Many Americans are losing faith in elections. Proposed solutions from across the political spectrum to restore faith in the process — early voting, mail-in ballot restrictions and voter ID laws — seem to have the opposite effect.
But lack of trust in elections is a symptom of a broader problem: America is living through an era of democratic dissatisfaction. That’s what the New York University law professor Richard Pildes argues on this episode of “Interesting Times.” He and the guest host, Sarah Isgur, the editor of SCOTUSblog, discuss why Americans are so worried about the midterms and how to fix our electoral system and restore trust.
Below is an edited transcript of an episode of “Interesting Times.” We recommend listening to it in its original form for the full effect. You can do so using the player above or on the NYTimes app, Apple, Spotify, Amazon Music, YouTube, iHeartRadio or wherever you get your podcasts.
Sarah Isgur: Rick Pildes, welcome to “Interesting Times.”
Rick Pildes: These are interesting times, and I’m glad to be sharing them with you.
Isgur: So let’s just start with this: Are you getting these questions too? When people find out that you’re Rick Pildes, are they like, “What’s going on with the election? Is this going to get stolen?”
Pildes: Yes, of course, I’m getting lots of those questions. I’m addressing the various anxieties people have about the election, things they read in the paper.
We can put this in the larger context of why there’s so much anxiety. I think it’s partly that we are in a period where lots of people feel our elections have become what I call “existential.” Meaning, if the other side wins, many people on both sides believe the country will never be the same. That’s not a normal state of democratic politics. It puts tremendous pressure on elections.
On top of that, we’ve never been in a period in our history where partisan balance has been as close as it is over such a long period of time. Here’s an amazing statistic: Since 2000, in every election but two, either the House, the Senate or the White House has changed partisan hands. That’s really incredible.
Then, on top of that, there are a lot of last-minute changes the federal government is attempting to make in the election process. Those have been largely blocked by courts.
But all of that combines with the distrust in public institutions to lead to lots of anxiety that many people are expressing about the election.
Isgur: You’ve used the phrase “era of democratic dissatisfaction” to describe what we’re all feeling. What exactly does that mean, and how does distrust in our electoral process play into this disillusionment?
Pildes: We’re not alone in this in the United States. I think almost all Western democracies over the last 10 to 15 years have been experiencing this sort of pervasive dissatisfaction among lots of citizens with democratic governments.
People vote in one set of actors, one party. They’re dissatisfied, they throw them out. They vote in the other party or the other set of actors. They’re dissatisfied with them, they throw them out. And at some very broad level, there’s this general sense over the last 10 to 15 years that democratic governments have become much less effective at dealing with the major issues that lots of citizens are most concerned about.
So that’s part of the distrust that then gets generated — the anger, the suspicion — and all that really concentrates on the election process, especially here in the United States.
Isgur: Yeah, and there seems to be this feeling that no matter who you put into office, your problems aren’t being heard. There’s the haves and the have-nots.
Fifty years ago, we made these changes to our democratic system. We did more transparency, more process and procedures, campaign finance reform. We opened up our primaries to make these democratic — with a small “d” — changes.
And you’ve written about this, but did we make a huge mistake in all of this?
Pildes: [Chuckles.] Well, I like to tell people that the most radical change we’ve made to the democratic process in the United States over the last 50 years is something people don’t even think about at this point, which is that we ended the convention system for choosing the parties’ nominees for president. And in the 1970s, we shifted to this system, which is a purely kind of populist system of choice, where primary elections determine who the parties will nominate.
In the old system, there were a lot of filtering mechanisms in place. In a world in which you had to gain the support from a lot of elected party figures — national, state and local — to get the nomination, you had to broker a lot of different interests in the party. Yes, there were problems with that system — the proverbial smoke-filled backrooms — but it provided a certain kind of filtering of the process.
We now have probably one of the most populist systems of selection in the world among democracies, in which voters can completely bypass all the elected party figures and choose a nominee.
