We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 52, in which Slate’s Dahlia Lithwick talks to lawyer Subodh Chandra about the 2013 Supreme Court case Shelby County v. Holder.
In 2013, the Supreme Court ruled 5–4 that Section 4 of the Voting Rights Act was unconstitutional. Following the case, multiple states amended their voting laws in ways that disproportionately harmed minorities. This week, lawyers filed an emergency motion with the Supreme Court, asking for a suspension of post-Shelby voting restrictions in Ohio. Chandra was one of those lawyers, and he joins Dahlia on the podcast to explain.
Then, Dahlia is joined by Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice. What does Wendy think of Donald Trump’s comments about rigged elections, and why are these seemingly flippant comments more dangerous than they sound? And what are people like Weiser doing to improve how we vote in the United States?
This transcript has been edited for length and clarity. To learn more about Amicus, click here.
Dahlia Lithwick: Welcome to Amicus, Slate’s Supreme Court podcast. I am Dahlia Lithwick. And I cover the courts for Slate. Another week, another seven days of inaction by the US Senate on the Supreme Court nomination of Judge Merrick Garland. This Saturday marks 227th day since President Obama tapped Judge Garland for that vacancy on the Supreme Court bench.
But in case you’ve been holding your breath, you should probably let it out after 227 days, because since you and I last chatted, Senator John McCain of Arizona promised that, “We will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put out.” Now, his campaign quickly walked that back and Arizona’s other senator, Jeff Flake, followed up last week by telling Politico that he was encouraging his colleagues to move forward with hearings in a lame duck session.
Taking an affirmative position somewhere in between his two colleagues, Senate Judiciary Chairman, Chuck Grassley, announced that if Clinton becomes president, he would not “stonewall” any person she nominates for the vacancy on the Court. He said, “I think we have a responsibility to very definitely vet, if you want to use that word vet, whoever nominee that person puts forward.”
Confused? Well, so are we. But we suspect there will be many, many more opportunities to be confused about all of this in the near future. So we thought we would dedicate this week’s podcast to that little thing on everyone’s mind called voting. We don’t just mean the election. We mean that right to go to the polls and pull the lever for your preferred candidate. Later on in the show, we’re going to be joined by the Brennan Center’s Wendy Weiser to consider the impact of Donald Trump’s ominous warnings about vote fraud. But first, we turn to a major voting rights case out of Ohio. This case centers on voting regulations passed in the wake of Shelby County.
That was the 2013 Supreme Court decision that more or less gutted the heart of the Voting Rights Act. And the case has been working its way up through the court system there, even as the clock has been ticking down to Election Day. Earlier this week, the lawyers challenging the regulations filed an emergency motion with the US Supreme Court, asking that the regulations be put on hold for this election. Joining us now from Cleveland is one of those lawyers, Subodh Chandra, of Chandra Law Firm, LLC.
He represents two homeless advocacy groups that teamed up with the Ohio Democratic Party to bring this challenge. So, Subodh, welcome to Amicus.
Subodh Chandra: Thanks so much for having me on, Dahlia.
Lithwick: Tell us a little bit about this case. This is sort of an 11th hour pitch to get a decision from the Sixth Circuit, revisited at the Supreme Court. But can you tell us just to set the table what is it that Ohio did in 2014 that brought you to the doorstep of the Supreme Court in 2016?
Chandra: Sure, but first just a little bit of background. We all remember that in 2008 and 2012 we had unprecedented African American turnout nationwide for the election of President Obama and reelection of President Obama. And in particular, African Americans were taking advantage of early in-person voting, especially on Sundays, where people would attend church and in a communal spirit they would come the Boards of Elections around Ohio, for example, and vote together.
And this was an incredible thing. I was involved in organizing that program here in Ohio in 2008. And in reaction to that, the Ohio General Assembly then started adopting the most Draconian voter restrictions you could ever imagine. And they did that in a bill called House Bill 194 that was a piece of omnibus legislation that included a huge number of restrictions of all kinds.
