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April 23, 2020

Ballot Battles (with Michael Waldman)

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On this week’s episode of Stay Tuned with Preet, Ballot Battles, Preet answers listeners’ questions about online learning, mail fraud, and the Equal Time Doctrine. Then, Michael Waldman, President of the Brennan Center for Justice at NYU School of Law, joins Preet for a discussion about voting.

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As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

REFERENCES & SUPPLEMENTAL MATERIALS

THE Q&A

THE INTERVIEW

HISTORY OF VOTING RIGHTS: 

THE CONSTITUTION: 

SUPREME COURT DECISIONS: 

  • Shelby County v. Holder (2013), Oyez
  • Rucho v. Common Cause (2019), Oyez
  • Lamone v. Benisek (2019), Oyez 
  • Republican National Committee v. Democratic National Committee (2020), SCOTUSblog

VOTER FRAUD & SAFETY:

  • Justin Levitt, “The Truth About Voter Fraud,” Brennan Center, 11/9/07
  • Watch: Voter ID Laws, “The Colbert Report,” Comedy Central, 7/20/11
  • “Trump Disbands Commission on Voter Fraud,” New York Times, 1/3/18
  • Tweet featuring Wisconsin Assembly speaker telling voters it’s safe to go out, 4/7/20

Preet Bharara:

From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

Michael Waldman:

We’ve always had people who have had to demand the effective right to vote or to be represented and other people have been trying to stop it. That debate throughout American history is playing out right now, both in recent years but in recent weeks and months around the Corona virus.

Preet Bharara:

That’s Michael Waldman. He’s the President of the Brennan Center for Justice at NYU Law School, a nonpartisan law and policy organization that works to reform, engage and defend America’s democratic systems. Waldman, a constitutional law scholar and lawyer is also the author of several books, most recently, The Second Amendment and The Fight to Vote and that’s exactly what Waldman joined me to discuss today, the story of the right and the fight to vote in America. As the country gears up for November’s election in the midst of a pandemic, we dive into the contentious history of this constitutional right to make sense of today’s battles over the fairness and safety of our voting systems. That’s coming up. Stay tuned.

Preet Bharara:

Hey folks. At CAFE, we’re working to bring you thoughtful analysis on the latest legal and political news, especially in these uncertain and stressful times. So if you haven’t already, sign up for the CAFE Brief. It’s a free weekly newsletter featuring analysis by my former SDNY colleague and friend, Ellie Honig. Plus, you’ll get links to special episodes. Despite the chaos, we’ve got some projects in the pipeline that we hope to share with you soon and they’re part of our larger goal, making sense of the complicated issues that affect us all. So to receive the weekly CAFE Brief newsletter and links to special episodes, head to cafe.com/brief. That’s cafe.com/brief

Preet Bharara:

This question comes in a tweet from JeffLynch967, who asks #askPreet Preet, you and Anne discussed your family’s online learning experience. Any thoughts about the inequities of digital learning for the reported 19% of students nationally without online access? What if school closures continue in the fall? Thanks Jeff. That’s a great question and a very important issue. I will tell you that we consider ourselves extremely fortunate that our children are able to continue their online learning. Two of them are in high school, one is in college and it’s not perfectly smooth, but at least they’re able to do it and we’re very fortunate that we have the tools and WiFi access, high internet speeds, et cetera. Obviously the pandemic has been a horrible health crisis for a lot of people, tens of thousands of Americans are dead but the other thing, as you pointed out in your tweet that has become clear through the pandemic is how much inequity there actually is and it’s pulling back the curtain on some of the kinds of inequities that sometimes go overlooked.

Preet Bharara:

For example, the inequities in how people get healthcare, how it’s tied to their employment, and if they lose their employment through no fault of their own, like millions of people have in the last month and they don’t have healthcare. We’ve seen how the pandemic affects certain communities more harshly than others. We’ve seen it in many communities. The death rate among African Americans is disproportionately high and obviously as you point out with respect to learning, there are lots and lots of problems. You may recall there was a big debate in New York and maybe in other school districts about closing down the schools in the first place, balancing on the one hand the idea of making sure that we restrain the spread of the Corona virus but on the other hand, understanding that poor families relied on schools not just for learning but also for meals. So there are a lot of inequities that are being exposed by the Corona virus and I’m glad you mentioned this one.

Preet Bharara:

I think in the longterm school districts are going to have to think about how to deal with situations like this and understand that access to high quality internet is an important feature of learning. The good news is, there are some school districts who are trying to make a dent in that, even amid the Corona virus. In Los Angeles for example, authorities there are trying to get digital devices to up to about a hundred thousand students. In the Miami-Dade County public school system, they’ve already distributed more than 80,000 mobile devices for distance learning and I think something like 11,000 smartphones to serve as WiFi hotspots. I don’t know if that’ll be enough, and I’m sure there are many school districts who aren’t in a position to do that kind of distribution, but when this pandemic is over, I think a lot of hard questions are going to be on the table for a lot of people in the education business.

Preet Bharara:

This next question comes in an email from Mark Milner who writes, can’t Biden invoke the equal time doctrine from the networks to counter Trump’s increasingly political daily Corona virus briefing/campaign rallies? I think it would be effective to have him broadcasting after Trump each day, countering the lies, instigation and other nonsense. Well, that’s an interesting question and a lot of people have taken the position rhetorically that what Trump is really doing every day is not providing important health information and economic news, but actually engaging in campaign activity. I’ve made that argument, radio personality, Dean Obeidallah has made that argument, even the Wall Street Journal editorial page has essentially called it, campaign style activity that does a disservice to Donald Trump and to the country. It’s important to distinguish two things as I answer your question though, when you refer to the equal time doctrine that is different from something that came to be known as the fairness doctrine.

Preet Bharara:

The fairness doctrine, as you may know, was a broad FCC policy now defunct that essentially required radio stations and television stations to air opposing political views so that there was equal time. The fairness doctrine is something that conservatives in particular over many years fought to get rid of and succeeded a number of years ago. You may recall the conversation I had with historians, Kevin Cruz and Julian Seltzer some time ago about the significance of the eradication of the fairness doctrine. It is among other things what gave rise to Rush Limbaugh and gave rise to Fox News. Now the equal time rule is something quite different and very specific and it refers to political candidates for office. Then essentially applies to appearances on television or on radio that could be perceived as an endorsement or a campaign related appearance, but it does not apply to bonafide news events or bonafide news interviews.

