member districts for the most part in American politics. So we divide the country into single member congressional district and usually single member state legislative district. And if we just left those districts alone indefinitely, they would end up with very, very different populations. And so every 10 years when we get updated population data from the census, states and localities around the country have to redraw all of their districts to ensure that they have roughly the same population in each district. So that’s why we have redistricting. Now the issue with gerrymandering is that if you’re redrawing districts, it’s pretty easy to design relatively competitive districts that your side wins and really, really safe districts and a smaller number of those safe districts that the opposing party wins. And so the ways in which district lines are drawn have a huge impact on who ends up being elected.

So in a typical state, if you take like a fifty fifty state, redistricting might determine whether you have an evenly split congressional delegation in that state or one that’s 75, 25 for one side or 75, 25 for the other side. So more than just about any other electoral policy redistricting and gerrymandering have the power to hugely skew representation and therefore to hugely skew the policy outcomes when the legislature makes laws. And so that’s why people pay a lot of attention to redistricting because it is so potent.

J. Craig Williams:

Why is this allowed?

Nicholas Stephanopoulos:

We’ve made a choice, a very bad choice, I think, to allow gerrymandering. So there was a roughly 20 or 30 year period in which the Supreme Court said that severe partisan gerrymandering is unconstitutional and in principle, the federal courts might do something about it. And so that was an excellent doctrine as far as I’m concerned, but in one of the worst decisions of the Roberts Court in 2019, the court reversed that earlier doctrine and said that from now on, the federal courts would play no role in stopping partisan gerrymandering. So we have partisan gerrymandering in substantial part because the Roberts Court decided to allow it and decided not to police it. A number of state courts have done what the Roberts Court couldn’t bring itself to do and they’ve struck down both Democratic and Republican gerrymanders. So there’s nothing about gerrymandering that makes it unable to be stopped by courts.

It’s just that the federal courts now don’t have the will to check it. And of course, Congress could do something about it as well. In a recent bill in 2021, 2022, there were serious efforts to curb partisan gerrymandering, but those bills were never ultimately enacted.

J. Craig Williams:

If the states are in charge of voting, why is it that the federal government is involved on these aspects of voting? I mean, we’re redistricting, we’re gerrymandering, we’re in federal court. Why aren’t we in state court?

Nicholas Stephanopoulos:

Yeah. Just because we have a sort of complicated overlapping system of federalism and so we have both state and federal regulation of redistricting. Both state and federal courts are involved in litigation. It’s messy. It’s not cleanly a state issue or a federal issue. Why is it a federal issue at all? Well, redistricting sometimes can violate protections under the federal constitution like the equal protection clause. And so there’s a textual reason why federal courts police redistricting. And then states have the initial power to regulate congressional elections within the state, but Congress also has the power to step in and override state regulations of federal elections. And so we have congressional statutes like the Voting Rights Act, the Help America Vote Act, the National Voter Registration Act that all apply to federal elections held across the country. And so that’s why things are complicated because we have both state and federal constitutional provisions that matter and we have both state and federal laws that regulate redistricting and voting generally as well.

J. Craig Williams:

Well, Nick, at this time we’re going to take a quick break to hear a word from our sponsors. We’ll be right back And welcome back to Lawyer to Lawyer. I’m joined by Nick Stethanopoulos, Kirkland Ellis, Professor of Law at Harvard Law School and Director of Strategy at the Election Clinic. Before the break, we were talking about the interplay between federal and state powers. And one of the references that you made was that federal government has the right to control voting as it relates to the Constitution. And we have a case relatively recently, Louisiana versus Clay. Talk to us about that case and what it meant.

