[0:05]Uh good afternoon everybody. I'm Rick Hassen of the UC School of Law and the Safeguarding Democracy Project. Welcome to the final of our webinars for the uh 2025-2026 academic year.
[0:19]I do want to uh tell you about one upcoming event over the summer. On Tuesday, July 7th at 7:30 PM, uh we will be holding a Supreme Court term and review event uh with the UCLA Hammer Museum.
[0:37]And our uh speakers will be Carrie Franklin of UCLA, Justin Let of Loyola Law School, Eugene Valleck of Stanford, and Kimberly West Falcone of Loyola Law School.
[0:50]Uh that event is live only but video of the event will uh later be posted. All of our events uh are recorded and shared on the Safeguarding Democracy project website, which is safeguardingdemocracyproject.org.
[1:05]Uh if you are seeking MCLE credit for today's event, uh the information will be put in the chat by Ben and let me thank uh Ben Austin to Campo and Harley Ham for their important logistical support not only today, uh but for the entire semester.
[1:22]So we've been focusing our webinars on some pretty discreet topics from risk limited audits to the role of state courts.
[1:30]Uh and today, I thought we would end our series for the academic year by focusing on a bigger question, the state of American democracy in 2026.
[1:41]And uh I couldn't think of a better panel to join us today to kind of put everything we're seeing uh in the current uh political system uh into some perspective as our panelist today.
[1:55]Uh let me introduce them. Michael Kang is the class of 1940 Professor of Law at Northwestern. He's a nationally recognized expert in campaign finance, voting rights, redistricting, judicial elections, and corporate governance.
[2:07]He's co-author with Joanna Shepard of Free to Judge, the power of campaign money in judicial elections. He's got a much longer uh uh bio which will be shared uh in the chat.
[2:19]Uh Lisa Mannheim is the Charles I Stone Professor of Law at the University of Washington School of Law. She writes in the area of constitutional law, election law, and presidential powers.
[2:30]Professor Mannheim's scholarship uh explores questions of federalism, institutionalism. She has been published in leading law reviews, and she is co-reporter on the restatement of law election litigation, a project of the American Law Institute.
[2:42]And Franita Tolson is Dean and Carl Mason Franklin Chair in Law at the University of Southern California Gould School of Law.
[2:50]Um her scholarship focuses on election law, constitutional law, legal history, and employment discrimination. Um the most important thing I'll say is her forthcoming book is In Congress We Trust, enforcing voting rights from the founding of the Jim Crow era, will be published soon by Cambridge University Press.
[3:07]Thank you all for joining today. And I've asked uh each panelist to speak for about 10 minutes on any topic related to the broad question, what is the state of American democracy in 2026.
[3:20]So we'll start with Lisa, then go to Franita and Michael, and then I'll have questions and if you have questions in the audience, you can put them in the Q&A box and I will try to ask some of those questions to our panelist near the end of the program.
[3:32]And with that, let me turn it over to Lisa. Um, thank you so much and and thank you for organizing this discussion. I'm really looking forward to it. Um, so I was hoping to speak for a bit about the crisis of legitimacy that the courts um are facing, in particular when it comes to election law space, although it extends beyond that.
[3:49]Um, and at the outset, there are many data points that support uh the idea that the courts are are having trouble with legitimacy. Um, if we look at um efforts to try to measure this among the public from Pew or Gallup, um what we'll find is that favorable views, for example, of the Supreme Court are near historic lows.
[4:06]Um, and there's also been with respect to the judiciary more broadly, sort of sharp declines that are more dramatic than than what we've seen before with these uh these efforts that are recording them.
[4:16]Um, and this sort of problem with uh legitimacy is always problematic for a court, and it's particularly problematic in the election law space.
[4:24]Um, election law litigation, it tends to be high profile, high stakes, fast moving, um, and of course it's just drenched in politics.
[4:33]Um, on top of this, to add to the challenge, what we've seen in recent decades is a real uptick in um the the use of the courts, um, to try to resolve election related disputes.
