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tv   National Constitution Center Discussion on the Right to Vote  CSPAN  July 21, 2020 1:46am-2:54am EDT

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listen on the go with the c-span radio app. ♪ >> the presidents, from public affairs. available now in paperback and e-book. presents biographies of every president, organized by noted historians, from best to worst. perspectives into the lives of our nation's chief executives and leadership styles. visit our website, c-span.org/the presidents. to learn more about each copydent and order your today. wherever books and e-books are sold. up next, a discussion on voting rights. the national constitution center the 100thevent on anniversary of the ratification of the 19th amendment, guaranteeing women the right to vote. m in 1965 voting rights act. you talk about the contributions
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of congressman john lewis and access to voting during the coronavirus pandemic. ladies and gentlemen, welcome to the national constitution center, and to today's version of america's town hall. i am jeffrey rosen, the president of this wonderful institution. as folks who have joined us before know, we begin our programs by reciting together the national constitution center's inspiring mission so we can prepare ourselves for the learning ahead, so here we go. recite virtually after me. the national constitution center is the only institution in america chartered by congress to increase awareness and understanding of the u.s. constitution among the american people on a nonpartisan basis. beautiful. that is a wonderful recitation, and before we begin, i want to provide a quick plug for our next town hall on august 4. please join us for the 2020
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annual supreme court review in partnership with the antidefamation league, and it will feature the distinguished .egal scholars it will be a wonderful discussion of the most important cases of the term. i must tell you with great 26th,re that on august circumstances permitting, the national constitution center will open our new exhibit, how vote, about the 19th amendment. it is very relevant to today's topic. it is an exhibit about the history of the expansion of women's suffrage. our team is hard at work to reopen the national constitution center building, which is glimmering behind me on the backdrop. they opened the doors and welcomed people. and remember, throughout the program, please put your questions in the chat box, and i will introduce them to our panelists as soon as possible.
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and now, it is my great pleasure to introduce our phenomenal guests. he is a professor of history and social policy for the john f. kennedy school of government at harvard. he is the author of many books including the right to vote. the contested history of democracy in the united states, which was a finalist for both the pulitzer prize and the los angeles times book prize. his forthcoming book coming out in 10 days is why do we still have the electoral college? ands vice dean for faculty academic affairs and professor of law at the gould school of law at the university of southern california. her forthcoming book is rethinking the constitutional structure of political rights, the evil lucian of federal voting rights enforcement, from the founding to the dawn of the progressive era. and derek mueller is professor of law at the university of iowa
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college of law. andas published widely before joining the university of iowa, he was a professor of law at pepperdine university caruso school of law and a visiting professor at penn state law school. sox and derek, thank you much for joining. >> thank you. >> thank you. with alex'sgin book. friends, please consider getting -- homework, which i hope you will be inspired to read after today's discussion. in this important book, you argue that the right to vote has not been a steady bending of an towardsrds justice or universal suffrage. instead, it has been a bumpy ride with peaks and valleys and you note a series of cases about
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reversals of the right to vote. women in new jersey had the right to vote until 1807 and then lasted for nearly a century. african-americans in many northern states have the right to vote at the time of the founding and then lost that right in the 1820's, and people have the right to vote in the midwest and the southwest and then lasted in the 1900s to limit the power of immigrants. a broad question, but tell us about the unsteady progress of suffrage in the united states. >> thank you for the introduction and thank you for this question. be a is -- there used to history that was much more comforting of the right to vote. which was ok, yes, when the nation was founded, the suffrage rights were limited to white male property owners but then it is on ward and upward ever since. so it is a chronicle of progress.
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what i found in doing the research for the book is what you describe. and what seems to happen is that each advance or most advances are accompanied or followed by conflict over those advances or conflict over the actual exercise of the expanded franchise. you mention several examples, let me mention a few more. in the early 19th century, in the first third, through 1810 and 1850, property requirements are illuminated in most states, in all states by 1850. there are no property requirements to vote. but often the same constitutional conventions that did that instituted other requirements such as a prohibition of paupers voting, being defined as anybody dependent on the state.
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some of the same conventions that illuminated property requirements in northern states, disenfranchised african-americans would disenfranchise earlier. after the civil war, you mentioned the broad pattern of immigrants being restricted and we find these remarkable quotes from leading intellectual figures in the 1870s saying if we had known there were going to be all of these poor immigrants flocking into the country, we never would have eliminated property requirements. and so what they turn around and do, they can't -- it is very hard to actually reinstitute a property requirement after you got rid of it.
