Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Franita Tolson:

We may expect too much from our governing documents to fix this. This is a cultural problem. This is not a legal problem in some sense, right? The law is following the culture.

Preet Bharara:

That’s Franita Tolson. She’s a constitutional law professor at the USC Gould School of Law and a nationally recognized expert on election law. Tolson’s main objective is to help people vote, and she’s especially focused on removing barriers for groups that have been historically disenfranchised. As we know all too well, there’s no shortage of attacks on voting rights in this country, voter suppression laws, voter fraud conspiracy theories, and of course the violent attack on the capital fed by the lie that Donald Trump won the 2020 election. The midterms are right around the corner and the 2024 presidential election isn’t far behind them. As we prepare for the battle for the ballot, how can we protect the right to vote for all Americans? Can we avoid an actual battle again? That’s coming up, stay tuned.

Now, let’s get to your questions. This question comes in an email from Patricia who actually has a number of questions. Patricia writes, “Hi there. Love your show. I’m sure you must have gotten a ton of queries about this already, but what would happen if the DOJ decides to charge Trump? What would the indictment process look like? How would a trial be conducted? Do federal trials always have a jury versus bench trial? If so, how would this one be chosen? What venue would this happen in? Curious minds want to know.” There’s a lot of questions there. Maybe I can answer them over the course of some weeks as opposed to all right now. The first thing I think it’s important to emphasize, as I said, with Joyce Vance on The CAFE Insider this week, and she agreed, we are a far way from an indictment by the justice department.

Not because they may be opposed to it, not because they may not ever come up with enough evidence to be able to prove beyond a reasonable doubt, a crime on the part of Donald Trump to a unanimous jury, but they’re fairly early in the process. There has been this debate about what the Department of Justice has been doing, how active they were in 2021. They’re certainly quite active now. They have put various people in the grand jury. Two that we know about are the top officials to former vice president Mike Pence, his chief of staff and his chief counsel. They are taking important and significant steps to see if at the end of the day, there’s a charge to be brought, but they have to interview scores, if not hundreds of people, I believe. They, I think, have to cover a lot of the witnesses that the January 6th committee as interviewed. They also at a minimum for various reasons, including discovery obligations probably have to review all the transcripts of all the witnesses who were deposed by the January 6th committee, which numbers in something like a thousand or more.

So far, there’s only been an agreement to turn over 20 of those transcript, so there is a lot of work. There’s a lot of interviewing. There’s a lot of deposing. There’s a lot of grand jury work. There’s a lot of exploitation of phones and other electronic devices. It’s going to be a while. Many, many months, if not longer than that. I’ll indulge your hypothetical. If at the end of that period of time, the justice department decides that they have enough evidence to prove guilt beyond a reasonable doubt to a unanimous jury, and that’s the standard, and they also decide that the interests of justice require bringing an indictment, first of its kind in the history of the country against a former president of the United States, also at a time when it might be possible that that former president might be running to be president again and depending on the timing, if that’s close to an election, the department decides based on all the considerations of evidence, propriety, precedent, timing of an election, that they still want to go forward and bring a criminal case against the former president, it would follow all the usual protocols.

What would the indictment process look like, you asked? Well, it would look like the indictment process for any other person in the United States of America. In the federal system, it would go to a group of people, 23 a number who would have to vote in favor of a proposed indictment drafted by the Department of Justice. How would a trial be conducted? Well, it can be conducted like any other trial, the rules of evidence would apply. Hopefully, you would have a judge who has control of the courtroom, who understands the rules of evidence, who doesn’t allow misleading arguments to be made, who sticks to the facts, who prevents it from becoming a circus. That’s not going to be an easy thing to do given that it’ll be probably the most followed and watched and high stakes trial in the history of the country, if it were to come to pass, but the rules of trial and all of that will be the same, I would imagine as for any other person in America.

You asked the question, “What venue would this happen in?” Well, we had a discussion a few weeks ago about how venue is determined in criminal cases and it’s essentially wherever some part of the crime took place. Now, a lot of the potential crime, depending on what is charged took place obviously in the district of Columbia. That’s where Donald Trump gave that speech. That’s where Donald Trump made phone calls to other officials. A logical place for the trial would be the district of Columbia. It’s also true, because I believe that the US Attorney’s Office for the district of Columbia would be the ones taking charge of this investigation to the extent that there are lawyers and prosecutors and agents working out of main justice up the street that they’re working on this.

They’re also located in Washington DC, so there are a lot of synergies between DOJ and the US Attorney’s Office in DC that probably make it clear that that’s where it would be brought. But you can make an argument, a legal argument if you wanted, that there are other places where a criminal case could be brought to the extent that there were other speeches and other communications and other phone calls as part of a conspiracy that took place in Arizona or in Maryland or in Georgia for that matter. I guess venue could lie in those places too, but I think for a lot of reasons, pragmatic and otherwise that if there’s a trial, it would be in DC. Now, the reason you’re probably asking that question relates to the reason you’re asking about a jury and Republicans and supporters of Donald Trump are already saying, “Even though it’s way premature, we’re far away from an indictment and it may never come.”

How do you get a fair trial if you’re Donald Trump in the district of Columbia? It’s a good question, but we’ve had high profile trials of very, very famous people. Maybe not as famous as Donald Trump, but a very famous people. You go through a rigorous voir dire process to make sure that you have a collection of jurors who you identify as being able to be fair. Maybe there are people who are not very interested in politics. Maybe there are people who haven’t voted. I don’t know how the judge will make those determinations and how the parties will decide to accept or strike jurors. It’ll be tough. It’ll be a challenge. The Trump folks will probably make a motion for change of venue, but it’d be hard pressed to find some other place outside of DC where Donald Trump is relatively unknown or people have informed an opinion or an impression of either Donald Trump or his conduct relating to January 6th.

That’s a very significant challenge, but I think our system requires a trial. I think our system can probably handle it. You’ve asked, “Well, do federal trials always have a jury?” Well, they don’t. Every criminal defendant in the federal system is entitled as a right to trial by jury. That’s an important right, guaranteed to every criminal defendant. Like other important rights, like the right against self-incrimination or the right to an attorney, you can waive that right. From time to time, defendants decide in their tactical or strategic interest, they want to waive trial by jury and they want to put their fate in the hands of the judge of the court, meaning that the judge doesn’t become only the person who is the master of the law in the courtroom, but also the finder of fact. Now, that has to be with the approval and consent of the prosecution.

The defendant has a right to a trial by jury. That defendant can choose to waive that right, but it has to be with the acceptance and approval of the government. Now, our standard operating procedure when I was a United States’ attorney was generally speaking, so it’s not to insult any particular judge. If a defendant waived the right to trial by jury and they thought that the judge would be more sympathetic to the case and might be more likely to acquit, we would nonetheless agree to allow that trial to go before the court to be a bench trial. I think it would be quite odd if you have the trial of the century, maybe the trial of the Republic happening in Washington, DC where the main sitting defendant, if it were to ever come to pass, is the former president of the United States to put the fate of that person in the hand of one federal district court judge.

