Lawfare's Quinta Jurecic on what's next for the January 6th Committee and the steps Congress can take to safeguard American democracy.
In an election season already full of firsts, here’s another: this will be the first presidential election since the Supreme Court struck down a key part of the Voting Rights Act in 2013. And in 16 states new voting restrictions will be in place for the first time. Recently, thousands stood in line for hours waiting to cast their primary ballots in states like Utah, Arizona and Idaho. Some warn this is a sign of what’s to come in the general election and beyond: roadblocks to voting that disproportionately affect minorities and the most vulnerable Americans. Others argue we’re closer now to a fair system. A look at access to voting across the U.S.
- Ari Berman Senior contributing writer, The Nation; author of "Give Us the Ballot: The Modern Struggle for Voting Rights in America"
- Carrie Johnson Justice correspondent, NPR
- Jan Baran Head of the election law group at Wiley Rein LLP; former general counsel, Republican National Committee; author, "The Election Law Primer for Corporations."
- Guy-Uriel Charles Professor of law, Duke Law School; founding director of the Duke Law Center on Law, Race and Politics
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Long lines at the polls have made headlines recently as state held their first presidential primary contests since the Supreme Court struck down part of the voting rights act. Critics of that change say we're now seeing what they'd feared, rules that make it harder for many Americans to vote from stricter ID laws to fewer polling places.
MS. DIANE REHMHere to talk about voting access across the U.S. and what the 2013 decision means going into the presidential election, Carrie Johnson of NPR, Jan Baran of the election law group at Wiley Rein LLP and joining us from the studios of NPR in New York Ari Berman of The Nation. I do hope you'll chime in. Give us a call at 800-433-8850. Send an email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. And welcome to all of you. Thank you for being here.
MS. CARRIE JOHNSONThanks, Diane.
MR. JAN BARANHello, Diane.
MR. ARI BERMANGood morning.
REHMGood to have you all here. Carrie Johnson, start with that 2013 Supreme Court decision, what it was and how it has affected elections going forward.
JOHNSONDiane, this was a challenge filed by people in the state of Alabama seeking to overturn key parts of the voting rights act from 1965. It's hard to overstate how important that legislation has been in civil rights history. Some people believe it's the most important piece of civil rights legislation ever and it required many states and parts of other states to get preapproval before making election changes because of a history of discrimination against minority voters, either racial minorities, ethnic minorities, language minorities, and the federal government would have to weigh in and pre-approve any major changes to voting, polling places, elections laws and the like.
JOHNSONHowever, in 2013, five justices on the Supreme Court struck down a key part of that law as unconstitutional, saying the way it figured which states and parts of states were covered was outdated based on voter data from 40 or 50 years ago and should no longer be relied upon. And five justices of the court found that that could no longer relied upon, which more or less upended the way the federal government pre-approved elections and election changes in many of these places.
REHMSo in this most recent election, how has that decision affected people at they went to the polls?
JOHNSONHere's the thing. Within moments, within hours or days of that Supreme Court decision in 2013, states like Texas and Mississippi announced that they would put into place more restrictive voter identification laws and North Carolina passed what's considered to be the most restrictive voting law in the country, eliminating or cutting back some early voting, more or less getting rid of or cutting back the ability to register voters who were going to turn 18 in the course of an election and a number of other changes.
JOHNSONIn all, like 16 states have passed new laws since 2013 that impose new restrictions on voters or voting.
REHMNew restrictions. Ari Berman, tell us about some of the difficulties that voters faced in some of the western and southern states recently.
BERMANWell, Diane, we saw five-hour lines in Maricopa County, home to Phoenix, the largest and most diverse county in Arizona. And this was a glaring manifestation of an already existing problem. What happened in Maricopa County was that country eliminated 70 percent of polling places for the 2016 primary. They went from 200 polling places in 2012 to just 60 polling places in 2016. That was the type of voting change that would've previously had to have been pre-cleared with the federal government because Arizona was one of those 16 states that was subject to section five of the voting rights act because of a long history of discrimination against, particularly in Arizona, Hispanic and Native American voters.
