« The Weeds

Weeds Time Machine: The Voting Rights Act

2023-01-17

Buckle up for another trip in the Weeds Time Machine! Today, we are going back in time to 1965 to talk about one of the most significant pieces of civil rights legislation in American history: the Voting Rights Act. Once again, its fate is in the hands of the Supreme Court. Professor Atiba R. Ellis walks us through the legislative and judicial history of this landmark policy.

References:

Atiba Ellis 

Brief amici curiae of Boston University Center for Antiracist Research & Professor Atiba R. Ellis

Atiba Ellis: Using Memes to Break Out of Voter Fraud Talk 

The Changing Racial and Ethnic Composition of the U.S. Electorate | Pew Research Center 

Voting Rights Act (1965) | National Archives 

Host:

Jonquilyn Hill

Credits:

Sofi LaLonde, producer

Cristian Ayala, engineer

A.M. Hall, editorial director of talk podcasts

Want to support The Weeds? Please consider making a donation to Vox: bit.ly/givepodcasts

Learn more about your ad choices. Visit podcastchoices.com/adchoices

This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
- Support for this podcast comes from Planned Parenthood. It's hard to imagine a world where we leave future generations with fewer rights and freedoms. Since the Supreme Court's decision to overturn Roe v. Wade, politicians in nearly every state have introduced bills aimed at blocking people from getting the essential sexual and reproductive care they need, including abortion. Planned Parenthood believes everyone deserves access to care and with supporters like you, they can reclaim our rights and protect and expand access to abortion care. Visit plannedparenthood.org/future to learn more and support their cause. you
Support for this podcast comes from Washington wise, an original podcast from Charles Schwab. Decisions made in Washington affect your portfolio and your money every day. But what policy changes should investors be watching? Washington wise is an original podcast for investors from Charles Schwab. The show unpacks the stories making news in Washington, and how they may affect your finances and investments. Listen today at Schwab comm slash Washington wise. That's Schwab comm slash Washington wise.
- Hello, and welcome to another episode of The Weeds. I'm John-Willen Hill. And this isn't just another episode of The Weeds. It's the episode where I can officially share that I'm taking over as full-time host of the show. I'm really excited to sit in the host seat and take a deep look into the policies that shape the world we live in. These wonky conversations are fun and interesting, and they're also about our daily lives. And we're here to bring you the clarity and context you need to navigate that reality. - Weeds Time Machine to the passage of the 1965 Voting Rights Act. Feels critical right now for a lot of reasons. We just wrapped up Martin Luther King Jr. weekend, and of course,
Voting rights was one of the issues he devoted his life to. And this summer, the Supreme Court will rule in several cases that could completely transform voting rights in America. Wanted to dive into this legislation for personal reasons. It's a policy I've had my eye on in some form or another since I was a little kid. And because of that, there's someone I wanted to talk to in order to prepare us for this trip in the time machine. machine. - Hello? - Oh, hi mama. - Hi, how are you? Good. How are you? Oh, fine. Yep. My mother, Deborah Hill. In our-- Family, voting has always been a sacred right and while my mom grew up up north, our roots are out. Selma, Alabama. I grew up in Everett, Washington, and my paternal and maternal grandparents were from Selma, Alabama.
Alabama. So that's where my parents grew up. So you would spend your summers down there. Can you tell me what making that trip was like? What was that like for you? Start different, you know, when you went to Selma or you even went to the outskirts of the city, tension between whites and blacks because that's mostly what you saw. I didn't see a lot of other diverse. Down in the Selma area, but it was intense. You could feel the tension in the city. Do you remember grandma and grandpa talking about voting at all back then? How did they talk to you about voting? How did they introduce you to this idea of participating? Participating in the Democratic process. -Even as a little girl, every time they would go voting, they would take all of us. Actually take us into the booth. So we stood inside of the booth.
With this curtain drawn as our parents voted. And then, you know, we had the task of opening the curtain. That was so much fun after they voted so the next person could come and vote. Just very important for them. It was very important that they knew that, you know, we're voting, this is a right, and you have the responsibility of that. - What do you remember about sort of... Passage or the signing of the Voting Rights Act or its aftermath or leading up to it. What do you remember about that time? I just remember 1963, I was in kindergarten. I know it was after school started. I don't have the exact date in front of me. But I remember the 16th Street Baptist Church was bombed in Birmingham. And I remember four little girls were killed. Oh gosh, they were not that much older than I was at the time, and it just sort of scared me.