[4:43]So again, you know, these sorts of cases are going to be hard for any court to handle and they're going to be particularly difficult, um, for a court that's struggling uh to some extent with legitimacy, uh, in the public eye and beyond.
[4:55]Um, so what are some of the causes for this crisis in legitimacy? Um, this is going to be a complicated question with a complicated answer.
[5:01]Um, but I would say that some of the explanations are in a sense internal to the courts, some are external to the courts, um, and some I I think of is reflecting more systemic, broad, um, uh, issues and phenomena.
[5:14]Um, when it comes to the the causes for this crisis of of legitimacy that are more external, sorry, internal to the courts, um, what we see is that courts are issuing politicized opinions.
[5:27]Or uh to be a little bit more precise in that um they're issuing decisions that at least appear to be politicized, um rather than more sort of carefully uh following what we might think of as rule of law principles.
[5:37]Um, and when it comes to this initial uh observation of mine, I'm really focused primarily on the U.S. Supreme Court here. Um, and which is of course the most high profile court that we have.
[5:48]Um, here a few uh sort of uh trends to note. Um, first, the U.S. Supreme Court's um reliance on the so-called interim docket, or the shadow um docket, um is problematic from a rule of law perspective.
[6:00]Um, in part because the decisions are not issued with the normal procedures, they're not given um sort of uh the the there's not explanations attached to them in the way they're usually are, um, and we've seen reliance on this um on this system, this this this docket system, um, including in election law cases, in a way that's problematic.
[6:19]Um, another uh thing to flag here is the development of doctrines such as the so-called Purcell doctrine, um, which essentially um tells courts that even if relief is appropriate, um, the court should not grant that relief if it's coming too close to an election.
[6:34]Uh this is a principle that makes a lot of sense uh so long as it's uh treated in a really careful way, a careful and politically neutral way. Um, but unfortunately, we just haven't seen that level of care, um at least explicitly included in uh for example, the Supreme Court's opinions.
[6:50]Um, and then as a final note, what we're also seeing is some degree of politicized um sort of uh speechmaking and and com uh commenting by, for example, Supreme Court justices, um, uh, to public and public fora, um, and this is also going to be problematic in terms of um sort of legitimacy of the courts.
[7:07]Um, in terms of uh some of the sort of systemic or the the really broad phenomena that are affecting the courts, um, what we've seen is that uh the public faith or trust in institutions and in the government, um, that uh has corroded in recent years and decades.
[8:10]And again, um, it's not just sort of an intuition uh to the extent this is uh people have tried to measure this, for example, Pew or Gallup, um, this is in fact what we're seeing.
[8:19]Um, there's of course many reasons for this decline in uh public faith in institutions and in the government, um, and I won't try to sort of recount all the different explanations we might have here.
[8:30]I will just note that um Rick Eldis has um written uh about uh sort of the value in effective government.
[8:38]I'll restate that, the the when the government is effective, um that's a value, and um when it's not able to be effective, um that's a problem, and that may help to contribute to this sort of decline and trust um in institutions.
[8:49]Um, either way, uh courts are part of these governments, courts are part of these institutions, and so they're um getting some of the effect of that.
[8:56]Okay, so um the story that I'm trying to paint here quickly, um, is a story of where uh first, uh simply as a matter of legitimacy, before we get to the merits of any given case, um, courts are facing a lot of challenges.
[9:08]Um, and second, the causes for this crisis in legitimacy, um, it's complicated and it's multi-faceted.
[9:17]Um, and just to sort of say something that that maybe is obvious, um, it's important for courts to have legitimacy, it's really hard for them to do their work if they don't have legitimacy.
[9:27]Um, they of course don't have an enforcement arm, they don't have the power of the purse, um, and perhaps not unrelatedly, um, we are uh seeing um resistance, for example, um, from the federal uh government to some extent, um, to uh judicial decisions that are coming out.
[9:39]So what to do? I don't have uh the answers to that, of course, um at least not comprehensively, but in terms of a few ideas that relate specifically to election law, um, there are a few things that I think the the courts can do here.