I think there’s no question it’s changed the kind of people who run for office in the U.S. for president, and the kind of people who get elected. That’s why things like celebrity status, name recognition — all of that counts for a lot more in a world in which we use these primary elections.
We take for granted now that that’s how you have to do it, that’s the natural way to do it, that’s what democracy means. But it’s really not the way a lot of other countries choose their nominees or party leaders for chief executive. Usually, the party figures have significant say in who becomes the party leader or the nominee for chief executive.
Isgur: If you think about campaign finance reform, we have thought about that as getting money, quote-unquote, “out of politics.” But in fact, that’s been another populist change, where you’ve opened up the world to small-dollar donors, who are also unrepresentative of voters as a whole and tend to be turned on by that sort of anger and outrage.
Transparency — the idea that “when we put cameras in Congress, it’s going to change Congress.” And that’s also been for populism purposes.
But do we want to get that back? Do we want to make things less transparent? Do we want to take the primaries back to where folks like you and I aren’t going to get to have any say in who those nominees are?
Pildes: Well, you put a bunch of different things on the table, so let me try to address them.
On campaign finance reform, the intuition that people have that we can drive money out of politics is just wrong, and it’s been proven wrong over many, many years now. What campaign finance reform has done is actually pushed money into certain channels rather than other channels.
In particular, after the McCain-Feingold law was enacted and limited the money coming into the political parties, that caused the birth of all of these outside groups and the role they play in our politics. And Citizens United accelerated that, but it really started with the McCain-Feingold law in the Bush administration.
And this was predicted. Political scientists said: Look, if you cut money off to the parties, it’s not going to disappear. There are going to be these outside groups that are going to benefit from that.
The outside groups are a lot less accountable than the parties. You can’t vote against them. When the money comes into the parties, it’s all kind of transparent. So I think that reform had some negative consequences.
Small donors tend to be very responsive to moments of outrage. They tend to support more ideological candidates. So I think small donors help fuel the polarization and the extremism in our politics. That’s what I think about campaign finance issues.
Transparency — the way I think about this is we are always trying to realize a range of democratic values when we design our institutions, such as political equality, participation, deliberation. We also need to care about government being able to actually function effectively.
If you talk to anybody in Congress, when they have their closed intelligence committee meetings or other closed hearings, they all behave very differently than they do when we see these public hearings, when they’re performing for the cameras and for their audiences.
So we have to think about that and the trade-off among different democratic values, all of which are important, all of which we want to try to realize, but it’s not like we can have all of everything we want in the way we design these institutions.
Isgur: But here we are in the year of our Lord 2026, and you and I are not changing any of these big democratic problems. You have the left talking about voter suppression. You have the right talking about voter fraud. Donald Trump is president.
So let’s start with him. The Supreme Court just blocked Donald Trump’s mail-in ballot executive order. Can you tell us what that executive order did?
Pildes: Yes. That executive order was part of President Trump’s general fixation on two primary issues about the election process. One is he doesn’t like mail-in voting, and two, he’s concerned or convinced himself that the specter of noncitizen voting is a major issue.
There are a number of things the executive branch has done to address those two issues that the president has tried to put front and center. Some of these actions involve trying to get Congress to legislate and pass the SAVE Act, to deal with noncitizen voting concerns. There were other executive orders, and then there were actions of the agencies of the government, like with this Postal Service rule.
The final rule just came out quite recently, and we’re only six weeks away or so from the election now, so it’s coming out at the midnight hour as far as election administration goes. The rule was designed to tell states that if they want to use the mail to deliver absentee ballots, their absentee ballot envelopes have to comply with new requirements from the Postal Service.
The envelopes have to be marked as election mail. That itself is not a huge deal, but they have to have an individual bar code to identify the individual ballot. They have to be automation-compatible, these absentee ballots that the states are using.
