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Two years ago, the Supreme Court overturned Section Five of the Voting Rights Act. The result was that certain states with a history of racial discrimination no longer had to get pre-clearance before making voting changes. The consequences in some states was immediate. Texas passed a photo ID requirement, and in North Carolina, a number of voter restrictions were also approved. The courts have taken up cases in both states, leading to many questions about how much power the Voting Rights Act still has. We look at new voting laws, court challenges and a call from President Barack Obama to fully restore the legislation.
- Spencer Overton Professor, George Washington University Law School; president, Joint Center for Political and Economic Studies; author, "Stealing Democracy: The New Politics of Voter Suppression"
- Bruce Fein Principal, Bruce Fein & Associates; author, "Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy"
- Jim Rutenberg Chief political correspondent, The New York Times Magazine
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Since 2010, 21 states have passed new voting restriction laws, 15 of those states will have laws on the book for the first time when Americans elect a president in 2016. Next year's election will also be the first presidential contest following the Supreme Court's overturning of parts of the Voting Rights Act.
MS. DIANE REHMHere with me, Spencer Overton of the George Washington University School of Law, Bruce Fein, principal at Bruce Fein and Associates and joining us by phone from Montauk, New York, Jim Rutenberg of the New York Times. I do invite you to weigh in. Give us your sense of voting rights, what's happening in your state. Join us at 800-433-8850. Send us an email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet.
MS. DIANE REHMAnd welcome to all of you.
MR. BRUCE FEINThanks.
MR. SPENCER OVERTONThank you, Diane.
MR. JIM RUTENBERGThanks for having me.
REHMAnd Jim Rutenberg, let me start with you. Remind us of that Supreme Court decision in 2013, what it did and what happened since.
RUTENBERGWhat that decision did was it wiped out what was the kind of most powerful provision of the Voting Rights Act. It was an extraordinary provision, as Chief Justice Roberts put it, and it gave the federal oversight over the voting laws, statewide, of 15 states. So anytime one of those states wanted to make a change in its voting laws, it needed to submit it to federal authorities for what they called pre-clearance. The Roberts court struck the formula that defined which states fell under that part of the act and since then, what happened kind of immediately and the two really striking examples is, as you've mentioned, are Texas and North Carolina immediately moved to bring back very tough, very restrictive new voting laws, both of which are under challenge right now.
REHMAnd Spencer Overton, why do we still need voting rights protections?
OVERTONWell, we still need voting rights protections because we need an efficient way to deal with discrimination. As we see in the Texas case, that Texas law was blocked by the preclearance provision, but one the Supreme Court rolled back the coverage formula, it was reinstituted by Texas, the state of Texas, and it's been challenged, it's been litigated for a couple of years now. A court recently said it was discriminatory so we spent, you know, hundreds of thousands of dollars in terms of litigation, a lot of time and it's also been actually used in litigation.
OVERTONSo it's a perfect example of why we need a process to prevent discrimination before it happens.
REHMWhat are the practical applications of what's happened here?
OVERTONWell, the practical applications are in states, as Jim talked about, in terms of North Carolina and Texas and people not being able to vote, but it also -- localities that often run under the radar, that are often nonpartisan elections so city council seats that we see are shifted from districts that may be majority Latino or majority African-American voters to at-large races where those voters are diluted and they can't elect a candidate of their choice.
OVERTONSo we saw that in Pasadena, Texas. We've seen that in Decatur, Illinois -- Decatur, Alabama. So we've seen the erosion of minority voting rights on a local level and it's important because these are places, you know, localities determine policing, schools, tracking, school discipline, a lot of issues that are related to communities of color.
REHMAnd to you, Bruce Fein, what are your thoughts?
FEINWell, I think, to supplement what's been stated, it's not a question of whether or not you protect voting rights. The Constitution protects voting rights. Section 2 of the Voting Rights Act protects against any laws that result in discrimination and the preclearance that is quite extraordinary wasn't preclearance for constitutional wrongdoing. It had what's called an effects test. Even if a voting provision disproportionately affected minorities, it could be blocked, even if it wasn't unconstitutional.
FEINAnd with regard to the ability of these remedies to work, we've had experience with what's called racial gerrymandering ever since Shaw vs. Reno decades ago. The courts are quite able to ascertain whether or not there's an intent, a purposeful intent to discriminate on the basis of race and they've worked. And also, think about the idea of what we need to have -- be proactive, identify possible Constitution violations in advance and therefore we need the federal government to screen everything that a state does.