[9:54]Um, so first, when the courts are being asked to resolve election related disputes, um, they should try to do so early, um, and by that, I mean, um, before the effects of their decisions on an election's outcome are predetermined.
[10:08]Um, so that's one thing, try to decide uh cases early um when possible, before these these uh the election results have come in.
[10:16]Um, another is to be aware of this phenomenon that I alluded to earlier, which is that if you decide a court case right before an election, it's going to have um disruptive effects on the one hand to the election process.
[10:27]Um, and it also is going to possibly sort of um be a problem with respect to again, this legitimacy of the courts, um, because it feels like the courts are are affecting the election directly.
[10:37]So again, where possible, try to kind of hit a sweet spot of deciding the cases early, and then also um uh doing so um before uh it's going to be disruptive to a specific election.
[10:49]Um, a third uh uh sort of idea that courts might think about is to let the state courts take the lead where possible, under law, um to decide a lot of these cases.
[10:58]Um, often legal principles uh would um sort of uh require or encourage federal courts to do that anyway. Um, it is also the case that if we look at the the legitimacy of the various courts, the state courts tend to have more legitimacy, um, in the public eye than the federal courts do.
[11:13]Um, and I think the last thing I would flag here is that um courts, and again, here I'm really talking about the Supreme Court, um, U.S. Supreme Court, um, should try to be a bit more disciplined in the decision-making.
[11:24]Uh the decision making process, the way the opinions are coming out, how thoroughly they're explaining their opinions, um, and then also with respect to the sorts of public statements they're making.
[11:33]Um, so I could go on, there's lots of things to say about this, um, but I am uh very interested in hearing what uh the others have to say.
[11:39]Thank you so much. I do have some follow-up questions, but I'm going to hold them until we get uh to uh Franita and then to Michael. So Franita, over to you.
[11:48]All right. Thank you so much, Rick. Thanks for the invitation. Always a pleasure to be here with you, Michael and Lisa. Um, so I I tried to take the prompt seriously because I think, you know, the state of American democracy, the inclination is to be like, well, it's bad.
[12:00]Right, but um, I'm gonna, I'm gonna say some but hear me out, right? Like the last decades of the 20th century in the former Confederacy were violent, yes, but that's not really the parallel I'm talking about for purposes of our conversation today.
[12:26]Um, in the 1890s, across the American South, you really had this really remarkable thing happen if you think about it.
[12:33]So during the 1890s, state constitutional conventions rewrote the rules of democracy. So they imposed literacy tests, they imposed poll taxes, understanding clauses, and complex registration systems, which were devices that were primarily designed to strip black people of their voting rights.
[12:48]So by 1908, every state in the former Confederacy basically changed their state constitutions in order to to adopt these facially race neutral laws to disenfranchise black people, and it lasted for decades.
[13:00]I mean, really generations if you think about it. Uh, but what's most striking is not simply the disenfranchisement or how well it worked, it's really how it was justified.
[13:08]Um, the architects of these regimes insisted that they were acting within constitutional constraints. So they disclaimed any violation of the 14th or 15th Amendments.
[13:17]Um, they avoided explicit racial classifications, the text of these state constitutions really were crafted in languages of the language of neutrality, of reform, of legality.
[13:27]Um, and they could do so because of a gap in constitutional law at the time. So the fact that the Supreme Court of the 1890s didn't really have a legally cognizable conception of racially discriminatory intent.
[13:37]So as long as a law was facially neutral, its purpose, no matter how clear the context, no matter how discriminatory statements were made, you know, in the context of adopting the text, uh, if the law was facially neutral, it was considered beyond judicial reach.
[13:51]Um, so the result was a system in which constitutional constraints could be evaded, not necessarily by defying the law, but by manipulating its form.
[13:59]So, for example, the 1890 Mississippi Constitution disenfranchised any person convicted of murder, rape, bribery, theft, um, obtaining money and goods under false pretense, false pretense and a few other crimes.
[14:11]Um, this provision, which ironically enough remains in effect today, was a cornerstone cornerstone of the effort to disenfranchise black voters.