Whatever you think about these requirements, if they were being implemented over the longer term, to try to implement them at this point in the process would be, as many election officials, both Republican and Democratic, said, not just a huge burden, but actually practically impossible in a lot of jurisdictions.
People need to appreciate that running the election process is a huge administrative enterprise. It’s also something that is administered over 10,000 jurisdictions in the United States, because we have an incredibly decentralized election process. Some states, like North Carolina and Wisconsin, had already started mailing out their absentee ballots, and most states had ordered their absentee ballots and the envelopes already.
So the courts, including the Supreme Court, ultimately have blocked this rule from going into effect, at least for the 2026 election. By the way, there are also legal issues about whether the Postal Service even has authority legally to try to regulate mail-in balloting.
And another part of the requirement in the rule was the Postal Service said: We’re going to set up a portal, and states have to upload all their lists of absentee voters to this portal — and the Postal Service still hasn’t, even to this day, created this portal.
We all know there are going to inevitably be administrative glitches when you create some massive new system like this. And to try to do that in the middle of the election process or so late in the day was just a recipe for all sorts of practical problems that would have arisen.
So that’s been blocked for 2026.
Isgur: And just to underline what you’re saying, every court that saw that said it couldn’t go into effect for 2026. The Supreme Court, 7-2, said: Nope.
But they didn’t rule on the legality of the executive order, whether Donald Trump could do this for the 2028 election, and those court cases will actually continue for the next however long.
Pildes: Well, the court did issue a very short, like three-sentence, opinion saying: We’re not giving the government the relief it wants — but the court also said there’s a substantial likelihood of success for the plaintiffs in their legal challenge to the authority of the Postal Service to issue this rule at all.
Isgur: Can I just ask you if you have a theory as to why Donald Trump has chosen absentee ballots to focus on? Back when I was a Republican operative, Republicans had the advantage in absentee ballots because we had so many more older voters that used absentee ballots. Why would a Republican president want to curb a voting practice that helped his side?
Pildes: Well, that’s a great question. I didn’t know you had been a Republican operative, so that’s interesting to hear and learn.
You’re totally right about that. It used to be the case that Republicans disproportionately used absentee voting, mostly because it tended to be older voters who used it.
That began to change in the early 2000s, when states expanded the availability of absentee voting. Now most states allow you to vote absentee without any specific excuse or justification. And then it began that Democrats started using absentee balloting more.
On top of that, what really made a difference was in April of 2020, when the pandemic was a reality, and it became clear that more people were going to be voting absentee in the fall, Donald Trump started attacking absentee voting.
Then you saw an even greater partisan divide emerge in the use of absentee ballots. Certainly in 2020, Democrats disproportionately used absentee ballots.
Now we don’t actually know going forward what that will look like, but that’s the partisan dynamic we face today, which is very different from when you were a Republican operative and older voters who tended to be Republican back then disproportionately used absentee ballots.
Isgur: Romney 2012, baby.
[Pildes and Isgur chuckle.]
OK. So back after Bush v. Gore was decided in the 2000 presidential election, President Jimmy Carter and Secretary of State James Baker formed the Carter-Baker Commission.
I am obsessed with the Carter-Baker Commission — like, really, really into it the way that teenagers are into Justin Bieber or whatever teenagers are into.
Pildes: I sort of admire that, however weird it might be.
Isgur: [Chuckles.] Well, it’s this bipartisan commission that looks at all these ways to fix our election, and it remains so current and relevant to me today. I refer to it and go back and read it all the time.
I read it before this interview, and there’s this great line that says: “Absentee ballots remain the largest source of potential voter fraud.”
You yourself have encouraged people to vote in person. You’ve talked about the administrative problems with absentee ballots and the risk of subversion. You’ve also said that the way absentee ballots are counted late by some of these states, meaning that they’ve not started to count the absentee ballots until after the election closes, breeds distrust in the system.
So is Donald Trump right about all of this?
Pildes: Well, short answer: No.