BERMANSo previously, if Maricopa County, the largest country in Arizona wanted to eliminate so many polling places, they would've had to get that approved with the federal government. I believe that the federal government would've blocked this change because minority voters in Maricopa County are 40 percent of the population and we saw predominantly Latino areas, for example, with no polling places or just one polling place and lead to very long lines.
BERMANI heard from someone who voted in Scottsdale, an affluent suburb of Phoenix, that they only waited 30 minutes to vote. But in downtown Phoenix, which was far more diverse, people waited five hours to cast a ballot. So I think in Arizona, many people have realized for the first time, this is what's going to happen without the full protections of the voting rights act. Not just in Arizona, but in so many places. And I've been writing about this for awhile and I know Carrie and other people have covered it.
BERMANBut I think a lot of people didn't really pay attention to the fact that this is the first presidential election in 50 years without the full protections of the voting rights act. And what happened in Arizona really woke people up and said, oh, my god, what's going to happen in November?
REHMSo to you, Jan Baran, I know one of your colleagues actually argued this case before the Supreme Court. What impact do you see that that decision has had on voting rights and voting throughout the country?
BARANWell, the immediate impact is that there are these handful of states, primarily in the south and some parts of the west, like Arizona, like certain counties in California, for example, that no longer have to seek what's called preclearance of any of these changes. However, the voting right act remains intact and that any discrimination that's caused by these types of changes are still subject to investigation by the justice department. In fact, I've read in news accounts that the mayor of Phoenix has written a complaint, a letter to the department of justice alleging that these changes may have been discriminatory.
BARANAnd if so, that would be a violation of another part of the voting rights act called section two. And I have a hard time believing that the Obama justice department would not take that letter seriously and look into it. In terms of what the actual practical effect is, I don't know. I'm not involved in Arizona politics. I don't know what the motivations were for those particular changes. It, obviously, had some deleterious effect. Although, my wife, this morning, reminded me that when she was a student at Brown University, 1972, she had to wait in line for five hours to vote for George McGovern.
BARANThose types of situations mercifully don’t exist. And, in fact, what happened in Arizona is unacceptable by what we expect in elections these days. But in terms of reducing the number of precincts in a particular jurisdiction, it appears that the motivating factor there was cost effectiveness. If that was the case, it would be understandable. I mean, these expenses that are associated with elections are all driven down to the locality and they have to make those types of decision on, you know, how many precincts they're going to have, how many voting machines they're going to have, how new they are, how expensive are they and they have to do that for basically conducting a very extensive procedure at the most, two times every other year.
BARANYou know, it's a little bit like a mayor or a governor wanting to know, you know, how much are we going to invest in snow removal if we live in Charlotte or Atlanta in order to make things work a little better?
REHMOn the other hand, I would argue that snow removal and voting rights are two very, very different things and that to vote is the primary right of an American citizen. Jan Baran is head of the election law group at Wiley Rein LLP. He is the author of "The Election Law Primer for Corporations." Carrie Johnson is justice correspondent for NPR. Ari Berman is senior contributing writer for The Nation and author of "Give Us the Ballot: The Modern Struggle for Voting Rights in America."
REHMCarrie Fisher (sic) , I know you wanted to add something.
JOHNSONYeah. So President Obama was concerned about long lines a couple of election cycles ago. He appointed a bipartisan commission, Republicans and Democrats, who recommended that no citizen should have to wait more than 30 minutes to vote. So these reports out of Arizona last week that some people were waiting five hours and the election had actually been called while people were standing in line outside waiting to vote is quite concerning to civil rights advocates. Here's what they say.
JOHNSONThey say, yes, parts of the voting rights act which allow the justice department to investigate discrimination are still intact, but they happen, generally speaking, after the fact, after somebody has already lost his or her chance at the franchise. Also, I interviewed last week, the head of the justice department unit that handles all of these complaints and issues of the voting rights section there. They have fewer than 60 people in that section to try to cover the entire United States.
JOHNSONSo, you know, in the past, they could block things before they took effect. Now, they have to it after the fact. It's time-consuming and it's very expensive.
REHMSo you're saying the likelihood of that kind of investigation is likely to be too little and too late.
REHMAnd we're going to take a short break here. Your calls, your comments are welcome. Join us, 800-433-8850. I look forward to hearing from you.