Nicholas Stephanopoulos:

Yeah. Clay is probably the single Supreme Court case that everyone in the election’s democracy world is watching the closest this year. Clay is about alleged racial gerrymandering in Louisiana. There was an earlier lawsuit that required a second minority opportunity district, a district where minority voters can elect their preferred candidates to be drawn in Louisiana. The state could have drawn a nice compact second black opportunity district, but instead the state chose for political reasons to draw a really bizarre looking second black opportunity district that looks kind of like a lightning bolt running from northwest to southeast in Louisiana. And so after that district was drawn, there was another lawsuit filed alleging racial gerrymandering in violation of the Constitution and that case Clay went to the Supreme Court last year and then it was re-argued this term as well. And so on the surface, Callay looks like just the latest Supreme Court case about racial gerrymandering and there have been lots of these cases over the years, but Clay has seemingly become a lot more important because the court directed the parties to consider basically whether the Voting Rights Act might now be obsolete.

So when the court ordered re-argument in Calay, the court directed the parties toward this issue of the potential obsolescence of the Voting Rights Act. And so now the stakes are much, much higher than what happens to this particular district in Louisiana because we’re now facing the possibility of the court either striking down or severely limiting a very important portion of the Voting Rights Act. And if the court does that, then there could be really dramatic consequences for representation across the country. So if you look at the Latino majority, black majority districts in much of the country, they only exist. They were only created because of the Voting Rights Act. And so if the Voting Rights Act no longer protects those districts, then many states may decide to just eliminate, like wipe out those districts. And I’ve seen estimates that anywhere from 10 to 20 minority opportunity districts to the congressional level might be torn apart if Callay neutralizes or strikes down the Voting Rights Act.

So that’s a very big deal. If this all comes to pass, it would be the single biggest drop in minority representation in about 140 years. The stakes are really high here depending on what the court does in Clay.

J. Craig Williams:

Do you have a prediction?

Nicholas Stephanopoulos:

Yeah. I guess my unfortunate guess is that by ordering re-argument here and by raising the stakes by directing the parties to offer their arguments about the Voting Rights Act, I think a majority of the court wants to do something to limit or maybe even neuter the Voting Rights Act. So my tentative expectation is of a pretty big dramatic ruling, but there is a lot of uncertainty about that just because there’s so many paths the court could take. And also there didn’t seem to be a real consensus on the court at the oral argument in Kalay either. I don’t have a strong sense of what’s likely to happen here.

J. Craig Williams:

Let’s talk a litle bit about Watson versus RNC.

Nicholas Stephanopoulos:

Yeah, great. So Watson is another pending election law case at the court. Watson is about whether states are allowed if they want to, to count mail-in ballots that are sent by election day by voters, but then are received by states after election day. And so Watson is a non-constitutional case. The argument of the Republican National Committee in Watson is that some federal statutes that talk about election day being the first Tuesday of November, that those statutes preclude or preempt counting any ballots received after election day because under those statutes, the election is supposed to be done by election day and there aren’t supposed to be more ballots coming in after election day. So in my view, the statutory argument here is weak. We just have laws saying when election day is. Those laws never say anything about the treatment of late arriving ballots. There’s also a very long history of some states choosing to count mail-in ballots received after election day.

And so I’m always suspicious when some clever lawyer claims to have discovered an argument that means that decades or generations of practice were illegal after all, and nobody realized that at the time, but I also think the stakes are not so high in Watson. So only relatively few states count mail-in ballots received after election day anyway. The numbers of those ballots aren’t enormous in those states. And if you told voters that they had to submit their mail-in votes a little bit earlier to comply with the Supreme Court’s new rule, almost all of those voters would do that anyway You would have a very unfair surprise if after the election someone decided not to count late arriving mail-in ballots, but as long as the rules are clear in advance of the election, I don’t think the partisan effect should be very substantial here.

J. Craig Williams:

There have been a lot of election securities concerns here in California. In fact, in where I live, Sheriff Chad Bianco seized a bunch of voting records. What is going on here? Why are we having such an effort to try and shut down voting and change voting? Why are these midterms so important? What’s going on?