Isgur: [Chuckles.] I thought you might say that.
Pildes: But let me respond to some of the specifics, because I do like to be kind of nuanced and precise about this.
It’s true that when we have seen problems with voter fraud, it has been overwhelmingly in the absentee process rather than in-person voting. That’s because if you’re going to try to commit fraud, it doesn’t really make sense as a practical matter to try to do it one by one with voters going in and pretending to be somebody else in the polls. That just doesn’t happen.
We have had some incidents of absentee ballot fraud. There was a mayor’s election in Miami in the ’90s where there was really significant absentee ballot fraud that led the courts to actually throw out all the absentee ballots. But I do want to put that in context.
The amount of absentee ballot fraud that we’ve seen is fairly small in the overall context of things. It’s just that when we’ve had problems, it’s tended to be in the absentee process, not the in-person voting process. So I don’t want to create the image that there’s massive absentee ballot fraud. It’s just to say that when there’s been risk, it’s been more through that route.
Now I do believe that voters have more problems with the absentee process than they do with the in-person voting process because you have to do more things correctly when you cast an absentee ballot. It depends on the state you’re in.
In some states, you have to put your ballot in an envelope — a secrecy sleeve, it’s called — and then put that in another envelope. Then you have to properly date or sign, or in some states, you have to get a witness to your signature for the absentee ballot envelope. You have to get it back on time. And so there’s a not-trivial rejection rate of absentee ballots.
Then on top of it, because the president has attacked the absentee ballot process, I think it’s more likely to be a source of efforts to create controversy about the voting process.
So if people vote in person — and now people have much greater opportunities to vote in person because there’s significant early voting in most states — you sort of bypass all of that process.
Now, again, I want to be clear, I don’t think there’s anything wrong with absentee voting. I just think it’s more prone to mistakes by voters, and it’s more prone to be a focal point of efforts to disrupt the process.
Something else that you alluded to — and this is something I wrote about in March of 2020 when it was apparent we were going to have massive absentee voting in the fall — I do think in a world in which we have so much distrust and suspicion about the voting process now, it becomes particularly important for states to be able to get to an accurate count as quickly as possible. And I think that when there’s a significant delay in being able to provide voters a final accurate account, it’s predictable that that’s going to be a source of suspicion and mistrust, and conspiracy theories will focus on that.
I call it the sea of pervasive distrust that our elections take place in right now, unfortunately, even when that distrust is not actually justified.
Isgur: But if it could all be done orderly and competently, is Donald Trump’s idea about the Postal Service having these uniform envelopes with bar codes, having a database so that we know that every absentee voter has received their ballot, turned in their ballot, that it’s this matched system — is that such a bad idea?
Pildes: There are certain things that the Postal Service wants to do that I think makes sense. Marking ballot envelopes as election material is important because it enables the Postal Service to give priority to those ballots. Lots of states do that part already.
It’s also the case that lots of states already put an individual identifying bar code on the absentee ballots so that they can be tracked, and many states now allow you to actually follow your absentee ballot online to make sure it’s been counted.
Isgur: Like the Domino’s Pizza Tracker.
Pildes: [Laughs.] Yeah, it’s nice if we can get our election system up to the level of some of these things that the private sector does. And actually, there’s been a lot of effort on that front.
But the problem that you have to confront, when we’re dealing with things like whether there should be a national database and the like, is we don’t have a national ID card in the United States that identifies you and indicates whether you’re a citizen or not.
Many democratic countries do have that. And so many of these democratic countries may impose various kinds of ID requirements to vote, but it’s not a big deal because everybody actually has a national ID card.
So when it comes to things like the SAVE Act that the president has been trying to get Congress to enact, which would require proof of citizenship when you register to vote, in the abstract, there’s nothing wrong with that idea. The practical problem in the United States, because we don’t have anything like a national ID card, is that lots and lots of citizens are not going to have easy access to the documents you would need to prove citizenship.