Voters rebelled and put an initiative on the ballot to repeal it. The General Assembly then repealed it on their own and then started adopting lots of restrictions piecemeal in a manner that would make it harder for voters to pull it back. And those are the bills at issue. Some of the bills at issue here are Senate Bill 205 and 216 regarding absentee and provisional ballots respectively. And what they do is create a five field requirement that when you’re filling out an absentee ballot envelope, the envelope that you put your absentee ballot in, or fill out a provisional ballot because the Board is uncertain about your eligibility, that you have to fill out five fields of information—your name, your address, your birth date, the form of ID you used, and your signature. But you have to do it flawlessly, without any error or omission. Regardless of whether the Board is already convinced of your identity. And if you make even the slightest trivial error or omission, that’s it. You’re done. You’re disenfranchised. That’s what’s at issue. It’s this elevation of form over substance, and it’s the State of Ohio very deliberately and calculatingly disenfranchising thousands of voters that they know to be eligible based upon a gotcha of minor errors or omissions.
Lithwick: I’m thinking that there are listeners who are saying, hey, this isn’t burdensome on any minority group.
This doesn’t appear to be targeting anyone other than people who make mistakes. So why is it that the Ohio Democratic Party and the advocates for the homeless feel that this is singling out certain types of voters to raise a different sort of standard for their ballots?
Chandra: Well, I represent the Northeast Ohio Coalition for the Homeless and the Columbus Coalition for the Homeless. And what the homeless coalition’s testimony showed, the representatives of the homeless coalition who have lots of experience in dealing with homeless populations, is that these particular statutes have a disproportionate impact upon minority folks, homeless folks, people who are uneducated, people who have literacy issues, people who have mental illnesses.
And so it does have the effect of disparately impacting those populations. That evidence wasn’t just the testimony of individuals who engage with these populations, but also experts who were able to look at data surrounding absentee voting and provisional voting and see that based on usage of absentee votes, usage of provisional votes, the fact of the early absentee voting, that there was going to be a disproportionate impact on minorities.
Even though it was the subject of dispute, you had the trial court after a 12-day trial, after hearing all of this testimony, making fact-findings that, in fact, there would be a disparate impact upon minority, homeless, and illiterate voters.
Lithwick: So here’s where I have to ask you the question that I know you’ve been asked a thousand times, but what’s wrong with making sure that there’s no vote fraud, Subodh? What’s wrong with making sure that people are who they really say they are? And know how to spell their names and put down their addresses?
Chandra: Well, of course there’s nothing wrong with that.
And that’s really not even an issue in the case. As to the issue of fraud, even the Secretary of State’s top deputy, Matt Damschroder, in his testimony at trial admitted that fraud couldn’t possibly be a rationale for this statute, because again, what is at issue is disenfranchising voters that the Boards themselves acknowledge to be eligible. Not those that they’re uncertain about.
In other words, they’re just looking at the minor errors or omissions. Say somebody didn’t fill out a zip code, but they filled everything else out correctly. The Board knows who they are. Boom. They’re disenfranchised over that trivial error or omission. So, Mr. Damschroder on behalf of the Republican Secretary of State, John Husted, admitted that voter fraud has nothing to do with the rationale for this statute.
And, in fact, the sponsors themselves never really proffered that as a reason, although they’re used to throwing that around, because it really is irrelevant to this statute. Now, what the statutes could be useful for is the issue of identifying voters, being sure that they’re properly registered. And, you know what, under those circumstances we don’t have any issue with asking for the information. We don’t have any issue with gathering the information. The issue is what’s the consequence of a trivial error or omission?
Should it result in disenfranchisement of voters that the state knows to be eligible? And under those circumstances, you would think that most reasonable people would say, no, that’s not a good idea. And yet that’s what’s happening. I’ll give you one quick example. One of the things that the Secretary of State’s representatives said at trial to my astonishment was he acknowledged that it is the state’s position that where a provisional ballot form says Print Name as the first field, if Dahlia Lithwick happens to lick her calligraphy pen and writes her name, legibly, in letters that they perceive to be cursive, Secretary of State Husted’s position is you should be disenfranchised, even though I asked him wouldn’t you agree that the purpose of that field is to learn your name.
If the field’s function has been fulfilled, why would you disenfranchise that person? He said that’s their position. I said, do you think that’s fair? He said, yes, they think it’s fair. So it’s this elevation of form over substance that runs contrary to the Voting Rights Act, runs contrary to the notion that minor errors or omissions, which is one of the clauses in the Civil Rights Act of 1964 regarding voting, one of the few clauses regarding voting, that all of those concepts are totally contrary to that provision as well.