Shortly after that, still five years old, maybe a couple of months or toward the end of the year. That Kennedy was assassinated. And I remember my mother coming to school to pick me up. And the reason I remember it was because it was on a Friday because it was show and tell. Before show and tell started. And the next thing I remember is the 1965 voting rights. I remember was during the summer, 'cause I can remember the nightly news was on, but it was still. Of daylight outside, it wasn't during the winter. And I remember a telegram came to our home when my paternal-- grandparents receive a certificate to vote or voting registration. My paternal grandparents voted. My father flew to Selma to be with them.
That must have been such a special moment for him. Oh, it was special not only for my father, but for my grandparents to go. To actually vote because they had been fighting the vote for so long and they voted in elections. But unfortunately, my grandfather, he only voted in one presidential election in When voting rights was signed and enacted upon, and they received their voter registration. My grandfather was 71 years old, and so he voted in the 1968 presidential election. Election and the next election after that he was ill and was not able to vote. I'm so happy that they had that opportunity. - I feel really grateful. Just, I'm glad they got to do it. And I'm glad that...
Just to be able to like have that story and to know. I don't know, it just, it means a lot to me and it always has, it really has. - Yeah. - It really, really has. - And I think that's why it was so important for us. And your father and I to take you with us to vote every time we voted.
I remember that. I remember that distinctly. Like, going with you guys and standing in the booth with you. I do. Thank you so much for taking the time to talk with me. Like, you don't do it all the time anyway, but you know what I mean. -Thank you. -All right. I love you. -I love you, too. Bye-bye. -So that's why this policy matters so much to me. It's more than just a piece of legislation. It's real life. Now, let's fire up the weed's time machine. Joining us on this trip is Professor Atiba R. Ellis. -You know I'm the son of an AME Zion preacher, so... -I'm the daughter of an AME preacher. We are extremely AME. -Oh, yeah. -It's extremely Methodist up in this place. -It is. I'm saying. At Case Western Reserve University and specializes in voting and election law. Even though we're zeroing in on 1965, the story starts long before then. I always want to begin
these conversations by saying you realize there's no right to vote explicitly outlined. In terms of what it affirmatively means in the U.S. Constitution. Paddle slavery, gave formerly enslaved black people full citizenship, and gave black men the right to vote. We entered the period known as Reconstruction. All the rise of violence and intimidation and the weaponization of the criminal justice system. Just sheer stigma, all as forces that drive African-American culture. Americans away from exercising their rights of citizenship. You saw...
And riots that sent the message of, hey. If you're a Black person and you're trying to vote in, say, Louisiana in the... 1873, you'll get shot. And it's that kind of behavior that. Prompted Congress to pass laws to order Union troops to basically maintain order and to outlaw conspiracies, to deprive Citizens of the right to vote. But Reconstruction came to an end with something called the Compromise of 1877. To resolve the disputed election of 1876. And part of that compromise? Withdrawal of Union troops from the South. This ushered in what's known as the nadir of race relations in America.
Jim Crow laws were enacted, the Ku Klux Klan rose to power, and many of the attempts black people made to vote and exercise full citizenship were met with-- Violence, and that violence persisted well into the 1960s. What changed in 1965 to make the Voting Rights Act possible? That's what I asked Professor Ellis. 1965 you see the confluence of a number of important trends. One is the persistence of the mid-century civil rights movement and its ability to... Basically capture the world's attention regarding the injustices. Bloody Sunday in particular is telling because this is a moment where... The world saw the violence explicitly.
On Sunday, March 7, state troopers and sheriff's deputies advanced on a column of demonstrators who had planned a 50-mile march to Montgomery, the Capitol. The marchers fell under clubs and whips. So you see the activism on the one hand, but you also see, and the world saw, the violence on Bloody Sunday. They saw it live on TV. They saw the news reporting. With a cloud of tear gas, Selma ceased to be an obscure southern city and became a symbol. Of course, this is the culmination of decades of violence. Against civil rights workers, particularly voting rights workers.
One of the most famous examples, the murders of James Chaney, Goodman and Michael Schwerner in 1964 because they... Were driving to go help register people to vote and they were Intercepted and assassinated. And it is their they were ultimately found that sparked additional outrage. Outrage after outrage after outrage basically came to a boil on Bloody Sunday. And so the police... Political pressure mounted in the face of the nation seeing this violence and seeing the unfairness and
Bloody Sunday, President Johnson redoubled his efforts to pass the act. >> What 95 years have passed since the 15th Amendment gave all Negroes the right to vote, and the time for waiting is gone. >> In that way, on August 6th, in 1965, President Johnson signed the bill into law. I want to dig into sort of the meat and potatoes of the Voting Rights Act itself. Originally has 19 sections in this legislation, but I want to dig into two in particular, Section 2 and Section 5. Can you sort of explain what those sections do, particularly what they did in 1965 when this was initially signed? Section 2. Articulated a national cause of action of