So what can you use under the legislation that the Republicans have proposed? Well, you can use a passport. But only about 50 percent of Americans have a passport. You can’t really use a driver’s license, even though a lot of people think you can, because in most states, a driver’s license, even a Real ID, doesn’t specify whether you’re a citizen. There are about five states in which it does.
So if you don’t have a passport, and you can’t use a driver’s license, OK, now you’re talking about needing to show up with your birth certificate to register to vote. And how many people have ready access to their birth certificates? What if you’ve moved a lot? What if you’re older?
And then on top of that, if you’ve changed your name since you were born, which many married women have, for example, then you’ll have to bring a marriage certificate along with your birth certificate.
Just as a practical matter, there are lots of citizens who are eligible to vote who aren’t going to have ready access to the kinds of documents you need to prove your citizenship. That’s why these practical barriers can become real obstacles to people who are legitimate voters, who are eligible, who are citizens.
That’s why that’s so controversial.
Isgur: And just to give some context, you’re talking about the SAVE Act. It would require people to show an ID and proof of citizenship when they show up to vote. This is a huge fight inside the G.O.P. Donald Trump has said it’s his No. 1 priority, and it would guarantee the election for the Republicans.
But isn’t this also becoming more normal? I looked into this, because Arizona’s voting law that they passed in 2022 is up at the Supreme Court this term on legal questions related to whether federal law pre-empts Arizona’s law. But it’s interesting because basically Arizona has said that in order to vote the full ballot in state and local elections, you have to have proof of citizenship. If you don’t want to have proof of citizenship, you can check a box and swear under penalty of perjury that you’re a citizen and vote federal only, in only the federal races.
So we have this little experiment. Our Tocqueville “laboratory” is running in one of these states. I looked this all up, and Arizona has 4.3 million Arizonans registered. Only 42,000 people — less than 1 percent — registered as federal-only voters who couldn’t find proof of their citizenship. So maybe this isn’t really the big problem that we all think it is, and maybe the answer is just, well, we need to roll out a Real ID with citizenship, and then both sides could be satisfied, that it would allow access, and it would allow security.
Once again, if we turn our hymnals to the Carter-Baker Commission, they pointed this out as a problem in a California congressional race where it was very close and contested, and they found 784 people who had been ineligible to vote in that very close race.
So we’ve known this has been a problem for a while. Why not just fix it?
Pildes: Let’s say a couple of things to make sure people understand the context. You mentioned the fact that when you register to vote on the federal voter form, you have to check a box saying that you’re a citizen, you’re eligible, the age you state is accurate and all that, and it’s a crime to lie on that form, and it’s a crime as a noncitizen to vote. That’s kind of where we already are.
Arizona’s a great example. As you say, they require proof of citizenship for state and local elections. They have, as you mentioned, about 42,000 people who are eligible to vote in the federal elections and are on the rolls for federal elections but have not provided the citizenship documents, so they can’t vote in state or local elections.
That’s a lot of people actually, assuming those people actually are citizens, and my strong assumption would be overwhelmingly they are — maybe all of them, actually. But they don’t have access to the documents to prove their citizenship. Maybe they’re not as interested in the state and local races, so they’re not making the effort that would be required to get the relevant documents.
So on one side of the ledger, you have 40-some-thousand people who I’m assuming are eligible to vote in those state and local elections who can’t do it. They’re disenfranchised because they aren’t on the state list.
Now, you weigh that against what is the actual level of noncitizen voting that is out there. There’ve been lots of efforts to examine this, especially the federal government under President Trump’s administration has made a huge effort to undercover noncitizen voting. There is some that goes on — I don’t want to say it never goes on, but they haven’t been able to uncover a significant level of that.
As a concrete example, the federal government has been trying to create this database called the SAVE database of citizens. States can submit their voter list to the Department of Homeland Security and have it checked.