REHMAnd welcome back. We're talking in this hour about the Supreme Court decision in 2013, which has affected voting rights across the country and the manner in which people are allowed to vote, the long lines in some states, which discouraged and disappointed many, many voters. Joining with Carrie Johnson, Jan Baran and Ari Berman. Now Guy Charles, he's professor of law at Duke University. Guy, I know -- tell us how your state became in some ways the center of debate over access in voting.
MR. GUY-URIEL CHARLESSure. So the story of North Carolina is no different from the story that we were just hearing about in terms of what happened after the Supreme Court's decision in Shelby County. Indeed North Carolina had a very narrow election law that it was going to pass, but once the Supreme Court removed Section 4 and effectively neutralized Section 5, the preclearance provision, North Carolina passed a very omnibus bill that did many of the things that Carrie mentioned earlier.
MR. GUY-URIEL CHARLESSo it got rid of same-day registration, it cut down on early voting, it made it harder or impossible for teenagers to register to vote, and it restricted and created a very strict voter photo ID requirement. And what we've seen in this past primary is in some ways similar to what's going on around the rest of the country. We've had long lines. We've had at least some reports of intimidation. And of course when you have a new provisional voter ID requirement that's going into effect in this election, it's also causing some confusion and chaos.
MR. GUY-URIEL CHARLESIndeed my own dean at the Duke Law School was not only asked for a voter ID, which is part of the law, but he was asked how he was registered, if he was registered as an independent, a Democrat or a Republican, which took him by surprise. So there are also some issues with the administration of the law that is going on in places in which we no longer have the provisions of the -- the important provisions of the Voting Rights Act. Let me just mention one very quick thing. The Voting Rights Act, Section 5, did not only catch things before they went into effect, but it also served as a deterrent effect.
MR. GUY-URIEL CHARLESIt precluded many of the states who were covered by it from enacting those laws in the first place because they knew that there was a watch person, there was a police officer that was watching over them. So it precluded some of these laws even from being proposed because they knew that they would not be precleared by either the Justice Department or the United States District Court for the District of Columbia.
REHMGuy, you mentioned the word intimidation. Can you give us an example?
CHARLESWell, some of the things that people worry about, for example there was a report of an individual who was asked to spell his name after he gave his voter ID. I think Ari may have even reported on that. There are certain types of events that people are worried, voter challenges. So one of the things that the law did is that it enabled more individuals to challenge voters at the polls. And so there are some reports of increased and voter challenges of people really worried whether their votes are going to -- whether they're going to be allowed to vote because of being challenged by individual citizens who are residents of the county.
REHMAri, I know you want to chime in.
BERMANYeah, well, as Guy mentioned, I reported on an individual named Rudy Ravindra. He's a 66-year-old Indian-American. He became a U.S. citizen in 1992. He is a retired scientist. And when he went to vote during the early voting period in the March primary, he showed his driver's license to the poll worker, and the poll worker instead held it face down and asked him to spell his name, which he called a spelling bee test. So instead of just checking his voter ID, he actually was subjected to this test, which he found very intimidating. He was the only person of color voting in his precinct in Wilmington. No one else was asked to do this. He thought it might just be a fluke. He then took his wife to vote during the -- on election day, March 15, and his wife was subjected to the same kind of test. The poll worker held his wife's ID face down instead of just looking at it and once again asked her to spell her name, as if she was somehow an other, somehow threatening that she was voting.
BERMANAnd Rudy Ravindra wrote about this, and he said this is the kind of climate of fear that we're living in that the voter ID law is not only unnecessary, but it's leading to this type of racial profiling at the polls. I also told many other stories of people who had problems voting in North Carolina because this was the first election in which their new voter ID law was in place, and a week before the five-hour lines in Arizona, we saw three-and-a-half hour lines in North Carolina because of confusion over their voter ID law.
BERMANI told a story of an 82-year-old woman, Alberta Curry. She first registered to vote in 1956, she's a great-granddaughter of a slave. She had no problem ever voting in North Carolina until this new voter ID law came into effect. The only license that she has is an expired driver's license from Virginia from 1994 because she no longer drives, and so she actually cannot get a photo ID because she doesn't have a birth certificate. She was born at home in the segregated South, and -- to a midwife and never had a birth certificate.