right to sue for violations by governments that pass Laws that had the effect of racial discrimination in voting. Section 2 of the Voting Rights Act basically restates what the 15th-- amendment said. But if there is one point to take away from this, it's the fact that The manipulation and the intimidation and the ultimate apathy towards Black voting rights in the century basically made the 15th amendment stagnant. Section 2 of the Voting Rights Act recast that right. And gave it new life and gave civil rights activists and the United States government the vehicle by which they could sue to protect black voting rights.
Another piece of this is Section 5 of the Act. Section 5 said to the worst offender offending state. We're going to freeze your laws as they are. And if you wish to change them, then you have to get Approval of either the US Department of Justice or federal court. This is known as pre-clearance. And the states subject to this were the states that had a history of Racial voter suppression, a record of this violence and intimidation. Passing of laws meant to discriminate and significant gaps in minority voting On the books at the time. The idea was that by forcing this... Review, the federal government can determine whether the new law will make black voters worse off. And so
Material way. And if that were the case, then the law would be denied preclearance and the stake government had to go back to the drawing board. So the Voting Rights Act and these two provisions had a tremendous impact. The states that Suffered the most from voter suppression where African-Americans were least registered. Tremendous gains in registration. For example, in Mississippi, in 1970, 65 before the act was passed, African American voter registration was around 7%. in 1960. After the act had an opportunity to work, the voter registration rate was 60%. This is the kind of impact that the Voting Rights Act had. Scholars almost.
Most unanimously say that the Voting Rights Act and these two provisions in particular are the most successful civil rights legislation ever created in American history. - Okay, so that's what the Voting Rights Act was initially. Up next, we're going to get into how it's changed through the years, often at the hands of the Supreme Court. - You know when you feel all cooped up inside and wish you were outside? So you go outside only to miss the comfort of being inside. Burrow is here to help you have it both ways, so you can enjoy the comfort and style of inside your home, outside.
The Outdoor Collection from Burrow. Burrow says they're known for timeless design, thoughtful construction, and little details that make life in your space easier, and that extends to the Outdoor Collection. With Burrow, you can get seating that allows for easy assembly and disassembly, so you can move or store them away as needed, no tools necessary. Burrow's outdoor furniture is made for all seasons and built to withstand the elements, featuring rust-proof stainless steel hardware and quick-dry stain-resistant foam cushions. Not only that, they ship straight to your door for free. Seems like you can have it both ways. Listeners of the weeds can get 15% off their first Burrow order at burrow.com/weeds. That's Burrow, B-U-R-R-O-W.com/weeds for 15% off, burrow.com/weeds. you
Support for this podcast comes from Planned Parenthood. Your body is your own. That's why Planned Parenthood is committed to ensuring that everyone has the information and resources they need to make their own decisions about their bodies, including abortion care. Today, lawmakers who oppose abortion are challenging Planned Parenthood. Affordable, high quality, basic health care for more than 2 million people is at stake. Planned Parenthood believes that health care is a basic human right. That's why they fight every day to push for common sense policies that protect our right to control our own bodies. They also work tirelessly to oppose the onslaught of new policies aimed at interfering with personal decisions best left to patients and their doctors. They won't give up, and they won't back down. You can join Planned Parenthood in the fight to help make sure that the next generation can decide their own futures. The organization needs your support now more than ever. With supporters like you, they can reclaim our rights and protect and expand access to abortion care. Visit plannedparenthood.org/future to learn more and support their cause.
I'm John Glenn Hill, and we're talking with Professor Atiba Ellis about the Voting Rights Act. Passing it was just the first step. Laws are always subject to interpretation, amendment, and whether or not the... Is willing to enforce them. And the VRA is no different. It's not the same as it was in 1965. In some ways, the way the Voting Rights Act has changed has been in part a kind of Conversation between Congress and the Supreme Court. And the first major amendment was in 1982, which clarified that the vote Rights Act could address laws that had the result or the effect of... Diminishing minority voting strength and having bad effects on minorities. So you might ask, why did
