In reporting on some of the voting issues that have risen during the party primaries in New Hampshire, North Carolina and Arizona these past few months — namely waiting lines as long as five hours and confusing new voter ID rules — The Nation’s Ari Berman often reminds his readers that the 2016 election is the first in 50 years without the full protections of the Voting Rights Act. His 2015 book, Give Us the Ballot, chronicles the events that led to the creation and passage of the landmark civil rights law, and the decades-long effort to undermine it.
The Fight to Vote, another book published just last month, explores the history of suffrage even further, all the way back to America’s founding. Author Michael Waldman, president of New York University’s Brennan Center for Justice, notes that from the very beginning, and at every step along the way, Americans have sought the right to vote and others have fought to stop them.
Just after the March 15 North Carolina primary, which saw that state’s new voter ID law in full effect for the first time, Berman and Waldman joined us to talk about the history of voting in America, the alarming number of new laws restricting voting rights passed in more than 20 states since 2011, and some hopeful news about states that are working to make it easier for every American to cast a ballot.
We started by talking about North Carolina, where it’s estimated that 218,000 voters who lack the proper ID may be shut out of voting this November. This conversation has been edited for length and clarity.
Ari Berman: In North Carolina, their voter ID law was in effect for the first time [in the March 15 primary] and we saw a lot of problems. We saw very long lines throughout early voting and then on primary day. I think at least part of that was due to the voter ID law.
People who didn’t have ID were supposed to be offered backup provisional ballots, called reasonable impediment ballots. There is some evidence that people weren’t even being offered that, that the poll workers, some of them may not have even known about this part of the law. And then there were people that probably just didn’t show up in the first place because they thought that they needed ID and they didn’t have it and so why bother.
So given how long the lines were, given how much confusion there was, this is a disturbing preview of what could happen in November when turnout is higher and there’s a hotly contested presidential race, hotly contested gubernatorial races and all down the line in North Carolina.
I think the biggest thing about North Carolina is not just the fact that there’s an ID law, it’s that there’s always other changes in addition to the ID law, that they cut early voting, that they eliminated same-day voter registration, that they eliminated preregistration for sixteen- and seventeen-year-olds, that they eliminated public financing of judicial elections. I mean, North Carolina had among the best election laws in the country, which means there was more for them to then eliminate but we haven’t seen any state just go out and say, “We’re going to get rid of 40 laws that were on the books.” I mean, no one but North Carolina had done that. And in fact, they did it a month after the Supreme Court gutted the Voting Rights Act, which is super-alarming.
Michael Waldman: Probably the worst and most needlessly restrictive voter ID law in the country is Texas. Two hours after the Supreme Court gutted the voter ID law, the state put its requirements through. And this is one of those laws that’s very mischievous, clearly partisan at the very least in its intent and discriminatory also. This is the law that’s kind of well known nationwide because you cannot use your University of Texas ID as a state ID but you can use your concealed carry gun permit. And the second that law went into effect, according to the federal court, 608,000 voters lost their right to vote — not even theoretical or eligible people, people who actually were registered voters.
This law was found several times to be illegal, to violate the Constitution, to violate the Voting Rights Act. The most conservative federal appeals court in the country upheld the ruling, striking down the law, and the law is still in effect. Now the state of Texas is going very slowly in appealing and meanwhile, the law is in effect. There is reason to think there was, at the very least, lots of confusion and lots of people who were not able to vote. And Ari is right, lots of people stay home, people who don’t have ID or even do have the ID but don’t realize they do. They may not have ID but they’re not stupid, they don’t go show up at the polls and waste their time. So the biggest challenge is we don’t know for sure what impact on turnout these laws have.
But the suggestions are troubling and ominous. In 2016, 16 states will have these new voting laws in effect for the first time in a high turnout national election. We just don’t know, in a tight race, in a race with high turnout, in a race where the communities that get affected most by early voting being cut back or by inadequate machines in the polling places, turning out in high numbers, we don’t know what’s going to happen come November but there’s reasons to be very concerned.