Lithwick: Now, you mention that you win in the trial court and then you go ahead to a three-judge panel at the 6th Circuit Court of Appeals, and they ruled 2-1 against you.
And this is kind of an outlier, right, because this summer we saw a slew of wins in voting rights cases coming out North Carolina, and Wisconsin, and Kansas, where courts where courts were willing to sort of pierce the fiction of “Oh no, we’re just trying to solve this innocuous problem. This isn’t about race. Uh-uh.” And your court is not willing to do that at the 6th Circuit.
I mean, is this just a sort of political it depends on the composition of the courts, or did you have a harder case to prove?
Chandra: Well, unfortunately, from where our clients, the homeless coalition sit, it looks political to them. And I’ll tell you why. The trial court did a 12-day trial and made detailed fact findings about disparate racial impact, about the impact on homeless voters.
There was lots of testimony to support the trial court’s fact-finding. And we go to the Court of Appeals, and we were actually somewhat optimistic at oral argument because at oral argument one of the judges who eventually went into the panel majority that stripped away most of what we achieved actually did ask the question at oral argument of the State, very skeptically, “Does it even have a rational basis?” Which, of course, as lawyers know, I mean, my goodness, if they don’t even think it’s a rational, I’m in good shape here.
So, we really were somewhat optimistic when we left argument. And the Court did something, the panel majority did something that no party asked for, which is to differentiate between absentee ballots and provisional ballots. And then to differentiate further among the fields on the absentee ballots. And so what the Court did was say, “Well, for a couple of those fields, we’re not going to let you play gotcha as to birth date, or address. But you can play gotcha as to everything else, apparently.”
And on provisional ballots, even the slightest error or omission will result in disenfranchisement. Now, that’s a terrible thing, particularly for minority voters because as most people might probably guess many of the provisional voters are African American or Hispanic. It just happens to be a fact of life that you have more geographical mobile people, you have less certainty about proper voter registration status. And as a result, provisional ballots tend to be disproportionately minority.
Now, the panel justified this by saying, “Well, the State is telling us that the provisional ballot form also doubles as a voter registration form, therefore it should be complete. And isn’t that a wonderful thing? So, we’re going to go ahead and buy into the State’s excuses here.” But think about this. That makes no sense whatsoever. As we’ve said all along, we don’t have a problem with you asking for the information. And we think it’s great that that provisional ballot form also doubles as a voter registration form for people who are not actually registered.
But how does that justify disenfranchising people that the State knows to be registered, acknowledges are registered, and there is no doubt that they’re registered. It doesn’t justify it by any way, shape, or form. And yet that’s what’s happening in Ohio. Thousands of people in 2014 and 2015, which were low turnout elections, lost their right to vote. Lost their right of franchise. And in 2016, we can expect that to be many, many more.
Not only because it’s a presidential election, Dahlia, but also because of the voter purging case in which the Secretary of State improperly purged hundreds of thousands of Ohioans from the polls. Federal Court said so. And now they’re being given the opportunity to vote provisionally, but then these requirements are going to be superimposed on them. And so thousands more will be disenfranchised as a result.
Lithwick: This brings me inexorably to Judge Damon Keith who says, “Look, at the end of the day, this is about race.” And in an extraordinary dissent, this 94-year-old judge puts forth in a dissent stuff I’ve never seen before, including grainy photographs, to sort of say this is really about race.
Can you talk a little bit about that dissent?
Chandra: It truly is one of the most extraordinary dissents I’ve ever read, and I would commend it to anyone. Your colleague, Mark Joseph Stern, did a terrific piece at Slate about this. And people can find the link to the dissent through that article if they just search for Slate and Judge Damon Keith.
The dissent for many pages first put what is happening in Ohio in context. And that’s important. These voter restrictions don’t happen in a vacuum. And Judge Keith himself recognized that in the arc of history what we see happen is action and reaction. And there are three steps forward in voting rights and civil rights, and then there’s a push backward. And so what Judge Keith was pointing out was that first of all there are many, many martyrs who died for the right to vote.