Preet Bharara:

Obviously, lots of candidates who are running for office often are actually in office and can provide legitimate, bonafide news interviews on a regular basis. There is a gray area between whether or not something is a campaign appearance versus a news interview. Obviously a lot of politicians take advantage of that gray area. But as an enforcement matter, not withstanding what we think about what Trump is doing daily at the Corona virus briefings, it would be hard to argue that a president of United States in the midst of the pandemic, when there is news that is being revealed, when there are doctors who come to the podium, when there are policies that are being announced, it’s hard to say that whatever you think of the rhetoric and whatever you think of the gray area, that that is not a bonafide news event.

Preet Bharara:

There’s more debate as to whether or not cable news stations in their discretion should air them, whether or not it’s a valuable service for the public but on the narrow question of whether or not it violates equal time doctrine or the equal time rule, I think the president probably wins that. By the way, one last point, it’s not at all clear to me that Joe Biden has sought that kind of time that you’re referring to. His campaign continues to put out internet ads. He continues to make some appearances, but I don’t know that he is actually seeking to appear on television every day and it’s not clear to me that if he asked for it, he wouldn’t get it. I’m not sure the networks would be required under the equal time rule to provide it, but they might think it would be good for business and good for ratings for themselves anyway,

Preet Bharara:

This question comes in a tweet from Jen Danielle. Question for Preet Bharara. If the USPS, the United States Postal Service is eliminated a longtime dream of some conservatives, does that also mean that mail fraud is no longer a crime? #AskPreet. So, I love this question. It’s a great question and something I happen to know a little bit about. As people may know that the mail fraud statute provides pretty broad authority for prosecutors to bring criminal actions against individuals or entities for essentially any kind of fraud, so long as it involves a mailing, that’s what gives you the federal jurisdiction. The mail fraud statute along with the wire fraud statute is one of the most widely used in the federal system. If you want to look it up for fun, it appears at title 18 U.S. Code Section 1341 and it essentially allows you to target for criminal prosecution, anyone having devised or intending to devise any scheme or artifice to defraud.

Preet Bharara:

While of course, yes, it makes it clear, then connection with such a fraud, if you deposit any matter or thing whatever to be sent or delivered by the postal service, you’re subject to criminal sanction. Hence, anything you send through the USPS can cause you to be liable if it’s in connection with a criminal fraud. But it also says very clearly the following, “All deposits or causes to be deposited. Any matter or thing, whatever to be sent or delivered by any private or commercial interstate carrier.” That’s in the statute too. Sometimes Congress is smart. So, even if the USPS is eliminated, which I hope it will not be for a lot of reasons including for mail-in voting in the election in November, would be criminals who decide to use FedEx or UPS or any other private carrier would still be subject to criminal prosecution under the mail fraud statute. Thanks for your question. Stay tuned. There’s more coming up right after this.

Preet Bharara:

This ad is a warning. Our democracy is under attack from the United States Supreme Court. In the middle of a deadly global pandemic, people across Wisconsin were planning to vote absentee to keep themselves and their families safe but the night before the election, five Republican justices on the Supreme Court told thousands of people they would have to choose between risking their lives and forfeiting their right to vote. This Supreme Court favoring Republican interests over democracy is nothing new. They gutted the Voting Rights Act. They invited billionaires and corporations to spend unlimited amounts trying to influence elections. They gave a green light to gerrymandering, voter ID laws, and voter roll purchase. Now, a progressive movement is rising up to fight back because it’s quite possible the Wisconsin case won’t be the last 2020 showdown over voting rights to be settled in the courts. We simply can’t trust this court to put aside partisan views and protect people’s right to vote. Our courts are becoming too political. It’s time to say enough. Learn more about how you can join the fight by visiting demandjustice.org/Preet. That’s demandjustice.org/P-R-E-E-T.

Preet Bharara:

My guest this week is Michael Waldman, President of the Brennan Center, part think tank and part advocacy organization. This policy institute focuses on protecting issues at the core of our democracy. Waldman has been a guest of the show before and helped us understand the tense debate around gun rights and the Second Amendment in America. Today he’s back for a primmer on voting, a perennially important topic but especially now with the presidential election in November and an ongoing pandemic. We talk about how the Voting Rights Act of 1965 paved the way for a true democracy, why the Roberts Court has taken a backward stance on voting rights issues and how to protect the integrity of our elections without falling into the misinformed mythology of voter fraud and whether voting by mail is the answer. That’s next. Stay tuned. Michael Waldman, thank you so much for being on the show once again.

Michael Waldman:

Thank you for having me.

Preet Bharara:

So, I have to begin as I always do in this age of COVID-19 with the question, how are you doing? How’s your family?

Michael Waldman:

Thanks for asking. We’re all doing fine. Not really used to this awful situation. I live in Brooklyn where the sound of sirens continues to be very present and you never forget the human toll of what’s going on, but I hope you and your family are doing okay.

Preet Bharara:

Yeah, we’re doing all right. We’re very lucky, we have a house outside the city, so we’re doing as well as can be expected in these circumstances and a lot better than a lot of people. I still am able to do my work as I’m guessing you are and a lot of people don’t have that ability to keep working,

Michael Waldman:

The ability to telework is one more way of revealing the inequality and the class challenges in our society. The people who are having to ride the subway and crowded platforms early in the morning are people who are going to work for all of us, they are people who are working in hospitals, they are people who are working in retail or delivery. Remember Jesse Jackson used to talk about people who take the early bus.

Preet Bharara:

Right.

Michael Waldman:

It’s the same thing and people are putting their health at risk. As we look to get out of this, let’s hope we can use this to kind of reinforce the need to build a better society out of it.

Preet Bharara:

So just to remind people, you’ve got expertise in so many things. This is your second time on the podcast. The last time we had you on, we picked your brain on another issue that’s very important in the United States, the Second Amendment and guns and gun safety and gun regulation. One very interesting and odd statistic in this age of Corona virus is that I believe it’s the case that the month of March this year was the first March in a couple of decades where there was no school shooting. So, when you’re talking about silver linings, kind of perverse to say the least

Michael Waldman:

Yeah, well, you take what you can get but that’s true.