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but what they do is create a lot of procedural obstacles to those immigrant voters voting. ok. if one wanted to be a little bit short-handed about it, they switch from disenfranchisement to voter suppression. and the big story, the largest story in the late 19th century is that african-americans, who are technicallien franchised by the 15th amendment to the constitution after the civil war, are removed wholesale from the electorate in the south by 1900. and the pattern continues in ways small and large. and just to round this out, i would say that the kinds of restrictions on and obstacles created to the exercise of the right to vote that have been going on -- that are going on this year and have been going on for the last 20 years, perhaps 30, are in a key respect a reaction against -- [technical
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difficulties] but also grants and speakers of foreign languages. so i think this patterns and we have to recognize that not all of the american population has been happy about the expansion of the franchise. >> thank you very much for that powerful installation of the wisdom of your book. it is meaningful to learn that there is a precedent for restricting the franchise by trying to prevent fraud and this period from 1850 through past world war i where the franchise did not only -- on the basis of race but also with new property requirements as you said to prevent african-americans and immigrants from voting is deeply meaningful to learn about.
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frenita tollson, i can't wait to read your new book, which will be coming out soon. rethinking the constitutional structure of political rights, the evolution of federal voting rights enforcement from the founding to the dawn of the progressive era. tell us about the thesis and to what degree was the contraction that alex cassar talks about from the mid 19th century through the progressive era, driven by the withdrawal of federal voting rights enforcement. so, i think alex is too modest -- >> so, i think alex is too modest in talking about his book and sort of how it informed the thinking of everyone who works in this area. so my book is -- it looks like the same issue from a bit of a different perspective. so i think alice was done a wonderful job of showing how the right to vote has expanded and contracted at various points in history. and in reading his work, it raised a question in my mind about how congress responded to
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those contracts. because this is happening at the state level. so reconstruction is a time when you see congress becoming more involved in sort of regulating the right to vote and sort of forcing states to be more aggressive about enfranchising the formerly enslaved population. what about the period before reconstruction? what did congressional power look like then. and i think the assumption is that congress didn't do much. we thought about the right to vote as a creature of state law. and so congress, at least in my mind before i started studying this, congress didn't really have much to say about it. but then shelby county came out, versus the holder decision, was the decision in which the supreme court invalidated a portion of the preclearance regime of the voting rights act of 1965. and in that decision, the supreme court said that congress had overstepped the bounds of its authority under the 14th and 15th amendments when it required
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certain jurisdictions, mostly in the southern states, to clear any changes with the laws with the federal government before they go into effect. and so finding that congress had overstepped, i had questions about whether that was true. because i conceived of federal power in the areas being quite proud. and i'm maybe just sort of inherit to the warren court and i've drunk the cool aid so i decided to take a close look and a deep dive into this question. so that is the motivation for writing the book, which started at the founding. and what i found was that congressional power was in some ways before the civil war quite modest. but it manifested in ways that i don't think we in the legal community really talk about. for example the book talks about how congress exercised his authority under the elections clause which gives congress the
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power to make or alter state regulations that governor federal elections. and also the guarantee clause, in which congress guarantees each stay a republican form of government and finally congress's power under article 1, section 5, which allowed us to judge the election of the membership. so these are authority that congress has used in order to influence state political systems. and i realize this is an important part of the conversation that we were not having. and in many ways it laid the foundation for exercises of congressional power during reconstruction. so not only did the 14th and 15th amendment provide additional basis for congress to act, so those are the provisions that we think of as being directly relevant to the right to vote.
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so the 15th amendment enfranchise african-americans by prohibiting discrimination on the basis of race with respect to voting. but congress used its authority under the guarantee clause to force southern states to pass new constitutions and to remake the political systems and they have constitutional conventions in which they were required to have multi-racial coalitions. these weren't staffed purely by white property males. so essentially, by reconstruction, you see this marriage of the constitution of political structure as i call it or congress's power under the election clause and a guarantee clause in article 1, section 5, that delegate power directly to congress. so congress's power under the 14th and 15th amendment in particular gave congress a quite broad basis to act to remaim southern political structures. and it is this understanding and i argue that influences that should influence what congress could do now when we think about the scope of congressional power over elections.
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instead of just focusing solely on the 14th and 15th amendments. >> thank you so much for that. and i have to say how exciting it is to read your work and to find you pointing our attention to the very few parts of the constitution you just described, the structural guarantees as well as the as pecks of the 14th and 15th amendments with theright to vote teaching us -- with the right to vote teaching us that historically the provisions have been relied on to protect the franchise and in your creative and important articles you argue that the clauses could provide a solid foundation for protecting voting rights today and i want to ask you more specifically about those arguments soon. so let's preview what professor toll has called our attention to. in article 1, section 4, the time place and manner of holding elections for senators and representatives shall be prescribed by the legislature but congress may at any time make or alter such regulations except at the place of choosing and article 1, section 5, that
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said each house shall be the judge of elections. she talked about the guarantee of a republican form of government and then talked about the 14th amendment which has a little considered provision in section 2 which said that if any state denies the franchise then it loses representation in congress. so these are really important arguments and we're going to return to many of them in a moment. derek mueller, in your very important work, you've argued that deference to the states when it comes to elections is important. you note that the constitution doesn't create any federal right to vote. but leaves it up to the states to set voter qualifications and you say that that kind of diversity is appropriate and should be deferred to by the courts. tell us more about that argument and your reaction to what your colleagues have said. >> yeah.