BERMANAnd to get photo ID in North Carolina, you need to have a birth certificate. So she's in this strange catch-22. So she went to vote on March 15, the date of the primary in North Carolina, and under the voter ID law, which was softened unexpectedly by the legislature, she should've been offered a provisional ballot because she had what was called a reasonable impediment to voting. But she was not given a reasonable impediment ballot. She went to vote with her daughter, and they told her daughter, who had a driver's license, that she might not be able to vote because her mother did not have ID, which was a crazy experience.
BERMANSo this 82-year-old woman was turned away from the polls. She had to call her lawyer in Durham, her lawyer had to travel three hours roundtrip to make sure that this 82-year-old woman, Alberta Curry, the great-granddaughter of a slave, was still able to cast a ballot. And if she had not had this lawyer's assistance, if someone had not driven three hours to help her, if they had not demanded that poll workers offer her a provisional ballot, she would not have been able to vote, and she would've been disenfranchised for the first time in her life.
REHMI want to understand clearly, Carrie Johnson, are you suggesting or saying that this kind of action would not have occurred before the Supreme Court decision, or is this a continuation of, in some states, what has always been the case?
JOHNSONDiane, you've just put your finger on it, right. What the Supreme Court was wrestling with in its decision in 2013 and what we're wrestling with today is whether the bad vestiges of history prior to 1965 and the passage of the Voting Rights Act have changed practices on the ground. And I don't think we can say for sure that this kind of behavior never existed in the South. In fact, parts or all of 16 states have been covered by the Voting Rights Act, and the decision in 2013 by the high court abandoned that whole process.
JOHNSONSo what we can say is that some people believe most of the country has moved on from those bad practices, and other people, like just as Ruth Bader Ginsburg, who issued a very bitter dissent in 2013 in this case, believe that not enough progress has been made on these issues, and the federal government still needs to be around, still needs to be that policeman that Guy was talking about.
REHMJan Baran, how do you respond? What do you see happening now as you hear these stories, and how do you think it could affect the national election in 2016?
BARANWell, it's a little hard to respond to anecdotal stories.
REHMBut they are anecdotes.
BARANWell, you know, I went to a liquor store just last month, and they asked me to spell my name and give them identification. I mean, that type of thing happens. And also, I don't know how the law is going to protect us from bonehead poll workers, you know, who don't behave properly. The problem with Section 5, according to the Supreme Court decision, was that the criteria that was used to select jurisdiction was not reliable. And, you know, so the issue is should a state like Arizona be subject to preclearance when a state like Illinois, you know, which has a long history of voting irregularities, including discriminatory practices, is not subject?
BARANAnd if Congress wanted to come up with some criteria that had been updated since 1965, there's -- I think that the court would accept that. You know, so it's up to Congress if they really want to continue this practice in some way that makes sense. The situation in Arizona is deplorable. I don't think that was caused by the absence of the Voting Rights Act. In fact, how many precincts exist is a decision that's made all the time.
BARANYou know, the state of Oregon has no precincts on election day. All the voting is by mail. And this is an aspect that we have to take into account when we try and evaluate the efficiency and the integrity of our voting system is the incredible advances that have been made in terms of alternative methods of voting, including, you know, pre-election day voting that can continue for two months, absentee voting, and even in Utah they've tried online voting in the primaries this past month.
BARANSo we're going to make it easier to people -- for people to vote and to vote over a longer period of time.
REHMAll right, here's an email from Eddie in Indianapolis. He says, for many years I lived in a state that 100 percent voting by mail. A few weeks before, you'd get a vote and measure pamphlets, your ballot by mail. You had time to study candidates. Now, he says, writing from Indianapolis, I live in a state where I have to go stand in line at a polling place. The lines can be very long. I think a lot of people without much flexibility in their schedule or responsibilities sometimes have to miss or just abandon voting. I want to go to you, Guy, because race factored in greatly to that 2013 as part of the argument on both sides. Would you explain what happened there?