Have to clarify that the Voting Rights Act could reach laws that had the effect of being discriminatory, even if they, on their face-- Didn't say anything about racial discrimination. Well, that's because Congress was answering the Supreme Court. Which held in this case called City of Mobile, Alabama, versus Bolden, that to use the 15th Amendment to prosecute-- Discriminatory voting laws, a plaintiff had to show evidence of an intent to to discriminate on the basis of race. You couldn't just look at the effect, you had to prove That in passing the law, the legislator meant for it to specifically affect people of color.
The effect that this had was to severely scale back litigation. That use the 15th Amendment specifically as a tool to enforce the law. The worry was that that same rule would be read into the Voting Rights Act. So Congress in 1982 had to clarify That we use the effects test under the law. This of course, empowered the law so that it not only reached problems of voter qualifications and voter Registration rules where you can explicitly keep an individual from voting. But it... Opened the question of dealing with gerrymandering. If you draw a district that might...
Dilute the voting strength of African Americans without saying that's what you're doing. The 19-- amendments gave the opportunity of using the Voting Rights Act to Police such racial gerrymandering. So in this sense, the vote... Rights Act grew in power, right? It becomes one of the core... Of how democracy worked in the late 20th century. It was not until I think even just doing research for this episode that I realized what Prominent role the Supreme Court has played in the Voting Rights Act throughout time. but it sounds like... Supreme Court has sort of been making these decisions, either strengthening it or weakening it. Since it was signed into law. To give some perspective,
when it was first passed, the Supreme Court weighed in early on. So this pre-clearance Provision that we're talking about in the scope of Section 5. That were initially pre-cleared immediately sued to have it's Down as unconstitutional. The Supreme Court at that time basically said Congress demonstrated that there is a national emergency regarding racial discrimination in voting. Used its powers under the 14th and 15th amendments in order to pass this law and that it should be upheld. This is the court that basically in this. The one person one vote doctrine earlier in that decade. decade... Revolution against gerrymandering, against the Jim Crow era voters.
Suppression and the Voting Rights Act was enabled by the court of the 60s. Course, the court of the eighties played its role. Once we get into the 21st century, the table. Mm. Can you talk about that a little bit? What changed after that? So the first thing that... Change was the composition of the court. Obviously, John Roberts became chief justice. In 2009, there was another case, Northwestern Austin Municipal District #1 vs Holder. Eric Holder being the Attorney General at the time under President Obama. Northwest Austin. Sued to have the Voting Rights Act, at least section five of the Act declared unconstitutional. What's interesting is that in the Supreme Court's decision in this case in 2000,
The court said, Well, there is a statutory fix under the Voting Rights Act to deal with North Wales. To Austin Municipal District's objection. So we won't reach the-- Of the Voting Rights Act. But we will say to Congress that Section 5 hasn't been updated. Raises concerns and therefore the court is basically put... Congress on notice that they should update the act. Now this is very interesting because the Voting Rights Act had been reauthorized, and these Section 5 provisions in particular, which were designed to be temporary. They were designed to be temporary. Preclearance was designed to be temporary. This-- It initially was. The idea was that preclearance would be--
the space where the states could get their act together. And once the-- Rates of participation had caught up, then we could move on from having these rules. So the question as is often the case when it comes to issues around race generally, and race and voting in particular, is... How long is long enough? Congress reauthorized these provisions in 19-- 1970, in 1982, and in 2006. Of, among others, the presidents who signed these bills, including Ronald Reagan and George W. Bush, was that these... Provisions were still needed and necessary. So it becomes interesting then that the court is saying in 2009, Congress, you should check your work on this. And then of course, focus on the
who were opposed to the Voting Rights Act took that as a signal that the court would be receptive. To a challenge to the act directly. So Shelby County, Alabama sues. And the court rules on Shelby v. Holder in 2013. Justice John Roberts writing for the court basically says, We told you Congress... That you should revisit this and you didn't do anything. His argument was that each state has equal sovereignty with all the other states. In other words, a state should be-- Able to administer its laws as it sees fit, just like every other. State in the union. And so a law like Section 5 of the Voting Rights Act, where some states have to get The permission of the federal government in order to implement laws treats some state.