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no, i think it is a fascinating structure that we have in the united states of federalism. and we talk about it sometimes, you think about it as the negative about whether it is the state or federal government that someone is not acting appropriately or exercising the authority in the right way, and there has been plenty of instances in american history where we could point owe that. -- to that. but the constitution default setting for that in elections is that the states are going to run them. the states pick the times and places and manner of holding elections unless congress steps in. the states get to choose the qualifications of eligible voters for the house of representatives and later after the 17th amendment for the senate but there is a floor in the constitution saying, states, when you establish the right to vote for your citizens for members of the house, it has to
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be the same as the right to vote for the for the citizens of the largest chamber in the state legislature, the notion being we're going to create this floor for the states and hopefully the thought is the states are going to enfranchise broadly and at the founding that was white property males who would have the franchise and it is broadened since then with fits and starts as alex pointed out. so the constitution structure sets this up in an interesting way. if we want to expand the qualifications of the electorate, the presumption is either it happens in the states and we have to amend the constitution and that is what happened with the 15th amendment to say essentially that we think that the freed man has the right to vote and be sure they'll not be deprived of any african-american in any of the states.
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and when it comes to the 19thamendment and women's suffrage, it is a slightly different story, right. because that is states that start this movement of enfranchising women out west as the lore tells it, it is a motive for the women to move out west and vote and participate in the elections so the women's suffrage movement, we celebrated it as 100 years this year but that is 100 years of the 19th amendment, and it was happening across the country and even today when we talk about non-citizens and whether they should vote, it is something that happened as alex points out in his book at points early in the history of the united states. today, there is actually a federal law that prohibits you from doing so. i think there are questions about the constitutionality, is that some that the federal government can do, under the immigration authority, i don't know.
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but there are a lot of states that have localities and school board elections and say we want non-citizens to vote. so when we think about what the right to vote means and we focus on a lot of the instances where states denied the right to vote to a number of individuals and we passed a constitutional amendment to ensure a authority for the federal government to intervene and set some minimum standards. but it is an interesting story to think about this overlap in relationship between the state and federal government when it comes to defining the right to vote and who should participate in our political system. show less text thank you for that. and for reminding us of this important and complicated relationship between the federal government and the states. which we will revisit throughout the conversation. if the chat box, edward sharpson says can we please take a minute or two to recognize the world of john lewis to protect voting rights. thank you so much for what i meant to do at the beginning of the program and jump right in. because of my enthusiasm.
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representative lewis, one of the great constitutional heroes of the 20th century and the expansion of voting rights in the century. the constitution center was honored in 2016 to award the liberty medal to representative lewis and it was so inspiring to hear him invoke the legacy of his mentor, dr. king, in inspiring his nonviolent protest at the pettus bridge which led to the voting rights act of 1965 and the shining example of his moral and constitutional vision is one that will live with all of us for many years. so just take a moment for all of us to recognize and celebrate his blessed memory. alex, with that in mind, what does representative lewis' achievements and those of the civil rights movement in passing the voting rights act of 1965, how did that transform voting rights in america and describe that period from 1965 to the present where it seems that the path the expansion of voting rights was still not steady and secure? well, i think that a place i
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like to start with talking about the voting rights act of 1965 is the point to which little known subtitle, it is called the voting rights act of 1965 and the subtitle is an act to enforce the 15th amendment to the u.s. constitution. it is -- it is a law to enforce a constitutional provision that existed already for a century. and in effect the path and that led to that was a path of activism and also a conclusion by congress by many other participants that the southern states by themselves were not
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going to really reform themselves with respect to african-americans suffrage and enforcement of the 15th amendment.this is the darker -- and enforcement of the 15th amendment. this is the darker side of what derek was talking about before, the autonomy of the states in some areas. even though constitutionally they ought to have been required to register and enfranchise african-americans. so the passage of the voting rights act which follows years of activism and the activism continues because just the passage of the law doesn't do it in itself.
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i think it is still very slow to get people registered to get things and get things enforced. but it was truly transformative of voting patterns in the south and then also in some other places. you have an entire economically critical and somewhat dependent class of people who have been disenfranchised who had no rights an rights and they gained power and that is an enormous shift. it is -- would barack obama have been elected president if there had not been the voting rights act of 1965. no. even just on the sheer numbers of who was enfranchised or not. so i think this is really a transformation. and as is often the case, in american history, issues that deal with race are problems that or problems that focus on race spill over into linked and analogous issues, for example lowering the voting age. which happened within a few years after voting rights act. the shortening of residence requirements. there is a whole package of franchise expansion that happened in about five or six
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years. and then they're extended to language minorities, largely the spanish speaking population but not only. and here again we're entering a period of large scale immigration in the 20th century. so i think to summarize this more succinctly than what i said so far, is that this has been a dramatic expansion in voting rights and that is followed by reaction which john lewis recognized, lived through. i mean, he saw it going on. by that point, he's in congress by the time the reaction is happening and he fights against it.
