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Even in this crazy election year, voting levels, among certain groups, continue to drop.

The Supreme Court’s gutting of the Voting Rights Act, scare tactics about voter fraud, increasingly restrictive and partisan voter ID laws, voting machines that are aging out, a patchwork of different state laws and unkempt voter rolls — they are all part of an election system that earns less and less public confidence.

Michael Waldman, President of the Brennan Center for Justice at NYU Law School and the author of The Fight to Vote, talks with WhoWhatWhy’s Jeff Schechtman about the current state of elections, and about the long, dark history of voter suppression in the US.

In this golden age of big data and information technology, we could have the most modern registration and election systems. But the truth is, it’s not in everyone’s interest to get out the vote.



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Jeff podcast with Michael Waldman

Jeff: Welcome to Radio Whowhatwhy, I’m Jeff Schechtman. Regardless of your politics, it’s safe to say that we’re in the midst of one of the most dramatic, contentious and maybe even transformative elections in modern times. It is on the surface at least, the greatest argument for a wild and free-wheeling democracy. And yet we live in a country where voting levels continue to be low. We’ve seen the courts gutting the Voting Rights Act, one of the most democratic pieces of legislation ever passed. We see groups on one side engaged in scare-tactics about voter-fraud in order to suppress voting of certain groups. And we see groups on the other side with a pathological and equally misplaced fear of machines and technology. It shows how polarized we are that in the 21st century, in a time of big data, in the golden age of information technology, we can’t develop a modern registration and election system that everyone can trust. Or maybe we can, but no one wants to. Because it has been the case throughout our nation’s history, there were those whose interest it served preventing others from voting. The story that my guest Michael Waldman talks about in his new book The Fight to Vote. Mr. Waldman is the President of the Brennan Center for Justice at New York University Law School and it is my pleasure to welcome him here to the program. Michael Waldman, welcome to Radio Whowhatwhy.

Michael Waldman: Thank you so much for having me.

Jeff: It’s a delight to have you here. Are we seemingly engaged in what is a pretty steady progression over the past several years to really continue to restrict voting. We see sixteen states that have more restrictive voting laws. It seems, if anything, we’re going into the reverse direction these days.

Waldman: Well, I do think that right now we’re at a potential tipping point. As you say, sixteen states are going to have these new laws on the books for the first time in a high turnout presidential election. You have, in most of the country, continued pervasive gerrymandering, the Supreme Court gutted the Voting Rights Act, all this new money from a handful of big donors in our system, thanks to the Citizens United decision, a lot of things pushing us into the wrong direction. But some things pushing us into a better direction, California just passed automatic voter registration for people who use the DMV offices. And people are fighting about this all over the country. It’s become the controversial topic at the center of many of the debates. People are mad about the way the democracy is or isn’t working. And as you said, we have had times in the past where we’ve moved backwards as well as forwards and it’s always been a big fight.

Jeff: What is the connection as you see it between big money in politics, things like Citizens United and all the talk we hear about money in politics, in what way is that having a direct impact on voter turnout and whether or not people have the right to vote?

Waldman: Well, it’s a great question and we sometimes, in this day and age, tend to think of these as a lost, as separate issues . But throughout the whole country’s history Americans have understood that there needs to be the ability to be heard, with a vote, and to have it matter. And that there is a tension sometimes between democracy rooted in the idea of one person one vote and our market economy where there is the inevitable perhaps big concentrations of wealth. Going back to the very beginning, when the framers of the Constitution were grappling with these issues, this very question of wealth and voting was what they spent a lot of time talking about and working on because in the time when the country was founded only white men who owned property could vote and some people wanted to put that requirement into the Constitution. Ben Franklin led the effort to keep it out. And over time – the country was far from a democracy then – but by the 1820s there was a

working class movement to win the right to vote for a white man who didn’t own property. And it was a real democratic breakthrough, the first building of a mass political party in the world. It was the democratic party, that one, around this issue of wealth and voting.

Jeff: It’s interesting that we forget that the whole democratic idea was – at least for the Founders and as this country got started – a kind of wild experiment.

Waldman: Well, there was no other precedence. No self-governing republic had lasted for very long and certainly none of them were as big as even the thirteen colonies were, or as the thirteen independent states after the revolution. And they were making it up as they went along and a lot of their ideas we would not think about today. But James Madison took these amazing notes as many people know behind the closed and locked doors of the Constitutional Convention. Madison, interestingly, didn’t care that much about this issue who could vote, but he cared a lot about how people voted. He was very worried about what we would now call gerrymandering, about partisans in the state legislatures, passing laws to make it harder for their opponents’ supporters to vote. The kind of things we see now in states all over the country. He actually put a provision in the Constitution giving the federal government, the congress, the power to override state voting laws. So that’s the only place where the federal government has given direct power, explicit power. They’ve been thinking about these issues a long, long time and we saw it play out all through the last two hundred years.