BARANSure, the fundamental question, Diane, that the court was wrestling with, similar to what Carrie was saying earlier, to what extent are we living in a country in which we have significant racial discrimination in voting or to what extent is that a thing of the past. Chief Justice Roberts, who wrote the Shelby County opinion, said essentially, almost word for word, that this is not the same country that it was 50 years ago, that things have changed, the South is no longer the same South that it was 50 years ago, and to go to a point that Jan made, why is it that certain states in the South should be covered while other states in the North in particular are not covered.
BARANSo the fundamental dispute about race is whether we're still living in a country in which -- that is affected by significant racial discrimination or whether things have really changed. And of course going through this election season, one doubts the point that the majority made in Shelby County. It's not clear that things have changed in the way that the court, the majority, would have wanted it to change. Certainly things have changed, but we still have the vestiges of racial discrimination with us, and the question is how ought we deal with those vestiges.
REHMAnd you're listening to "The Diane Rehm Show." Ari, looking specifically at this new voter ID for this election, how much of an impact did it make in the primaries? How much could it make in the national election?
BERMANI think it had a big impact in the primary, and I think it will have a larger impact in the general. In North Carolina, 218,000 registered voters, around five percent of the electorate, does not have a government-issued ID. That law has been softened by the legislature in advance of a court challenge so that you can vote without ID if you have what I said was a reasonable impediment to obtaining ID. The problem is that many people don't know that they have this fallback, that poll workers are not administering the law in that fashion. So people are being turned away from the polls. There are people who cannot get this ID in the first place because they don't have birth certificates, for example, or they're students who live out of -- who are from out of state but go to school in North Carolina, and their student IDs are not accepted.
BERMANSo I think voter IDs have been a big problem. You look at Texas, for example. Texas, a very diverse state, has 600,000 registered voters without a government-issued ID. Blacks and Hispanics in Texas are two to three times as likely as whites not to have a government-issued ID. In that state you can vote with a handgun permit but not a student ID. And not only do you have to pay for underlying documents like a birth certificate to get that ID, but in Texas, for example, a third of counties don't even have a DMV office.
BERMANSo if you live in rural Texas, and you don't drive, how are you supposed to get 100 miles to an adjoining county? And these are the burdens that we're seeing with voter ID laws. It's not like buying liquor. It's not like flying on a plane. This is a fundamental right, and the question is why are we restricting that right. In North Carolina they said that there was voter fraud to necessitate the voter ID law. But when you look at the data, there have only been two cases of voter impersonation in North Carolina from 2000 to 2012 out of 35 million ballots cast.
BERMANSo voter impersonation is not a problem in North Carolina, but the fact is this law is burdening a lot of people.
REHMAll right, let's talk about that issue of fraud, Jan, because that did come up a great deal in the arguments made for changing the law ad in the final Supreme Court decision. As Ari just said, there have been very few cases of fraud found. Do you continue to believe that fraud is an important issue in maintaining this new voter registration and ID and all of the issues brought forward?
BARANWell, I don't think I ever did believe that that was the problem. I thought that the objective here was preserving the integrity of the process and that that can be compromised not just by fraud, which may be infrequent, but all of the bureaucratic bungling that we've just been discussing for the last half hour. One of the issues is, as we get more and more people voting in these contested elections, how do we know that they're voting at the correct precincts? How do we know who they are? Is there some basic assurance that has to be taken at some point that the person voting is, number one, eligible, and is in the correct precinct.
BARANI'm open to any alternatives, but, you know, an ID seems to be a pretty fundamental way of confirming who you are and where you live.
REHMJan Baran, head of the Election Law Group at Wiley Rein LLP. We'll take a short break here. when we come back, I see our lines are filled. We'll take your calls, your comments. Stay with us.
REHMAnd welcome back. Here's a tweet from Ida, who says if states encourage voting by mail for all voters, they would save money, increase turnout. Instead, we see suppression and budget cuts. Carrie, do you agree?
JOHNSONI'm not an expert on the mechanics of voting. But I can tell you that the Presidential commission, Ben Ginsberg, prominent Republican lawyer, Bob Bower, prominent Democratic lawyer, two years ago, said that the US should expand early voting, beef up voting technology, and engage in more online registration. There's one problem with that, Diane. It's that there aren't enough resources, as it is, to invest in the basic functions of government in these counties and states. So, investing in more technology is going to require a lot more resources.