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he fights within congress after the court decides that the preclearance provisions of the voting rights act are unconstitutional. he fights to restore them. he saw the arc of what was happening. he saw that the victories that he and his colleagues had been involved with and as you often mentioned shed blood for, were being reversed and then you had to start fighting again. and i think he had a deep understanding that voting right and democratib rights were not something you achieved once and for all at a given moment and didn't have to protect thereafter. >> thank you. and was both illuminating. both assisting to and
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illuminating. you talked about representative lewis's efforts to respond politically and frenita, i would like to you ask about the judicial response. and first tell us more about the shelby county decision, david olson said in the question and answer box, from my understanding of shelby county the court said a main issue was the lack of updating which states and counties met the ness discrimination answer and in light of this would a simple reauthorization from congress be enough or would it avoid being struck down again and i was so struck in learning so much from your series of articles invoking different constitutional provisions protecting voting rights that you say might be invoked to protect voting rights today. i was so struck and learned so much from your series of articles invoking different constitutional provisions protecting voting rights that you say might be invoked to protect voting rights today even in the wake of shelby county. tell us about some of those provisions. prof. tolson: okay, so, wow, i'm
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trying to figure out where to start. [laughter] so i actually want to start, i want to piggy back on the john lewis question because i do think that it ties into what needs to be done. remarkable that he was not only one of the youngest speakers on the march on washington in 1963 and he continued to serve up to his death and that is highlighting how the struggle for voting rights is ongoing and it is not about reaching a peak and then stepping back. you have to be vigilant about protecting voters rights even after you achieve success and we are living in a period of retraction because there is a lot of voter disenfranchised so i think it highlights everything that john lewis was fighting for an part of the reason why he continued to fight is because i think the shelby county decision did not come out of the blue,
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right? it wasn't a decision that just happened in 2013. that was a 2009 decision called northwest austin where the supreme court warned us, they indicated that the preclearance forum was a problem. that it hadn't been updated since the 1970s. but i think to some extent, you know, and i'm not trying to sit here and criticize congress. yes, i am. i'm sitting here criticizing congress because they did have the opportunity to abate it and they did not. and scholared testified during the reauthorization hearings that the preclearance formula would be a problem. and it wasn't as if they couldn't update it. the jurisdictions that were covered, they did a good job of capturing the problematic jurss because after shelby county was decided, states like texas and mississippi and alabama all took steps to further disenfranchise
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and suppress the vote. it wasn't rocket science. this is based on a historical understanding of what the jurisdictions do. so it was a problem. and the supreme court was not willing to read congressional power very broadly. they were coming from a baseline as it points out our system is one in which the states traditionally regulate elections. if that is your baseline then federal power seems exceptional and if it is exceptional then congress needs to justify any acts that intrude on the power of the state. i think a lot of my work tries to challenge that narrative. so one thing i don't do, i don't argue that there is a federal right to vote in a traditional sense. there is a right that the constitution is not explicit in saying there is a right to vote. a lot of this happens i influence. this happens with the court coming in and saying, look, we're going to read the 14thamendment, equal protection clause broad enough to say there is a right to vote but any time you have a situation like that,
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what the court creates they could take away. so that is why it is important to have things in the text instead of relying on the courts. but because the court is taking the lead in shaping the jurisprudence around the right to vote and there is a question about what congress could do. how do we reauthorize the voting rights act in what they have laid out in shelby county and i think it is very difficult. my reading of the tea leaves is the court was committed in striking it down. they want to return to the world in which the states take a lead on all of this. but to do so requires a bit of sticking your head in the sand. you sort of have to ignore the fact that there is still racial discrimination in voting. race, as alex points out, bleeds into other things. are and partisanship heavily intertwined in our system now. and so there is a partisan incentive to disenfranchise certain groups. so it is very difficult to think
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of a formula that would be consistent with what the court is looking for in shelby county unless we look beyond the 14th and 15th amendment. part of my book project is to try to highlight that congress has pretty comprehensive authority to intervene when is a problem. and it doesn't just stop with the 14th and 15th amendments. so one of the arguments i made around the shelby county decision is that the elections clause is a source of authority here. and if you look at congressional power in the aggregate, so congress's power, so states could set the manner and time of the election but congress could alter and make its own regulations and in conjunction with the 14th and 15th amendment. that is a much broader authority than just looking at the 14th or 15th amendment. and let me explain practical implications of that and then i will wrap up. if you just focus on the 14th and the 15th amendment, the court is looking for intended discrimination on the basis of