More poorly than others and that inequality was unconstitutional. My galaxy brain is like flying a million miles per hour because I think a solution that probably would be very unpopular and have no political will right now. I mean, it was very-- Difficult to get a speaker of the house, so doing something like this would probably be next to impossible. But part of me is like... Why not just make it so everybody has pre-clearance? Like, discrimination happens in a lot of different places towards a lot of different people in a lot of different ways. It's interesting to me that the solution is, okay, no preclearance for everyone versus... What if we made everyone check in every now and then? What if we made everyone say, Hey, what's going on with voting in your state right now? Well, in theory, that could happen. Back in like 2013, 2014, advocates and skaters.
Like me and lots of folks were saying, Well, in theory, you could do exactly what you just proposed. Have every-- Body check-in, have everyone go through a pre-clearance regime. Addresses Justice Roberts's concern that some states are being treated worse than others. Than other states. Of course, that's not a politically possible. View, even a far less radical approach that Was contained in the various drafts of the For the People Act and the John Lewis Voting Rights Act, which simply tried to create a new formula, was not able to get out of Congress. So, such a more broad reaching solution, though. As a matter of logic, would make perfect sense. As a matter of political reality, I--
not sure that it's even feasible. - Okay, so pre-clearance for every state is probably not going to be a reality anytime soon, if ever. And after Shelby. After the Shelby County beholder decision, the state legislatures that had been under preclearance, in particular, Texas, North Carolina. Comes to mind, they, the same day the decision came down, or the day after, announced the - They were going to revisit their voting rules. - That's very reminiscent of the Roe trigger laws. That reminds me of that. They saw their opening and they held their sessions in the summer of 2013. And North Carolina is a very interesting story because they passed a law that revisited everything.
Adopted a strict voter identification law, revised the window of opportunity to go vote. Change the rules about when, where, and how one could vote. Now, in the course of Passing these rules. One of the things that the legislature did And I grew up in North Carolina, and so they're in Raleigh in July and August holding Special session. You don't want to be in Raleigh in July and August unless you're on vacation. That sounds very sweaty. Because it's very, very sweaty. I was an intern during my college days in North Carolina and... -I had to go to the cleaners twice a week in order to deal with that heat. In humidity. But I say all that to say that the legislative
Holding its session to reconsider these rules. And in the course of it, they ask for-- several studies, including studies around the voting patterns and preferences of African-Americans. They look explicitly at... This data around race. And so, in changing all these rules... Including limiting the opportunity for things like souls to the polls, where you go to... And then you go from the church to go register or to go vote early and this is a self-explanatory celebrated Event. Yeah, I mean hey I've been at church And witnessed and seen many a voting drive in church. The idea of that not being legal is very foreign to me. Things were curtailed or outlawed outright in this bill.
All these issues get raised and of course, North Carolina Conference of the NAACP and it's. Allies in the civil rights community sue. They lose in trial court, but they win before the US Court of Appeals for the Fourth Circuit. Liberal of courts in the country, but the Fourth Circuit in an opinion says by at the patterns African Americans themselves undertake and then Limiting or outlawing all those things specifically looks like you targeted African American vote with, in the words of the court, quote, almost surgical precision. There are similar disputes in Texas and a number of other states. Where these laws were put at issue in the post-Shelby era. In this context, we get to the--
Ovid era and the use of drop boxes and the use of More liberalized absentee ballot rules in order to prevent people from doing what, at the height of COVID, you weren't supposed to do, gather in a room together in order to vote. Breathing on each other, sharing pins and carrying on. All of those things we weren't supposed to do. There was a whole round of litigation around whether the courts could make states change those rules and to a certain extent the Supreme Court said, Well, no, And there's sort of this back and forth on the so-called shadow docket. So not argued and brief decisions, but emergency. Petitions that the court acted on, you know, these sorts of decisions is a lot of.
The sort of modern day litigation of the court before regarding voting rights. So that's where the Voting Rights Act stands now. But where's it headed? I wonder if that rhetoric of purity of the ballot box has been replaced with all of this rampant fraud talk that there are voters who are unworthy and can't be trusted. That's coming up next.