Preet Bharara:

So one of the consequences of the virus is a new focus on voting and how people get out to the polls and how we can make sure we have a free and fair election. We had some issues with respect to primaries over the last few weeks and a court battle, multiple court battles out of Wisconsin and I want to talk about all that. ut before we talk about voting by mail and what your concerns are, and the Brennan center’s concerns are about the 2020 presidential election, I thought maybe since we have you and you know everything, we do some background and talk about voting rights generally and why this is such a difficult thing to get right in this country. I guess my first question, which I know you’ve addressed in other places, we’ve been doing this as a country for hundreds of years now, how come we don’t have it right? Why are we still fighting about something so basic as how we vote and who gets to vote and under what circumstances?

Michael Waldman:

Well, you’re exactly right Preet that when you look at the whole history of the country, it turns out we’ve been fighting about the right to vote and who gets to vote and really who has power. From the beginning, it’s always been an intense, often very political battle. Going back to the very beginning of the country’s history and it’s really, you know, in the broadest sense, it’s about how we build a democracy but the very rules of voting and who gets to cast a ballot have been contested from the start. You look at the declaration of independence and that preamble written by Thomas Jefferson. It didn’t just break with great Britain, which is what it did but it also articulated some basic values and it said that government is legitimate only when it rests on “consent of the governed” and that was at the time a really radical notion.

Michael Waldman:

Now, Jefferson was a hypocrite and it wasn’t true for so many people in this country. At the time he wrote that he was being attended to by a 14-year-old enslaved boy, Sally Hemings younger brother but the idea was really powerful and at that moment we didn’t have anything close to what we would consider a real democracy. Only white men who owned property were allowed to vote. That was what they had inherited from England. But this new revolutionary notion began to upend there from the very start and it was a real fight in 1776 in Pennsylvania, when you go back and look. That was one of the States that had a real live revolution where kind of a mob stormed the State House and they wrote the most radical constitution in the world at that point.

Michael Waldman:

Benjamin Franklin wrote the constitution and the main thing it did was it extended voting rights to men without property.He was asked to defend this, and Ben Franklin said, “Look, there’s a man who owns a jackass. It’s worth $50 so the man can vote. Then the jackass dies and the man is older and he’s wiser but the jackass is still dead, so the man can’t vote.” So Franklin asked, “Who really then has the right to vote? The man or the jackass?”

Preet Bharara:

Right.

Michael Waldman:

Pretty good. One more reason we love Ben Franklin. Well, up in Massachusetts, they were writing their own constitution. Remember these were individual nation States basically and John Adams wrote that and people said to him, “Hey, why don’t you do what they did in Pennsylvania and eliminate the property requirement?” And Adam said, “If we do that, women will demand the right to vote, lads of 18 will demand the right to vote, men who have not a farthing to their name will think themselves worthy of an equal voice in government and they will demand the right to vote.” Adam said there will be no end of it and-

Preet Bharara:

Pretty soon everyone’s going to want the right to vote.

Michael Waldman:

Yeah, and that’s basically the history of the country right there. In fact, there was no end of it and we’ve always had people who have had to demand the effective right to vote or to be represented and other people have been trying to stop it. That debate throughout American history is playing out right now, both in recent years, but in recent weeks and months around the Corona virus.

Preet Bharara:

So let’s fast forward from the founding about a century to right after the civil war. What breakthroughs and fixes did the country make just to go over sort of fundamental civics for folks and do a refresher?

Michael Waldman:

Yeah, I mean, its fundamental civics but it’s also something that was often covered up and that we don’t really learn that much. So, first of all, ironically, the first big voting rights victory was to give the right to vote to white men without property. In other words, working class white men and that was in the 1820s and ’30s in the era of what they call Jacksonian democracy. So ironically, angry, white working class men were the first voting rights movement. But then along came the civil war and Abraham Lincoln going into that war was not for voting rights for African-Americans but the war changed him and so many other people and by the end of the war, there were hundreds of thousands of black men in the army, in the Union Army.

Michael Waldman:

Right after the surrender at Appomattox, Lincoln gave a speech from the second floor window of the White House and which he laid out his goals for after the war. He said, “I’ve been criticized for not extending the vote to black men in Louisiana and I now realize that criticism is right. We should have the right to vote,” and he laid out some conditions on it and he told his cabinet he was going to go even further but there was at least one person in the audience at the White House that day who understood the significance of what Lincoln had said. John Wilkes Booth was there and he gasped when Lincoln said that to the person next to him, he said, “That means citizenship. That will be last speech he will ever give.” He tried to get the guy next to him to shoot Lincoln on the spot and when he couldn’t get the guy to do that, he said, then I will finish him off by God and two days later he went to Fort Theater.

Michael Waldman:

Now, Booth was not a Lincoln fan before that and they previously had tried to think of how to kidnap him, but it was in fact Lincoln’s shift to voting rights that was the thing that made Booth act and there was a huge fight over the right to vote for black man and for former slaves. After the civil war, it wound up being in the constitution, the 15th Amendment, said you can’t discriminate based on race and there was a flowering of democracy in the South. You had voter participation rates of up to 90% among black men and black people were elected governor and Senator and to Congress. Then basically reconstruction ended, there was a kind of a cowardly compromise to settle the 1876 election and you had the beginning of the Jim Crow era where new laws and new constitutions were put in place to take away the right to vote for black men in the South and all over the country and it rolled it back.

Michael Waldman:

One lesson is that, this progress doesn’t only go in one direction and a lot of the same issues arise over and over again. The things they put in place were rules that looked like maybe on their face they were neutral but were really very carefully aimed at disenfranchising some people and immigrants in the North as well. Again, that’s the same trick we see over and over again.

Preet Bharara:

Yeah, give us some examples of Jim Crow laws.

Michael Waldman:

Well, there were poll taxes, which meant you had to pay in order to be able to vote. There were literacy tests, which were implemented by local registrars. Remember that a few years before it had been a crime to teach a black person to read.

Preet Bharara:

There’s a catch 22.