Jeff: And yet now we seem to be seeing a reversal of that trend, with more and more of the states wanting to take on – and the courts supporting – the states taking on more of the voter responsibility.

Waldman: One of the other things that’s happened, well, in most of American history, it’s taken a fight, but people have sought to expand their voice, expand their rights, white men without property, then African-Americans were given the right to vote after the Civil War, though it was really effectively taken away by repression in the South and, as you saw in the late 1800s, a period of moving backwards. But then in the 20th century women won the right to vote and finally the great breaks of the civil rights movement. So what’s happened recently? First-off, you’ve seen, as a partisan strategy, in about 19 states across the country, these new laws passed to make it harder to vote for the first time since the Jim Crow era. But then the Supreme Court stepping in. The United States Supreme Court, as you know, is in the middle of a lot of things under the leadership of John Roberts. It’s generally in quite a conservative direction and it’s been very intrusive on these democracy issues. In 2013 it struck down the heart of the Voting Rights Act which was the most successful civil rights laws on the books. A few years before that, it struck down decades of campaign finance laws. There are other cases like this that aren’t as well known. So the risky situation that we’re in now is not that there were mass marches on the streets, demanding these changes, but because the Supreme Court ruled that way. And of course now, with the vacancy, with Justice Scalia’s death, the Supreme Court is going to be one of the big issues in the campaign and its rules on democracy, or plausibly the most controversial thing there is.

Jeff: Talk a little bit specifically about the impact that the gutting of the Voting Rights Act, the Supreme Court decision had on the Shelby case, the impact that it actually has on people’s right to vote.

Waldman: the way the Voting Rights Act worked is that states with a history of discrimination had to get approval in advance from a court or from the Justice Department before they could change voting laws. And that made a big, big difference. Well, the Supreme Court in 2013 said this was no longer needed, this was a relic from the past. Two hours after that decision, the state of Texas put into effect its voter ID law. I’m not against voter ID in principle, requiring people to prove who they are is a good idea. But this law was very mischievous and designed to cut a lot of people out of voting. They put in the law two hours later. This is a law that says, for example, you cannot use your University of Texas ID to vote but you can use your concealed carried gun permit, with the obvious implication of that. Instantly, 600,000 Texans who otherwise were registered to vote lawfully, suddenly were no longer eligible to vote. They didn’t have the specific ID they needed.

And there was a federal trial, and a judge ruled that this was illegal, discriminatory. And it was actually upheld in the most conservative appeals court in the country. Yet it is still on the books, it’s still in effect,

while the litigation drags on. Hundreds of thousands of real people, who are registered to vote, who haven’t done anything wrong, overwhelmingly, disproportionately, African-American, Latino, or maybe the elderly, cut out from their basic democratic right, because of what the Supreme Court did. It’s very dramatic.

Jeff: Is there historically an absolute link between voter ID laws suppression of turn-out?

Waldman: it is hard to make that argument because their data is too new. In other words there’ve always been requirements for people to show who they are. For example, where I live in NY state, you sign in with a signature that actually works pretty well. These new, very strict laws have only been in effect for a few years and so it’s hard to say this has driven out turn-out. But there’s finally now some serious scholarships and some serious evidence asking that question. There are many reasons turnout goes up or down. But the Government Accountability Office, which is the GAO, which is the very widely respected, non-partisan think-tank that works for Congress for both parties, looked at this question and it concluded that yes, these voter ID laws in the strictest ones actually do drive down turnout in the minority community. Another study that just came out from the University of California that concludes even more of a harmful impact – although I can’t say I’ve read that study and I don’t know if it is as definitive – but the GAO’s study was pretty clear and as I was saying, finally a government policy that works as it was intended. It’s pretty clear that it drives down the vote with some of these laws. It’s not only the voter ID. It’s laws to cut back on early voting, on those days when African Americans vote. It’s efforts to end same-day registration and make it harder to register to vote. A whole host of things.

Jeff: Speaking of early voting, one of the things that you talk about in your book, The Fight to Vote, is the underlying reasons why we have national elections on the first Tuesday after the first Monday in November. And it has nothing to do with anything that has any relevance in the 21st century.

Waldman: You know, lots of people assume it must be in the Constitution, or something like that. And it’s not. It’s a law, a statute, passed in the 1840s. They did want to have one day when everyone voted because otherwise people would go from place to place and vote more than once. They had one day and it was the first Tuesday after the first Monday because that was the day that was most convenient for the farmers at the time because they had to ride their horse and buggy to the county seat to get to the polling place. It’s really a matter of convenience for the farmers of the 1840s. Not what we need now. And, you know, in a lot of places there’s a great move to early voting. In some states there’s vote by mail and a lot of innovations that make it easier for people to vote. Because our country has the lowest turnout of any major democracy. In the last election of 2014, voter turnout was the lowest turnout in 72 years. Even in this crazy election, on the Democratic side certainly, voter turnout is way down.