REHMAnd to you, Jan, what do you see in voting by mail? Would that erase the problems we're seeing?
BARANWell, it would make voting much easier and over a longer period of time. It does in multiple jurisdictions. I mention Oregon that all the voting is by mail. But adjoining states, Washington and California already, over 50 percent of voters vote by mail. And not by going to the polls on election day. All of that, I think, is a sign that people are looking for increased ways in making their vote done easily. I also think that there is great potential promise with online voting, which was tried in Utah, just recently, in the Republican primary.
BARANThere are going to be glitches with any sort of system. But in Utah, they had -- Utah citizens, mostly Mormon missionaries, voting in that primary from 45 countries. That's the type of thing that you might be able to accomplish if you can put the system together. It's going to require resources, as Carrie said, but it's also going to require a system that is going to be available to everybody and is also going to preserve the integrity of the process.
CHARLESWell, the thing, though, is that if Jan is worried about voting integrity, one of the places where people worry about voter integrity is vote by mail as well as online voting. Currently, vote by mail, you're in your house, by yourself, somebody can come in and pressure you to vote a particular way. I think the current system that we have now, early voting, same day registration, longer polling hours, makes it easier given our current technology to allow people to vote with minimal hassle. So, I think for the future, voting by mail is a great idea and it might work in places like Oregon.
CHARLESWhere you don't have a large population. It's mainly homogenous. But for our larger democracy, I think we need to maintain some of the improvements that we've made currently and not retrench on those possibilities. And maybe for the future, electronic voting or internet voting, those types of voting mechanisms might be useful, but currently, let's improve on the system that we currently have.
REHMAll right, and joining us now is Maryland State Senator, Cheryl Kagan from Rockville, Maryland. Good morning, Senator.
SEN. CHERYL KAGANGood morning, Diane. Good to be with you.
REHMSure. Go right ahead.
KAGANWell, you all have been talking about the elections and the nightmares that we've seen around the country already. Unfortunately, we've got foreshadowing here with Maryland's primary coming up next month. We are expecting a large number of voters as we've seen elsewhere in the country. Not just because of the contested primary election, Presidential elections on both parties, but also, we have a hotly contested US Senate race and two open seats for Congress with a lot of talented candidates.
KAGANWe also have just restored voting rights to felons and are expecting them to come out and are allowing same day voter registration at early voting sites. We have eight different Democratic ballots, eight different versions of the Republican ballot, and four for independent. There's a concern about running out of ballots and the other thing to be worried about is our Board of Public Works declined to fund a Voter Outreach in Education Contract for our Board of Election. Which means that voters may not be as informed about the technology or the ballot, again, lengthening our lines.
KAGANThere are a lot of reasons to be concerned around the country and again, we can see this one coming from months and months away.
REHMAri, do you want to comment?
BERMANYeah, so, little things in terms of how you run an election. The number of voting machines, the number of polling places, the number of ballots, this can have a huge impact on the election and this was one of the things that the Voting Rights Act did so effectively, particularly section 5 of the law, was it reviewed these changes before they went into effect to make sure that these problems would not occur. So, for example, reducing a polling place in Maricopa County in Arizona, which we talked about earlier.
BERMANArizona had tried to do that on multiple occasions when they were covered under the Voting Rights Act and those changes were blocked, particularly because reducing a polling place can have a very large impact on voters including minority voters. And these kind of things happen, not just in 1965, but in the decades after, that as African-Americans and Hispanics and other minorities became a larger part of American politics, there were efforts, for example, to shut down polling places in majority African-American or majority Hispanic neighborhoods.
BERMANAnd so that was one of the reasons why the Voting Rights Act was so effective. And I am concerned, not just about Maryland, but going into the general, we are going to have a higher voter turnout, we're going to have many more contested races and many of these laws are going to be in effect for the first time. All of which could lead to a very volatile situation in a general election.
REHMAnd Guy Charles, I gather there are many legal battles going on within some of these states to change the laws. What do you make of that and how important might they be?