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race and looking for a pattern that they found when they looked at the legislative record behind the 2006 reauthorization. the chief justice was clear there wasn't the same pattern of discrimination that existed back in 1965. at the time that they reauthorized the voting rights act. but if you look beyond the 14th and 15th amendments, it does not require a pattern of racial discrimination. and so even if the court is still looking for a legislative record, that gives congress more room to legislative because they have additional provisions that they could rely on that don't require the same pattern of pattern of discrimination as the 14th and 15th amendments and that makes a real difference in terms of what congress could do to protect the right to vote. mr. rosen: thank you so much for that. it is such an important argument that the elections clause, which doesn't require intentional discrimination, might be broader protection and i really urge viewers to read and learn from your other articles which note that there are other provisions
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of the constitution including section 2 of the 14th amendment that might protect against disenfranchisement. phenomenal questions from the audience. julia asks, with the bipartisanion of the voting rights in the senate this week, a bill with 46 co-sponsors named after john lewis, that the congressman fought so mightily for throughout his life, what are the chances this might pass in the senate and that leads to the important question, is this purely a partisan issue, the voting rights advancement act has democratic cosponsors and and noependents republicans. because it is viewed as not in republican partisan interest or are there principaled objections to it and i want to hear arguments on behalf of the shelby county case for the
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majority, which i think you've defended, why do you think the court was correct to strike down the preclearance decision and what, if anything, do you think the states could do, constitutionally to restore those protections? >> well a lot to get. let me start with the late representative john lewis. i think if you and the audience have not seen some of the video footage of that march in 1965 where a very young john lewis at the front of the line in a peaceful march and watching alabama state troopers firing tear gas and beating him, it is a miracle that he's alive, much less what it means to sort of stand up and think about voting rights in a very different era. and i think the voting rights act of 1965 did tremendous work. it took efforts from congress to do it. it took a march. it took deaths and beatings for congress to sort of the attention that,
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-- to sort of get the attention that, you know what, there are some real problems in portions of this country. and so the voting rights act of 1965 went a long way in enfranchising tremendous numbers of african-american voters who had previously been disenfranchised and so it requires congressional will, right. so when we talk about today about congress's intent or motivation, that is something to figure out. is it partisan in nature or is it something more sinister? frenita was talking about the relationship between race and party, in 1965 there was one party in the south, it was the democratic party essentially. so a lot of the fights about white and black voters were essentially intra-party feuds and that has shifted in the sense that we now have a lot of partisan polarization, so that has changed a lot of the dynamics in how we view the relationship between race and
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party and the right to vote. i think about the voting rights act that alex points out there were provisions that changed things like residency requirements. while the supreme court said literacy tests that are fairly administered are constitutional, we in congress think there is a good record that literacy tests are not being fairly administered, but in a way that is designed to suppress black voters. so congress again sort of steps up to the plate and makes these shorts of decisions. so the voting rights advancement act, the proposal out of the house and now in the senate, tries to cure some of the things that frenita identified and things that the court identified as a problem in shelby county. the formula had not been activated by the court since 1975 and this was supposed to extend in the 2030s and for the court to sit there and say for congress has done its homework and it just seems like it is the path of
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least resistance for congress. why update and change something. you're starting to make new political enemies. so the advancement act, at least, it address those precise concerns from the court and say it is a dynamic formula. one that looks at past, recent past actions of states or municipalities or localities to say if you have been found to engage in intentional racial discrimination when it comes to voting rights, you will be subject to this provision when you have to seek preclearance of your laws. we want to provide notice to the people about changes to the law. and things like providing note is, there are the advancement i think within the 14th, 15thamendment power that are
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squarely within the election clause of power to step in and say and we want to talk about the time and place and manner of holding elections and how it will look, states. you can't change your laws too close to election day and you have notify people and publicize changes to the election law and stuff like that. but it requires sort of political will, congressional will in congress. and for whatever reason whether it is partisanship or polarization, whatever it might be, it is a dicey proposition to figure out whether or not congress is going to unify as it has in the past on a bipartisan basis to enact some of the voting-related reforms. it was difficult even to -- for congress to agree on funding for states in the time of the coronavirus, right. it took a little bit of muscle for that to happen in congress. whether or not more rebust things happen ahead of the 2020 election i think is a dicey proposition. fire congress, in other words. fire congress. fascinating. well the question and answer box is on fire. there are so many
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phenomenal questions. but -- not but, and among them we have to talk about the role of the elect -- the role of the electoral college. and your book coming out asks why do we still have the electal college and the late justice scalia who pointed out there is no right to vote guaranteed in the u.s. constitution and the framers both of the electoral college and the revisions to it after the election of 1800 didn't anticipate a winner-take-all system for the distribution of electoral votes and preferred a district system but that is not the way things turned out and finally we have had a great program on the electoral college with jesse wegman who had a new book out, also and he noted that congress came within a few votes of proposing an amendment that would have adopted a popular