FEINWell, where's the stopping point? How about First Amendment right? How about freedom of religion? Should we have all of those laws that are changed at the state or local levels submitted to the attorney general of the United States or a district court -- a federal district court in the District of Columbia to screen? It ultimately would have the states reduced to school children and the federal government play school marm. That's not our constitutional system.
REHMBut Jim Rutenberg, beyond the Voting Rights Act itself, states are passing restrictive voting laws. Talk about those. What are they and where are they?
RUTENBERGSo most of these laws take -- or almost a -- they're uniform across the board, very similar. They usually have a sort of voter ID provision where a voter has to present ID. Not every voter ID law is written equally. Some are easier. Some are harder. So in Texas, a student ID will not work, but a gun permit will. But not only voter ID, that's kind of the most public base of these. There have been rollback in things like early voting so take North Carolina, but this is happening in several states, Florida, Ohio, where you had 17 days of early voting.
RUTENBERGAnd minority voters, especially African-American voters, used these laws like crazy, especially because churches have what they call soul to poll -- souls to the polls events where you just brought tons of voters out after church to vote early. So those have been rolled back in terms of the number of days that that's disproportionately used by minorities, I should say. And then, you have, also, other access provisions.
RUTENBERGI mean, you know, the problem is for voting, especially for poor people, for minority people, it's hard to get there on a Tuesday and once you are able to vote, maybe you go to the wrong place 'cause there's -- it's hard for anybody to figure out where to go sometimes to vote. So there's a lot of provisions that made it easier to -- if you show up in the wrong precinct, you could vote for the presidential race, at least, if not, like, the county commissioner.
RUTENBERGSo these are the -- all have been rolled back and in this coming presidential election, 15 states will have new laws for the first time, these new restrictive laws. So, you know, some of it's not a swing -- Alabama is not exactly a swing state. Mississippi, not exactly a swing state. But Virginia, New Hampshire, North Carolina are swing states and then you have other states that weren't covered by Section 5 that will be talking about the Voting Rights Act, but, like, Wisconsin and Ohio.
REHMSo surely these laws, these new provisions, are going to be tested in courts. Are they going to stand up, Spencer?
OVERTONYeah. So, Diane, they're going to be tested in court, right? The problem, though, that law suits -- they're an important tool, but they're not always enough. So number one, they don’t always detect discrimination. It's not a situation where every change is reviewed. Also, lawsuits are often expensive so there are a lot of little towns that might have 10,000 or 15,000 people and people don't have money to hire lawyers and bring a lawsuit.
OVERTONThese law suits are often too slow. The changes are used in an election before the law is stopped so the litigation, just as a process, is a problem. So where a lot of focus on the national election, the presidential and that is definitely important, but that's kind of horse race that's covered by the media. I'm really concerned about these local elections and minority candidates and minority voters behind excluded from the process.
FEINI'm kind of startled by the observation that you go to court, but you can't prove your case with evidence and so there's something wrong. I mean, due process gives us the presumption of regularity in innocence, not that -- you're not presumed that you're flouting the Constitution, you know, unless the government clears you. And that's what our system is about. This idea that you should prevail because the law is too abstruse and elusive to vindicate justice, I mean, that's the Queen of Hearts sentence first verdict afterwards.
OVERTONWell, you know, we are moving forward here in terms of talking about updating the Voting Rights Act and we're focusing on some key concepts. Concepts would be areas where there's a recent record of discrimination. So there's no need to litigate the past. You know, Bruce and I probably disagree in terms of Shelby County, but moving forward, in terms of restoring the Voting Rights Act, coming up with a test that focuses on areas that have had recent instances of discrimination and also make it easier that when you do go to court, you can actually get an injunction to stop laws that might be discriminatory.
FEINYeah, we're already at that place, Diane, because under the existing system that was not disturbed by Chief Justice Roberts in Shelby County, on an individual jurisdictional basis, if there is the recidivism that Spencer's identified here, the judge, as a remedial order, can place that jurisdiction under preclearance review. So we're already at that case by case examination that Spencer has touted.
REHMBut I gather President Obama is truly asking for total restoration of the act.
OVERTONThat's absolutely right. And then, also the standard's a little bit different in terms of what's Bruce is talking about here. I don't want to get in the weeds here, but the standards -- the legal standards are different.