It seems odd to me. It seems not right to me. People can make arguments about the jury pool, but depending on who appointed the judge, I think it’s too much responsibility for that judge. I think there’s too much at stake. It’s too hard to say without knowing what the charges would be, without knowing how many counts there would be without knowing who the co-defendants, if any, who they might be and what the identity of the judge is, what the tactical positioning Trump and his people would be thinking about in seeking a bench trial versus a jury trial. It’s a very dangerous prospect, but the good news is we don’t have to think about that and worry about that for a long time.

This question comes in a tweet from our friend, Walter Shaub. Actually, it’s not a question as he says in his tweet, “No question, but tell the Senate to introduce a stock trading ban before their August recess starts at the end of the day Thursday.” Walter, I take your admonition and your direction seriously. Members of the Senate, take notice. I am asking you, I guess telling you to introduce a stock trading ban before your August recess starts at the end of the day, Thursday. I don’t have to repeat myself here. I’ve written about it. I’ve spoken about it. I’ve railed about it. I’ve tweeted about it, and I’m in agreement with Walter that it is ridiculous and terrible that members of Congress basically can trade individual stocks at their whim. When there’s so many conflicts of interest that arise, it takes people’s confidence away from Congress at a time when it can’t afford to have less confidence from the American people. To me, it’s a no brainer. I’m happy that there’s been talk as Walter has been tweeting about pretty incessantly for the last number of days about a stock trading ban. Let’s just do it.

This question comes in a tweet from Ronna Schwabe. Are your boys working on a list of which races to support in the midterms? That was a great summer project that helped a lot of people. Any chance you can assign it to another child or associate again this year? #askpreet. Thanks, Ronna, for asking the question. People have been mentioning it to me in the last number of weeks, and I’m touched that people remember. For those of you who don’t recall or didn’t know. Back in August of 2020, when we were in the throws of the pandemic and no one was going anywhere and we had the election coming up, I decided I wanted to do a project with my two sons who were then 17 and 15 to educate them about politics a little bit and about public engagement and they learned a lot. I told them if they made a recommendation to me every day for the 31 days of August of someone to support and to advocate for other people to support in connection with the house, and then we did it for a few days with respect to the Senate in early September, that I would tweet about that candidate. They would draft the tweet. I would edit it and I would donate $500 to that candidate.

Together, we actually raised awareness for dozens of candidates. We raised, I think not tens of thousands, but hundreds of thousands of dollars collectively for those candidates. It was a great project. My kids learned about politics. They learned about advocacy. They learned a little bit too much about Twitter. They got to talk to some of the candidates afterwards. It was a great experience. Sad to say, we are not doing that this year. That project cost me a lot of money. My boys are busily doing other things. You’d be happy to know that the two boys and my daughter who’s a couple of years older are all incredibly engaged, care about the issues. They march in protest. They’re paying attention to what’s happening. The two of my kids who are eligible to vote will vote, care about voting and will be advocates for the things that they believe in, but we are taking this summer off, this August off from making particular candidate endorsements.

We’ll be right back with my conversation with Franita Tolson. At the end of its last term, after it overturned Roe v. Wade, the supreme court agreed to hear a case called Moore versus Harper. It’s a case that could consolidate the power to regulate elections in state legislatures, otherwise known as the independent state legislature doctrine. To put it simply, it could be really bad. For Franita Tolson, a constitutional law professor at the University of Southern California is a leading expert on election law, and she’s written extensively about the independent state legislature doctrine. Franita Tolson, welcome to the show.

Franita Tolson:

So happy to be here. Thank you for having me.

Preet Bharara:

I’m very thrilled to have you on, but I’m also a little apprehensive because we’re going to talk about probably the most important thing in the country. No matter what issue you care about, no matter what agenda you have politically or for democracy, the most important way to reach all of those agenda items and those goals for the country is through free and fair elections and open access to voting. Do you agree with that?

Franita Tolson:

Absolutely, 100%.

Preet Bharara:

We have some problems. I’m going to ask you it this way first.

Franita Tolson:

Okay.

Preet Bharara:

Because sometimes I feel quantitative. On a scale of one to 10, ready for the scale? On a scale of one to 10 and your expertise as an election law expert and a voting rights expert, how worried should we be about the demise of full, fair, free, trustworthy elections and every citizen’s right to vote freely and fairly?

Franita Tolson:

I am at about a 20, if I do the lawyer thing and treat your scale-

Preet Bharara:

The scale with one to 10.

Franita Tolson:

Yeah. But I’m going to do the lawyer thing and treat your scale as advisory rather than binding.

Preet Bharara:

Sound like it’s like the guidelines.

Franita Tolson:

It’s a guideline.

Preet Bharara:

This is not the metric system.

Franita Tolson:

I think that we should be afraid of what could happen. Right? On one hand, we are at a point where people, for example, in the 2020 election, north of 150 million people voted, right? It’s a time of broad participation. It’s a time in which as compared to earlier periods, it’s easier to participate, but I do think that you have to always be vigilant when it comes to democracy because it is still harder for some segments of the population to vote relative to others. There are still people who are turned away from the polls. There are people whose stories we may never know, right? Because they get lost in a shuffle in terms of trying to exercise their fundamental rights. You always have to be vigilant and you can’t lose sight of that, despite the fact that we live in a time of broad participation.

Preet Bharara:

You did something interesting a second ago. You said that broadly speaking, it is easier to vote than it was in the past. Is it fair to say that in most states or many states, it’s easier to vote generally today than 20 years ago?

Franita Tolson:

Yes, I would agree with that.

Preet Bharara:

But is the concern that it’s still not open and free enough or that we will perhaps begin to roll back some of those advances?

Franita Tolson:

Both of those concerns, right? The concern is that there are still people who can’t vote with the same ease as other people. People of color still have a tougher time casting a ballot relative to white voters. There’s also a concern about rollbacks, which we have actually seen in some states, but even more pointedly, there’s a concern about the vote counting stage. We don’t talk about this enough. I think the benefit of the January 6th commission and those hearings is that it has shed a light on the fact that things can still go wrong after people cast a ballot. Right? There’s a question of whether or not the state will respect the outcome of the popular election and whether the vote counting process will honor what the people of that state want. This is not something that we focused on extensively in recent years. There’s been a lot of attention about the process of casting a vote, a lot of attention about the drawing of district lines, legislative districts, but I think rightly, there’s more attention now in the vote counting stage.

Preet Bharara:

Let me take a step back for a second and talk about you for a moment. Is there something in your experience or in your background that caused you to pursue expertise in election law and voting rights?