And he had page after page after page of photographs of these civil right martyrs.
Lithwick: Emmett Till and—
Chandra: Emmett Till. Dr. King. And so many others.
And then he said the election of Barack Obama caused a reaction. And that’s exactly what we see happening here in the facts. A reaction by the General Assembly to that. Not only did they impose these severe voting restrictions, this perfect from requirement if you will, but also they cut back on early voting when they saw African Americans successfully voting on Sundays communally. What did they cut back? Sunday voting.
And Secretary Husted and the General Assembly were behind that. They got in trouble over that, again, in the federal courts, for their efforts to target black voters.
Lithwick: So, you have hustled this. The 6th Circuit declined to hear it again en banc, and so you have hustled it up this week to the US Supreme Court, which in case any of my listeners have been on Mars is a 4-4 court on a lot of these issues. What does that tell you, if anything, but about how the Court can get involved this time?
Chandra: We have our fingers crossed and we’re hoping that somehow the partisan gridlock that is afflicting the Congress and the Presidency and the rest of the country will somehow not be afflicting the Supreme Court in this case.
Before we get to that, I should mention one thing, because you mentioned the effort to ask the en banc 6th Circuit to review this. The other extraordinary thing that happened, Dahlia, is that Judge Keith, of course, reiterated his dissent, his prior dissent. But then you also had two other African American judges of the 6th Circuit write their own separate dissents, again speaking to the history, and placing what’s happening in Ohio in context.
And you had Judge Alice Batchelder decline to recuse. The plaintiffs had asked that she recuse herself because her husband, Bill Batchelder, had been the Ohio House Speaker who had shepherded these pieces of legislation into law. He had cosponsored one of them. He had voted for both of them. And, of course, they would have never seen the light of day if he hadn’t been behind them. And he was, as were his colleagues, being accused of intentional discrimination among other things, disparate impact, and other things in the case.
Never the less, she declined to recuse and participated in the en banc process. So, now we’re at the Supreme Court and we’re hoping that that fact, along with the overall circumstances, and the fact that you have hundreds of thousands of voters now voting provisionally who should never have been voting provisionally to begin with, and are going to be subject to this perfect form requirement, we hope that that’s enough to cause the Supreme Court to say we need to at least stay the panel majority’s decision for the purposes of the 2016 presidential election to give us time to seek cert and to get a full court review.
Lithwick: Subodh Chandra is a civil rights attorney and the founding and managing partner of the Chandra Law Firm, LLC.
And he never writes his name in calligraphy. Subodh, thank you so, so much for joining us this week on Amicus.
Chandra: Thank you very much, Dahlia.
Lithwick: Starting last summer, but ramping up notably after the first debate with Hillary Clinton, we began to hear a particularly ominous message from presidential candidate Donald Trump. Here he is, for instance, earlier this month on the campaign trail in Pennsylvania.
Donald Trump: You’ve got to go out and you’ve got to get your friends. And you’ve got to get everybody you know. And you got to watch your polling booths, because I hear too many stories about Pennsylvania. Certain areas.
I hear too many bad stories and we can’t lose an election because you know what I’m talking about. So, go and vote, and then go check out areas. Because a lot of bad things happen. And we don’t want to lose for that reason.
Lithwick: Now, that sounded to a lot of people like Donald Trump was telling his supporters to get out there and intimidate voters in Democratic strongholds. And among the many people who quickly took to the airwaves to denounce that message was one somewhat unlike suspect. That’s Ohio Secretary of State John Husted.
The same John Husted who phased in the voting regulations we just heard about in Ohio. He says he’s planning on voting for Trump, but this might be a bridge too far. Here he is on NPR’s Morning Edition last week.
John Husted: In Ohio, we pride ourselves in making our state a place where it’s easy to vote and hard to cheat. I want to reassure Donald Trump as a Republican that this is not happening across the country. He actually may have heard reports of it, but we need facts, and right now there are no facts that support his claims.
Lithwick: Well, joining us now with a few claims that she can back up with facts is Wendy Weiser.
Wendy directs the Democracy Program at the Brennan Center for Justice, a non-partisan think tank at NYU School of Law. She’s been writing about voting and thinking about elections for an awfully long time. So, Wendy, first of all, welcome to the show.