Michael Waldman:

There’s a catch 22. There were grandfather clauses, which said that you can vote if your grandfather could vote. Again, if your grandfather was a slave that was not so good. There were new rules, some of which are still in place for what we call felony disenfranchisement, saying that various kinds of crimes or criminal convictions mean you lose your right to vote. In those days it was things like vagrancy and that kind of thing. So there were a bunch of different rules and they were not explicitly by race, but that was absolutely and explicitly the intent. You had going from a real multiracial democracy in the South, which threatened a lot of people to the Jim Crow era of very few people voting at all, but real white supremacy. That was the dominant fact in American politics for decades, really up until, in a lot of ways, up until 1965 when the Voting Rights Act was passed.

Preet Bharara:

I was going to mention that next as we skim along a century at a time before we get to the modern day.

Michael Waldman:

The best SAT prep class I’ve taken. I mean, it is the case though that even throughout this period, people thought the right to vote was so important and so central to being an American. They fought about it for years and during the gilded age when you had all this new inequality and you had concentration of corporate power and suddenly people were moving into the cities and all the things we know about there, the answer that people came up with was to expand the right to vote. The 17th Amendment, which gave the right to vote for US Senator was actually added to the constitution and that was their version of campaign finance reform because up until that point, state legislatures had chosen senators and they were really corrupt and standard oil would own one Senator and the copper barons would own another Senator and people felt that this right to vote was the way to overcome that.

Michael Waldman:

In the 19th Amendment, you had women win the right to vote. We tend to skip over that in some ways, there’s been a little bit of attention to it because there’s been an anniversary, but a lot of textbooks say, then women were given the right to vote. Well, they weren’t given anything, it was a fight, a campaign, every bit as tough and as brutally opposed as the civil rights movement. So many of the tactics of protest and of pushing for social change that we’re all familiar with were actually pioneered by the suffrage movement. This I find to be an amazing story that I never learned until I researched it for my recent book, The Fight to Vote. The day before the 1913 presidential inaugural, Woodrow Wilson arrived at Union Station in Washington expecting to be greeted by a big crowd. He got off the train and there was basically nobody there. There was the Princeton Glee Club. That was it. They-

Preet Bharara:

That’s something.

Michael Waldman:

That was… The New York Times reported that they made up in enthusiasm what they lacked in numbers. They were in the tank for Wilson. But finally Wilson’s aid said to the host, “Where are all the people?” They said, “Oh, they’re down at Pennsylvania Avenue watching the suffrage parade.” On Pennsylvania Avenue, was the first great protest march in the country’s history in Washington DC. It was 5,000 women marching down Pennsylvania Avenue for the 19th Amendment, for the right to vote. They were led by a young woman on a white horse carrying a banner, dressed as a Greek goddess and her name was Inez Milholland. She’s one of the amazing figures in American history that people don’t know about. She was a recent graduate of NYU School of Law, where you teach and where the Brennan Center is affiliated and 5,000 women behind her and on either side, a hundred thousand men, most of them drunk, they were there for the inaugural and the men started spitting and throwing things and broke through the police lines and beat up the women.

Michael Waldman:

A hundred women went to the hospital. It was a huge deal. Inez Milholland had to fight her way through the crowd with her horse and it was a big deal. The Police Chief of Washington DC had to resign. The publicity for this overshadowed the presidential inaugural in many ways. Immediately, public opinion began to swing toward support for women’s suffrage, seeing these marchers attacked, violently attacked for peacefully demanding their rights. It sounds just like Selma and you realize that this was years before Selma and it was years before so many of these tactics were so common and it still took several years, but they won the right to vote. When the 19th Amendment passed, if you think about it, it doubled the size of the electorate in terms of a constitutional guarantee. So, we’ve had to wage this fight over and over again.

Preet Bharara:

Is part of the problem, even though you and I and others talk about it in terms of a right to vote, that there has been throughout American history a contrary feeling that voting is not a right but a privilege that needs to be earned. Is there any fairness to that?

Michael Waldman:

I think that’s true. I think, again, going back to the John Adams view of a small elite needs to hold on or that it’s a privilege and the more broadly democratic, small-d democratic view that it’s a right of citizenship, a right that should belong to everybody. Of course the woeful discrimination built into the system over many years on race has always been the greatest and ugliest example where the idea of voting as a right is mocked and it continues to be that way. We really didn’t have a kind of true democracy in this country until black people fought for and won the Voting Rights Act of 1965, which really broadened the franchise to everybody.

Preet Bharara:

Let’s talk about that. So Lyndon Johnson takes over the presidency after Kennedy is assassinated. He gets elected in his own right in ’64 and then helps to usher through passage of the Voting Rights Act of 1965, which people learn about in school and certainly you learn about it in law school. Explain why that was such a seminal piece of legislation. What was its primary genius?

Michael Waldman:

Well, the rules put in place in the 1890s to make it so that black people couldn’t vote were still in effect all across the South in the early 1960s. You really had very, very little ability for black people to vote and participate and when they tried to register or tried to vote, they were met with violence and murder and terrorism. Everyone knew that it was both the most important and the hardest thing the civil rights movement could get because it would create the power that would change things in so many different ways.

Michael Waldman:

The story of how the Voting Rights Act was enacted is something I think people have a better sense of now, there was the movie Selma, there’s certainly an understanding but it was this really fascinating interplay between politics of protest and the politics of insider deal-making and public leadership, all of which was required to get it done. So in 1964, Johnson broke through the filibusters from the South and with the civil rights movement, they got the Civil Rights Act of 1964. In early 1965, Dr. King and others came to him and said, we must do voting rights now and Johnson said not yet. It’s too soon. We have to get the great society through Congress and the timing is not right. King said, and there are tapes of the two of them, these two brilliant, masterful Southern politicians, Lyndon Johnson and Martin Luther King, very different but they were both… that’s what they both were, dancing with each other.

Michael Waldman:

There’s a call in March of 1965 and Johnson never tells King that he’s actually ordered the Justice Department to write the Voting Rights Act because they’re going to introduce it. And King never tells Johnson, oh yeah, watch what we do in Selma this weekend. But they recognized that they were going to have to show the country and show the world, Dr. King and John Lewis and the other civil rights leaders recognized they would have to show the world the brutality, to dramatize it. So on bloody Sunday, as people do know there was a nonviolent March across the Edmund Pettus Bridge in Selma led by young John Lewis and the state troopers and vigilantes attack the marchers and sent so many to the hospital. John Lewis had a skull fractured. It was all on television.