REHMSpencer Overton, he's professor at George Washington University School of Law. He's the author of the book "Stealing Democracy: The New Politics of Voter Suppression." Short break. I look forward to hearing your calls, your comments, stay with us.
REHMAnd welcome back. Here in the studio, Bruce Fein, he's principal at Bruce Fein & Associates and author of "Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy." Also, Spencer Overton, Professor of Law at George Washington University. Joining us from Montauk, New York, Jim Rutenberg, he's chief political correspondent for The New York Times Magazine. And, Jim, I know you wanted to get in on that last part of our discussion.
RUTENBERGI just wanted to note that the interesting thing about this debate about what we call pre-clearance -- when states and counties have to submit their voting laws for federal approval, which again is extra ordinary -- the idea there, in part, which is tricky on a legal basis, is that when a bad law goes through and people vote under that law, then a court says later, "Oh, that law was discriminatory." Advocates for the laws say that's absolutely untenable. So now we have a lousy vote based on a bad law that's been thrown out. So that's the idea of pre-clearance. But it, again, it adds -- as Mr. Fein points out -- it is very, very tricky legally.
REHMTell me about what's happened in North Carolina, the case of the issue of Section number 2.
RUTENBERGSince we have lawyers in the room and professors in the room, I'm sure I'll butcher this -- I'll give my hacked-out version. And that is that Section 2, as Mr. Fein stated, it's a powerful -- or we'll see how powerful -- part of the law where you bring a case saying this is discriminatory. It applies to all states equally. The idea -- the big test in North Carolina will be, let's say, early voting. Is it a convenience that the state can take away or grant at will, no matter who it affects and even if it's disproportionately affecting minorities? Or is that sort of a -- now a right, now something that's been established and, if minority voters are using it in disproportionate numbers, it must be protected? So it's far more complex legally.
RUTENBERGBut the basic idea is that if the plaintiffs, which includes the Department of Justice, prevail, that would give some new power to Section 2. If they lose, that could further weaken Section 2, especially if it gets up to the Supreme Court and they agree with that. So, but the irony here for the plaintiffs is saying -- and, again, your two other guests can correct me -- if the plaintiffs succeed, it would be an argument against -- for opponents of doing anything more with the Voting Rights Act. Because they could say, "Look, the law did what it was supposed to do here."
REHMOkay. And as I understand it, at issue now is the power and the limits of the law's Section 2, which applies to all states and forbids any denial or abridgement of the right of any U.S. citizen to vote on account of race or membership in a language minority group. And it's the basis on which many of these cases are being fought, correct?
FEINYeah, Diane, it's a little bit -- yes, and it's a little bit broader than that. It's beyond the constitutional test of a voter provision intending to discrimination or suppress vote, if it results in an inhibition of that group being able to elect persons that they want. That's also a violation. Now the Supreme Court has addressed this Gingles case and it's still a very, I would say, elusive element of the law. But it is really quite strong medicine. And it would seem to me that you'd want to see whether this is sufficient before you go to the extraordinary measure of trying to reexamine and re-implement Section 5. And one of the other things that is critical here is, if you wanted to see what the impact is, let's have some elections.
FEINIs it really suppressing the voter turnout of minorities or not? Why are we jumping in before there's evidence?
REHMAnd here's an email from David in Greenville, N.C. on that very issue. He says, "In North Carolina, minority voter turnout in the last election cycle was up despite these new laws being in place. Can someone on the panel explain how this shows discrimination? Spencer.
OVERTONWell, number one, many of the provisions were not in place.
OVERTONSo, for example, the ID doesn't go into effect for a couple of years in North Carolina. This is...
REHMAnd what kind of ID is required?
OVERTONMuch more restrictive in North Carolina than previously...
REHMWhat does that mean?
OVERTONDiane, we've got 50 different states and there are all these exceptions and provisions. So it's basically an ID without an affidavit and without a safety hatch for folks who do not have a photo ID. In other words, we have ID requirements in all states. And as Jim talked about, the question is how restrictive is the ID. And North Carolina went from a very inclusive identification procedure to a much more restrictive identification procedure that doesn't have exceptions.
REHMOkay, but -- okay, here's what I want to understand.
REHMIs an ID a photo?
REHMIs an ID a driver's license? Tell me.