Nicholas Stephanopoulos:

Yeah, great. So with respect to these efforts to seize ballots, reexamine ballots, all of that is being driven by the myth or at least the massive exaggeration of voter fraud. Trump has been falsely declaring fraud every time he loses any race, whether it’s primary election, general election, what have you. And these claims are always completely based on nothing but falsehoods. But some Republican candidates, lawyers, other officials see some advantage in pretending the Trump’s claims are true and looking as if they’re fighting fraud, trying to find traces of fraud or stamp out fraud. So I see all of these efforts to reexamine ballots as just being driven by the really pernicious lie about there being substantial fraud going on. As to the more general question of why the midterms are important, I mean, I think all midterm elections are important. People always think any particular election is the most important in recent American history and so I don’t put a lot of stock in those kinds of claims.

I think given the assertions of power by Trump over the last year or two, which are really unprecedented in recent American history, I think it’s more important than usual to have a Congress that is a rival power center that is not just going to acquiesce in all of the president’s assertions of power. And so I think the reason why this midterm is more important than the 2014 or the 2010 or the 2006 midterms is just because of who the president is and what kind of power the president is claiming over elections, the administrative state, aid to states, foreign policy, you name it. I think that raises the stakes more than usual here.

J. Craig Williams:

Well, Nick, we’re going to take another quick break to hear a word from our sponsors. We’ll be right back. And welcome back to Lawyer to Lawyer. I’m back with Nick Stephanopoulos, Kirkland & Ellis, professor of law at Harvard Law School and Director of Strategy of the Election Law Clinic. Midterm elections that we were talking about before the break are coming up, but we also have this little national popular vote compact. I guess it’s not so little. Virginia has stepped into the mix and we’ve been complaining about the Electoral College for a long time. What will the National Popular Vote Compact do to the Electoral College?

Nicholas Stephanopoulos:

Yes. The National Popular Vote Compact, it’s a clever way to circumvent the Electoral College and functionally end up with a popular vote for president, which is a policy that a majority of Americans reliably support in polls. You can basically never get to that outcome with a constitutional amendment because you’re never going to convince enough states or enough members of Congress to approve this as a constitutional amendment. About 20 years ago, some law professors and other advocates had an idea. What if enough states all agreed to come together, form a compact with one another, that they would allocate all of their electoral votes not to the candidate who won each state, but rather to the candidate who won the national popular vote. So if enough states entered into this compact and began allocating their electors that way, that could make our presidential election effectively one that’s decided through a national popular vote.

And so Virginia very recently became the latest state to sign on to the National Popular Vote Compact. And this now means, I forget the exact number, but states with more than 200 electoral votes between them have signed onto the compact. And if those states get to 270, then the compact goes into effect and we would then have effectively a national popular vote for president. So I guess what’s exciting for some or alarming to others is that we’re now within sort of site of the NPV compact going into effect. I think only two or three medium sized states need to join for the compact to go into effect and it’s at least possible that enough states would be willing to do that after the 2026 election. So that would then raise some very thorny legal issues as to whether this is a permissible kind of thing that states can do via a compact.

And if the courts rule that the compact is acceptable, then we would have the biggest change ever in how we hold our presidential elections. We would effectively have a national popular vote, which has been the dream of many reformers. It’s been the nightmare of some critics, but whatever you think about it, it would be a fundamental shift in how we run presidential elections in this country.

J. Craig Williams:

Why do we have the electoral college? I mean, it seems like if we’re going to vote and democracy is what it is, that the popular vote is what should control.

Nicholas Stephanopoulos:

Yeah. We don’t have a mini electoral college within any state to determine the governor. No other country uses anything like the electoral college. It’s a complex convoluted mechanism that was adopted as a compromise at the original constitutional convention and it was adopted in an era when we just thought states were more significant, more sovereign, more powerful than we do today. And so maybe this patchwork system where every state decides for itself how to allocate its electors makes sense in a world where states were very recently independent sovereign actors. I think it makes a lot less sense now that we think of the presidential election as a single unitary national election. That would seem to require having the same rules, the same decision threshold everywhere, which is what we would get with the national popular vote.