What would you say would be the reason for these laws?
Berman: Well, I think if you look at what happened in 2008, there was record turnout for President Obama and the first African-American president was elected. And then in 2010, there was a strong reaction against that and we saw Republicans gain control of many, many states and many states that were even already Republican just became a whole lot redder in terms of composition, like Texas. And what those GOP-controlled states began to do was introduce new efforts to make it harder to vote. Instead of the electorate being younger, more diverse and more progressive, the goal was to try to make the electorate older, whiter and more conservative, so to try to make future elections look more like the 2010 electorate than the 2008 electorate. I think it was pretty obvious why these things were being done.
Waldman: There are now almost two different electorates, a really wild swing in turnout from a presidential year to an off year. In the last election, in 2014, voter turnout in the United States was at its lowest level in 72 years, and that was at a time during World War II when a lot of people were overseas fighting. So it’s really a startling thing. There was no wave of voter fraud or misconduct that caused these laws to be passed. It was a partisan strategy when Republicans took over those state legislatures. And they had not even really run on this issue but as soon as they got a pinkie on the level of power, they used it. And you saw this in states from Wisconsin to Texas to a whole host of other places.
When people challenge under the remaining parts of the Voting Rights Act, saying that they especially hurt African-Americans and other minority communities and voters of color, the defense is, “No, no, no, these laws were designed to hurt Democrats. It’s only happenstance that it hurts minorities.” So they’re rather overt about this. One observer noted that usually states don’t change their laws all at once without some kind of mandate or order from Washington or money attached to it, so it’s really quite extraordinary to have this many laws passed all at once that look very much like each other, especially without much of a good reason for it.
Is there an equivalent period in history when so many new voting laws were passed?
Waldman: This is a fight that’s been going on in one way or another from the beginning of the country, for 240 years. And when the country started, it was not by any stretch of the imagination a democracy. Only white men who owned property could vote. That was the rule that was sort of inherited from England. It was controversial even then. Ben Franklin led a working mans’ revolt in Pennsylvania to widen the right to vote to all white men, for example. And John Adams thought this was a horrible idea. He said, “Women will demand the right to vote. Lads will think their interests insufficiently attended to and they will demand the right to vote. And men with not a farthing to their name will think themselves worthy of an equal voice in government. There will be no end of it.”
And of course, that’s a pretty good summary of the next 240 years of the country’s history. Most of the time, in the 1800s especially, the United States became the first mass democracy in the world and there was a great expansion after the Civil War. Briefly, African-American men were meaningfully given the right to vote. But in the later part of the 19th century, things really move backwards. There was a tremendous violent suppression of the vote in the South. We all know that. But in the North also, where the cities were now filled with immigrants, not Mexican immigrants, but Irish immigrants, a lot of the kind of bluebloods — they call themselves the best men and they didn’t mean it ironically — of the time, came up with a bunch of rules, a lot of them made a lot of sense on their face, but they all had the consequence of making it harder for people to vote. So things moved backwards in the late 19th century and the worry that we see is that we might be in a time like that now.
Berman: When Barack Obama says that the arc of history is long but it bends towards justice, that has definitely not always been the case when it’s come to voting rights in America. The arc has bent and it’s snapped back very dramatically. My understanding, and correct me if I’m wrong, Michael, is that the first voter registration laws were a response to changing demographics, to Irish Americans in New York City, for example, gaining power, Chinese Americans in California.
And then obviously if you look at Reconstruction, when we had, following the Civil War, black senators and governors from places like Louisiana and Mississippi, when we had 22 African-American members of Congress — that’s when the losing side of the Civil War, in particular, started figuring out how they were going to get back power. They figured that they were going to do it both through violence and fraud and those kind of means. But they also figured they were going to do it by changing the laws themselves, by things like literacy tests and poll taxes and all-white primaries and they weren’t going to leave anything to chance. If they disenfranchised some poor whites, they were okay with that, as long as they disenfranchised African-Americans who they saw as usurping their power after the end of the Civil War.