Michael Waldman:

That week there was a spontaneous nationwide mass movement for voting rights all over the country. Johnson was both the person they were pressuring, but it was also very savvy in letting the pressure build. Then he did go before Congress a week later and proposed the Voting Rights Act and gave one of the greatest speeches any president has ever given and he said-

Johnson Lewis:

But really it’s all of us who must overcome the crippling legacy of bigotry and injustice and we shall overcome.

Michael Waldman:

We shall overcome. He used the slogan, the song of the protestors and it was extraordinary and they passed the Voting Rights Act and participation opened up. It wasn’t just for black people, it was for non-English speakers, for other communities as well and we really developed for the first time a truly wide and open democracy in this country. There were obstacles, but this whole issue of voting rights when I was in school, it was kind of like in the history books, it wasn’t current events, that’s changed.

Preet Bharara:

Yeah. So the Voting Rights Act essentially did a number of things including barring election practices and requirements that would be discriminatory. One of the things the Voting Rights Act did, which I know a lot of lawyers who practice civil rights law have cared about a lot, is something called pre-clearance in section five of the Voting Rights Act, which essentially requires certain States that have a legacy of bad conduct on these issues, on voting issues and access to the ballot that before they change certain rules with respect to elections, they have to get it cleared by the Department of Justice, by the attorney general. Why was that important?

Michael Waldman:

You’re right. The Voting Rights Act I think is considered the most significant civil rights law. That’s section, pre-clearance section five as it was known, was the heart of that. What that said was, it’s not enough to file a lawsuit after the fact, States that have a history of discrimination, racial discrimination in voting have to get permission in advance to make changes in their laws or even in their practices of moving around polling places and that sort of thing. That very fact of having to go to the Justice Department, changed the conduct of officials all across the country and all across the South. There’s the old line that conscience is the idea that someone somewhere may be watching, that’s basically what happened.

Michael Waldman:

It was not a really big burden. It was not a big tyrannical Washington thing. It was not a big bureaucratic problem, but there were thousands of instances where things were stopped or changed and it became something that people were very comfortable with. So, when the Voting Rights Act, for example, got reauthorized, it had to get re-passed by Congress every number of years. The last time it passed in 2005, I believe it passed 98 to nothing in the Senate. It was broad and bipartisan and George W. Bush proudly signed it into law. The heart of that was the pre-clearance. That is unfortunately what the Supreme court took aim at.

Preet Bharara:

Yes. You’ve anticipated the arc of my questioning. The Voting Rights Act gets reauthorized. It gets reauthorized once under Reagan and then under Bush. As you say, with a lot of bipartisan consensus, it sort of becomes one of these things that it’s hard to vote against. It’s a terrible vote if you say nay because it’s part of what people understand the country to be about and the values relating to voting and civil rights and equal rights. So the Supreme court gets involved in the case called Shelby County versus Holder, which is decided in 2013. What does that do to the Voting Rights Act?

Michael Waldman:

Well, so that gutted the Voting Rights Act in significant ways by basically ending this pre-clearance. This was a case where in the courtroom when it was being argued, Justice Scalia said-

Justice Scalia:

I think it is attributable, very likely attributable to a phenomenon that is called, perpetuation of racial entitlement. It’s been written about whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

Michael Waldman:

People in the courtroom gasped when he said that. Scalia didn’t write the opinion, John Roberts wrote it and he was a bit more decorous, but it was a five to four ruling. Robert said, “Look, that was then, this is now. Black voting rates in the age of Barack Obama in the South are just as high as white voting rates. Racism has changed. There’s not racism the way there was before. We don’t need to do this, and so we shouldn’t be treating those States differently.” Ruth Bader Ginsburg, Justice Ginsburg wrote a dissent there that is really why we really know of her as the notorious RBG among other things. It was really powerful and it was really her finding her voice and she said, “That is like standing in a rain storm holding an umbrella and not getting wet and saying, oh, well I’m not wet, therefore I don’t need an umbrella.”

Michael Waldman:

It was a kind of a predictive question. Who was right? Who was right? Well, I think the facts are pretty clear that Ginsburg was right. Within hours, within hours after the ruling States across the South began implementing laws to make it harder to vote and rules to make it harder to vote. This of course, Preet, it’s worth noting and you were so deeply involved in exposing this early, even before the Supreme court case. Your listeners may not know this chapter of your own career, this was not out of the blue. This came after about 10 or 13 years of real pressure to make it harder to vote in this country. That very much was on the right. That very much became a strategy of the Republican party. I think it started about 2:00 in the morning on election night in the year 2000 when we realized we had this ridiculous, crazy situation where it was a tie in Florida. People on both sides realized, oh my gosh, you can win an election by suppressing the vote or by turning out more voters.

Michael Waldman:

The system by which we run elections in this country was clearly so rickety and so easy to abuse that it gave people an incentive to try their hand. So you had over time this small but very determined and well-funded campaign to push for new laws to make it harder to vote, all claiming “voter fraud” that this was necessary because of somehow there must be a lot of voter fraud and that’s where you came in and exposing this.

Preet Bharara:

We got to know each other when I worked in the Senate and worked on some of these issues some years ago. Can we talk about the court for a second? One can understand why as a partisan matter, if you’re with a particular party and you believe that enlarging the vote among certain populations will hurt your chance at winning elections and whether it’s right or wrong or constitutional or not, or just or unfair, you can get why a party might have that proclivity. On the court, why would there necessarily be, maybe there’s not, why would there necessarily be an ideological divide on these voting questions? Are the conservative justices adhering to some jurisprudence that causes them to vote a particular way on these kinds of issues? Or was Shelby County a unique case?

Michael Waldman:

Well, Shelby County unfortunately is not unique. You’ve had a series of rulings that break down along party lines in terms of who appointed the justices or somewhat along ideological lines where the Supreme court has either ruled or failed to rule repeatedly in a way that makes it harder to vote or makes it harder to get representation. Unfortunately, more and more of the time you can trace this along what party benefits. I would say part of this is, we and lawyers are certainly prone to this, we can’t really expect the courts to be the only savior of voting rights in the country. Over the years they have not taken that role. You did have some event in the 1960s with the one person, one vote cases, but courts have tended to follow a lot of the political machinations of the rest of the government on this.