Franita Tolson:

Well, that is a really interesting question, because my background’s a bit unusual. It’s actually Orthodox in some ways, right? I went to law school at the University of Chicago. I thought I would go to a law firm, which if you really understand my personality type, that’s just a bad idea, but I was pushing back against the mold. Just standard in that way, but then President Obama was my constitutional law professor in law school. I also had another professor, Professor Lisa Bernstein, who both of them introduced me this notion that maybe I should think outside of the box in terms of career possibilities. I started thinking about being a law professor, but then of course, that’s the first step, you have to then decide what you want to do for a living.

I had a conference in 2008 at Berkeley. It was my first conference as an academic and it was on election law. At that point, I thought I was going to write about employment discrimination because though clearly I cared about issues of discrimination and access and fairness, but that conference made me realize that, “Wow. There are a lot of unresolved questions about our democracy,” and it was a great time to study it. Right? 2008 was a year of tremendous interest in the presidential election. I really got caught up in all of the excitement, but then realizing as I wrote more and more in the area, that there are a lot of people who just cannot participate in ways that I just hadn’t realized. To speak plainly, my job is to help people vote. That’s what I do for a living.

Preet Bharara:

One of the documents we have in this country, we refer to it from time to time is the constitution. The constitution does refer to voting and talks about certain things as it relates to voting in the country and we’ll get to some of those, including a fairly novel doctrine that I know you and others are worried about. But you’ve also said that nothing in the constitution explains what voting means. What’s the deal with our constitution? Is it adequate to the task at hand?

Franita Tolson:

It’s not, to just answer the question.

Preet Bharara:

I want all letters to be sent to Franita Tolson at the USC Gould School of Law, because you just said that the constitution is inadequate.

Franita Tolson:

It is inadequate, but we also have 51 constitutions. We have the federal constitution, which is mostly written in terms of prohibitions, right? It tells us what states cannot do, states and a federal government, excuse me, cannot abridge the right to vote on the basis of race, on the basis of sex and so on. Right? It’s written in terms of just prohibitions, but it doesn’t tell us what the state is required to do and extended the right to vote. We do have a lot of voting related provisions and over the years, the case law in the supreme court and the law federal court, they have tried to flesh out what these terms mean. To give you an example, in 1966, the court decided a case called Harper where they read the equal protection clause of the 14th amendment to contain a right to vote, so an affirmative right to vote. What we have in the constitution is not language in the text itself that guarantees a right to vote. We have Supreme Court case law that tells us that there’s a right to vote in equal protection clause. Now, the downside of this is that you can get a different lineup of five justices who re-Harper very narrowly, which is what has happened over the years.

Preet Bharara:

Wait a minute. You think that the justices can reverse established precedent? Has that happened recently?

Franita Tolson:

Let me think. In a case called Dobbs, which has been on everybody’s mind.

Preet Bharara:

No, but this is a concern you’ve been raising for some time.

Franita Tolson:

Oh, absolutely.

Preet Bharara:

But it’s particularly poignant given recent history. Fair?

Franita Tolson:

Yeah. No. No. Absolutely fair. To be clear, with respect to Harper, the court started to dial back Harper in the early 1970s. This idea of precedent being something that the court is bound to respect, yes and no. Right? It depends on which court. We have to stop thinking about the court as a static thing as opposed to a collection of justices.

Preet Bharara:

Should there be a more explicit right to vote in the constitution and what are the arguments that even the conservative justices on the court militate against having recognized a strong, constitutional right to vote? It doesn’t make sense to, I think a lot of people.

Franita Tolson:

Let me start with the second part first and then I’ll come back to my point about 51 different constitutions, because I think it’s relevant to this question. The conservative justices emphasize a different principle in the constitution. Right? This idea that states have broad control over set and voter qualification standards. Under article one, section two, there’s this link between the qualifications for the most numerous rank of the state legislature and federal elections. States have broad control to set voter qualification standards. Under the elections clause, states can set the time, places in manner of federal elections, so elections for Congress. For the conservative justices, there really is this built in deference to the states when it comes to setting the rules for federal elections. Of course, you have the presidential electors’ clause as well, which allows the state legislature to set the manner for allocating presidential electors. Just various constitutional provisions that embody the state with this authority to regulate federal elections. The conservative justices emphasize that, right? It’s easy to do that when you have a right to…

Preet Bharara:

It’s in the text.

Franita Tolson:

It’s in the text and the right to vote is not. Right? The right to vote is something that the court itself ran into the text whereas you have these other explicit textual provisions that give deference to the state over federal elections.

Preet Bharara:

Right. Lots of people didn’t have the right to vote explicitly until more recent times than our… But I guess the question is for lay people, even though it’s in the text of the constitution, what is the logic behind allowing states to determine qualifications for federal elections? Now, people understand that states can determine the rules and the qualifications for governor or for state legislature and municipalities can do so for mayor and controller and local positions, but the federal government is the federal government. Why that deference in the first place to states with respect to federal elections?

Franita Tolson:

It gave the states some buy-in the federal constitution, right? One of the selling points is that no, we’re not creating this new federal government that will displace the states as political entities. In fact, the states have some control over the makeup of the federal government by having this authority over federal elections. Now, of course, this did not come without concern. In the elections’ clause, in particular, states can set the time, places in manner of federal elections, but Congress has power to make or alter those regulations. Right? Because you can imagine the situation in which some state fails to set regulations for federal elections in order to prevent elections from being held. Congress can come in and fix that. It wasn’t like there was no concern that states would abuse this power. Instead, there was certain fail safes in the constitution to try to prevent states from doing that, but I think at the time, the overriding goal was to get as many states on board as possible with respect to the new constitution.

Preet Bharara:

If you had to do it from scratch, how would you put language into the constitution that you think would put us in a better spot?

Franita Tolson:

I often go back and forth on this. Number one, the problem is that the constitution is too difficult to amend.

Preet Bharara:

Right. But I’m giving you a fantasy hypothetical, professor.

Franita Tolson:

Oh, I know. I know.

Preet Bharara:

We’ll get to reality in a moment, but if you had the ability and pretend for a moment that you haven’t won the 1.2 billion lottery, but I’m giving you the academic dream lottery, you can choose the language, what would you pick?

Franita Tolson:

I’m not fighting the hypothetical. I promise.

Preet Bharara:

Okay.

Franita Tolson:

Instead, I’m pointing out that… In my mind, one of the failures of our constitution is that we don’t update it to reflect where we are in terms of our democracy. Right? Especially over the last 50 years, there’s consistently been like this trend towards America being more democratic, but our constitution has not reflected that trend. Instead, we’ve relied on the supreme court to do the updated. I think that’s part of the problem. Of course, the constitution is too hard to amend, which is why the supreme court has had to step in this way. If I can do it all over again, I will make the constitution easier to amend. I understand that there are risks that come along with that, but I think we’ve reached a point where it’s necessary and then I would include an affirmative right to vote. Right?