And that situation lasted for such an amazingly long time. I mean, to think from the Mississippi Plan, you said was 1890? So from 1890 to 1965, you’re talking about a 75-year period of rigid Jim Crow in the South.
Waldman: It was decade after decade of the solid South as it was known, which was the segregationist white Democrats, dominating much of national government. And the other thing that happened at the end of the 19th century that was significant, you know, a lot of the rules that they put into place seem to us now to be very sensible, even something like the secret ballot actually depressed turnout a bit. Voter registration doesn’t seem as if it would automatically be a bad thing but it was done in such a way that it made it much, much harder for immigrants to vote, and things like that.
But the other thing that happened at the same time was the introduction of a new factor, which was the role of big campaign money for the first time. And one of the interesting things is that throughout most of the country’s history, people saw these issues as very linked together, the property requirement, the role of big money, part of the solution they came up with to the first wave of campaign finance dominance and scandals in the progressive era was to expand the right to vote. They saw people voting as the antidote to dollars dominating.
One thing that I thought was interesting in reading your book was that we talk about campaign finance as such a big deal now for things like advertising, but back then people actually bought votes. So voter fraud was an actual problem.
Waldman: There was in fact quite a bit of voter fraud throughout most of the country’s history but it’s important to note, when you hear people talk about voter fraud now, it’s not the kind that you hear people screaming about on Fox News, an individual voter walking in pretending to be someone else.
It was the political parties or politicians or people who could manipulate the vote, who could manipulate the ballot box, who found any way they could to do it. So there’s a rich history of misconduct in American elections. I’m not against voter ID on principle. I think people should be who they say they are and it makes sense that they should have to prove it. [But] I’m against requiring ID that a lot of people don’t have. About 11 percent of eligible voters just don’t have a driver’s license, for example, or the other kind of ID. There’s often been real fraud but also, fraud used as an excuse to suppress the vote, then and now.
Berman: The Voting Rights Act was really the first time that the Fifteenth Amendment of 1870, which said that the right to vote shall not be denied or abridged on the basis of race, color or previous condition of servitude, actually applied to all people. So I mean, even after the 15th Amendment was passed, it didn’t apply to black women for example. And the Voting Rights Act said that everyone should have a right to vote, free of racial discrimination, whether you’re African-American or Hispanic or Asian-American, whether you are a man or a woman, and I think it represented finally the federal government saying that voter suppression in all forms was definitively wrong.
Lyndon Johnson did not leave a lot of wiggle room when he introduced the Voting Rights Act. He actually said when he signed the law that this was America’s final victory against slavery and that only the Voting Rights Act would really give people the ability to change their circumstances. It was so monumental and the struggle took so long to get there and it had such an enormous immediate impact. I mean, people had been trying for decades to get rid of things like literacy tests and they were abolished in the South overnight once the legislation was signed. People had been trying for decades to register African-American voters in places like Selma, Alabama, where only two percent of African-Americans were registered to vote and within a week, thousands of new African-American voters were registered.
So this wasn’t just like a theoretical thing like you pass a bill and then a few years later you see some little effects of it. This was something like you pass the bill and immediately you start to see a real enormous effect. And it took longer for representation to shift, it took quite a bit longer than even I anticipated for you to begin to see newer people elected to Congress. For example, the first black members of Congress from the South aren’t elected until 1972, Andrew Young and Barbara Jordan, so that’s seven years after the passage of the Voting Rights Act. And things took a while to develop, the coalition that was envisioned in the South of moderate whites and African-Americans took a while to develop.
And then there was also a very significant backlash as well. South Carolina filed the first challenge to the Voting Rights Act within weeks of its passage. So there was a very determined attempt to get rid of the Voting Rights Act in 1965 and that movement has been fairly unyielding over a period of five decades.