Michael Waldman:

Voting rights has tended to be won more by people on the streets or people at the ballot box than by judges making rulings. But what you’ve seen in recent years is a real concerted jurisprudential willingness to restrict the franchise or to come down over and over again to say, hey, you know what? Let’s make it so that people can restrict the right to vote. You had a case in 2006 that said, well, the right to vote is important but States can do a lot of different things, it really just kind of technical matters. Even if this was about voter ID and upholding a particular state’s voter ID that really opened the door. You had the Voting Rights Act case, Shelby County that gutted the most effective civil rights law in the country’s history. You had a series of other cases where the Supreme court would take a case where some state officials were usually on behalf of one political party, finding ways to restrict the right to vote and the Supreme court over and over again has either stepped aside or ruled to let it happen.

Michael Waldman:

Most recently, the whole issue of representation relating to gerrymandering. Now that gerrymandering, the drawing of legislative district lines in a way to benefit incumbents or one party or maybe racial majority. Gerrymandering has been around for a long time from the beginning of the country’s history, but it’s really gotten a lot worse with computers and very hard edge political tactics. The Supreme court looked at the most extreme cases of partisan gerrymandering and this was after numerous federal courts had finally blocked these gerrymanders on the grounds that you just had… people were able to vote but their votes didn’t count for very much because no matter how they voted, one political party won.

Michael Waldman:

Last year the Supreme court said, you know what? This is so complicated. It’s so political. We’re just going to step out of it and actually federal courts have no role, are not allowed to take these cases on partisan gerrymandering. When you look at what John Roberts cares about, where he has been willing to take the court in a more extreme direction than it might otherwise go. When you look at Shelby County, when you look at Citizens United and the other campaign finance cases, when you look at the gerrymandering cases and their refusal to act, over and over again it’s these democracy issues where the Roberts Court has really set back the cause of democracy in this country. I think.

Preet Bharara:

So some of the laws that began to be passed after Shelby County and laws that have been advocated for in many States for a long time, go to this question that you and I met over a and that is accusations, allegations of voter fraud, which some people think can be alleviated by having a voter ID requirement. I want to spend a couple of minutes on this whole myth about voter fraud and the need for ID before we get into voting by mail and the COVID crisis. Can you explain to people, and you and I have had a million conversations about this and we did a hearing when I worked in the Senate on these issues with a lot of assistance from the Brennan Center folks and you, why is it the case that requiring a government issued ID before you can go to a poll and vote, how is that not a good thing?

Michael Waldman:

So I would answer it maybe a little differently than than you might expect. First off, election integrity is extraordinarily important and we all need to take it really seriously and we need to take seriously the things where there are real threats, whether that’s Russian interference or machinations by politicians and other things that really do post threats to the integrity of elections. So number one, just worrying about that is not itself voter suppression. But the second thing to understand is that the kind of voter fraud that really strict voter ID laws would affect is vanishingly rare. The Brennan Center over the years has done studies showing that you are more likely to be struck by lightning than to commit in-person voter fraud in the United States. It just is really rare. It’s not a real problem.

Preet Bharara:

Why then does the notion of it persist? I presume on the part of some people it is just a political cudgel that they use to, in a very cynical way, impose requirements that would suppress the vote. I think there’s a lot of evidence to suggest that there is. But in light of the lack of evidence of it, why does it persist?

Michael Waldman:

It’s a great question because it’s really deeply in people’s mindset. Every poll, every study shows that people believe it to be true even though as a factual matter it isn’t. There’s a deep suspicion of politics, it must all be kind of crooked. There are sort of baked in racial implicit biases so that when people think in terms of people who aren’t like them voting, they assume they must be more prone to misconduct and fraud. It’s also really just used and in fact as an excuse to come up with laws that make it harder for some people to vote, that make it harder for people of color to vote, that make it harder for Democrats to vote.

Michael Waldman:

Where I was going to say that I… my own view and the Brennan Center’s view on this is not that voter ID is per se improper, it’s not crazy to require people to be who they say they are and to be able to prove it. It’s that requiring certain types of ID that lots of people don’t have is the problem. So believe it or not, about 11% of voters or eligible voters in the United States don’t have a driver’s license or another similar government ID. That’s hard to believe. It’s hard for many of us who have driver’s licenses or who have that kind of ID to imagine how do people get around without it. But it just is the case. But there are all many other kinds of ways of making sure that someone is who they say they are that doesn’t disenfranchise anybody.

Michael Waldman:

There’s federal law that has six, seven or eight different kinds of ID. In other words, your veterans card, your healthcare benefits. There’s other things than a government driver’s license that also work as ID and that don’t disenfranchise people. To give you some examples of why, so when Texas… just a couple of hours after the Shelby County ruling came down, Texas implemented its voter ID law, the strictest in the country. That was a law that notoriously said that you cannot use your University of Texas ID as a government ID, but you could use your concealed carry gun permit. You know, what a coincidence.

Preet Bharara:

Ah, very clever.

Michael Waldman:

Yeah. Like gee, I wonder how it… so Stephen Colbert at the time said-

Stephen C.:

If anything, this will expand the voter rolls. In Texas, it’s way easier to get a gun than a college degree.

Michael Waldman:

But still, I don’t think that was the idea. In that instance, a federal court ruled 608,000 registered Texas voters, not just maybe someday they would register, existing registered voters lost their right to vote. Another court called these law… saying these laws targeted black voters with surgical precision. It’s very cynical and it’s slicing and dicing of the electorate. Again, you can come up with voter ID rules or other rules that are not disenfranchising. Unfortunately, that’s not what people have done.

Preet Bharara:

The notion of vast voter fraud that requires voter ID or government ID persist so much that the president, we should recall established commission on election integrity that was run by Kris Kobach, who was the secretary of state of Kansas and remind folks what happened with respect to that undertaking that was designed to find all these instances of voter fraud.

Michael Waldman:

So, Donald Trump, when he was a candidate, began claiming voter fraud, well before any votes had been cast saying the election was going to be stolen from him. Then of course improbably enough, he became president and he said, well, I really won the popular vote When you “subtract” the millions of illegal voters. These were not just illegal voters, I would imagine they were special, invisible, illegal voters, right? Because nobody saw them. Fox news didn’t see them, nobody could identify where these illegal voters were. But he said that they were the reason he didn’t win the popular vote.