Support for the show comes from Washington Wise, an original podcast from Charles Schwab. Decisions made in Washington affect your portfolio every day. But what policy changes should investors be watching? Washington Wise, an original podcast for investors from Charles Schwab, tracks the stories making news right now and breaks them down for the average investor. Host Mike Townsend, Charles Schwab's managing director for legislative and regulatory affairs, takes a nonpartisan look at the stories that matter most to investors. He explores topics like policy initiatives for retirement savings, taxes and trade, inflation fears, the Federal Reserve, and how regulatory developments can affect companies, sectors and even the entire market. In every episode, Mike and his guests offer their perspectives on how policy changes could affect what you do with your portfolio. Download the latest episode and follow at schwab.com/washingtonwise or wherever you listen.
Hi, this is Scott Galloway. And I'm Ed Elson. And we're the hosts, the co-hosts. It's kind of unfair to call us co-hosts. I'm really the host. He's my Robin Givens. Let's just be clear on what this is. But anyways, we're the hosts of Prob G Markets, your go-to podcast for all things money. Every Monday, we provide brash, unfiltered analysis on market moving news, high-flying stocks, growing sectors, stupid boardroom decisions, and master of the universe CEOs. And on Thursdays, we speak with some of the world's greatest finance professors, Wall Street insiders, and industry experts to keep you informed without getting bored. So if you want to understand money and how you can get more of it, you have to talk about money. And we're here to help you do that. Follow Prob G Markets on YouTube or wherever you get your podcasts to automatically receive new episodes every Monday and every Thursday. That's right. The good news is we know how to get you economic security. The bad news is the answer is slowly.
We'll tell you how on property markets. I'm John Coolen Hill. We're talking to Case Western Reserve Law Professor Atiba Ellis about the Voting Rights Act. Just to recap. Nearly 60 years since we got the Voting Rights Act, the gap in voter registration and participation has narrowed between white voters and non-white voters. And while that's true, The idea of further weakening the VRA is scary for some people, and that's why many are worried about what the Supreme Court could do this term. There are VRA-related cases on the docket. Two I wanted to talk about specifically. Merrill v. Milligan, and Moore v. Harper. Both have already had oral arguments, but a ruling isn't likely until the summer.
Us to talk about the details of each, starting with Meryl v. Milligan. Meryl is now in front of the court. Concerns a redistricting plan in Alabama where... Obama went through its redistricting process, which-- Status required to do every decade. And it drew one district for its U.S. House of Representatives that was majority black. The plaintiffs here are basically arguing that Alabama packed black voters into that When it should have drawn more districts that were majority African American. And so it says that this violates Section 2 of the Voting Rights Act. And the question before the court is whether this was violative. Now, the state of
Alabama basically argues that the calculus for calculating whether this is the appropriate. Thing to do is incorrect, and that the baseline for trying to understand whether there was illegal minority vote. - Vote dilution is one of race neutrality. And so this has. A potential of completely changing the standard for racial vote dilution cases under the Voting Rights Act, It a lot harder for plaintiffs to bring their claims. That's not the only Supreme Court case regarding voting that could impact the Voting Rights Act coming up. The summer, correct? Another really important case, even though not directly about the voting
Rights Act would nonetheless impact the VRA is a case called Moore v. Harper. And this Out of North Carolina, where the North Carolina General Assembly passed another set of voting rules after a history of voting. Cases where both federal courts and state courts have struck down North Carolina's efforts since. Shelby County, but this time the North Carolina Supreme Court strike. Down the General Assembly's rule, and the General Assembly then goes to the US Supreme Court arguing that the independent state. Legislature theory should be adopted by the US Supreme Court.
And thus cutting out the state courts from being able to rule on what the state legislatures do in regards to federal elections. - Oh, that's so interesting. Oh, okay. - Yeah. - Because I know that right now the-- Supreme Court is like, Hey, we don't get involved in these gerrymandering cases. We would prefer it if you handled it on the state level. And so they're all Saying, Oh, if it's a federal election, states cannot handle this. Let's give it to the Supreme Court. So they're saying, well, if it's up to the states and the text of the Elections Clause in Article 1 of the Constitution says, The legislature shall make the rules, they're saying, take that literally, as in... The legislature and no one else can make the rules. - But it's court jobs to interpret.
The rules that they make. This is why we have three branches. This is why we have-- Our executive, our legislative, and our judicial. And isn't the state court technically part of the state? Am I, is that-- thinking of this wrong. I did not go to law school. I'm one of two people in DC that did not. So I could be mistaken. Well, I used to live in DC for a while and they wouldn't let me in until I showed my law license. You were like, I'm a member of the bar and they're like, all right, you can come in. All right, you can come in. Okay, I see. I snuck in. In my- View and full disclosure, I co-authored a brief on the Moore v. Harper case. Our argument is that the person who is the most important is the person who is the most important. And it was, this makes no sense. The branches of government exist. To balance the work of anyone. And so for the legislature to have