Waldman: Though one thing that tempered that for a while at least was the unexpected partisan ramifications of the Voting Rights Act. Bill Moyers writes that when Lyndon Johnson signed the Civil Rights Act, the year before, this moment of great triumph, Moyers found LBJ kind of despondent, looking at the newspapers in bed and he said, “I think we just gave the South to the Republicans for a long time.” And while you had a growth in representation, you also had a shift of white Democratic voters to the Republicans, the Southern strategy as pioneered by Richard Nixon who became some of the Reagan Democrats. So in effect, the solid South switched party labels. You had more representation and more conservative governance at the same time. There was an equilibrium for a while where it seemed to meet a lot of goals at once.
Berman: Yes, it’s interesting, so the Voting Rights Act makes the South competitive in a number of different ways. You have people like John Lewis who are elected to Congress who never would have gotten there without the Voting Rights Act. You also have the South shifting more conservative on the presidential level, whether it’s in 1968 with Nixon or 1980 with Reagan, but then you’ll also have the election of people like Jimmy Carter and Bill Clinton, who also would never have been elected without the Voting Rights Act, because they were very dependent on African-American support.
There’s a section in my book where I talk about how hands that can pick cotton can now pick the president, which was a very big slogan in 1976 when Jimmy Carter was running. I feel like it’s over simplistic — I know you weren’t suggesting this, Michael — to just say that the Voting Rights Act turned the South Republican, because it also gave us Jimmy Carter, Bill Clinton and Barack Obama, too.
Waldman: Well, and until Barack Obama, the only Democrats who could be elected president were moderate Southerners, whether it’s Johnson or certainly Carter and Clinton.
Berman: That is interesting, yes.
Waldman: Until the demographics of the country shifted enough that a Northern Democrat could actually win.
So do you think we ever really fully realized the Voting Rights Act even for a brief period or has it still not been realized?
Berman: That’s a really tough question. It sort of depends on what your expectations were at the time. If your expectations were that the Voting Rights Act was going to knock down all of these barriers and it was going to result in millions of new people being registered, that it was going to result in many new people taking power, than it absolutely accomplished its goals, almost as successfully as any piece of legislation ever has. If you’re saying did it bring us a true racial equality, did it allow people to make up for centuries of discrimination, then the answer is no. Clearly there was a lot of work still left to be done. Martin Luther King once said something like the vote isn’t the ballgame but it gets you in the arena, meaning it’s the first step toward change and then you have to build on it a lot. And so clearly, even with a very strong Voting Rights Act, we’ve seen many examples of voter suppression after 1965 but I do think it was remarkably successful in changing American democracy from Jim Crow to a truly integrated democracy for the first time.
Waldman: It is considered the most successful civil rights law certainly in American history and there’s really not many laws that have been as unambiguously successful even within their limited terms as the Voting Rights Act. So much so that when the Supreme Court gutted it in 2013, Chief Justice Roberts, his argument was basically it was no longer needed, that was then, this is now.
Berman: It was so successful it wrote itself out of existence.
Waldman: And that’s where Ruth Bader Ginsburg’s dissent was so pithy in saying if you’re standing in a rainstorm holding an umbrella and you’re not getting wet that doesn’t mean you don’t need the umbrella, it means that you have an umbrella that works. I do think that for a long time it did feel at least, maybe this was an illusion, but it did feel as if some of these basic questions about who could vote had been laid to rest. Before the 2000 recount, people didn’t think very much about voting one way or the other, it just was not so much of a big partisan brawl. And one of the things that happened was the 2000 recount was so close and it became so clear that the way the votes were cast was such a mess in Florida and all over the place and the country was now really narrowly divided and turnout mattered a lot more and suppressing turnout mattered a lot more for the two parties and it’s really since then that you’ve suddenly seen—there’s always been a discomfort with democracy among conservatives, but it’s become a political strategy since then.