Tell us what states are required to do in order to ensure equal access. This brings me to state constitutional provisions, which try to do this sometimes. Right? Every state has a free and fair elections provision that tries to flesh out what the state envisions an election to entail or involve or what the right to vote requires. Of course, state courts step in to fill in some of the blanks, but I think that because there’s that affirmative language in state constitutional provisions, that that’s a better basis for building a democracy and what we have in the federal constitution, which is all about prohibitions. Right? Don’t discriminate on the basis of race or sex or age if one is 18 and above. We need more than that. We need a constitutional provision that not only lays out and affirm the right to vote, but specifies for judicial review and requires strict scrutiny, right? Strict scrutiny means that the court has to look at any state restriction on voting and assume that it’s presumptively unconstitutional. Right? What that means that the state has to justify as restrictions. That’s not the world we live in right now.

Preet Bharara:

Is there a state that provides, in your mind, a great model or the best model for voting in the country?

Franita Tolson:

I really like California.

Preet Bharara:

Is that because you’re in California?

Franita Tolson:

Possibly, but I also lived in Florida and I lived in Illinois, but to me, California is both good and bad. I feel like California makes it very easy for people to vote and participate. I mail in my ballot, I receive my ballot and mail. I mail it back. They send me an email letting me know that it’s been received. They send me an email letting me know it’s been counted. It’s the easiest voting experience I’ve ever had, but California is also big on direct democracy, right? You see that the California constitution constantly changing in ways that can produce anti-democratic results or produce policies that make absolutely no sense. Right? That’s the downside. That’s my proposal that we make the constitution easier to amend. You can’t seriously embark on that without taking into consideration that you can end up with some provisions that lead to bad outcomes. I recognize that, but I also know that the situation we’re living in now is untenable.

Preet Bharara:

Now, opposite question. Is there a state or a group of states who, at the other end of the spectrum, do a more lousy job of protecting the right to vote? Texas, is that number 50 for you?

Franita Tolson:

Oh, my God. Texas is number 50 for me.

Preet Bharara:

Okay. Why is that?

Franita Tolson:

One of the reasons why Texas is the worst is because Texas is a huge, huge state and they have a huge electorate, but they rank among the states with the lowest turnout. When you think about it, especially as I sit here and I tell this narrative about things being more inclusive now, it’s like, “How is this possible?” The answer is that because they want it to be. Right? The state has made a concerted effort to make it harder to vote. Even if you look at their voter ID law, they accept a smaller universe of ID than other states that have voter ID laws. Right? I don’t think that every voter ID law is the same. They have not updated their infrastructure to reflect the fact that they have millions of new voters over the last decade.

Part of this is a response to changing demographics, right? The demographics in Florida… I’m sorry. In Texas. Florida’s another bad one. The demographics in Texas are such that you have more people of color moving into the state, comprising a larger share of the electorate, particularly in counties that are majority-minority like Harris County, which is the county seat of Houston. The electorate there is largely majority-minority and the state has made it more difficult for counties to adopt voting rules to make it easier to accommodate the fact that the number of voters have grown. It’s just a bad actor to me.

Preet Bharara:

It’s interesting you bring up Texas because you testified. I’m sure you knew I was going to ask you about this. During a Senate hearing last fall, the fall of 2021, I don’t know if our listeners are aware of one of the senators from Texas, his name is Ted Cruz and part of the hearing focused on voter ID laws, which I want to get into in more detail in a moment, but I thought we’d introduce the subject by talking about your testimony. He said… Before I ask you about the substance of your answer, were you surprised by how big a reaction that got?

Franita Tolson:

Incredibly surprised. The hearing actually was pretty standard. We had our back and forth and then things proceeded fine. But when I came out of the hearing, my social media had blown up. I thought that I did something wrong, but it just turns out that people were very surprised.

Preet Bharara:

Was that your first viral moment?

Franita Tolson:

That was my first viral moment.

Preet Bharara:

Now, explain once we get past the social media and virality and all of that silliness, why’d you say what you said?

Franita Tolson:

I’ve testified before Congress a few times, and I’ve always viewed my role as that of an educator. My job is to help Congress build the legislative record for whatever piece of legislation I happened to be testifying for at the time. The question wasn’t that surprising in and of itself, but I think in retrospect, the surprise was that he knew better, right? You can’t tell me that he didn’t know that a federal district court had found that Texas had acted with discriminatory intent in passing its law. Now, of course, the case was litigated for almost a decade and it had twist and turns and so on, but it felt like he was acting in bad faith in order to have a gotcha moment for, I guess, one of his campaign videos. But ultimately, I stick with the facts.

My job is to educate, and there were questions about Texas’ voter ID law, which suggested that the law was passed with discriminatory intent in part, because of, as I pointed out, Texas as a state where they’re changing demographics and the state has taken a number of steps to make it hard for African Americans and Latinos to vote in that state, not only through the voter ID law, but also through their redistricting plans for both state legislative and congressional districts. This is not a state that doesn’t have a history of trying to make it harder for black and brown people to vote, but I decided in that moment that I would just do the job that I was supposed to do, which is to educate. It was an opportunity to point out that all voter ID laws are not the same, because one of the things I found, particularly in my hate mail. Right?

People say things like, “Well, you need an ID to fly. You need an ID to drive.” Well, first, if we consider voting to be a fundamental right, if the state is going to require an ID, then there are questions that need to be answered, right? Why do people need an ID? A photo ID. Let’s be clear, because there are other ways of verifying one’s identity. There were days when I remember voting and I had to sign a whole book and they would compare the signatures, right? It’s not as if that’s the only way to verify that a person is who they say they are, but also how easy is the state making it to get the relevant ID? For example, Alabama, there was litigation there because Alabama closed a lot of driver offices where people would go and get their driver’s license in order to have the relevant ID to vote. They closed a lot of those offices in majority-minority rural areas. When a state has taken actions like that, it matters if the state requires an ID to vote, because now they’ve made it more difficult for people to get the relevant ID, but you have to ask those questions. You can’t just assume that, “Well, you need an ID for everything,” that it makes sense to require an ID here. We also can assume that every voter ID law is the same.

Preet Bharara:

Do you think there’s a political tactic going on reflected in that exchange between you and Senator Cruz? I feel like I’ve seen it in other occasions as well. The idea being whether or not the senator or the governor, whoever else knows better and knows some of the facts and knows some of the findings that have been made by actual federal judges, if they make clear to the public and to their constituents that someone, whether it’s Professor Tolson or someone else, has called someone or something or some policy or some rule racist, that’s enough to set their constituency and their hair on fire and they don’t have to do more. Does that make sense?