Michael Waldman:

When people reacted to that and realized this was not just a charge or a claim, but a lie akin to Sean Spicer claiming how many people were on the mall, Trump reacted by saying, well, I’m going to create a commission to prove that it’s true. Mike Pence, the Vice President was the notional chair of it and the leader of it was this guy, Kris Kobach, who wrote a lot of these disenfranchising laws all over the country and was the secretary of State of Kansas. The commission could not find any evidence of this fraud. The members of it wound up suing each other and then imploded without finding any evidence of fraud.

Preet Bharara:

There you go.

Michael Waldman:

It’s not that they weren’t looking. But we hear these charges that over and over again an even now during this crisis, this pandemic, you’re hearing the same claims about voter fraud as an excuse to try to restrict the vote. It’s not really about stopping fraud. It’s not really about election integrity, it’s really about trying to shrink the electorate.

Preet Bharara:

Let’s just fast forward to 2020, and you’ve given us a lot of background and history of the fight to vote, as you call it in your great book from 2016. It seems that there’s so much concerned about in-person voting. We don’t know what the arc of the pandemic will be over the coming months. Primaries have been canceled and moved. Is it the case that the savior for all of this, that the trend must necessarily be, let’s all just vote by mail. As I pointed out on this program before, Oregon was a pioneer in that regard and has had precious few problems and everyone votes by mail. Is that the solution to all of our ills?

Michael Waldman:

Well, this election was an extraordinarily… is an extraordinarily important election anyway and it was already clear that there were… it was expected there was going to be record turnout and the system was really not particularly well equipped to handle that. We saw with the Iowa caucus and long lines in Texas and California all before the pandemic hit. Now along comes this crisis and it’s pretty clear that it’s obviously a terrible health crisis and it is an economic crisis, but that it’s going to become a democracy crisis. That it’s going to really make it a challenge to run an election that is fully participatory, that most Americans can really take part in. We saw that in Wisconsin, where people literally had to stand on line and choose to put their health at risk or have their right to vote. In a way, this is kind of a clarifying moment because there are just some basic previously non-controversial steps that can make a difference.

Michael Waldman:

The Brennan Center has put out a plan of all the things that we think are critical to make it so that people can actually vote in November. You’re right, first of all, there needs to be universal access to vote by mail and that’s not a new idea. It’s actually the case that… already about a third of the country votes other than on election day. The either vote by mail or they vote early, but there’s something like that and the number of States, that’s basically how they do it Oregon, California, Washington State, Colorado, Utah, which is a very red Republican state. This is how it’s done with precious few problems. But it would be impossible to shift the whole election to vote by mail in November, even if it was a good idea. 17 States basically don’t have it and you need to make changes and the rules changes in how they treat the ballots and lot of that stuff is going to have to happen.

Michael Waldman:

So, in addition to vote by mail or no excuse absentee balloting as it would be seen in some States, you also have to have in-person voting opportunities that are safe and accessible. What that really means is a lot of early voting so that you don’t have everybody showing up on election day. It’s an interesting thing, there are a lot of voters who want to vote in-person, who need to vote in-person and there have been reasons why they’ve been reluctant to go to vote by mail. We don’t know what it’s going to be like in November, but we need to have the vote by mail option for everybody and also do our very best to have adequate in-person voting.

Preet Bharara:

So what about the issue with respect to fraud? Now again, on a surface level, when you talk about voting by mail, it seems to suggest, well, nobody’s looking, nobody’s monitoring, you don’t have a poll worker to make sure that everything is on the up and up. Isn’t that susceptible to fraud to a greater degree than in-person voting, fair or not?

Michael Waldman:

The instances of fraud with absentee balloting or vote by mail are still really minimal. They are a little higher than in in-person voting, but there are steps that have been taken and that can be taken to guarantee the security of vote by mail too. As you say, the key thing is, this is not like an imaginary idea, this is how it’s done in a lot of the country now without a problem. Everything from bar codes on the envelopes, signature requirements on the envelope so that you know you match the signature against the signature on file, drop off places. A lot of people are kind of worried about putting their ballot in a mailbox because they don’t know if it’ll get there and-

Preet Bharara:

We don’t know if we’re going to have a post office.

Michael Waldman:

We may not have a post office. So actually the case that most people, as I understand it in States where they do vote by mail, they get sent the ballot in the mail but most of the people want to drop it off at a secure box in a government building, they don’t just put it in the mail. So there are a lot of different ways to make it so that it’s secure. There’s no reason to think that it’s not secure. It’s going to require us to change our understanding of things. For example, they take longer to count. So, it’s always the case that it takes longer to get the results out of California, for example, because they’re still counting after the election. We may not know the results on election night in 2020 and that’s not a sign of fraud. That’s just a sign that people are carefully counting the ballots. But even there, you need to change the counting rules and deadlines in a bunch of States.

Preet Bharara:

Is there an argument that voting by mail renders an election less susceptible to intervention by say Russians?

Michael Waldman:

It’s got its own challenges because while you’re not seeing the voting machines at risk then you have to worry about how ballots are counted and the counting centers, the counting systems are also vulnerable to interference potentially. So at the same time as we are making it so that voters can actually vote, we have to continue to harden the systems against hacking and interference by Russia or Iran or China or North Korea or whoever might be looking to target the election. One example that shows the risks and why it’s so important to take election security seriously, few years ago in Ukraine there was an election and the day before the election they discovered malware on the system for the software for counting the votes. They discovered it and they fixed it. The malware was going to have the far-right party win 54% of the vote.

Michael Waldman:

So they had the election and the far-right party won a really small share of the vote and someone else won but the TV stations in Moscow didn’t get the news and announced that the far-right party had won with 54% of the vote. So that was a bit of a clue as to who might’ve been behind it. So yeah, no, you still have to be really careful. The one thing I want to say is, there’s a lot of issues on voting that have been really intensely partisan and that’s unfortunate, but it is the case and voter ID has proven to be one of them. A lot of these issues around election security have not been partisan. It was a real Democrat Republican coalition that got Congress to pass hundreds of millions of dollars to go to States to strengthen their systems, to protect against hacking by Russia or whoever, vote by mail. So, Donald Trump, he kind of gave the game away on this one. He said-

Donald Trump:

The things they had in there were crazy. They had things… the levels of voting that if you ever agreed to it, you’d never have a Republican elected in this country again. They had things in there about election days and what you do and all sorts of claw backs and they had things that were just totally crazy.