Texas has recently sent in something like 18 million voters to this list. And after the federal government has gone through its process of checking, Texas has referred 117 people out of 18 million to the state attorney general for possible noncitizen voting that has to be investigated.
I would imagine, based on what’s happened in the past, some of those cases are going to collapse when they’re looked into more deeply. How do you weigh the benefit of making sure whatever number of those are ineligible, against, let’s say, 42,000 people in Arizona, which is a much smaller state, who may be disenfranchised by these requirements?
And part of what is interesting about the context here is that in the United States, we’ve always had this civil libertarian culture on both the right and the left that has kind of joined forces to prevent the federal government from creating some kind of national ID card.
After 9/11, I thought we actually might end up getting some form of national ID card, and there was an effort to do that. But the civil libertarian coalition on the right and the left successfully fought that off.
That’s why we are where we are with this issue.
Isgur: Now we just have Flock cameras instead of national ID cards. [Chuckles.]
Pildes: Yeah. Well, surveillance technology has certainly been enhanced in recent years. That’s for sure.
In New York City, we have plenty of cameras. I’ve gotten … Well, maybe I shouldn’t say — —
Isgur: How many speeding tickets you’ve gotten? [Laughs.]
Pildes: Let’s say it’s not zero.
Isgur: I mentioned that the Arizona case was going to the Supreme Court, and maybe this is a bit of a side point, but we have all of this election litigation that’s coming closer and closer to elections. I don’t think 2026 is going to be different. I don’t think this is the last time the Supreme Court’s going to have to weigh in on these midterm elections.
And it just feels like we have Donald Trump’s statements attacking the Supreme Court, attacking his nominees to the Supreme Court specifically, every time he loses these cases, whether it’s birthright citizenship or tariffs or this latest mail-in ballot executive order.
And we’ve seen it in polls. Republicans then lose trust in the Supreme Court and think they are more partisan and less of an institution that should be preserved. Of course, then when the Supreme Court allows Donald Trump to fire someone from the Federal Trade Commission or impose his immigration policies or strike down Biden’s student loan debt forgiveness or eviction moratorium, Democrats lose trust in the Supreme Court and don’t think it’s an institution to be preserved.
But we need someone to rule on these questions before elections, even though it’s going to feel very partisan. What’s the answer, if you’re advising the Supreme Court, on what they’re supposed to do?
Pildes: It’s not surprising that in a culture that has become so tribalistic, so toxic, so hyper-polarized, that decisions of all public institutions, including the court, are going to be filtered by many people through a partisan lens.
Then on top of that, we’ve also moved into a world in which many of the most prominent commentators on the Supreme Court — and I’ll leave you aside for this purpose — are also themselves very, very polarized in the way they respond to court decisions, whether it’s on the right or the left. And that’s how most people get their information about the court. Obviously, most people aren’t going to be reading opinions.
I think the best the court can do on that is, to the extent it can render decisions with substantial majorities or even getting closer to unanimity, I think that helps the credibility of the court. I think to the extent the court can handle these issues in a consistent and principled way, that also helps the court’s credibility.
But I do think it’s almost inevitable in this culture that court decisions, especially divided ones, are going to be processed through these more polarized and more partisan filters.
Isgur: It is sort of remarkable that there are six Republican nominees on this Supreme Court, and the majority of Americans view the court as being a conservative or an extremely conservative court, and yet Donald Trump has tried all sorts of stuff to change voting in the United States, and he has failed in every respect.
I mean, is there any win that Donald Trump has had on any of this?
Pildes: Yeah, this is an important story line that I think hasn’t been absorbed at this point. If you look at the various efforts — executive orders, federal administrative agency actions — that Donald Trump has taken or encouraged, pretty much all of them have been blocked.
He tried to get Congress to enact the SAVE Act, as we talked about. Congress has not been willing to do that.