Wendy Weiser: Thank you for having me.
Lithwick: I have to start by asking you a question that I’ve always wanted to ask you, Wendy. And I’ve known you a long time. Does it drive you nuts that we only talk about these issues for two months ever for two years? Do you wish that we would fix some of the things that are broken in boring years, and not right before an election happens?
I think that a real good time to fix some of the problems with our election system is right after an election, when people really are focused on the problems they’ve seen, the fears that they had, and it’s the time to act where people could come together and say, all right, let’s fix this so we don’t argue about this next time. Unfortunately, what we’ve often seen in those off quiet years when people aren’t looking are efforts to pass laws that aren’t so good for voters that otherwise are discriminatory or make it harder for people to access the vote.
Lithwick: So, the Brennan Center has been producing reams and reams of published material in the last couple of weeks, sort of warning and cautioning about all sorts of things that might go wrong, that could go wrong, that have gone wrong.
And I guess I just want to know, should we be freaking out right now? Is this entire just going to be flaming torches in the streets and crazy people with hatchets? Is it as bad as everyone is telling us?
Weiser: No, absolutely not. And I think that that’s one of the main points that I hope to get across. There are certainly problems that we need to guard against. There’s certainly a lot of mobilization that we need to do to ensure our elections run smoothly.
But people should not have their worries be overblown. We are mobilizing election officials, nonpartisan observers, the Department of Justice have been sort of mobilizing, anticipating problems that might arise. And are putting systems in place to cabin them. And even with threats of voter intimidation or people mobilizing around the polls, there really are so many things that circumscribe what could happen that most voters should rest assured that when they go to the polling place, they’re not even going to see anything like this.
So these are going to be isolated problems. Hopefully they’ll be brought under control very quickly. They’re certainly things we need to guard against, but people should not be discouraged from getting out and voting.
Lithwick: I think probably the number one anxiety that I’m hearing stems from some of the rhetoric that has come from Donald Trump chiefly, suggesting that maybe he wants his voters to mobilize themselves.
Wendy, can you speak a little to what it means when folks feel that they’re being instructed to go watch the polls to make sure that other people are voting properly? Is that something that was blown out of proportion by the media, or is that really a concern?
Weiser: No, it is certainly a concern. And it is actually something rather unprecedented. Poll watchers are nothing new in the election process, nor are efforts to challenge voters, or to try to police the integrity of the process.
But a presidential candidate calling for hordes of people to mobilize for themselves and go to the polls and perhaps insinuating that they should go to certain jurisdictions where there might be more problems with fraud is something that really is new. And something that’s hard to predict what kind of conduct that will lead to. It is more disorganized and more unlikely to engage people in a way that could lead to more disruptions at the polling places, that’s a little bit more emotional and less contained.
Lithwick: And am I right? My instinct when I started thinking about poll watchers and people confronting each other at the polls is that the aggregate effect might not be a lot of vote suppression, but boy it’s going to create long lines.
Is that a concern that all of this sort of revamped energy pouring into watching other people, watching people watching you as you watch them, it’s just going to make voting take longer?
Weiser: Well, there are a couple of concerns with these calls. The first is that the threat of this kind of poll watching or intimidation in and of itself could discourage people from participating. And that’s something that we need to now pushback against.
We need to reassure people that they are not going to be facing terribly long lines, and that their vote is going to be protected. That election officials will have this under control. When there are lots of people being disruptive in the polling place, a huge concern is long lines. And when we are not prepared for that kind of activity, or don’t properly address it when it takes place, that is inevitably its impact.
And we’ve seen that in multiple elections in the past. One of the things that I am hopeful about, or a silver lining, is that at least election officials now have a head’s up that this could be happening. And even certain jurisdictions have been called out as places where people are especially looking. And so they’ve been gearing up. They’ve been issuing guidance. They’ve been training their poll workers. They’re making sure that everybody knows that if somebody is disruptive, if somebody is acting in a discriminatory way they should be immediately removed from the polling place.
And there’s a lot more public education about what isn’t allowed in the polling place.
Lithwick: Can you talk a little bit about what the law of voter intimidation is? Because as I understand it, it’s that there are clearly laws against intimidating other voters. And those laws are quite vague. Is that unfair?