OVERTONYes, it is a driver's license in North Carolina. But again, it depends on the state that you are in. So you might have a very short list in some places, like North Carolina and Texas, in terms of what's acceptable, which would be a more restrictive example. And then in...
REHMBut how restrictive? Tell me how restrictive.
OVERTONHow restrictive -- it could go from -- it could go from, you know, 98 percent of the population having the required documentation, down to, let's say, only 70 or 75 percent.
REHMNo, but you're missing my point. What I'm asking is what kind of ID is required?
OVERTONYeah. Photo ID, in terms of a driver's license.
OVERTONAnd then there are some additional provisions that could be required. And I -- I'll tell you, I just don't have the details of the law in front of me.
FEINDiane, what your questions point out is why we need experience under the laws rather than just guessing. You don't know. I don't know. Until there's an actual election with the provisions in there, we don't know how burdensome they are. That's why you don't sentence first before the verdict.
RUTENBERGTwo points that I should mention. First of all, on turnout, it is true that, especially black turnout was higher in this midterm, 2014, compared to 2010. However, what the civil rights lawyers down in Winston-Salem, in the courthouse, argued what -- that those voters were really informed: This law is out to get you. So there was extra turnout, sort of a backlash turnout. Secondarily -- now, may -- we'll see. As Bruce pointed out, we'll see. Now to the voter ID provision, one interesting thing that North Carolina did as they were heading into that trial, the State House -- and the Voter ID Law also, one thing it did, for instance, student IDs were going to be allowed under their law, before Section 5 was struck.
RUTENBERGWhen Section 5 was struck, suddenly, no more student ID. Those were the kind of restrictions they did. But what happened was, a couple of weeks before this trial started, the State House rushed back into session -- or, sorry, they're in session, rushed in and did a last-minute change to this law to allow -- to make it a little easier for people who don't have that ID -- they'll have to kind of say why they don't have it at the polling place and they can do provisional ballots. And, you know, advocates for better vote -- easier voting say that could be a little mess, but we'll see. But -- so they knew they had a problem with this law going into the court, it seems pretty clear.
RUTENBERGBut the turnout factor does make the initial case much harder for the Department of Justice.
FEINAnd that's how politics is supposed to work, Diane. Or if the legislature's worried, they change the law, they ameliorate it. And with regard to turnout, if they just -- if these voters just want to demonstrate their commitment to voting and they can overcome the provisions and they do vote, that shows the burden is really insubstantial if all you have to do is change your psychological intensity about wanting to vote.
OVERTONYes. I think this notion of having an election where we get the first African-American who's on the ticket as representative of elections in terms of turnout among minorities, I think that that's a bit of an anomaly here. So I think that that is one piece in terms of this argument being made in different states across the country. I think another point is, you know, Bruce said, "Well, let's see the evidence." And that is really what I would say with regard to fraud and the existence of fraud that's out there. There is a lack of evidence. And despite that lack of evidence, many of these states have pushed forward this ID, despite the fact that fraud, to the extent it exists, is in the absentee context.
OVERTONAnd they are being less restrictive, often, with regard to absentees because it allows them to get their voters to the polls -- and much more restrictive with regard to identification in person.
REHMAnd, Bruce, that's one of the questions that keeps coming up. Has voter fraud, in a large number, been accurately shown?
FEINNo. And, but I'd also -- I want to comment, Barack Obama was not on the ticket in 2014.
OVERTONOkay. That's true.
FEINBecause he wasn't running for president. And then, so -- and that was what the turnout was up, in 2014. And we have a situation, Diane, where there's no doubt we're dealing with politicians who are trying to maneuver for what they think is political advantage.
FEINAnd, you know, the incidence of fraud is tiny, miniscule. How many people are going to risk a felony to have a one in one-trillion chance of affecting the outcome of elections?
REHMHow many times did you hear Republicans say, this is needed because there is so much voter fraud?
FEINYeah. That's cover, yeah, right. Yeah, and politicians say things that are ridiculous all the time. And there isn't a serious problem with fraud. They said, "Well, listen, we just would have -- we would like a greater security element to it." But if the standard for throwing laws out was stupidity and incompetence of members, you know, there would be very few that existed at all.
RUTENBERGI love that last quote.