The Supreme Court rejected the administration’s efforts to get the court to read the federal election statute to prohibit states from counting ballots that come in after Election Day — all of which have to be postmarked by Election Day, but in some states, they can come in after Election Day. The administration was trying to get the court to say federal law prohibited that. They lost on that.
The courts have blocked the key aspects of the president’s two major executive orders on the election process. As we just talked about, the Supreme Court has blocked the Postal Service rule that the Postal Service was trying to implement for this fall.
The Department of Justice has been trying to get voter rolls from states. They’ve lost 23-0 on that, and 1-0 in the federal Courts of Appeals.
So at almost every turn the administration’s efforts to change voting policy or to demand voter rolls from the states have failed. The Supreme Court has signaled pretty clearly at this point that it’s not going to be receptive to late-in-the-day changes in the process.
I think the court is right about that. One of the things we want out of the election process, as the Supreme Court itself has said — Justice Kavanaugh has said this, I think, most forcefully in several opinions now — that we want the rules to be clear. We want them to be settled in advance. We don’t want last-minute changes — whether it comes from the federal government, the states or the courts — in the election process.
And so if the administration tries yet further changes at the midnight hour, I don’t think the Supreme Court is going to be receptive to that. We’ll see if they try further changes.
I think that’s actually a significant part of the story that the public hasn’t really absorbed, because they read about all of these changes going on and all of this litigation, but the overall picture that’s now emerging is that pretty much all of these efforts to change voting policy coming out of the federal government have been blocked.
Isgur: OK, so Donald Trump is out there saying that Democrats are trying to rig the midterm elections and steal the vote. Joe Biden has called election changes by states Jim Crow 2.0, even though Georgia had 17 days of early voting, including Saturdays, versus Delaware, his state, that only had 10. Hakeem Jeffries has said that Donald Trump is trying to steal the midterm elections.
It feels like both sides are trying to tell their voters: Do not have trust in the outcome here … if we lose.
Do we need electoral reform, or do we need political reform?
Pildes: You’re definitely right that both sides have raised the anxiety level, not just in this election, but in some of the more recent elections about what might be going on. There’s complete distrust of the motives of people on each side so that any proposed change, the other side views as motivated by advantage-seeking.
And there has been plenty of advantage-seeking. We shouldn’t ignore that. This mid-decade redistricting cycle that was initiated by President Trump pushing Texas to engage in mid-decade redistricting, which then set off a whole chain of mid-decade redistrictings, is, I think, very bad for Americans’ confidence in the integrity of the process, the legitimacy of the process.
I think partisan gerrymandering, in general, does that, and I’ve been fighting unsuccessfully, including the Supreme Court, trying to get constraints on partisan gerrymandering. But this mid-decade redistricting, I think, has raised the suspicion and the lack of confidence of voters in the process even more, because it’s so obvious that politicians are trying to manipulate the process for their own partisan self-interest.
I do think some election reform could help mitigate that distrust, including constraints or elimination, to the extent possible, of partisan gerrymandering. And there are other changes to the election process that I would favor that I think could help — including, by the way, that we need a lot more federal funding for state and local election operations, because that’s a major way of ensuring confidence in the process, that the process will be well run.
I mean, these states and localities are very strapped in the resources they have for the election process. But I think that the political culture is now so toxic about these issues, and because we have this existential politics, as I said, where many people believe the country will never be the same if the other side wins, and because partisan control is so close, I think many people believe every little micro issue about the voting process itself becomes existential, because, oh my gosh, it could have a huge effect on the outcome of the election.
And then you have lots of commentary about all the horrors of what might happen in the election process. I don’t know if I should say this, but there’s a genre of election pornography, as I call it, where people write these articles saying: Look at this disgusting thing! Look at this terrible thing that’s going on! Look at this awful thing that might happen! And it generates lots of clicks and attention, as pornography tends to do.
But a lot of that can be exaggerated or overinflated. We saw a lot of that going into the 2024 election. The process worked pretty smoothly. I expect that will be the case in the fall, despite all of the anxiety about it.