Franita Tolson:

Oh, no. I absolutely think that that is part of the tactic. Right? If I say that something is racist and it is a thing that a person assumes is just a non-discriminatory rule that applies to everyone, right? How is it racist if everyone has to get an ID, then he’s made the point to his constituents. Now, of course, my response requires nuance. Right? Is a person going to sit there and listen to me, explain that everybody’s not assembly situated? Let me explain why. Everybody does not have a vehicle to get to an ID issue in office. Everybody does not have the money to get the underlying documents, right? As you sit here and talk about how you have an ID, everybody else may not have the same means that you have to get that ID. A lot of people cannot relate to that and they are not going to sit there and wait for me to explain to them about the people who are overlooked because they are not similarly situated and can get the relevant ID. His job is easier. Yeah. His job is easier, right? I’m race-baited.

Preet Bharara:

But it’s even worse than that. Because if you, on top of the general principles, add in the evidence that has been found in certain places that the motivation behind a voter ID law or a certain type of voter ID law in Texas and elsewhere has been literally intended to suppress the vote of people of color, Black and brown people in particular, most notably, then it becomes harder to escape the conclusion of racism, but there’s no time to get into that discussion, right. It’s just a slogan. Then, they move on.

Franita Tolson:

Exactly. It’s the battle of the sound bites.

Preet Bharara:

You did pretty well in that battle.

Franita Tolson:

Thank you. But it is frustrating. To some extent, the Supreme Court opens the door for a lot of this. The Supreme Court, by finding that the state legislature has an interest in combating the appearance of fraud, they made it easy for these politicians to just use the term fraud loosely and not have any evidence of fraud, right? They can create the perception and then pass laws to address it.

Preet Bharara:

Well, how does that happen? The first time I addressed this issue, I was a Senate staffer and I worked for Senator Schumer on the judiciary committee, but he also was a member and ultimately chair of the rules committee that dealt with voting issues. We’re talking about 2007 and ’08. This is 14, 15 years ago, and we did a hearing on this issue of voter ID and the outlandish and overstated claims of fraud. Since then, the issue remains alive. It gets talked about all the time. President Trump formed some commission that ended under a cloud and embarrassingly hadn’t found anything. It remains true that true cases of voter fraud are almost non-existent. What’s your explanation for how, A, is it a myth? B, if it is a myth, how does it persist decade after decade?

Franita Tolson:

Well, I agree. There’s no evidence that voter fraud is widespread. You do have a handful of cases every year, but relative to the number of ballots cast is minuscule, but I think it persists because the voter fraud controversy is reflective of the culture divide. Right? There is a certain segment of our population, a sizable segment, I don’t want to minimize it, who believe that the system is broken, but broken in a way that means that if they lose an election, then that means that there was fraud. Fraud becomes an easy excuse to hang their head on that the system is broken when it doesn’t break in a way that supports their side. That is not a legal problem, right? That’s a cultural problem, right? We just have different segments of our population who are at odds about whether the election results have to be honored. I don’t know if law can fix that problem. Fraud has just become wrapped up in all of that. Again, some of it comes back to demographics. White voters had been in the past a substantial portion of the electorate. When the election doesn’t break their way, some subset of those voters think that there must be fraud and they do so without evidence. As the electorate trends towards being more diverse, then I think you’ll see more of this, but importantly, I’m not sure law can fix that problem.

Preet Bharara:

Should we fix the electoral college?

Franita Tolson:

We should fix the electoral college, but I also don’t think that will fix this problem.

Preet Bharara:

Well, okay. That’s great. You’ve now allowed me to ask a two-part question. One is how should it be fixed? Two, why wouldn’t that solve most of our problems?

Franita Tolson:

Let me start with the second part first. A legal fix will not solve most of our problems because you have people who believe whatever they want to believe, despite evidence to the contrary. We can fix things in hopes of convincing these folks that what they believe is not true, but it won’t matter because they have decided to endorse a worldview that defies law. That being said, those people are not a majority of the electorate. I don’t believe that they are. It makes sense to fix the Electoral Count Act just as a matter of having good process. Right? For example, one of the proposals now on the table is a reform for the Electoral Count Act. The Electoral Count Act is like this just very obscure law that until recently didn’t get a lot of attention until January 6th and the disruption in the count of the electoral votes in Congress.

What it tried to do was set up a procedure where Congress would defer to the slate of electorates that comes out of a state if the state finalizes their slate by a certain deadline. The idea is that it minimizes Congress’ role. The slate comes to Congress, Congress and the vice president sign off on it. Everything is fine, but all of that fell apart on January 6th, because you had legislators who objected to slates that were valid, right? It fed into the insurrection we saw that day, right? We had individuals who stormed the capital because they believe that the election had happened under fraudulent circumstances. The reform to the Electoral Count Act makes a few changes that are, I think important. For me, the most important change is that it will prevent state legislatures from declaring a failed election to override the popular vote in their states.

What that means for your listeners is that a state has an election, a slate of electors emerges from that process. The state legislature is bound to honor that if they want Congress to count their slate, as opposed to being able to say, “Post-election. Well, we have a failed election. We’re going to use our power under article two of the constitution to allocate the state to a different candidate.” The reform to the Electoral Count Act is trying to prevent that, but it also has other changes that are important. Right? It raises the threshold that needs to be met in order to object to a state’s slate. Under current law, you only need one member of each house in order to object. Under this reform, you would need 20%, which I think is very important. In conclusion, it’s a small fix, but I think it’s an important fix. It’s a very important first step, particularly in a Congress that hasn’t been able to get much done because remember, this is the same Congress that couldn’t pass the John Lewis Voting Rights Act amendment, and couldn’t pass H.R.1. Even this small fix, I’ll take it.

Preet Bharara:

What about a larger fix? What about abolishing the electoral college altogether?

Franita Tolson:

Oh, yeah.

Preet Bharara:

Oh my goodness. What was that sound? But the record reflect that there was a heavy sign.

Franita Tolson:

That was a heavy sign because I am all on board for that. I think it’s hard to see it happening realistically, but I’m not going to fight the hypothetical though because if you think about it, let’s talk about the electoral college and its ordinance. Right? It’s a relic of slavery. Why are we governing under a system that’s a relic of an oppressive and inhumane system, right? That will always bother me. There are other ways to do it, right? It’s not like as if…

Preet Bharara:

Well, every other country does it a different way.

Franita Tolson:

Exactly. Right? The response to that, Preet, is always this is American exceptionalism though. Right? We have our own form of democracy. We are a democratic Republic, right? We’re not a pure democracy. This is another way of doing it. Yeah. This is American exceptionalism, but do we really want to be exceptional in this way? I don’t think so. Not if we’re holding our ourselves out to the world as the greatest democracy the world has ever seen, then we need to entertain the fact that maybe we should try to live up to that and not national stage and pursuant to a system that gave slaveholders disproportionate power on the national stage.

Preet Bharara:

We’ll be right back with more of my conversation with Franita Tolson after this. I hate to keep asking you questions that will elicit answers that will make people unhappy, but I do need to ask you given the conversation we’ve been having and what looks to be on the horizon both with respect to the big lie and perhaps the failure to hold accountable. In a particular way, people with respect to the big lie in the January 6th insurrection, what is, from your position, a realistic nightmare scenario with respect to the 2024 presidential election? What are you most worried about? What do you think can happen? Can the election really be hijacked?