RUTENBERGI think we can all agree on that. But one thing that does get lost -- that we lose sight of in North Carolina, for instance, was okay so, in the name of fraud, this law gets passed. And though turnout was up, we can't forget that there were thousands of votes that were thrown out under this law that would have gone through without the law. So, you know, I think we have a fairly hard number there -- let's say, the best kind of estimate is between 1,000 and 2,000 absentee -- provisional ballots were definitely thrown out. And then there's an estimate that some 11,000 others couldn't vote because of this law. So Barack Obama won North Carolina by roughly 14,000 people in 2008.
RUTENBERGSo, A, it can affect an election potentially. But, B, even if it's a thousand votes, there's a vote that was thrown out that wouldn't have been before the law.
REHMAll right. Let me ask you, Spencer, what's the difference between Section 2 and Section 5?
OVERTONIncredibly great and important question. In short, Section 2 is basically lawsuits, litigation. Section 5 is a process that reviews new election changes before they go into effect to determine whether or not they are discriminatory. Section 5 applied to only jurisdictions with a history of discrimination. And, of course, Shelby County said that old coverage formula was outdated. And now before Congress, we have a new proposed law that focuses on more recent instances of discrimination to cover places. Now the reason this is important is, for example, we don't want you to have to bring a lawsuit simply because, you know, if your water is contaminated.
OVERTONWe want you to be able to stop before the water is contaminated. We want to set up a process so that the water is clean. We don't want to have to say, "Hey, you know, do whatever you want in terms of the water and you go in and file a lawsuit if there's poison in the water." It's after-the-fact that's a problem. So we want a process to efficiently prevent something from happening. And that's basically what we need in terms of Section 5.
REHMAnd you're listening to "The Diane Rehm Show." Bruce.
FEINYes. I think the differences are starker than that. First of all, Section 5 is a much higher threshold that you've got to satisfy than Section 2 -- namely, you have to void any provision of voting law that has a disproportionate impact, called the effects test, on any minority group, as opposed to the results test of Section 2. But even more important, the difference is, in a lawsuit, you get due process. You know, there's a charge of discrimination. You'll produce evidence. I was at the Justice Department. That's not how it works when the Justice Department reviews a proposed change. They have a civil rights division. The state sends in their provision.
FEINAnd you don't -- at that stage, when you get a (word?), you're not in a court of law where you're given full notice, adversary proceedings or whatever. It's just the dictate of the civil rights division, which is politically oriented like you'd expect in an administration.
RUTENBERGAnd I would concur. The civil rights division is political. It changes every time there's a new administration it has a new bent. But to Spencer's point, what Section 5 did do and pre-clearance did do with those smaller municipalities and localities would have to submit voting laws. And so the argument for something like pre-clearance is, we, as the Justice Department, we can't -- we're never going to know about these laws.
RUTENBERGBut now they have to tell us by law, so we know. As Bruce would know as well, a lot of these laws -- the vast majority are actually pre-cleared and sent through. And what was happening over the years, let's say, that a lot of municipalities, states, localities were making the (word?) in their laws so they wouldn't be in violation.
REHMSo, Spencer, what President Obama is doing is asking for a total comeback to the original voting rights law. How likely is he to get that?
OVERTONWell, I think it's unclear. I mean, there's been a bipartisan consensus on this -- the Voting Rights Act, the pre-clearance provision. Whenever it's renewed, it's been bipartisan. Now there's a bit of a stalemate. But, you know, the thought is that both parties presumably dislike racial discrimination in voting. And hopefully there can be some deal, in terms of the parties, of something that is palatable. And, again, the objective here is an updated -- a process to focus on places where there is discrimination. And then also a disclosure of new changes nationwide to deter bad activity. A huge benefit of pre-clearance is disclosure. And sometimes that deters bad activity because these local election officials know that the change will be reviewed.
OVERTONSo that deterrence and disclosure is important as well.
FEINDiane, nothing's going to happen until we have more of a track record as to what effect on voter turnout these changes in laws that you've identified. That's the nature of the congressional beast.
REHMBut is that a good idea, Bruce?
FEINIt is a good idea to know what the -- whether there's a problem at all before you have this extraordinary remedy of having the United States government play the schoolmarm to the little children at the -- in the state and local level. We have Spencer saying, "Well, what about water poisoning?" We don't have state and local governments submitting their water laws to the federal government to say, "Well, you know, this possibly could toxify our water supply. Is it permissible or not?" That's how our constitutional system works. And we have a presumption of regularity. We don't presume everything the government does is illegal unless the federal government gives you an imprimatur.