CHARLESThere are many legal battles going on. So, for example, the North Carolina voter ID law has been challenged. So, once you remove section 5 as a mechanism, you've put it on the sideline, for states that were previously covered, litigation is the mechanism by which many of these laws are being challenged. You're not seeing much action in Congress to do something about the Voting Rights Act. So, litigation is the mechanism to try to change the rules and make it much -- make the rules more fair.
CHARLESSo, that way, in the general election, where we're expecting a larger turnout, you're not going to have the chaos that some people are predicting. And around the country, many courts are dealing precisely with these types of issues, with challenges that are going on, the particular legislation passed by states such as Texas, for example, or North Carolina, and many others. And that's becoming the primary mechanism to get rid of some of these laws or to make them a bit more fair so that voters could have a better shot at the polls.
REHMAnd to you, Carrie. What about President Obama? How has he been addressing the issues that are now in place, because of that 2013 Supreme Court decision?
JOHNSONThe Obama Administration has been pressing Congress to hold hearings on a bill that would restore parts of the Voting Rights Act and respond to what Jan said about redoing and updating the formula by which jurisdictions are covered. Diane, there's a problem with that. Chairman Bob Goodlatte, a Republican who runs the House Judiciary Committee, has been resistant to holding hearings on the issue, so resistant that civil rights officials and advocates earlier this year went to picket his house to try to draw attention to the problem.
JOHNSONAnd Paul Ryan, the Speaker of the House, a Republican from Wisconsin, just recently bestowed a Congressional award on 1965 Selma marchers, the foot soldiers for justice. But he did not commit to holding hearings or giving any floor time to a bill that would update the Voting Rights Act. So, things appear to be very stalled in Congress. With that being the case, the Justice Department has some active litigation in North Carolina, Texas, a few other places. But they just don't have the horses to run this race, especially in advance of November.
REHMAnd what about the Presidential candidates? Ari, how have they been weighing in on this decision, and its impact?
BERMANWell, there's been a huge gulf between what the Democratic candidates and the Republican candidates for President have been saying about voting rights. Both Bernie Sanders and Hillary Clinton have proposed policies to make it harder to vote, things like many days of early voting, Hillary Clinton has called for 20 days of early voting nationwide. They've called for same day voter registration. They've called for automatic voter registration, which Oregon and California have adopted, which is when you get a driver's license or an ID, you are automatically registered in those states. And then you can opt out.
BERMANThey've called for restoring the Voting Rights Act. On the flip side, you have candidates like Ted Cruz, for example, from Texas, who have supported the decision to gut the Voting Rights Act, who have supported strict voter ID laws in Texas that have been struck down in the courts or have supported things like proof of citizenship to register to vote. So, there's a huge gulf between the candidates on the issue, and I think the parties have very different theories of the case here. Democrats believe that when more people vote, they do better.
BERMANIn 2008 and in 2012, that was true. And Republicans believe that when fewer people vote, their party benefits. There was much lower turnout in 2010 and 2014 and Republican candidates did much better. So, there's a big gulf between the parties on the issue. I think that's unfortunate, because for so many years, there was very strong bipartisan support for the Voting Rights Act. It was not only passed with overwhelming bipartisan support in 1965, the law was reauthorized four times by the Congress, most recently in 2006 with very large majorities of Republicans voting for this.
REHMSo, when did that, when did that change in terms of Republican attitudes?
BERMANI think two things happened. Number one, the election of Barack Obama sent shockwaves throughout the political system. Not only was the first African-American President elected, but there were five million new voters in 2008. Of those five million new voters, two million were African-American, two million were Hispanic, and 600,000 were Asian. And they voted 75 percent for President Obama, and I think that scared a lot of Republicans and as a result, they began to introduce more restrictive laws, like making it harder to register to vote, cutting back on early voting.
BERMANAnd requiring strict ID to cast a ballot. There were also a concerted effort to bring cases before the Supreme Court to challenge the Voting Rights Act, first in 2009, knowing that we had the Roberts Court, a very conservative Court. John Roberts himself had decades of opposition to the Voting Rights Act, which I detail in my book, "Give Us the Ballot." And so, there was a challenge to the Voting Rights Act in 2009. The Voting Rights Act was upheld, but basically John Roberts signaled, if another challenge comes before me, I'm going to try to get rid of this provision. And so, there were law firms.