Franita Tolson:

Sure. Preet, are you ready to talk about the independent state legislature theory?

Preet Bharara:

Yes. I was introducing it mildly because it gets complicated. I saw you, as you know, recently address the issue of the independent state legislator doctorate, which sounds very yawn inducing to lay people even to some lawyers, but is incredibly important. However you want to answer it. In the course of your answer, maybe explain what that thing is that probably most people haven’t heard of, but they’re going to hear a lot about it.

Franita Tolson:

Okay. Great. Let’s do it in the context of a nightmare scenario. The independent state legislature theory basically says that when the state legislature is acting pursuant to its obligations under the federal constitution to regulate federal elections, so be it congressional elections under the elections clause or in allocating a manner of selecting electors pursuant to the presidential electors clause, that they are free of state constitutional provisions when they are discharging that duty. Keep in mind, most state constitutions, if not all, state constitutions have a free and fair election provision, which says that this is read in accordance with state constitutional provisions that protect a fundamental right to vote. But also, many of these provisions recognize that every vote has to count equally. Right?

In some ways, state constitutions are more progressive than a US constitution when it comes to protecting a right to vote. Well, the independent state legislature theory says that the state legislature does not have to honor state court interpretations of those provisions, or indeed any provision in the state constitution when they are setting regulations for federal elections, because under the US constitution, which creates these federal offices, it empowers the state legislature. They have to be free of state constitutional constraints in this space.

Preet Bharara:

Let’s pause on that for a second. Just, so we’re clear, what you’re saying is, see if I got this, that the argument is based on the federal US constitution, that state legislatures who are elected many states have term limits on those officials getting elected, that those state elected officials are above the actual constitution of the state. That’s the theory?

Franita Tolson:

Yes. All right.

Preet Bharara:

Well, how the hell can that be right?

Franita Tolson:

Well, if you think about it just in terms of pure text, so put the nightmare scenario to the side. If you think about it in terms of pure text, the US constitution has a supremacy clause, right? A supreme to the state constitution. It’s not crazy to think that state legislatures have to honor their obligation under a US constitution that trumps their obligation under the state constitution with respect to offices created by the US constitution. That’s not entirely crazy, right? We talk about federal obligations, Trump and state obligations in other contexts as well. That’s not unusual in that sense, but I think that the facts on the ground are what make it scary. Let’s walk through the nightmare scenario post-2024. Leading up to the 2024 election, we do have one case where the court will determine whether or not this theory has legs, but it’s in the context of congressional elections.

That case is called Moore versus Harper. It deals with a North Carolina case where the North Carolina Supreme Court found that a severely gerrymandered congressional redistricting map violated the state constitution’s free and fair elections provision. The more case squarely presents this question of whether or not the state legislature is constrained by the state constitution in drawing this map. Now, the North Carolina Supreme Court said, “Look, you have violated the state constitution. We protect free and fair elections. People have a right to participate equally. This plan violates that.” The Supreme Court decision in Rucho versus Common Cause in which the Supreme Court said, “Look, we will not resolve partisan gerrymandering claims.” The fact that a state court is stepping in to police this is very, very important, but the claim and more is that the state court really can’t police this because of the Independence Day Legislature Theory. Supreme Court will likely weigh in and perhaps recognize some form of the theory. Let’s be clear, Preet. The court does not have to say that the state legislature is free of all substantive constraints of the state constitution.

Preet Bharara:

But it could.

Franita Tolson:

It could. I don’t want to… Yeah. It absolutely could.

Preet Bharara:

I don’t mean to make too much of an argument from Dobbs, but lots of people thought that there would be a milder version of Dobbs, not a full throated, complete reversal of Roe. There’s nothing that prevents this court. Maybe you can talk about where you think the votes will align on this doctrine. There’s nothing that prevents them from issuing a fairly extreme opinion. Right?

Franita Tolson:

No. There’s nothing to prevent it. Like Dobbs, it may come down to the ability of the chief justice to walk the halls and convince his colleagues.

Preet Bharara:

Not so great of power anymore. Where’s Roberts on this, do you think?

Franita Tolson:

I’m not sure. I’m not sure where Roberts is. I’m pretty sure where Thomas is, where Kavanaugh is. Let me put it differently, Preet. You can have an outcome and more in which the Supreme Court says, “Look, North Carolina Supreme Court, you cannot issue this opinion because it substantially departs from the state legislative scheme.” Right? In some ways, this is consistent with Rucho, right? One takeaway from Rucho was that some level of partisan gerrymandering does not violate the US constitution, and that is okay. Right? The Supreme Court might look at this particular plan and say, “Hey, it’s not that bad.” In fact, the dissent and more made this argument, right? This idea that the partisan gerrymandering in these districts will not substantially change election outcomes. By finding this to be the case, the US Supreme Court can say that the North Carolina Supreme Court has substantially departed from the legislative scheme in a way that offends the federal constitution and this independent state legislature theory. Right?

That the state legislature can, in fact, enact a plan with some gerrymandering. That’s possible, but that does not require the court to say that the state legislature is completely free of all constraints in the state constitution. I do think you can probably get the chief justice on board for that, but let me add another potential complication. In 2015, the Supreme Court decided the case Arizona Independent Redistricting commission versus independent state legislature, where the court held that the term state legislature in the context of the elections clause, which governs congressional districts, did not only apply to the state legislature, that a term legislature applies to the law making process in the state.

In that particular case, it was a state constitutional provision that empowered an independent commission to draw legislative districts. Supreme Court said, “This is okay,” even though under the clause, it talks about the legislature and not any independent commission or any other law making body. In order for the court to find that there’s an independent state legislature theory in the context of more, they will likely have to reverse that precedent. Right? Legislature means legislature because arguably, the state constitution is part of the law making process of the state. If you think Dobbs is bad by reversing a 50-year-old president, or if you think about Casey, what? 30 years, they will possibly reverse a precedent that’s seven years old.

Preet Bharara:

Seven years old. Here’s the question people have, because it gets very convoluted and legalistic.

Franita Tolson:

Yes.

Preet Bharara:

You and I love that stuff. Not everyone follows it all the time. Let me put the question starkly. Depending how this case goes in the Supreme Court, Moore versus Harper that you mentioned, and let’s say some relatively strong version of the independent state legislator doctrine is upheld. Right? So that the state legislators are above the state constitution. The question is does that mean in the aftermath of an election, in 2024 presidential election that a state legislature by simple majority vote can decide to change the outcome of an election from say, Kamala Harris or Joe Biden to say Ron DeSantis or Donald Trump and lawfully be able to do that?

Franita Tolson:

Yes.

Preet Bharara:

Well, that’s a scary answer.

Franita Tolson:

I’m like, “Let me explain.”