all the power and depending on the version of the independent state legislature theory that you're looking at, it could be just the state. Legislature and maybe the federal courts or maybe just the Supreme Court, but not the state courts themselves. Does it make sense that a state court with its state constitution that says the state courts can check the leg-- That all that gets ignored because of this overarching. overarching ahistorical and nonsensical interpretation of the Constitution. What does the future Of voting in America look like without the Voting Rights Act or without any of its teeth, which very well may happen after this next session of the Supreme Court. I think voting becomes... It's very challenging or very advanced depending on what state you're in. I mean, literally depending on what state you're in.
The pattern that seems to be at play these days is one of certain states wanting to Take on more and more initiatives driven by the myth of voting. Fraud and desiring to make the rules more strict, make the Regulations more rigid and onerous. You know, some states have even passed rules that would require voting be exclusively in person. Is with the stricter rules driven by voter fraud talk, does that make it too hard for people without the means to overcome these hoops. To participate. To me, that echoes the Jim Crow problems that we were talking about.
The nadir of voting rights is an era where a full third of the country's population couldn't effectively vote. Because there were too many regulations that exploited the weaknesses of that population and all of that discrimination. Fell largely along the lines of race. Does something of that sort repeat itself? Maybe not to the scope of Jim Crow apartheid, but I would think that any repetition of that could... Be problematic. And if history teaches us anything, a lot of that will fall along the lines of race. And of course, I think that's a really important point. Course the irony is depending on what state you look at, there's also advancements in
Voting rights, right? There are some states that have embraced mail-in voting, drop boxes, same-day registration. Or moderate versions of voter ID and the like. So I wonder whether the... Might be a new separate but equal kind of voting map across the country and the ease with which you can vote, the ease with which you can participate in. Democracy depends on what state you're in and what the agenda of your legislature is. Is. Gave us the Voting Rights Act and our current political landscape, because in a lot of ways, it's different. But in a lot of ways, it feels very similar. And I'm just-- I'm curious about the parallels between now and then.
Level, there's a lot of this, what I like to think of as the hyper regulation of the vote that in the the period immediately before the passage of the Voting Rights Act. Of Jim Crow rules that dissuaded people from voting, that lowered participation, particularly in African American community. And today, arguably we have the rise of Another set of rules driven by concerns around voter fraud that doesn't exist, right? Strict. Voter identification laws, more aggressive voter purges. the Narrowing of opportunities to vote outside of just Election Day itself, which in and of itself is a very, very important thing. Itself creates long lines and makes voting more difficult.
We remember the footage from Georgia in the wake of their recent laws that were passed that created-- You had long lines and you had rules that said you couldn't bring someone a drink of water while they're standing in line for Hours on end in order to wait to vote. All of these kinds of rules have their own... Form of dissuasion effect that would chase people away from voting. But this sort of. Harm of dissuading people from exercising the vote might well be... Now I've talked about how voter fraud talk becomes the just- becomes the- Justification for a lot of this, it's worth taking a moment to think about the effect of voter fraud talk. In the period around Reconstruction and in the Jim Crow period and even the Voting Rights Act period. And now, a lot of the
Justification for these strict rules is preventing fraud, preserving the integrity of elections. And in the 20th century and in the lead up to the VRA, there was lots of talk about-- Purity of the ballot box. - The word purity stresses me out. - And in this context, it really should because. Purity implies a kind of, they're the people who are worthy and they're the people who aren't. And the same goes for the other. Same kind of racial coding that justified-- - It feels very racially coded. Jim Crow era, that was explicit code to say, We want white people. To do this and not black people. The purity is racialized rhetoric. And of course, you don't hear that phrase-- much today, but I wonder if that rhetoric of purity of the ballot box has been replaced with all of this rampant fraud talk that there
Are voters who are unworthy and can't be trusted. And that has encouraged sort of criminalizing the exercise. Of the right to vote. Some of these patterns seem to be repeating themselves in the sense that it's coming back to this Questioning the integrity of voters based on necessarily identity explicitly, but their ability to comply. With increasingly more difficult and challenging rules. That coupled with the impact of those... Rules targeting communities of color, you know, African American communities, the Community raises the concern for me that the conditions that prompted the Voting Rights Act rising again. But the problem, of course, and I think we see this in, say, the