[14:20]As a Fifth Circuit Court of Appeals recognized in the 2022 case of Harness versus Watson, section 241 was reconfigured in the 1890 Constitution to eliminate voter disenfranchisement for crimes thought to be white crimes, and by adding crimes thought to be black crimes.
[14:35]The court also conceded that had the law never been amended, it would be a clear violation of the equal protection clause of the 14th Amendment.
[14:43]The Fifth Circuit's recognition that the 1890 Convention was, quote, "motivated by a desire to discriminate against blacks," unquote, was the only concession that the court actually made, though in acknowledging the discriminatory origins of the state's felony disenfranchisement law.
[14:55]Instead, the court found that because section 241 had been amended twice, um, in 1950, and again in 1968, the deliberative process surrounding amended section 241 was actually sufficient to break the inference of discriminatory intent that would otherwise establish a 14th Amendment violation.
[15:12]I lead the deliberative process that the court sort of heralded as a sign of race neutral decision-making, resulted in additional felonies being added to the list of disenfranchise disenfranchising crimes with each subsequent amendment.
[15:24]So, as it stands, nearly 16% of black voters in Mississippi are disenfranchised because of section 241.
[15:31]The Harness Court's view that the discriminatory taint of the original Constitution can be cleansed through the amendment process actually ignores that section 241 was part of an ongoing and systemic effort to create and then maintain an all-white electorate in the state through legal discrimination.
[15:47]The judicial hand-in-sand approach embraced by the Harness Court had its origins, actually, in U.S. Supreme Court case law from the 1890s and the 2010s.
[15:58]In the 1898 case of Williams versus Mississippi, the Supreme Court found that the Mississippi Constitution did not violate the federal Constitution, despite the fact that, as the Fifth Circuit acknowledged in 2022, that the State Constitution was adopted in a process steeped in racism.
[16:13]Even though discriminatory implementation of the states voting laws meant that the defendant in Williams was indicted by an all-white, all-male grand jury selected from the state's predominantly white voting roles.
[16:23]The facially race neutral language of the state Constitution meant that there was no 14th Amendment violation.
[16:29]Similarly, the Supreme Court in the 2018 case of Abbott versus Perez upheld a redistricting plan that diluted minority votes on the grounds that the prior legislature's discriminatory intent does not carry over to the subsequent to a subsequent legislature.
[16:43]This meant that a redistricting plan adopted with discriminatory intent could effectively be cleansed of this taint by being reauthorized by a subsequent legislature.
[16:51]So we have effectively moved back into a world in which the court operates as if there's no legally actionable concept of discriminatory intent.
[17:00]So that brings us to the present. The Supreme Court is here in a case called Calle versus Louisiana, and the court in that case has to resolve a dispute over redistricting and really the proper role of race and drawing maps under the Voting Rights Act.
[17:11]The case arises from a court order court ordered redistricting plan in which Louisiana had to draw two majority minority districts instead of the one that existed in the prior plan in order to comply with section two of the Voting Rights Act.
[17:24]Instead of adopting a plan that had two majority black districts that were fairly compact, which was possible, the legislature adopted a plan with an oddly shaped majority minority district that was almost certain to raise constitutional concerns under the court's current jurisprudence.
[17:37]In addition, legislators made inflammatory statements also designed to raise judicial eyebrow. So, saying things like the eye shape of the district was to comply with the court order, um that the district court order resulted in the construction of a district based primarily on racial considerations and so on.
[17:54]So for Supreme Court watchers, the term primarily considered race should clue you in just on what the legislators were trying to do.
[18:00]Right, they have figured out just what they need to say in order to make a redistricting plan susceptible to invalidation.
[18:07]The legislature, who had a preference of the prior plan invalidated by the district court, despite its deleterious effects on black political power, intentionally enacted a plan that they knew would not pass judicial scrutiny.
[18:20]Surprising no one, the state has not defended this map before the Supreme Court. Now, this is a familiar move, right?
[18:24]Like the architects of the 1890s regimes, today's challengers operate within the vocabulary of constitutional law. They don't reject the Constitution, instead they invoke it.