Jeff: One of the things that has been at the heart of the call for ID laws is this concern that’s out there and in many cases a lot of fear that is ginned up about the possibility of voter fraud which really doesn’t happen very often. Talk a little bit about that.

Waldman: Well, you know, as you look at the whole history of the country, there’s been a lot of mischief and a lot of shenanigans and a lot of misconduct and fraud over the years. In the book I talk about “Boss” Tweed, I talk about the people in the late 1800s who would stuff ballot boxes and all kinds of things that we read about. Even then and certainly now, when there’s misconduct, overwhelmingly it’s insiders, politicians who do it. But in terms of the kind of alleged voter fraud that would be stopped by something like the ID law you might hear about on Fox news or something like that. Every study, every prosecution, everybody who has looked at it seriously agrees, it is vanishingly rare. In fact, as a statistical matter, you are more likely to be killed by lightning in this country than commit in person voter impersonation which is the kind of fraud that these laws seek to prevent. So it’s a bit of a fake argument. And this is also something we’ve seen throughout this country’s history. There’s been fraud but there’s also been laws passed, efforts made to make it harder for people to vote, partly using the fear of fraud even when it’s not so legit.

Jeff: Those that have engaged in voter fraud historically have done so why? What is it they wanted to accomplish and did the things that they tried to accomplish in those historical cases of voter fraud have any relevance to the world we live in today?

Waldman: They wanted to win their election. So that, for example, in New Jersey, women were actually able to vote in New Jersey in the period of the American Revolution. There was an election where men dressed up as women to vote more than once. So in 1809 they did I suppose what they felt was the logical thing. They took away the right to vote for women, some real women. When you look at the machines, the corrupt machines, whether it was Boss Tweed in the 1800s, or Lyndon Johnson, winning the US senate seat by 48 votes because of stuffed ballots, What people wanted was to win office and to line their pockets. It wasn’t voters walking in and wanting to cast two or three votes for someone. It’s an interesting thing. Our politics is much more clean, much more orderly. The place where I consider the greatest risk of fraud is the area of one of these results of the Supreme Court such as the Citizens United ruling and other rulings. What’s known as ‘dark money’. The hundreds of millions of dollars sitting now in politics without the donor being identified, committees with such names as Americans for Good Government. You never know who it is and it turns out to be a special interest trying for a particular policy outcome and the voters are never told. To me that’s probably one of the greatest risks of fraud right now.

Jeff: Talk about why? How do you see that as a risk in terms of voter fraud?

Waldman: Well, I think to have a meaningful and workable democracy, to have this vote matter guide the policies of the government, voters need to know who is paying for the arguments that they are hearing. Generally speaking, I don’t think that money buys election results so much, at least at the top national level. We saw Jeb Bush this time go through a hundred million dollars of super pac money but not much to show for it. But money from these special interests emphatically buys policies by affecting the lawmakers, affect the politicians who have to raise this money and if politicians know who is giving this secretly, that can really distort things.

Jeff: In 2000, after Florida and the debacle there, there was lot of talk about fixing the voting system in this country. What happened as a result of that and had any of it had any impact that’s lasted very long?

Waldman: As you remember, as your listeners remember, the election in 2000, which was basically, came down to Florida basically a tie between Al Gore and George W. Bush, revealed so many things that were wrong with the way we run elections, everything from names being purged from the rolls that should have stayed on the rolls to very broken and out of date and error-filled voting machines. So there were some efforts, in particular about the voting machines. Every state was ordered by the congress to move to electronic voting. And there were a lot of worries people had whether the machines were rigged. I don’t think they were, or whether they were hackable and they had actually put in place some security measures. So really they should be better but they … of course, that was sixteen years ago. These machines now have computers. They’re basically these electronic machines of fifty year old computers. And we all know they break so there’s going to have to be a move to a new voter technology next year all over the country. But the bigger challenge, the underlying ramshackle nature of our election system of the way we register voters and the way we have elections where people are having to wait in line for hours, all that kind of stuff hasn’t been fixed. And it varies from state to state. So I think that one of the things that Florida recount taught the political operatives of America is that turnout really matters. That if you can suppress the other guy’s turnout you can win an election.

Jeff: Given that those machines that were ordered after 2000 or as you say 15-16 years old at this point, does that make them more prone to error, more hackable, and create more concern with respect to the results from those machines?

Waldman: I don’t think it makes them more hackable. I think it makes them more likely to break. Or more likely to cause problems, and have lines on the polls when the machines are down in the polling place and people have to wait in lines more and more. And so what we need to modernize in our election

is both with voter registration but also with new machines, really bring us into the 21st century. It’s, given how important this is, how important our democracy is, how important the vote is, we really ought to invest as a country to make sure that it is a better way to make people’s voices heard. If you think about it, any private company that was run this way would not last very long.