RUTENBERGBut one thing -- and this goes to the debate right now -- that we can't forget is, unlike other aspects of American life, voting was shut off to a portion of the population for hundreds of years. So now the argument that we're having right now is, are the vestiges of that still there enough to require this extraordinary, and we all have to agree, extraordinary bit of law. But there is a history here.
REHMAll right. Jim Rutenberg, he's chief political correspondent for The New York Times Magazine. Your calls, comments, when we come back.
REHMAnd welcome back. Big arguments going on in here, I want you to know that. We're going to open the phones. 800-433-8850. First, to Ormond Beach, Florida. Thomasina, you're on the air.
THOMASINAYes, thank you for taking my call.
THOMASINAYeah, there are subtle and not so subtle ways of blocking certain people from voting. In 2014, when we had the Governor's election here, the next town over, New Smyrna Beach, it's a large, poor black neighborhood. Their polling place was shut down two months before the election. A building where they voted for decades, with the excuse that oh, it needed repair. Now, the not so subtle was the year 2000, when Secretary of State Katherine Harris put together a felons list. They called it a purge list, to make sure felons wouldn't vote.
THOMASINAWhat happened was, the list had so many mistakes, different middle initials or misspelling of the last name, 12,000 people were turned away from voting and they had no records at all or ever been arrested. So, I wonder who's committing the fraud.
REHMAll right. Thanks for your call. Do you want to go back to the year 2000, Spencer?
OVERTONSure. You remember 2000, contested election, in terms of President Bush and President -- and Vice President Gore. And I think, at the end of the day, we really need to focus on these voters and the voters that were excluded. It's past the horse race. Obviously, there are major consequences in terms of the future of the country. But it's about individual voters being able to participate. And all of the non-felons who were erroneously excluded. And all of the other issues and problems, in terms of people being excluded in an election, nationwide, that was basically determined by less than 600 votes. This is important stuff.
REHMAll right, and here's an email from Andy. He says, I'm very frustrated. This has become a political issue. Rather than one based on our basic, national values, which is the right to vote. Is indicative of a larger dynamic at play, that everything becomes political. Can't we all agree, it's a good and powerful thing that citizens are allowed to vote? It's a pillar of our democracy. Shouldn't we Americans be proud that voters have access to the voting booths?
REHMLet the political chips fall where they may. It won't kill us if we once in a while agree that voting is good. We want more people voting, not less. Bruce.
FEINYeah, all the people who are eligible to vote should be voting. And I think we should be encouraging that. The question we're confronting today is process. How do we move towards achieving that goal, consistent with our constitutional dispensation? Including the presumption of innocence and regularity? Including the history that we've had in the United States, of suppressing black votes, especially during Jim Crow. And we're not in the Jim Crow era anymore.
FEINAnd given the delicate balance between the federal and state governments is the process of section 5 really worth the toll that it takes on our constitutional dispensation? And I think at present, no.
RUTENBERGAnd I think that the two questions kind of pair together, right? So, in Florida, there was actually a reaction that the felons list and the purge list was in reaction to what we do have in this country, which is election fraud. Which is usually by absentee ballot, which these laws don't address, but a mayoral election was stolen in Florida. We know this, and so Florida wanted to deal with that. Fine. But, when it went about dealing with it, it was a mess, and now, part of these new laws are about purging these lists.
RUTENBERGAnd what we've seen is that purging of a list to make it proper, and it can really hurt thousands of people's ability to vote. And what you're not seeing is the people coming together and saying, we need to protect the vote, especially for those closed out of this process. But, you know, we can talk about fraud, and let's all come together and figure out a way to do it. But you don't see that kind of high minded approach to this.
OVERTONJust a quick note. I think we have this misconception that in the past, it was racial discrimination, and now it is political. In the past, it was political. In the 1960s, it was about a certain class of white politicians who wanted to hang on to power. Now, it was hidden, because those white politicians were Democrats, right? So, it wasn't a Republican, Democratic thing. But it was political. And you know, Jim's piece in the New York Times really pulls this out. It's exposed now, because a lot of those southern Democrats, who were white, migrated with Strom Thurman and others, to the Republican party.
OVERTONAnd so, now it seems to be a partisan issue, but it really is about politicians hanging on to power by selecting the voters they want and excluding the voters they believe that will vote against them.
REHMAll right. Let's go now to Judy in St. Louis, Missouri. You're on the air.