Weiser: The laws are crafted in general terms. They prohibit anybody from engaging in any efforts to intimidate, or threatening, or coercing a voter in any way.
So, it doesn’t provide a lot of detail. And there hasn’t been a huge amount of case law on it. But, anything that a voter might be reasonably intimidated by could be illegal conduct, shouting, insulting voters, following them and photographing them, following them home, brandishing weapons and looking menacing.
Blocking entrances. These are things that have happened before. And these are things that courts have pointed to as intimidating conduct. And so I think the vagueness is still not such a problem, because we have a fairly good sense of the kinds of conduct that is not allowed.
Lithwick: And let me ask you the flip of that question for folks who are listening and thinking I want to be a poll watcher, too. What are poll watchers allowed to do? And I know that differs wildly by state. But what can someone do if they decide to deputize themselves as a poll watcher?
Weiser: Well, in every state, citizens can become poll watchers.
You generally need to get credentials in advance to be a poll watcher. And that’s in most states. You can just show up on Election Day, except in a handful of places, and say I’m here to watch, let me in. And in many places the most common way of getting a credential is through a political party, a candidate, or a ballot issue committee. They’re the ones that typically can appoint poll watchers.
In a number of states, civic groups and international observers can also be appointed poll watchers. But it isn’t just anybody who can be a poll watcher. And you often have to be a registered voter in the jurisdiction where you want to watch the vote. And that’s actually been an issue, I think, for the efforts to mobilize voters this cycle. I think that there has been reports that those trying to mobilize poll watchers are having trouble finding people from the particular jurisdictions they want to challenge.
And so that might in and of itself diminish the amount of disruptive activity we see.
Lithwick: What about I think the other worry I’ve heard articulated in so many different iterations, but what about the possibilities of hacking this election? There’s just this tremendous fear that the machines, and the this, and the Russians, and everybody, and the thing gets unplugged and how anxious are you about the possibility of really widespread hacking?
Weiser: I am not very anxious of widespread hacking in any way that can have a serious impact on election outcomes.
And I think that that is true for virtually all election security experts. There are reasons that we need to improve the security of our system. As hackers did target voter registration databases in 20 states. But the good news is, and this is something that both the FBI Director and the Security of Homeland Security made clear, we have the capacity to detect intruders in those databases. So we’ll know if it happens.
And fortunately there was no tampering. But voter registration databases, which are connected to the Internet, are actually not the same thing as our voting machines, which should never be connected to the Internet. And so the risk for voting machines is much, much lower as a result. And the security is really increased by the fact that we have such a highly decentralized election administration. Our elections are actually run in 10,000 separate jurisdictions with different machines, ballots, personnel, rules.
So it would be incredibly difficult to attack the system in so many locations at the same time with so many different systems in a way to make any perceptible difference, especially when it’s not linked up to the Internet. The real risk with machines this election cycle is not so much hacking. It is breakdowns. We have a problem in this country with outdated voting machines. We actually did a study last year where we found that 42 states are using machines that are 10 or more years old, which is close to or past the life span of most machines.
And when the machines are so old, they are much more prone to breakdowns, or to calibration problems, like when you see vote-flipping, where you press one candidate and the vote records for another. And these kinds of breakdowns could be a significant cause of long lines. And long lines then could lead to lost votes. And so that’s a bigger risk that we’re worried about this election cycle than actual tampering.
Lithwick: In a way, I’m going to quote Homer Simpson now, Wendy, but Homer Simpson says of beer, “It’s the cause of and solution to all our problems.” And I think in a weird sense, the sort of patchwork of jurisdictions and the very decentralized rules and the election workers who have a very huge variation in their training, is both kind of the cause of and the solution to our voting problems in this country, right?
Because it makes it very hard to do anything on a large scale, but that’s largely because the system is so completely fractious and broken down. Is that fair? And you can just ignore the beer part of that question.
Weiser: Well, I’ll say that certainly the decentralization offers a lot of security. It’s the main reason not just why hacking is not a feasible threat to elections, but it’s the main reason why voter fraud, too, is something that couldn’t conceivably lead to a stolen election, because it would just be virtually impossible to get the kind of mobilized conspiracy across so many jurisdictions with so many people watching to actually make a difference.