Berman: Yes, I mean, I quite frankly was very surprised by all the new laws that were passed after 2010. I mean, I did not see it coming. I don’t know anyone who saw it coming on the scale that it did. And Michael is right, the fights in the ‘70s and the ‘80s and the ‘90s over voting rights were largely over representation, who could be elected into office, how lines should be drawn, all of those things. It was often very technical but there was basically a broad consensus that everyone should be able to vote and neither party was expending that much political capital on trying to prevent people from voting and that changed after Florida in 2000 and we began to see efforts in the Bush administration to make it harder to vote but then those efforts really exploded Obama’s election and the Republican control in 2010.
Waldman: People forget there was a scandal about this under the Bush administration. Nine United States attorneys, the top federal prosecutors around the country resigned and it turned out that a lot of them had been fired and then a lot of them were fired because they didn’t bring phony voter fraud cases and the Attorney General of the United States, Alberto Gonzales had to resign, the first time since Watergate that that had happened. And it was a brief high-profile scandal that quickly vanished in the memory hole. But it’s not as though there hasn’t been an effort to find the voter fraud. It was quite aggressive. As I wrote at the time, firing a prosecutor for not prosecuting voter fraud is like firing a park ranger for not finding Sasquatch. If it’s not there, it’s not there.
Where are we at now for 2016 and where things are going? There’s quite a few court cases ongoing, will any of them likely be decided before the election or will they probably not affect current laws in time for Election Day?
Berman: The big picture is that it’s the first presidential election in 50 years without the full protections of the Voting Rights Act. So you have to go all the way back to 1964 before there even was a Voting Rights Act to find ourselves in this position.
There’s a bunch of cases working their way through the courts right now. Some of them could be decided certainly before November and some of them might not be decided, depending on what happens and obviously the Supreme Court is a big factor here because we don’t know if the Supreme Court will hear these cases. We don’t know if they’ll be able to hear these cases, if it’s divided four/four. It’s kind of unknowable.
I mean, the Texas voter ID case that Michael was talking about, it’s been struck down three different times under the Voting Rights Act and the last time it was struck down, it was struck down a day before the 50th anniversary of the Voting Rights Act, so it was struck down on August 5th, 2015. And then the Fifth Circuit sat on it, sat on the case until a few weeks ago. Then they decided that the full court’s going to hear the case. So now the full court’s going to hear the case in May. Then they’re going to take a while to rule, presumably, and then will the lower courts hear it? Will the Supreme Court hear it? So you’re talking about something that is a process that began in 2011 when Texas first passed the voter ID law. It was blocked in the courts in August of 2012. It’s now March of 2016, we’re still talking about this law three and a half years later.
This to me reminds me of the litigation the Justice Department undertook in the early 1960s to try to get rid of Alabama’s literacy test. I mean, it would take years. They had to go over 28,000 pages of voter registration documents to try to get rid of literacy tests before the passage of the Voting Rights Act. It was so, so difficult to do it. And then you were dealing with very conservative courts that often just refused to strike these laws down even if you could prove that they were discriminatory. Now I kind of feel like we’re back to that stage where getting rid of bad laws is just so much more difficult than it used to be.
Waldman: And that’s what’s so hurtful about what happened to the Voting Rights Act, the key provision was the one that imposed the federal government and said you couldn’t change these laws without permission from the Justice Department or from the Federal Court in Washington. And now what we’re all doing is testing the remaining protections, Section 2, which has not had to be used really to protect voting rights before, it’s been used in redistricting and in some of the technical aspects. But the core question of people being denied the ability to vote for some reason, we don’t even know what the Supreme Court says its line is that it won’t allow to be crossed. And so it’s probably not the case that any of these major rulings will happen before the election. There was a point where it looked like that might be the case. But in North Carolina there was a very compelling trial and the judge hasn’t even issued a ruling.