BERMANJan's law firm, Wiley Rein represented the plaintiffs in Shelby County, Alabama, who brought this challenge to the Voting Rights Act. This was not a grass roots challenge. This was the most influential people in the conservative movement making a very concerted effort to get cases before the Supreme Court, knowing that they had an ally on the Court in Chief Justice John Roberts.
REHMDo you want to comment, Jan?
BARANWell, as you indicated, I was not personally involved in that case.
BARANSo, I don't want to speak for my partners or even the entire conservative movement, of which I don't think I'm part of. But, and by the way, I'm a naturalized citizen, so my family wasn't around when you guys had all these problems here in the United States. We were persecuted by Russians and Prussians back in Poland. The gamesmanship that goes on around elections is constant, it's inevitable, and is bipartisan. You know, the back and forth that goes on is part of the ongoing political fights that continue in American society.
BARANAnd whether you think that you're helping voting as opposed to gaming the system, really depends on which side of the debate you're on.
REHMAnd you're listening to "The Diane Rehm Show." But there was the argument that conservative manipulation had an awful lot to do with the Court's decision.
BARANYeah, I do remember in law school, reading those arguments about liberal manipulation of the Warren Court, you know, and so forth. So, there are going to be those debates. But when it comes to this issue of the Voting Rights Act, the Supreme Court warned Congress that they needed to update their formula on deciding which jurisdictions would be covered by the preclearance provisions of the law. And Congress refused to do that. They refused to do it. And so, the case went back to...
REHMSo it went back to the Court.
BARANIt went back to the Court and they said, we told you to update it and you didn't do it. And that's why they lost.
REHMSo, Carrie, in your view, is this problem or problems that are now created the responsibility of the Congress?
JOHNSONCertainly, the judicial branch thinks so. And the late great Justice Scalia, even back in that 2013 majority, said, this is an issue that Congress needs to solve and go ahead and do it. Of course, we now have a Congress that's not able to act on much of anything, especially this year, an election year. The question moving forward is whether political pressure from civil rights groups and others will move the Congress, will manage to get them moving on this issue. Diane, it may just be politically too difficult to do.
REHMGuy Charles, in your view, what does the ideal voting access right look like?
CHARLESDiane, ideally, we would, we need to put the questions of voting outside of the gamesmanship of politics. Sort of imagine any game that you want to imagine, whether it's basketball. In the middle of the game, we now start debating about the rules, right? That's not how things are done. We need to have firm rules, a Voting Rights Act that protects the right to vote for all. Every single American, no matter your party, no matter your race, no matter your region, that if you go to the polls, you're going to have the ability to vote with minimal hassle. That's the ideal.
CHARLESNow, can we get to the ideal with a Congress that's polarized? Probably not, so we need to think of second best solutions. But that's our ideal.
REHMAnd Ari, are there any promising solutions out there? Oh dear, we've lost Ari. Oh, I'm so sorry. Are there any promising solutions out there, Carrie?
JOHNSONSo, the President's commission on this in 2014, bipartisan commission, offered a slate of suggestions in terms of technology, access. And some people are even arguing for automatic registration of voters. The issue, Diane, is complicated, though, because these are practices adopted and paid for by the most part, by states. And so, that interaction between the federal government and the states remains a challenging one. That's why these problems are so hard, in part.
REHMAnd do you see any really promising solutions out there? Jan?
BARANWell, I'm optimistic. I'm optimistic in terms of the government's having more resources as they come out of this recession. And secondly, I'm optimistic about the advances in technologies that will allow more and more people more options on...
REHMBut of course, that's going to take a little longer, isn't it?
BARANWell, some things are unpredictable in terms of time, and I think that's one of them.
REHMAll right. We'll have to leave it there and of course, we'll be watching along the way. Sorry to have lost you, Ari Berman. He is a Senior Contributing Writer at the Nation. Guy Charles is Professor of Law at Duke University School of Law. Jan Baran is at Wiley Rein LLP and Carrie Johnson is Justice Reporter for NPR. Thank you all so much.
JOHNSONIt was a pleasure.
BARANThank you so much.
REHMAnd thanks for listening all. I'm Diane Rehm.
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