Voting rights: “There are reasons to be optimistic as well as alarmed”
Michael Waldman had no plans to republish his 2016 book, The struggle to vote, soon. But he hadn’t anticipated that a sitting president would try to steal an election.
The struggle to vote traces the evolution of suffrage in the United States, from the drafting of the Constitution to Reconstruction and the modern era of civil rights to the partisan battles of today. Revised edition, published in January, introduces readers to notorious origins of phrase ‘the big lie’, explores impact of COVID-19 pandemic on 2020 election, predicts upcoming court battles supreme, and more.
Waldman directs the Brennan Center for Justice, a nonprofit law and policy institute at New York University Law School, which works to improve democratic and justice systems by focusing on suffrage and campaign finance reform, among others. He previously headed the White House Speechwriting Office under Bill Clinton, served as a member of the United States Supreme Court Presidential Commission, and is the author of several books, including The second amendment, My fellow Americansand POTUS speaks.
This conversation has been edited and shortened for clarity.
AD: In the wake of Trump “big lie– the false claim that the 2020 election was stolen – do you see democracy becoming an organizing factor for political parties?
MW: Throughout American history, there have been many times when advances in suffrage have been pushed by one party or another and opposed by one party or another. For the first time we have one of the political parties in thrall to the former president, who says the election was stolen and is now urging people to change the rules to make it harder to vote.
The Big Lie becomes a mobilizing principle for Republicans. Most politicians know that’s nonsense, but tens of millions of voters believe the lie because their former president told them it was true. It’s scary and overbearing and new.
What is also new is that Democrats are mobilizing around the right to vote and strengthening democracy. Part of this stems from the response to Trump and the Big Lie and part of the movement to pass federal voting rights legislation.
There is an extraordinary coalition around the democratic movement. One of the big questions for me is whether this will be felt across the country – in fact, a pro-democracy fight that lives up to the attack on democracy. I don’t think we know the answer yet.
AD: Are attacks on democracy and the right to vote a continuation of historical trends?
MW: It’s important not to overdo it. I am not talking, as the book describes, of the period before the Voting Rights Act. There has been a brutal and almost entirely successful deprivation of black voters in the South for many decades. That’s not what we have right now.
Some of these laws are worse than others—many of them were relaxed during the legislative process, but unfortunately [are] targeted very specifically to affect black, Latino, Asian, Native American and youth voters.
The other thing that’s important to remember is that people today, far more than before, understand that black men won the right to vote during the Civil War. This right was guaranteed by the Fifteenth Amendment, resulting in a flowering of democracy in the South. Then, as we know, he was removed because of the cowardice of the North and the terrorism of the KKK and other terrorist groups acting as a branch of the Democratic Party in the South.
But the deprivation of rights did not happen immediately. As late as 1890, most Mississippi voters were black, but they were under attack. That year, Republicans attempted to pass a voting rights bill, which passed the House of Representatives but was stalled by the first major Senate deadlock of a voting rights bill. of voting. Southern states adopted Jim Crow constitutions, resulting in seven decades of disenfranchisement and discrimination.
In other words, things can roll back. When the federal government does not do its part, things can go wrong. Right now, if Congress can’t pass suffrage legislation because of the filibuster and the federal courts don’t uphold the franchise, states get the green light to abuse the rights. of their people. There’s no reason to think things can’t get worse.
AD: What was the role of the Supreme Court in limiting and expanding the right to vote?
MW: One of the surprises of examining American history is the limited role the courts have played in upholding and expanding American democracy. Advances in suffrage have occurred in legislatures, at the ballot box, and sometimes on the streets, but almost never in courtrooms.
In recent years, the situation has gotten worse: it’s not just that the Supreme Court hasn’t been a leading force in American democracy for the past decade or more. He ruled aggressively in ways that undermined American democracy. In 2010, the United Citizens decision overturned a century of campaign finance laws designed to prevent the wealthy from dominating American politics. In 2013, the Shelby County The move gutted the Voting Rights Act of 1965, the nation’s most effective civil rights law. In the 2019 Rucho ruling, the Court said, in so many words, “Oh, we think partisan gerrymandering is a bad thing, but there’s nothing we can do about it, and the federal courts don’t even have the right to hear cases alleging partisan gerrymandering”, and washed their hands of it.
AD: What problems do you see in the upcoming cases before the Supreme Court?
MW: There are many reasons to be concerned that the Court will tackle what remains of the Voting Rights Act over the next year.
In 2013, the Court gutted the Voting Rights Act’s Section 5, or “preclearance” section, which stated that a state with a history of racial discrimination in voting must obtain permission from the Department of Justice or a federal court before changing their vote. rules. In the Brnovich last year, the Court severely weakened Section 2, making it very difficult to challenge the new voter suppression laws. People said that at least the part used to block racial gerrymanders was still standing.
In recent months, an appeals court blocked a racial gerrymander in Alabama, and the Supreme Court said to let the election proceed with a map that federal judges had called racially discriminatory.
The other problem is a fringe legal theory that only state legislatures have the power to set voting rules. Its proponents call it the “independent state legislature doctrine,” except it’s not a doctrine — no court has ever found it.
At least four judges seem to think it’s a pretty good idea. They point to the Elections Clause of the Constitution, which states that the Legislature sets the time, place and manner of elections, but Congress can override this and establish national rules. James Madison insisted that the Constitution include this clause because he was convinced that the state legislatures were corrupt and would do what we now call “voter suppression” or “gerrymandering.”
These proponents now argue that because the clause uses the word legislature– by which the Constitution means “State” – only legislators, that is, people in ill-fitting suits under a dome, can have anything to do with elections.
It’s constitutional upside down, but there could be a big fight in the Supreme Court very soon.
AD: How are you optimistic?
MW: There are reasons to be both optimistic and alarmed. Until recently, the trend has been to strengthen democracy and broaden access to voting. What makes me optimistic are people showing they care about the health of democracy. People who seek to undermine American democracy know that people care.
For years, most Democratic Party consultants whispered in their clients’ ears, “Oh, nobody cares about that stuff, it’s boring.” It’s technical. It’s arcane. We have learned that when you take away the right to vote or when you have an attack on our democracy as visible as the attack on the Capitol, people care.
What gives me hope is that if this remains a burning central political issue in the future, it can help transform the country.