[18:33]Right, they emphasize race neutrality, equal protection, the dangers of racial classification, but in doing so they really do exploit the very frameworks designed to enforce constitutional guarantees.
[18:44]Then, as now, the danger lies in formalism detached from reality. In the 1890s, facial neutrality masked a regime of exclusion.
[18:52]Today, an overemphasis on the formal use of race risks obscuring the underlying purpose of the Voting Rights Act, which is to ensure that minority voters have an equal equal opportunity to participate in the political process.
[19:04]Now, of course, I'm not saying to reiterate that the parallels between now and the 1890s are perfect, right? History never repeats itself so neatly. Uh, but the pattern is recognizable.
[19:13]When courts focus too narrowly on form, on whether race is explicitly invoked, rather than why it is being invoked, they create space for constitutional values to be undermined in practice.
[19:24]They invite actors to game the system to comply with the letter of the law while violating its spirit. You end up with a discriminatory state practice that is technically legal but clearly unconstitutional.
[19:35]And this has very real consequences for everyday voters, right? In the 1890s, the result was a near total exclusion of black voters from the electorate. This shaped American democracy, entrinching one-party rule and silencing dissenters for generations.
[19:48]While the stakes today are different, but they are no less significant. The issue is whether the Constitution will be interpreted in a way that recognizes the realities of discrimination, or whether it will be once again permitted to sort of ignore those realities in order to be in order for courts to just focus on formal compliance.
[20:05]Okay, so I'll stop there. Thank you. And I'm hoping Michael is going to come in to cheer us up with some better news about the state of American democracy in 2026.
[20:15]I smiled. I'm sorry to disappoint you, Rick. Um, uh, thanks uh to Rick and Ben and uh Franita, Lisa, everyone here for making this uh event possible. It's great to see everyone uh if only virtually.
[20:31]Um, so I thought what I would do is take kind of a bird's eye view of democracy, American democracy, rather than something that's more election law specific.
[20:41]Um, and talk about the surprising tenuousness of First Amendment rights. Um, and I say surprising, um, because I think before this second uh Trump term,
[20:53]we were, you know, generally, largely comfortable with the idea that constitutional rights like First Amendment rights, would generally be honored by the federal government without being forced by courts to honor them.
[21:05]Um, and that the federal government generally would respect the rule of law and not maximize its use of formal authority to coerce private actors to do what it wanted.
[21:18]Um, I think the Trump administration right now is pressing uh its legal authority up against First Amendment rights more aggressively than any other presidential administration uh in my lifetime.
[21:30]Uh, but I think we should understand what's happened, um, over the last couple of years, not only as an extraordinary use of executive power, uh, by Trump, but also his exposure, I think of a basic vulnerability of constitutional rights in the post Cold War age of hyper partisanship.
[21:44]Uh, and therefore a kind of basic vulnerability of American democracy. So what I want to do is just kind of quickly run through, you know, three different examples of what the Trump administration has done.
[21:58]I think the facts are largely familiar to probably this audience, but law firms, universities, media companies, the Trump administration has ordered suspension of security clearances, restricted access to federal buildings for law firms that uh committed various uh offenses in in uh the Trump administration's view, including representing clients in litigation against the administration, or the Trump campaign, or engaging in various uh DEI practices.
[22:25]This includes a huge number of of firms, some of which have fought, um, the administration, Perkins Coie, Elias Law Group, Jenner & Block, WilmerHale.
[22:36]Um, but also a bunch of firms, Paul Weiss, Gadon, Kirkland, Nall, very well known, very successful law firms who have settled with the federal government.
[22:45]And I think that's important, promising among other things, to provide millions in uh pro bono work for causes that uh Trump supports.
[22:52]Now, it's pretty clear here the law's on the law firm side, uh when it comes to the First Amendment. The firms that have litigated, um, the Trump administration's targeting of them have won uh in court on First Amendment and other grounds.
[23:05]One district court uh ruled and joining the administration that the campaign uh against the law firms was doubly violative of the Constitution because retaliating against firms for the views embodied in their legal work violates the First Amendment's central command, the government may not use the power of the state to punish or suppress disfavored expression.