JUDYWell, I've been waiting to chime in on this thing for the last two or three programs you had on it. And my problem is not race. I'm a white woman in the red state of Missouri. And I -- all I wanted to do was be able to vote. However, I am disabled. I can't use my legs. And it was very easy to get an absentee ballot in the mail. All I had to do was sign something. I didn't have to sign, have a note from my doctor, or have a picture sent in. But when I did have to go the license office to get a picture, because I needed one to open a savings account of all things.
JUDYThey couldn't operate the camera for someone who couldn't stand up. And they had to run and find a screwdriver. And somebody had to tilt the camera.
REHMSo, it was a huge hassle.
JUDYIt was. It was terribly huge.
JUDYAnd so, there probably aren't as many disabled people who are disenfranchised by this as there are poor people or race, you know, black people, or any other kind of race issues. But anyway...
JUDYWhen I finally had the chance to shout this out.
REHMI'm glad you called. And she is not the only disabled person out there who's going to have difficulty getting a photograph.
FEINRight. That's absolutely right. And there are two goals that we have to really focus on here, Diane. One is expanding the right to vote for everyone. You know, regardless of race, class, ability, physical ability. So, we want to expand the pool. This other piece, though, is preventing racial discrimination specifically. So, they often overlap, as in the ID context. But sometimes, they are different, such as in the redistricting context, when we eliminate minority districts intentionally.
REHMJim, there's another case in Texas. Tell us about that one.
RUTENBERGThis is a stricter voter ID case. As I mentioned before, it's a very strict voter ID provision that Texas put into place. Again, with Section 5 out of the way, and the district court, this is just last week, said this law discriminates against Hispanics and blacks. Now, this was a circuit panel. Bruce can correct me here, but I don't think it's considered a very liberal panel. It was part of the three judge panel, though.
RUTENBERGBut the bottom line is that the interesting thing here in this case is they sent it back to a lower court to decide, was this discrimination intentional? If it is found that this discrimination was intentional, that it was purposeful, then there will be something that's akin to Section 5 that will kick in. It's rarely used in the law, it's always been there, and it would place Texas under a pre-clearance sort of model. Where they would have to get their laws cleared.
RUTENBERGAnd that's, again, something where sort of opponents of bringing Section 5 back say, if that happens, then we now, we really know that the law is totally adequate the way it is right now. Again, Justice Department, especially under Obama, would disagree.
FEINWell, I think he's exactly right. It's a case by case jurisdiction by jurisdiction examination of whether the recidivism that has blighted the country, you know, prior to the end of Jim Crow, continues in particular jurisdictions that requires the case by case pre-clearance review. I'd make this other observation, Diane. You know, we talk about the right to vote, which is very important, but we want the right to vote to count. And I think the larger issue that we're overlooking is the political gerrymandering, that the nullifying the actual utility of a vote because you're packed into a district that's either going to be all Republican or all Democrat.
FEINSo, it really doesn't make much difference what you vote on. And this is where I think Congress is derelict, and the courts have, as well. Because they've basically said, if you can prove that the reason why you suppressed the vote was because of political affiliation, rather than race or gender, that's okay. And I think that's one of the reasons why there's such disgruntlement with the existing political system.
REHMYou're concerned, I know, Spencer, about what's happening at the local level. But what would be the result, if as President Obama has said, we go back to the original Voting Rights Act?
OVERTONIn terms of not having preclearance moving forward?
OVERTONWe're going to have a situation where some jurisdictions, it won't be all of them, there will be some political bad actors on local levels who erect laws that either make it more difficult for particular populations to vote or they'll do things like change the voting date. So, maybe minorities come out in November, but minorities don't come out as much in June. So, they change the election date back to June. And we have actually seen that type of example in the past, in terms of politicians manipulating laws.
OVERTONAnd what's important to recognize here, and it gets overlooked, is that racial polarization in voting is, continues to be high. Indeed, it's more significant along party lines that it was back in the 1960s. And racial polarization is more significant on the local level, in many cities, than gender or religion or income or even...
REHMAnd you've seen those numbers.
OVERTONSeen those numbers, yes.
FEINGoes back to what is the proper remedy? The ordinary remedy is, okay, if the intentional or a results violation, you bring a lawsuit, you get an injunction, where there's recidivism, you can put them in a Section 5 reproach.
REHMAnd he's about to jump in.