Berman: It’s taken forever and then it’s going to go to the appeals court and who knows when the Supreme Court will weigh in and if they’ll weigh in.
Waldman: So one of the things that’s going to happen, one of the reasons that this has been a particularly significant moment for this is there’s movement backwards but there’s also a reaction to [what] we’re seeing. Just as you had a century ago, where first of all there’s a mobilization and a backlash. People are very angry about what’s being done to their right to vote. You see candidates talking about it. As Ari has very brilliantly pointed out, you don’t hear any reporters asking questions about it in these debates, even though it’s a hot issue that affects a lot of people and the candidates would actually like to talk about it. And then you also at the same time as there’s all this fighting over disenfranchising laws, there’s a lot of surprising progress on voting reform in the states, again, to really make it easier for a lot of people to vote.
So automatic voter registration, universal automatic registration would be a paradigm shift. If it was fully implemented it would add tens of millions of people to the rolls and cost less and for anyone who was really worried about fraud, it would stop that too. And you’ve now started to see this very big change in how elections are run take hold in California and Oregon, they started with the DMVs, passed the New Jersey legislature although Christie vetoed it. President Obama speaking to the Illinois legislature urged them to do it and they may do it. It may be on the ballot in Arizona. So there’s a real movement going on all over the country for automatic registration and other things too, even changes in felony disenfranchisement, which is a very positive trend, while everyone is having to fight this really negative backlash at the same time.
Berman: Yes, well, that’s what I’m concerned about. I’m very concerned that we’re moving into becoming a two-tier democracy, where if you live in a progressive blue state, you’re going to have much better election laws and if you live in a conservative red state or a GOP-controlled swing state, you’re going to have far worse election laws. And I think that’s a really unsustainable situation. I don’t think it’s fair that just because you live in Texas and not California, you should have such a hard time voting. So I’m very concerned about that.
I also don’t think that the courts are going to be the ultimate arbiter of voting rights. I don’t think we can rely on the courts. One thing that the Voting Rights Act did was try to get some of this stuff out of the courts, because it was so hard to strike down things like literacy tests in the courts. It was to try to do it through legislation but they’d also tried to build consensus in the Congress for protecting voting rights and there was a very strong consensus in the Congress for many years for this. And so I think we’re going to have to see a political solution here. I think that people are going to have to be elected who don’t believe in voter suppression. That’s the quickest way to get rid of this.
Pennsylvania had one-party, GOP, conservative control and they were trying to do all these things like voter ID. Then the Republican governor loses, is replaced by a Democratic governor. The court struck down the voter ID law and now they have online registration, the possibility of better laws. So I’m not advocating for one party or another, I’m just saying that that’s the quickest way to solve this is to have different people in there who have a different opinion on how to protect voting rights.
Waldman: The courts were a positive force in the sense of going beyond the political system on this issue only one time in American history, in the 1960s with the one person, one vote cases. The core disenfranchisement of African-Americans in the South wasn’t done by the Supreme Court or the courts, that was a political process. The only other time we’ve seen the federal courts especially be very aggressive on this issue was recently and in a bad direction. It’s not going to ultimately be solved by judges. And I don’t think people generally speaking think it will. It has to be really mobilized as an issue.
One of the challenges is, well, right now it seems to be the Republicans who are pushing to disenfranchise, so is it partisan to point that out? And the fact is it’s been that the political parties have been the drivers very often throughout American history for good or ill and it’s often one party or another that’s pushing to constrict the vote and the other one, like the Democrats in the 1820s and ‘30s who gave the white working class the vote, or the Republicans who actually pushed for women to have the right to vote in the progressive era. It’s often been one party or another that’s pushed to expand democracy. What’s unusual is up until recently the Democrats were not pushing to expand democracy the way the Republicans were looking to constrict the vote. It was sort of a one-sided debate. Maybe that’s changing. That’s one of the things we need to hope for.
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