Jeff: How does automatic registration work? How does it work in Canada, for example? How might it work here?

Waldman: In Canada, in England, in Germany, in most other democracies, one way or another, the government makes sure you’re on the list. When you’re eighteen, when you’re old enough to vote, when you’re a citizen, when you’re eligible, you’re put on the list and you stay on the list throughout your whole life. In this country, we’re just about the only place where you have to register yourself or where some political party or group registers you, but there all sorts of errors and other things. And when in this country people move from place to place they fall off the voter rolls. So in California, in what was a national breakthrough, Governor Brown signed a law that Secretary of State Alex Padilla crafted, that says if you use the DMV to get a driver’s license or whatever, you are automatically registered to vote. And you can opt out but you are automatically registered. And that could add millions of people to the rolls. Oregon has done this too, sort of a movement across the country, New Jersey voted for it although Governor Chris Christie vetoed it, it may be on the ballot in Arizona, may be moving through the legislation in Illinois. A lot of people are waking up. And most of the time it’s not quite a partisan issue as some of these other things are. Most of the time people realize that this would be safer and also cheaper and also better.

Jeff: Talk a little bit about the nexus as you see it between undocumented immigrants and voting, because that’s been a part of or incorporated into this whole discussion as well of late.

Waldman: That’s one of the fears people have when they talk about voter fraud and so on. There’s just no evidence of this happening in any significant measure. And it’s a scare tactic to make it easier to pass laws that make it harder to vote. But the whole question of immigrants and their rights is again something that has been true throughout American history. The real anti-immigrant backlash, didn’t start with Donald Trump, it was in the 1800s when Irish immigrants and Catholics flooded into the cities of the northeast. And at the time, first of all there was a political party that was devoted to the idea that immigrants should not be allowed to vote – they were called the know-nothings because if you asked them what they were up to they would answer “I know nothing.” They had a former president of the United States, Millard Fillmore, was their candidate for office. And then later on, that was before the Civil War; after the Civil War, when the cities really filled up with European immigrants and not from Ireland, from Italy, from Russia, from Poland, and they were working people, they were working in factories, a lot of the bluebloods of the time suddenly discovered they did not really like democracy very much after all. John Adams’ great-grandson said that universal suffrage would mean the dictatorship of a Celtic proletariat in the northeast, meaning the Irish, an African proletariat in the south, and a Chinese proletariat in the west. He thought that was a terrible thing and wanted to take away the right to vote.

Jeff: Bringing it up to the present, talk a little bit in the time we have left, about what the state of some of these issues are in right now in the courts. There is the Texas case still working through the courts, North Carolina, all since the gutting of the Voting rights Act and Shelby.

Waldman: Well, the courts are going to have a big say. Especially the Supreme Court because there are still laws on the books. Part of the voting rights Act still stands, and other laws. And it’s up to these judges to step up and defend people’s right to vote and make sure they’re not taken away. It’s likely there’ll be some cases coming up before the Supreme Court in the next year or so, cases of course that Anthony Scalia was very interested in. There are other cases too, especially involving gerrymandering. And the issue of one person one vote and what that really means. One of the rare times in American history where the courts played a very strong and positive roll, was in the 1960s with the cases that are called one person one vote. It used to be that the rural areas of the states would have so much more power and their votes counted more. And the Supreme Court said “no, everybody’s vote has to basically count the same.” And the Supreme Court this year put at risk this concept of one person one vote. They’re considering whether not all people but only eligible voters or citizens could be counted. This would hurt areas where there are a lot of non-citizens, immigrants, or where there are even, quite frankly, a lot of children. And who can’t vote either. They heard the case. And it might have been one of those 5-4 cases but Justice Scalia passed away and it’s probably the case is the 4-4 tie. What happens is that the earlier opinion by a lower court stands and in that case one person one vote would remain safe.

Jeff: Michael Waldman, he is President of NYU’s the Brennan Center for Justice and the author of the new book The Fight to Vote.

Michael, I thank you so much for joining us here at Radio whowhatwhy.

Waldman: Thank you. My pleasure.

Jeff: And thank you for listening and joining us here on Radio WhoWhatWhy. I hope you’ll join us next week for another radio podcast.

I’m Jeff Schechtman. If you like this podcast, please feel free to share it and help other people find it by rating it here and at Itunes. You can also support podcasts and all the work we do at whowhatwhy.org/donate.

Related front page panorama photo credit: Adapted by WhoWhatWhy from African American demonstrators outside the White House (U.S. News & World Report / Library of Congress), World War II Poster (HeadOvMetal / Flickr – CC BY 2.0), National Association Against Woman Suffrage (Library of Congress / Wikimedia)

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