FEINAnd all I'm saying is that what Spencer has said, with regard to the incidents of racial discrimination at the local level, I could say that with regard to religious discrimination, discrimination in free speech. It happens all the time. We don't require the locality to submit.
FEINA law that affects free speech or freedom of religion to the Justice Department. It doesn't mean that some people are going to be heard because a law goes into effect. Yes, but it's the price we pay for the rule of law and a system of federalism.
OVERTONAnd an updated coverage formula is based on the recent, case by case litigation in instances of voting discrimination that Bruce has mentioned. So, we're not talking about doing this nationwide. We're talking about looking at places with recent instances of discrimination and applying an efficient process.
RUTENBERGAnd I think that we're coming into 2016 and I think the nightmare scenario for civil rights activists, and we all have to agree, Democrats benefit from more people voting, especially minorities, so Democrats' nightmare scenario, as well, is that you're gonna have laws now can come through, and especially in these covered states, at the last minute. And let's say the law comes in, it's a lawsuit. The law is stopped, but that confusion, the confusion of a lawsuit coming into election is the biggest enemy of getting out the vote with people who are not necessarily able to get out to vote as easily as others.
REHMJim Rutenberg of the New York Times. And you're listening to The Diane Rehm Show. Let's go now to Syracuse, New York. Eli, you're on the air.
ELIHi Diane. So, as it has been stated, there is no history of voter ID fraud in our country. But there is history of absentee ballot problems. So, within a two, three year span, miraculously, we have all of these Republican State Legislatures creating these voter laws to supposedly keep us safe. They totally took, refused these laws to address absentee ballots. But they attack voter ID, which is non-existent. So, you have to ask the question, why is this? What's going on?
ELIAll of a sudden, all of these states have decided we need this legislation. Well, what it is is simply that this is a creation of Karl Rove, who's playing a numbers game. He fully understands that when people have to have driver's licenses in order to vote, you're going to go to the inner cities or large metropolitan areas, which many, many people don't drive, don't have licenses, who primarily vote Democrat, and you're going to force these people to come up with some other kind of ID. Many of them are not going to. They're not going to even know about the law existing. Or if they do, they're not going to be able to take time off from work.
REHMAll right. Thanks for calling.
FEINWell listen, it's certainly -- it's some evidence of racial intent if there are greater incidents of fraud that are unaddressed and they're purportedly addressed by voter ID. And that can be used to try to invalidate a voter provision under the 15th Amendment or otherwise.
REHMBruce, here's what I am most concerned about. And that is confusion. Confusion as our caller mentioned. Now, what are the laws? How do they apply to me? What do I have to do?
FEINWell, this sure ought to be publicity. We did the same with -- if we can convince and alert the American people to what the hazards of smoking are, we can certainly do that to what is required to vote.
REHMDon't bring up smoking.
FEINNo, I'm just saying the ability of public education to succeed is not like, you know, you have to invent the wheel. It's out there. You just put these things on public service announcements. It can be on TV, it can be on radio. The government can require that, the FCC as part of the educational obligations of broadcasters.
REHMBut if there were one law applied to everyone, that would be clear.
FEINYeah, but the law that applies in that jurisdiction, obviously, you're not going to advertise in Mississippi the law that concerns New Yorkers.
FEINWell, you put it there.
OVERTONYou know, we always talk about businesses that have lawyers, not being able to handle complex regulations. And I hear that quite a bit. I would say that that argument has more resonance in the context of voting, where you have average folks who don't have lawyers going in the polls and having to figure out complex laws. We really, as you said, want to keep it simple and straightforward so that we can include as many people as possible.
FEINYeah, I'm not against that. And if you, I don't think it's all that difficult to identify, relatively concisely, exactly what kind of documents to have to identify yourself. That should not be, like, E=MC2.
REHMJim, are people confused?
RUTENBERGI think that we know they get confused when these laws come at the last minute. And there are lawsuits. And that's what the, again, and the Democrats are more concerned about the -- this is what concerns the Democrats. What the Democrats will tell you is after the Obama years, they know how to -- they're a little cocky about it, I think. They know how to organize around anything. Give us a new law, give us time with the right amount of money and skill, we can get around it. Give us confusion and it's a mess.
REHMJim Rutenberg of New York Times. Bruce Fein, Principal of Bruce Fein Associates. Spencer Overton, Professor of Law at George Washington University School of Law. Confusion is the word I would use. Thanks for being with us. I'm Diane Rehm.
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