Preet Bharara:

I expected a heavy sigh there at least.

Franita Tolson:

Let me explain.

Preet Bharara:

You understood the question, right? That’s a crazy question. You’re saying that the answer is yes. Could you explain and then calm me down?

Franita Tolson:

Okay. Let me be clear. I don’t think everyone agrees with me on this point. I think there are other scholars who don’t think that this scenario is… I won’t say possible, just incredibly unlikely though. Let me start with that caveat. I actually don’t think it’s that unlikely or crazy. It just depends on what happens in 2024 if it’s a close election? Let me explain. This is how it could happen. We get the decision in Moore. We get some potentially strong version of the independent state legislature theory. It’s no longer a theory. It’s a doctrine now. 2024 happens. We get litigation out of that election. It squarely presents the question of whether or not the independent state legislature theory applies to presidential elections. If you think about the rationale, there’s no reason for it not to.

Right? When state legislatures set the rules for congressional elections, they also allocate the manner of electors. No reason to think that it wouldn’t apply, but in 2024, we get a case that squarely presents that question. The court says, “Yes.” All right. That’s scary, but you can also imagine a situation where we have this back and forth about how strong the theory is in the context of presidential electors, but let me scare you a little bit. Right? Remember I told you that the Electoral Count Act, one of the fixes is that it prevents state legislatures from declaring a failed election. What if we get a version of the independent state legislature theory that finds that Congress can’t do that, right? Because if the state legislature is responsible for choosing the manner of elections and the state legislature has determined that there’s a failed election, then how can Congress prevent that if the independent state legislature doctrine, yes, it frees them of state constitutional constraints.

But in the context of article two, it really is about the state. Right? The state legislature, unlike the elections clause in which you have this dance between state legislatures and Congress, right? The text of the elections clause explicitly says that states may set the times places in manner, but Congress can override it. The presidential electors clause, you don’t have that dance. Right? It talks about the states, right? The state legislatures are choosing the manner of electors on behalf of the state. That is what article two says. That language difference is important. Now, of course, this does not mean, Preet, that Congress has no power. Right? Congress could still decide to reject the slate of electors, but that might be their recourse. Right? They just may be prevented from having a federal law that prevents a state from declaring a failed election, but they still can reject the slate. But then, that means it becomes a political remedy and it depends on which party holds Congress.

Preet Bharara:

Yeah. This is the concern. Once again, I’m pointing out that you and I are lawyers, and we can argue about the weight of authority on one side or the other side of an argument. The purposes of our hypothetical, does a group of state legislators in a particular state have the power to overturn an election? Whether at the end of the day, the other scholars are right or you’re right or some version in between is right. An argument can be put forward that has some legs that people can go on television and talk about, can give rallies about, that’s not completely insane if the Supreme Court has ruled a particular way in Moore v. Harper.

Even before the matter is settled, presumably by the Supreme Court, again, like in Bush v. Gore, you have all manner of confusion and not anarchy, so to speak, but all manner of disruption and confusion with people not really understanding who has the better argument or not. In some ways, that argument we’re talking about is more potent and more persuasive and has more foundation than some of the cracking arguments that Trump’s lawyers were making in the past. What’s your view of just the incredible uncertainty and confusion that will arise in 2024 if people start to make these arguments, whether or not you think they ultimately are the better argument or not?

Franita Tolson:

We live in a country where it has become Republican party orthodoxy to support the big lie, and it has become common to punish those Republicans as we see from the January 6th hearings that push back against the big lie. How do you argue with people who think one plus one equal five? The answer is I don’t know. Right? To some extent, you’re right. We are at a point where we have a theory that it is unclear how strong it’ll be. It is likely that it will exist, right? I think that in some way, shape or form that the Supreme Court next year will endorse some variation of this theory, but I do think that 2024 will push the limits of America as a democracy because of the possibilities of this theory and that in some ways, it’s malpractice to not talk about worst case scenario because in some ways, it’s rooted in this belief that America will survive. Right?

It’s it is rooted in that belief about American exceptionalism and America being the greatest democracy in the world, but nothing is guaranteed. There have been times in our history where America was not the greatest democracy, and in fact, could make no claim to be in a democracy at all. But people forget because a lot of time has passed. In the last 50 years, we have seen huge strides in our quest to become more democratic, but we can lose that. I think this doctrine, because it allows for the possibility of anti-democratic outcomes, could facilitate the loss of American democracy. Maybe I am being alarmist. I hope I’m being alarmist. I sincerely hope I am wrong on this. It would please me to no end for me to be wrong on this.

Preet Bharara:

Yeah. Me too.

Franita Tolson:

But let’s talk about it, right? Because if we talk about worst case scenarios, then we can get ahead of them. Right? Even if it’s unlikely, if we know that this possibility is out there, we need to try to do something about it as opposed to ignoring it as unlikely. I never thought January 6th would happen.

Preet Bharara:

Yeah. Just like a lot of your colleagues in academia never thought Roe would be overturned. Just like lots of people in the political world never thought Trump would be elected. I understand the rational positions of people and I try to adhere the rational positions myself, but I’m a little bit sick and tired of people who call other folks alarmist when we’ve seen crazy things happen in this country that people said can’t happen, will never happen. If they’ve happened, they can happen again and they probably will happen with increasing frequency. Unless I see some evidence to the contrary, then that’s going to be my operating principle. Fair?

Franita Tolson:

Yeah. No, I’m with you. Right? To be fair, I’ve seen some good arguments to the contrary, right? Pam Carlin has a great post up about the Electoral Count Act and ways in which it’s constitutional. I want to see more of that. Right? Let’s make the case.

Preet Bharara:

I get that. I have great respect for Pam Carlin. She’s incredibly smart, but these are lawyers’ arguments. My concern is that lawyers’ arguments don’t carry the day when people go and listen to folks at rallies at the Ellipse or other places nearby the capital or near their state capitals. They hear people quoting from a Supreme Court case or citing other minority views in the law. Nobody cares about that when they decide to go get their weapons, and they think the election’s been stolen from them because it’d been told by their elected officials it’s been stolen and they get told by state legislators in a particular state where they assert without evidence that the election was rigged. They say it is in our constitutional power to switch the race back to DeSantis or back to Trump. Those arguments are going to be made with bullhorns at rallies, not in courts. Right?

Franita Tolson:

But what if we have reached a point where the law has done what it can? Yes. I said it.

Preet Bharara:

Yeah. Well, I need a new job then. I got to get out of this business.