There are real things to be concerned about — I don’t want to underplay — but I think we need to put those in context, and I think there’s a certain amount of exaggeration that goes on from each side about what might happen in the process.
Isgur: What are the best actual proposed reforms to fix partisan gerrymandering, and are they politically feasible?
Pildes: So Congress, in theory, has the power to put constraints on partisan gerrymandering for congressional districts. It’s unlikely that that will happen. It probably wouldn’t be a product of bipartisan consensus …
Isgur: Members of Congress don’t want more competitive districts.
Pildes: Well, they don’t want more competitive districts, for sure. Everyone would love to be in a seat that, as an expert witness said in a case I litigated: Everyone wants to be 99.9999 percent sure that they’re safe.
Maybe with unified government. The Democrats did try to push something through to limit partisan gerrymandering when they had unified control, but they didn’t get through the filibuster. It’s possible that it could be revived if there’s unified Democratic control after the 2028 elections.
But short of that, reform has to be at the state level. That can take the form of voters actually putting constraints in their constitutions on partisan gerrymandering, which has been done in some states.
Isgur: Although, the problem we saw with that was Virginia voters did do that, and then as soon as there was an advantage to be had by getting rid of it, they got rid of it to do partisan gerrymandering again.
Pildes: Yeah, and that’s the problem. What we really need is a uniform national solution to this.
That could either come from the Supreme Court, but the court has now closed the door on that possibility in a 5-4 decision. That’s a case I represented Common Cause in and was on the side of the losing four. Or it could come through Congress, and we talked about the remote possibilities of that.
If you can’t get a national uniform solution, then we’re exactly in the situation you described, which is that there may be states that want to impose these constraints, but if they’re unilaterally disarming, it becomes an unstable equilibrium.
That’s been unraveling some. Even states that had adopted independent commissions or had banned partisan gerrymandering, like California — once red states started doing this, then blue states said: Well, we can’t really hold the line with our independent processes.
So it’s very difficult at the state level for that reason. That’s why we do need a uniform national solution, but don’t see great prospects for that in the immediate term.
Isgur: Are there things you’re concerned about before Nov. 3? Can the midterms be stolen?
Pildes: “Stolen” is a really extreme way of talking about it. Can there be disruptions of the process? Can there be doubts cast on the process? There are things I’m concerned about. I don’t know that any of them are actually going to happen.
There are concerns about whether we might have ICE or F.B.I. agents at polling locations. The heads of D.H.S. and the F.B.I. have been asked that question, and they have refused to put to rest the possibility that they might send in ICE or F.B.I. agents to the polls. I don’t think at the end of the day, it’s going to be a huge issue, partly because it’s already illegal under federal law to do that, and I assume the courts would step in and do something about it.
I think there’s some basis for concern that the administration might try to declare there’s some kind of fraud going on in some cities, even trying to send in D.O.J. or F.B.I. officials to seize ballots or voting machines. President Trump, apparently after 2020, was sort of pushing to do that, and Attorney General Bill Barr refused to let that happen because he said there was no basis for the allegations.
People like Bill Barr — whatever you think of him, he did stand up to the president and say no about that. There’s concern that figures like that are no longer in the positions that comparable figures were in 2020. And people worry about whether there’ll be, at the local or state level, officials who refuse to certify outcomes based on their own suspicions that there’s some kind of nefarious fraud going on. I think the courts will take care of that issue if that arises.
I don’t want to say there’s nothing to be concerned about, but one thing we’re now able to say with more confidence is a lot of these efforts by the administration to make formal legal changes in access to the ballot box and how people vote are not going to go into effect for 2026.
So all the hue and cry about a lot of those issues can now kind of be put to the side because that has gotten settled through the courts.
Isgur: Rick Pildes, thank you for joining us.
Pildes: I’m very happy to talk to you, Sarah. Thanks for having me.
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