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vote in the 1970s, proposed by birch bond and endorsed by both political parties -- president nixon and democrats but it was democrats in the south who killed it. so what can we expect from your new book and why do we still have an electoral college? i've been a little the devil viled by the title i gave to the book. because i'm finding that people sort of turn to me and say so why do we have it. i'm supposed to come up with a two-sentence answer and to which i end up saying if i could have said it in two sentences, i wouldn't have written the book. but there is for this, there are several things i would like to make clear as takeaway. one, is people should know there have been very large-scale efforts to modify or get rid of the college in its various pieces. we forget there are a lot of
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different pieces of this system. and i'll say a little bit more about that. but there are large scale efforts since the early 19th century. more introduced into congress on this subject than on any other subject in u.s. history. and there have been several occasions when we came very close to altering the system. you mentioned the 1969 and 1970 which was the national popular vote. but equally so, between 1816 and 1822, and in 1821 the senate approves by two-thirds a constitutional amendment to require district elections for the electorate and in the house votes shortt a few of the two-thirds needed. so one thing that we should note, this has long been a problem. in terms of what has prevented, there is not a single factor at all times but let me mention three. one, is the complexity of the institution itself. for example, it includes this whole contingent election system. what
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happens if nobody wins a majority of the electoral vote. that is still part of the constitution. the answer is it goes to the house and each state delegation gets one vote. in the 19th century, people thought that would be used a lot. and you couldn't reform the rest of the electoral college without reforming that and that remains true today. there are a lot of different features including the fact that going back to justice scalia's quotation, but the constitution leaves it to the states to decide the manner in which electors will be chosen so they could do winner take all or by district. could they take that dimension away. the second factor is partisanship. the partisan interest and this is almost always true with electoral systems, once you have an electoral system in place, partisan interest form around it. people want to defend their own interest and if they that i that there is a change in the system
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might hurt them they'll tend to oppose it. that doesn't always happen. there have been a lot of principled players in congress and elsewhere who thought that a national popular vote was a better system. but partisan interestsbut partisan do insert themselves frequently. but the last point i want to make sure is that, and i think probably what is the point that is most frequently noted about the book is two part. one, the conventional wisdom that electoral college reform has been blocked by the small states is simply not true. it's simply not true. it is a plausible argument because the small states do get slightly disproportionate quantity of electoral votes but historically that has not really played a role. and we can talk about that if i -- if anyone wishes to. on the other hand, i think that
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probably the single most important factor in preserving the electoral college since the 1870s, 1880s, which means we're talking a good 140 years now, the single most important factor for a lot of that period was the desire of the white south and after reconstruction, the white supremacist regimes of the south to retain the electoral college because it give them power in presidential elections and influence in national politics. why was that the case? again, i'll try to be brief. we all know about the three-fifths clause before the civil war, where southern states got representation in congress and electorate votes were -- electorate votes for three-fifths of the slaves. by the 1890s, after the white
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supremacist regimes return to power and disenfranchised african-americans, there was in effect a five-fifths clause that operated for the benefit of the south. african-americans accounted 100% toward representation and electorate votes but they still couldn't vote. the white south wanted to preserve that system and it sort of kept the idea of a national popular vote off the table for decades and decades and that you eluded to before, in the end in 1969 and 1970 when we came close national popular vote. it was southern segregationist senators who led the opposition. >> thank you for that all and we very much look forward to your
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new book. we put a link to it in the chat box -- why do we still have the electoral college? greg has put in the q&a box a link for a national popular rank choice vote constitutional amendment in practice that will face an uphill battle because it is hard to pass constitutional amendments. an alternative is the national popular vote interstate compact. frenita tollson, tell us about that contact, that compact, do you support it, might it pass and would it be consistent with the constitution? prof. tolson: so, the national popular vote initiative is a compact amongst states who pledged that they're electoral college votes will go to the winner of the popular vote. the national popular vote. and so right now i think there are 16 states that are signed on for a total of 196 electoral votes so the compact will go into effect when they reach 270 which is what is necessary to win the presidency. it in theory. i sort of recognize that the
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electoral college is a problem to think difficult about changing the structure of the constitution by statute or by compact and that is the struggle that i have. because the electoral college is there. and so really for me the question is can we come up with a statutory alternative or work-around that negates part of the constitution in some ways. right. because on one hand i look at article 2 which gives states control over how they allocate their electors. one might say this is within the text of the constitution. states are deciding to join this compact and that is a way of determining how they will -- how they will award their electors. but on the other hand they're also holding an election. so it is conceivable that a state could have an election, you could have candidate a win the candidate b gets