I think that there’s a good balance. I think we want to maintain our decentralized election administration while strengthening some of our baseline national voter protections. And I think that’s a balance that I think could use a little bit of readjustment. I think that we have allowed too many differences that relate to the sort of core access to the franchise to flourish in the states, some of which have been really actually negative for the voting process, but all of it has been very confusing for voters.
Lithwick: And because this is a show about the Supreme Court, and because I think you just flicked at it in your answer, we have to end with Shelby County, because this is the first presidential election post Shelby County.
And it seems that we’ve seen a couple of those baselines are a little wobbly now. I know we have fewer federal election monitors as a result of Shelby County. I know we’ve seen some states really go above and beyond in terms of trying to restrict voting. What are the things post-Shelby County that make you nervous going into this election?
Weiser: Well, most of the problems from the Shelby County fallout are already in place. We are not only in the first election without the full protections of the Voting Rights Act, but we are also in the first presidential election in which 14 states are currently or about to have citizens vote under rules that make it much harder for them to participate than last time.
Overall, 20 states have passed laws making it harder to vote since 2010. But there was a big spike after the Shelby County decision. And so that is in part a legacy of the Shelby County decision. And one of the great benefits of the now inoperable Section V of the Voting Rights Act was that voting changes that were controversial, that were potentially discriminatory, did not go in effect unless and until a federal court or the Department of Justice found that they were not discriminatory.
So they were blocked. And now they go into effect immediately and there are years of litigation over whether or not they’re discriminatory or whether or not they unduly interfere with people’s right to vote before they are blocked. And so right now in a number of states there are voting restrictions in place that are likely going to be found discriminatory. And voters are going to be voting in this presidential election with these discriminatory laws.
In some states, like Texas, a discriminatory voter ID law, the strictest ID law in the country, was recently blocked by a federal court, but that law has actually been in effect in four statewide elections, a federal general election, a federal primary election, countless local elections, before it was blocked, because of the time it took to litigate it.
So, we’re really feeling the absence of Section V of the Voting Rights Act. The other way in which we’re feeling it is the remedies that we’re getting in court. The courts have been roundly rejecting these new laws, cutting back on voting access, and that’s certainly a positive development. But the remedies aren’t as strong as you’ve got under Section V. Under Section V, the whole law was blocked. Under the other provisions of law, the laws are tweaked a little and it’s been much harder to actually get the benefit of the remedies on the ground.
So, for example, in Texas we’re seeing that early voting has already started and in multiple counties across the state there’s incorrect signage and incorrect poll worker instructions telling people that they must show a photo ID to vote and that there’s no alternative. And, in fact, under the court rules there is an alternative process they can go through if they had difficulty getting an ID.
North Carolina and Wisconsin have had similar experiences where wins in courts didn’t necessarily translate into full access for voters on the ground. So, these are some of the fallouts of the Shelby County decision right now.
Lithwick: And that sort of dovetails neatly with your initial point about this is what happens when you win in the courts a month or two months before a huge presidential election. There’s no time to effectuate the kinds of changes you would want to make if we were solving these problems in the days after an election.
Weiser: That’s absolutely right.
But really we don’t want to see so much change to our voting rules all the time. All these laws over the last five years, going back and forth on imposing new restrictions on voting is causing a lot of confusion even when it happens a few years before Election Day. I think that we want to settle on a baseline set of fair rules for how we’re going to run our elections and not have so much change other than change to modernize, and upgrade, and take advantage of new technologies as they come into place.
Or increase our security. Not sort of changing our basic voting process all the time.
Lithwick: Wendy Weiser directs the Democracy Program at the nonpartisan Brennan Center for Justice at NYU School of Law. And, Wendy, we thank you so much for your completely sober and very, very calming time with us today. Thanks for being with us.
Weiser: Thank you for having me.
Lithwick: And that is going to do it for today’s episode of Amicus. We are eager, as always, to hear your questions, and your thoughts, and your ideas about future shows.
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Tony Field is our producer. Steve Lickteig is our executive producer. And Andy Bowers is the chief content officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at iTunes.com/Panoply. I’m Dahlia Lithwick. We’ll be back with you the weekend after the presidential election with another edition of Amicus.