County decision is that the change towards a society that is more formally integrated and sort of aspires to the idea of colorblindness. Then causes us to ignore the effects that fall-- disparately on the basis of race in relation to these laws? I don't know race and class are so intertwined and I think so many Of these laws, like they target black people. They target people of color because we tend to be poorer. For a variety of reasons and I would argue racism is one of those reasons but it's I mean, like who has the time to take off to vote? Who has like the resources to get an ID or find their ID? Like I thought the point was. Like no matter your background, you shouldn't have to have resources to vote. But it seems like...
Increasingly in some states, you can vote depending on the resources you have. It's it almost feels like, oh, only landowners can vote, but only people can vote. With like this amount of time and income who have the resources to get these things done Rules and know that these rules exist can vote. And this is interesting because there is... This notion that has been part of the entirety of the history of the franchise that you're not To vote unless you own a stake in the country. And you demonstrate owning that stake by-- in the 18th and 19th century. First part of the 19th century, literally owning land and being able to manage that land or being able to pay a tax or being able to Pay what I have in my research called the cost of the vote, right, the indirect cost of voting in order.
To obtain an ID and comply with a voter identification law. But the twist here The interrelation between race and class, particularly in the Jim Crow period, is that the dis- franchising legislatures that met between 1890 and the 19-teens to design these laws. New spec-- that by targeting wealth and status They knew they were going to get at the vast majority of the concern that motivated them without actually saying race. And the court said, Well, they didn't say race, therefore this doesn't violate... The Constitution and the question we have to ask ourselves about decisions like Shelby County is, is that
Same kind of, well, race is now treated differently, therefore it's effective. Ignored, is that kind of thinking still part of how the course. To address this issue. You take Justice Ruth Bader Ginsburg's dissent in Shelby County, she-- argued one, that voter suppressions just change. Right? It's not. About participation so much. Participation has increased and yes, the South has changed. In that regards, but it's about the number of barriers that continue to exist. The number, in the context of Shelby County v. Holder, the number of times pre-clearance-- Objections were raised precisely because states like Alabama and North Carolina and Texas and others were doing the things that the Voting Rights Act forbade and were getting caught for it. And by
voter suppression evolves and still remains a problem. The metaphor of the Voting Rights Act being an umbrella in the middle of the rainstorm, keeping us dry and then saying, While it's still raining, that you can get rid of the umbrella because I'm dry. The irony being the Voting Rights Act holds together an important part of our democracy because it works, and then deciding that we don't need It anymore. It's a shift in thinking, but at the end of the day, it reaches the same effect of, have changed so that on the surface we don't have to think about race and yet under that surface. The dynamic evolves and continues and may well still be discriminatory. All right.
- Atiba R. Ellis, thank you so much for joining us. - Thank you for having me. - That's where the Voting Rights Act stands now. And there's a very large likelihood that the next time we examine it in the coming months, it will be a lot less powerful. And we'll be here to take deep dives as things change. With that, but also with all of the other policies impacting our day-to-day lives. That's all for us today. Thank you to Atiba Ellis and to my mom for joining me. - I'm not going to call you JQ, I'll call you John for like- - That's fine. - That's all right. - Yeah, you're the one who named me, so you can call me what you want. It's allowed. And thank you, Weeds listeners, for taking a ride in the Weeds time machine with me. We always love to hear from you. If you have feedback, if there's a policy close to your heart, or just something you're curious about, shoot us an email. Weeds@vox.com. Our producer is Sophie Lalonde, Christian Ayala engineered this episode, and Kim Eggleston fact-checked it. Catherine Wells is our Executive Director of Audio. Our editorial director is A.M. Hall, and I'm your host, John Flynn Hill. The Weeds is part of the Vox Media Podcast Network.
Support for this podcast comes from Washington wise, an original podcast from Charles Schwab. Decisions made in Washington affect your portfolio and your money every day. But what policy changes should investors be watching? Washington wise is an original podcast for investors from Charles Schwab. The show unpacks the stories making news in Washington, and how they may affect your finances and investments. Listen today at Schwab comm slash Washington wise. That's Schwab comm slash Washington wise.
Transcript generated on 2024-05-25.