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the electoral votes because they have won the national vote. and so for me, if bush versus gore taught us anything, now bush versus gore was the decision following the 2000 election that recounted florida and part of the reasoning of the case is that the failure to set recount standards was a post election change. it violated the equal protection clause. and so if the supreme court viewed the national property vote initiative and the bossibility of candidate winning electoral votes in which candidate a won the popular vote in that state, that is a possible post election change. so i don't think the supreme court is currently constituted with upholding the national popular vote initiative even if in theory it is a good idea. i'm leery about the idea of changing the structure of the constitution through a statue. thank you very much for that. derek, similar question to you
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picking up on michelle green's question about please address this issue. do you think it is constitutional? do you think it is a good idea? the constitutionality question is tricky as has been pointed out. there's implied, sort of structural concerns that we have. i think one more express concern is that there's a provision of the constitution called the compact clause, which is no state shall enter into any compact with each other without the consent of congress, so at the very least i think congress would have to consent to any agreement like this. even if congress consents, can you essentially sort of transform this system, where you are sort of having all these different states doing different things and throwing their votes into one big bucket? on the good
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idea/bad idea, in my opinion whether or not you think the electoral college is a good or bad idea, in my view the popular vote has a few problems. one of these core things i mentioned is we presume the states sort of pick voter qualifications, right? in all 50 states, the voter qualifications are a bit different. when we think about those who have committed a felony and whether or not they're eligible to vote. in maine and in vermont, incarcerated felons can vote and they cannot do that anywhere else in the country. there's a bill in the district of columbia to authorize them to do so. so when you think about now, anyone 18 and up votes, that's in the constitution, but there have been fits and starts in some cases about reducing the voting age. we think about mental capacity, non-citizens if you throw everything into one bucket congress is not defining that one bucket, right? when we think about who is on the ballot, we all know donald trump and joe biden will be on the ballot. kanye west will be on the ballot
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in at least one state, we think, right? it's strange to have a national election that's still being run on a state-by-state basis. in my view, if we're going to reform the electoral college, the kind of thing that was proposed in 1970, it really has to be a constitutional amendment. it has to be a constitutional amendment that defines uniform set of voting qualifications that expressly empowers congress to provide some of that uniformity, and that anticipates some of these problems that can arise based upon, again, the implied structure of how we handle these constitutional provisions, pertaining to presidential elections. so in my view, even whether or not you think it's a good or bad thing, i think the national popular vote falls short of the kinds of things we want to we want to work -- we want to reform in our presidential
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election. thank you for all of that. well, this is the last round -- there's so many phenomenal questions, so i will pose a couple to each of you for closing statements, and bring all these trends together as you think best. david, it was asked, can you discuss the florida constitutional amendment to granting a right to vote by convicted felons? and the requires is they pay the court costs. that relates to a question about commenting on the recent supreme court decision leaving in place a stay that the voting restrictions in florida on ex-felons were unconstitutional and also picks up on derek's recent statement that currently only maine and -- allow felons to vote. so it's about granting a right to vote to convicted felons, the supreme court's refusal to hear it, and the others that you think are worth noting in your closing thoughts?
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to override the efforts of what had been a multiyear popular effort to allow convicted felons to have their rights restored after they had served their sentences. that is not the maine and vermont model. it is to eliminate permanent and lifetime disenfranchisement which had in effect been florida law. there was an extraordinary popular movement to overturn that. it worked, and then the legislature turned around and said you have to pay all your court fees and your fines. if you don't pay that and you vote,
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that's a felony against so you will be put into jail. but meanwhile, we actually can't tell you how much money you owe, because we don't have a record of the fines and the court fees. i found it very disturbing that the supreme court said, at least for this election cycle, that stay, in effect preventing hundreds of thousands from on -- preventing hundreds of thousands of people from voting and that the supreme court upheld that. it has also, and i think derek and anita are closer anita are closer students than i am, but it seems to fit with a recent -- drift may be too mild of a word -- on decisions of the supreme court to weigh in on the side of sanctioning obstacles to voting, rather than supporting efforts
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to make it easier for people to vote. >> thank you for all of that. franita, we have a lot of questions about recent cases arising out of the covid crisis. the supreme court has weighed in on some of these cases, in wisconsin where the court invoked something called the purcell principle, to say that courts should generally be reluctant to impose new voting requirements at the last minute. how might that play out in controversies, and what kind of cases are you watching most closely? prof. tolson: we are going to see a a lot of this. i think right now there's covid litigation bending in like 38,
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39 states. so the road between here and november will be peppered with these decisions, where you see -- and i hope i'm wrong about this, but i suspect the supreme court will hold the line and not be very protective of the right to vote despite the circumstances? i know at the end of the most recent term, there was a few stories about whether or not the court had drifted more towards the center after this past term. if you look at the voting rights cases, that is not true. this is still a right-leaning court, still a court that's not been protective of the right to vote, and in fact some of the decisions they have made with respect to the covid-related litigation has proven that point. the rnc versus dnc decision, which came out of wisconsin, and sort of last-minute efforts by the governor to sort of close the polls, and then you had people who had filed the paperwork to get absentee ballots, did not