Franita Tolson:

But it’s possible, right? We may expect too much from our governing documents to fix this. This is a cultural problem. This is not a legal problem, in some sense, right? The law is following the culture. It should be a surprise to no one that Trump made his arguments in the court of public opinion in social media about fraud and about the election outcome in 2020. Then, the law tried to follow. Right? It’s just that we had… His lawyers were making all of these arguments in court to try to match up with his rhetoric. It’s just that the federal courts to their credit did not recognize those arguments as being legitimate. That is the only reason why the election outcome, I think in my opinion, was able to match where the vote was because federal courts said enough is enough, and this was even some Trump appointed judges. But at the end of the day, we may be beyond that. Right? We may reach a time where it doesn’t matter what the courts say. January 6th is indicative of that. Right? We had individuals storm to capital, despite the fact that there were 68, 69 cases rejecting Trump’s claims that the election was stolen. They didn’t care a bit. Maybe this is not a legal problem.

Preet Bharara:

Well, I don’t think any problem is purely a legal problem. I’ve said that for a long time that something that society cares about, whether it’s corruption or it’s violence or it’s fraud. All of those things have causes and solutions that are also outside criminal prosecution and legal accountability. I think this is one of them. You can’t cause people to believe the right thing just through the application of laws that you pass, which is unfortunate.

Franita Tolson:

No, I agree.

Preet Bharara:

Do you think there’s a decent chance that the 2024 election will also be decided by the Supreme Court?

Franita Tolson:

We should pray that doesn’t happen.

Preet Bharara:

Oh, that’s not a question.

Franita Tolson:

Whatever you [inaudible 01:00:09].

Preet Bharara:

That’s your biggest dodge of the entire interview.

Franita Tolson:

Oh my goodness. It is. Well, we’ve seen it, right? It’s not a question of whether or not it’s possible.

Preet Bharara:

People ask that question with respect to the 2020 election and some people would say, “Yeah. I guess it’s possible,” but the scenarios were not really there. Here, both by virtue of the independent state legislator doctrine and some other potential theories and doctrines, the odds are just higher. Is that right?

Franita Tolson:

Yes. I think part of this is that people are scared and they have these questions and they want the news to be better. The news is bad. It is possible that the Supreme Court might decide the 2024 election. The independence state legislature theory makes it that possibility higher. It’s possible that American democracy, as we know it today, won’t survive that election. Yep.

Preet Bharara:

Okay. Okay. Okay. Now, stop.

Franita Tolson:

Oh, I can keep going.

Preet Bharara:

I know. I know. I was trying to end on a… It is my fault for asking that question to end on something more uplifting.

Franita Tolson:

Oh, let me be uplifting.

Preet Bharara:

Okay. Be uplifting, and then we’ll let you go.

Franita Tolson:

Okay. Despite those possibilities, we have to stay vigilant. Right? Yes. People need to vote. Yes, people should march and protest and advocate at the state level for various policies, participate in state elections, participate in local elections. All of these things are important and in fact have been key to democracy surviving. Right? Key to shifting demographics in tipping point states. For example, the Senate elections in Georgia following the 2020 election are prime example of democracy in action. Right? It matters. We can make a meaningful difference. It’s not that 2024 has to be this horror story. It doesn’t have to be. I’m not borrowing trouble. All I’m saying is given that these risks are out there, then we have to be proactive in trying to make sure that those possibilities do not become a reality.

Preet Bharara:

I like that. One more thing that I forgot to do, give you an opportunity to mention your forthcoming book and maybe we’ll have you back when it’s out.

Franita Tolson:

Awesome. Yeah. My forthcoming book really piggybacks on the point I made about talking about the obligation of the other branches. It’s called In Congress We Trust enforcing voting rights from the founding to the Jim Crow era. It does almost a historical survey of how Congress has weighed in on voting in election since the founding era and how, at least by the time we get to reconstruction, Congress has taken an outsized role in the regulation of federal elections. I think that this really lays a foundation for understanding Congress’ power over elections today. I’m hoping to shift the narrative away from the courts, right? Because we focus on the court. We’re afraid of what the Supreme Court will do, but we don’t talk enough about what Congress can do to protect the right to vote. I hope to correct that with the book.

Preet Bharara:

Terrific. I’m going to let you get back to editing and finishing your book and figuring out how to save the country. Professor Franita Tolson, thank you so much for your time and thank you for your work.

Franita Tolson:

Thank you.

Preet Bharara:

My conversation with Franita Tolson continues for members of the CAFE Insider community. To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

I want to end the show this week by talking about a criminal case. From time to time, there are stories that highlight the law as a tool that can write past wrongs and this is one such story. Last week, a woman from Massachusetts was exonerated for a crime she did not commit, but this was no ordinary pardon. The convicted woman, Elizabeth Johnson Jr. has been dead for nearly 300 years, and hers was no ordinary crime. You see Elizabeth had confessed to practicing witchcraft during the Salem witch trials and until last week was the only remaining person convicted during the trials whose name had not been cleared. Per story in The New York Times, Elizabeth was sentenced to death in 1693 at the age of 22, after she and more than 20 members of her family faced allegations of witchcraft. Now, there’s a lot of talk about witch hunts these days, but this was a real one.

Historians say Elizabeth may have been targeted because she did not have a child and because she likely suffered from a mental disability. Two things that would’ve raised suspicions in Puritan, New England, but Elizabeth was granted a reprieve and avoided the death penalty. She ultimately lived to the age of 77. She was one of more than 172 people from the Salem area to be accused of witchcraft between 1692 and 1693. Twenty of those people were put to death. According to one historian, being accused of witchcraft at that time and place was a stain worse than murder, but somehow as the centuries passed and every other falsely accused person was exonerated, Elizabeth’s case was left untouched. Without any descendants, there was nobody to clear her name until now. Who was it who appealed to the governor of Massachusetts to secure her pardon? It wasn’t a lawyer, but a group of eighth graders and their civics teacher. The teacher entered class engaged in a three-year lobbying campaign, teaming up with a state senator to get Elizabeth’s pardon included in the state’s recent budget legislation.

Carrie LaPierre, the teacher at North Andover Middle School told the New York Times on Saturday, “I’m excited and relieved.” It’s been such a huge project, Ms. LaPierre added that she and her class called Elizabeth, EJJ, and that she became one of our world, in a sense. The eighth graders campaign became a real life civics lesson. Ms. LaPierre taught her students about using primary sources, how a bill becomes a law and the importance of contacting public officials. But even after the students wrote countless letters, a pardon didn’t seem likely until their state senator Diana DiZoglio stepped in and added an amendment to the budget bill. Only then did Elizabeth’s name get cleared. Talk about a lesson in the art of sausage making.

I often say that in the end, it is not the law that does justice. People do. If you’re feeling cynical and need a pick me up, look no further than these young people and their teacher who fought to write a historical wrong and use the levers of government to do it. The Salem witch trials continue to serve as a reminder of what can happen when we give into fear and paranoia. Thanks to this group of students and their teacher for showing us the opposite.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Professor Franita Tolson. If you like what we do, rate and review the show on Apple podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @preetbharara with the #askpreet or you can call and leave me a message at 669-247-7338. That’s 669-24PREET or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Sean Walsh, Namato Sha, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.