[23:25]Seems like for the moment, the Trump administration has uh uh stopped this campaign for the moment, at least. Um, but I think importantly, most firms really settled rather than litigate this to the end.
[23:40]Along the same lines, uh the Trump administration has filed a bunch of lawsuits, unilaterally cut federal funding for dozens of universities, including uh Northwestern, my own, um, for alleged violations, uh a whole range of things.
[23:54]A lot of which have to do with Title VI, um, and uh inadequate responses to anti-semitism on campus and engaging in various DEI practices. This includes basically the entire Ivy League, the UC system, again, Northwestern, among uh many others.
[24:15]Uh, this has forced uh at least in part, the presidents of a number of the challenged universities to resign, uh Mike Schill here at Northwestern, uh Jim Ryan at Virginia.
[24:24]Uh Linda McMahon, the Secretary of Education explained at the time, uh that what they were doing, well kind of their motivations, universities should be able to do research as long as they're abiding by the laws and are in sync with the administration and what the administration is trying to accomplish.
[24:41]Harvard, kind of very prominently has refused to settle. They face 13 separate investigations by at least 10 different federal agencies so far.
[24:50]Harvard's won in court, again so far, where a federal district court uh concluded that the administration used anti-semitism as a smoke screen for a targeted, ideologically motivated assault.
[25:02]Brown, Cornell, Northwestern, Virginia, Penn and Columbia, there may be others have settled by paying millions in penalties to the federal government, and submitting to various levels of oversight and other limitations on DEI policies in particular.
[25:17]Uh, and then media companies, here, I'm not sure how much details really necessary, but the Trump the Trump himself has sued 60 minutes, Paramount, uh, the Demoin register and Gat, uh, ABC News for various things that he claims, um, those news outlets have misstated.
[25:35]Uh, FCC chair, Brendan Carr has opened investigations on each of the major networks besides Fox for their coverage of 2024, the election, uh, including the debates and Saturday Night Live.
[25:48]Uh kind of famously ABC initially suspended Jimmy Kimmel after he criticized Trump, and Carr had warned earlier that day, we can do this the easy way or the hard way.
[26:00]Uh, Disney settled uh paying 16 million. Um, CBS has agreed to pay Trump 36 million uh to settle these suits that I think, uh, every every First Amendment expert that I've talked to didn't think there was much to uh Trump's case here, but nonetheless, it was easier for them to settle and make it go away and submit to the administration rather than fight this uh at enormous cost and stress, especially these these various institutions that I've sort of outlined.
[26:32]And so what this means, I think, for democracy is that the Trump administration's use this kind of vulnerability of First Amendment rights to tilt the terms of democratic contestation toward their favor by using the federal government's power in ways that previous administrations just had not.
[26:48]Um, it's intimidated and undermined its opponents while empowering its allies. I think importantly, if we think about why this happened and why it might go beyond Trump.
[27:00]Like many things, Trump, I think bad faith government is partly because of Trump, um, but it's not entirely just because of Trump. It's really embedded by the modern political conditions of hyper partisanship and exposes the fact that we had a different sort of politics during the Cold War.
[27:11]Um, where non-partisanship was a norm, uh and and we believed in things like a non-partisan press, non-partisan election administration, uh vibrant civil society, constitutional rights respected by both sides.
[27:22]And I think right now, a lot of those norms have eroded. A lot of the Cold War consensus about non-partisanship both in the characterization of institutions as non-partisan, and a belief in the possibility and value of non-partisanship has kind of crumbled in the post Cold War uh era, and we've we're sort of enveloped in this hyper partisan world.
[27:50]Um, where there's increasingly suspicion of any characterization of anything as politically neutral and the Trump administration's approach to politics as a kind of total war is increasingly commonplace, really on both sides of the aisle.
[28:00]Um, so I'm not worried that we won't have elections. That's not really the concern exactly, but that the healthy conditions for a competitive and fair elections within the democratic process, as we've normally conceived them, have kind of eroded for the longer term and not just for the Trump presidency.
[28:18]So I'll stop there. Thanks.