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receive them, and they were forced to go to the polls on election day. you had the partisan wrangling between the governor and state legislature. it was an absolute nightmare. so the supreme court did not seem very sympathetic to any of that, right? so at least in my mind you should at least think about the poor souls trying to do the right thing, right? they filed their paperwork to get the absentee ballot on time, did not receive it. the district court tried to accommodate that, the supreme court stopped that effort from happening. so one of the things that struck me about the language in that opinion, which is why i feel comfortable sort of predicting the supreme court will not be sympathetic to covid-related claims moving forward, is that the courts seemed to apply the purcell principle, the idea that you should not have last-minute penalty change without any text. it did not matter to the court that we are in the middle of a
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once-in-a-lifetime global pandemic. hey, this is an election, and they pretend like this is an election like any other election and it's not. you can imagine an opposite story, giving district courts the remedial power to accommodate voters who experience difficulties through no fault of their own. that is not the opinion that the court wrote. instead, the cord wrote court wrote an opinion that assume this is an election, so we have to play by normal rules, even though we're in a once in a lifetime situation. as long as that's the court's posture, i wouldn't anticipate any decisions moving forward would be favorable to voting rights. and one other point about the florida litigation? i cannot emphasize enough how disappointing the supreme court's decision is, in light of the fact that as alex points out, a lot of people don't know how much they owe. not only do they not know, the state doesn't know, right? so
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when you think about that, and think about how the law operates, given that reality, it does function as a poll tax. it would take an additional 21 workers in order to handle the influx of people coming in trying to register to vote, how much they owe, to basically comply with the state legislature law. the state legislature made zero efforts in order to hire that number of people, right? so this is clearly a situation in which the state legislature had some ulterior motive in passing this law. when the state does not have the information on how much people and they refuse to hire the number of workers to actually implement the law, that tells us it's about something else and the supreme court completely ignored that.
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thank you for all of that. friends, i was reminded from alex's book, the origin of poll tax, but it's a head tax, a tax that each individual pays, and of course it was the -- the -- 24th amendment that abolished poll taxes and said the right to vote shall not be abridged by a failure to pay taxes. derek, it falls to you to have the last word in this incredibly rich discussion. i would love our viewers to hear a defense, if you are inclined to make it, of the courts' decisions, both in the wisconsin absentee ballot case and the florida case. broadly you argued in favor of judicial deference to the states and against courts changing rules, but bring whatever trends together you like, and tell us
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why it is a constitutional matter the supreme court in some of these cases has been correct. it is hard on a constitutional level. this is really kind of a wonkey in the best sense of the word, a power federal courts, a bit of article iii power with the fiduciary, -- judiciary and they're all kind of cropping up in the same emergency posture. these are emergency applications to the supreme court on an extremely short timeline. they're not argued before the court. there's not the parties filing all their briefs. it's rapid-fire stuff and the court is coming out with a best guess of handling the status quo right now. a lot of people
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frustrated with that and especially with covid-19 there's a lot of changing circumstances, and maybe the court should not be looking at something like the purcell principle in the same way. in 2014, there was a spate of litigation, in some places there is a voter id that the court says shouldn't apply. sort they go into effect. we see the court saying time and again we're just not going to change whatever has been the status quo. sometimes that definition is a little bit fluid in the court's eyes, but i think it also emphasizes a point that's come up time and again, which is that it's not going to be the federal judiciary that would be the one to solve all of your problems. it will have to be solutions at the state level. if there are problems with the polling places on election day, the hours of the polls plateses, you know, whether or not effective social distancing
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requirements are in place, those are things that have to happen at the legislative level. while litigation might be successful in a two, three-year window for a lot of these challenges, ahead of 2020 is a difficult thing for a lot of litigants to win and that shifts things back to the political process. >> thank you all for a really rich, substantive and diverse discussion of these crucially important constitutional questions involving voting rights. friends, thank you for taking an hour in the middle of the day to educate yourself about the constitution. there's so much more learning to do. what i would love for you to do if you're so inspired, go to the constitution center's interactive constitution and real the best liberal and conservative scholars describing agreement and disagreement about all of the clauses we discussed. article one, sections four and five. and more. check out our podcast, we the
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people, where every week we bring together brilliant scholars to discuss the constitutional issues in the news, and most of all continue to read and educate yourself about the constitution. i want stiegy thompson group for making this program responsible we look forward to seeing you on august 4th for our for our supreme court review. franita, and
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