J. Craig Williams:

We’re coming into the elections. There’s been an awful lot of discussion about the midterm elections. And in fact, there’s been some conversation about what happened in Hungary in terms of getting rid of Orban and the kind of democratic push against authoritarianism. We’ve seen in the rise of authoritarianism here in the country, do you think we’re going to see a similar push here?

Nicholas Stephanopoulos:

Well, on one level, I doubt we’re going to see quite the same dramatic election outcome they saw in Hungary where the ruling quasi-authoritarian party lost something like 50 or 60% of its seats and saw its vote share go down by 15 or 20 percentage points. There’s probably certainly in modern history, there’s never been an electoral shift that big in American politics, but in broader strokes, I think what happened in Hungary is really heartening. You had a party and a leader that used every authoritarian trick in the book to entrench themselves in power, gerrymandering, malapportionment, control of the media, harassment of political opponents. And the people said, no enough. And they voted the party out of power by a massive landslide margin. And so again, I don’t think we’ll have quite the same dramatic landslide in America, but I think Hungary is an indication that people don’t always like populist authoritarian movements.

People don’t like efforts to subvert free speech, subvert democracy, subvert elections. And if you give them the chance, sometimes the people strike back in reasonably free elections and that’s what happened in Hungary and it’s what might well happen on not quite the same scale in November in America.

J. Craig Williams:

What kind of controversies do you expect to arise out of these elections? What are Republicans going to do and what are Democrats going to do?

Nicholas Stephanopoulos:

The most likely scenario is just of a reasonably free and fair election facilitated by the fact that the federal government just hasn’t done these things that Trump wishes it would do with respect to voting in elections. If enough races are very close and if that potentially affects who controls the House or Senate, I could see there being allegations of fraud, efforts to not count certain ballots, efforts to litigate certain election results. I tend to think that we’re in a pretty good position for most of those efforts to fail, but I wouldn’t want the House or the Senate to come down to one or two very close races because then all bets are off as to what exactly might happen. I think it’s also a bit of a blessing that Trump himself is not on the ballot. It’s not like Trump enjoyed the 28 midterms when his party lost 40 seats in the House and as always, Trump cried fraud after that election, but there wasn’t really litigation or anything else that’s serious affecting the 2018 elections.

So when Trump was on the ballot in 2020, we saw much more elaborate efforts to subvert defy the election outcomes culminating in the events of January 6th. I think Trump is less dangerous and I’m a little bit les concerned now just because it’s not a presidential election that’s coming up.

J. Craig Williams:

I think it looks like we just about reached the end of our program, so it’s time to wrap up and share your final thoughts and if you’d like, provide your contact information. I particular, I’d like you to give some advice to our listeners in terms of what they should do for this election and what to be aware of.

Nicholas Stephanopoulos:

Great. I’ll just close with the general kind of banal point that democracy works better when more people participate. Participation is good in and of its own and it also has a lot of impact on representation, on policy, on the direction of the country. And so the more that people vote, the more accurate the voice of the people is in the election and hopefully the more clear the signal is for representation and policy. So no matter how bleak things look, just go and vote. That’s what we all have an obligation to do as citizens in the country.

J. Craig Williams:

Well, thank you very much, Nick. It’s been a pleasure to having you on the show today.

Nicholas Stephanopoulos:

Great. Thank you for having me.

J. Craig Williams:

Well, here are a few my thoughts about today’s topic. As Nick said, get out and vote. The one thing that can’t be surprised is you walking to the polls and entering in your vote. So I think that’s the best solution to all of these problems. That’s it for my thoughts about today’s topic. Let me know what you think. If you like what you heard today, please rate us on Apple Podcasts, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think lawyer to lawyer.

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