Michael Waldman:

He totally went off script. What was funny of course, because he’s got all these acolytes is all of a sudden, within a couple of days, you saw the Speaker of the Assembly in Georgia and the Speaker of the Assembly in Wisconsin saying the same thing. Then they remembered, oh no, wait, that’s not the script and they suddenly started piously worrying about voter fraud. They remembered that they were supposed to pretend this was about fraud as opposed to restricting the electorate. So now you hear Trump saying, Oh, vote by mail is terrible, there’s so much fraud. But again, vote by mail is one of those things that up until now has not been seen as benefiting either party and if you think about-

Preet Bharara:

Yeah, so I’m confused by that. So, why does the president and why do some of his supporters think that vote by mail is necessarily bad for them?

Michael Waldman:

I think because it has the word vote in it. You can’t have-

Preet Bharara:

Any expansion of the voting probably-

Michael Waldman:

Yeah.

Preet Bharara:

In Florida, for example, where a lot of folks, has an older demographic, which I think historically has voted more Republican than democratic, is this just a political error by the president?

Michael Waldman:

I think that it’s a political error by the president but if you look at election officials from both parties and governors from both parties, including Republican governors, they’ve said pretty emphatically, look, if we want to have an election, we have to make it so people can vote this time and that means expanded vote by mail. Vote by mail was not the dream of left wing advocates, it’s just we don’t really have a choice. The goal is to make it so that everybody really gets to do it so that you want to make sure that for example, you don’t have to pay postage.

Michael Waldman:

One of the real questions is so some States as you described out in the West, ballots are sent to people, but in a lot of other States you have to request a ballot. There are States where you can only request a ballot if you are sick or out of the state. Of course with this pandemic, everybody should be able to request a ballot because of the health risk. Just in the last few days as we have this conversation, in Texas, the governor said, oh no, no, no, you have to really be sick. You can’t request a ballot just because the government and the doctors have told you to stay at home. So it’s raising the question of if somebody is asymptomatic, does that mean they have to go vote in person? This is going to be a battle in the courts and it’s just… look, I think that Trump is making a political error here of potentially significant proportions.

Michael Waldman:

People support making it possible for them to vote, people support by very high margins, both Democrats and Republicans and independence, early voting and opportunity to vote by mail, 70, 80% and all the polls, the Brennan Center did a poll but there have been several by news organizations in the last few weeks. I think that anger over the idea that in Wisconsin, the Republicans were trying to make it hard for people to vote is part of what drove the turnout in that state to be as high as it was. People want to vote and they get mad when you try to take that right away. I think that sooner or later, I’m hoping anyway that some of the politicians on the right will see that but that is the dynamic.

Preet Bharara:

Yeah, it’s not even concern about contracting a virus. You see what the long lines are like if people have jobs where their employers don’t give them the day off or you can’t get childcare or whatever other problems you have. It’s an option that doesn’t seem to be better or worse, whether you’re a Democrat or Republican. It’s just a matter of convenience and now this year for the first time in a very serious way, the matter of personal safety and health too.

Michael Waldman:

For me, one of the defining images of this whole fight right now is on election day, primary day in Wisconsin, the speaker of the Wisconsin house, and remember the Republicans control the legislature in Wisconsin because of ruthless gerrymandering, not because of the way people are actually voting. It’s sort of a perpetual motion machine here. But the speaker who had blocked the effort to postpone the election so that people would be able to cast their ballots more safely, on primary day he was being interviewed by reporters saying, oh, no, no, no, no, this is so safe for people to vote. People should have no worries about going to vote and he was wearing a hazmat suit, while he was saying this. That’s kind of the veep level reality of some of this.

Preet Bharara:

A lot of veep level stuff going on. What do you expect in terms of legal battles going forward? What are people going to be reading about in the newspapers? Case after case after case, state by state as the rules get altered or as people try to request vote by mail with the Supreme Court getting involved at the last minute, are we going to see a million of these?

Michael Waldman:

I hope not, but I think there’s certainly going to be a lot of hand-to-hand legal combat between now and November. I mean, things have to really happen in almost three steps. First, Congress needs to step up and fund this. Only the federal government has the capacity right now to provide the resources that it’ll take for States to make it so that their citizens can vote. The Brennan Center did a cost analysis, we found that it would cost at least $2 billion and actually we’ve looked at it some more and the number is actually higher. Now Congress, to its credit with the leadership of Speaker Pelosi and Senator Schumer did get $400 million in the most recent big stimulus bill to give to States so that they could take the steps that they wanted to take. It was not a federal mandate, it was just really money because right now, only the federal government can print money.

Michael Waldman:

States have these balanced budget rules and they’re strapped and they’re facing crises and running around the country trying to buy ventilators and only the federal government can provide these resources, but they have to do more. There needs to be a few billion dollars in these trillion dollar stimulus bills to help States, and this is something that again, Republican as well as Democratic state officials have been really urgently asking for. The further away you get from Washington, the further away you get from the Fox News green room, the less partisan this is. This is something where state election officials from what we can see, have really been trying to do the right thing. They’re just kind of overwhelmed. I mean, Wisconsin, don’t forget had vote by mail. They didn’t need to change the rule, it’s just that the system buckled under the weight of the number of people who now wanted to use it.

Michael Waldman:

They went from something like 250,000 people in a typical primary up to like a million and a half in one week. So the next step after Congress provides the money is the States need to do what they need to do and some of them need to change their rules. Here in New York state, there’s a state constitutional provision that made it basically impossible to vote by mail, but the governor has done an executive order, reinterpreting their constitutional provision so that people can. But States just need to print it… they need to print up the ballots, they need to get the polling places set up so that people can actually use them safely and in a sanitary way and things like that.

Preet Bharara:

I guess we are on a clock now too, the clock is ticking, right?

Michael Waldman:

Yes, absolutely. This is not something that can be done overnight and we’ve got basically a few weeks to go to get the funding to the States. States need to take these steps. People need to pressure States to make sure they do it. Unfortunately, it’s become clear as part of this, what seems to be a kind of concerted strategy to make it harder for people to vote, the Republican party has now thrown its legal weight behind efforts to block States from taking these steps. So when States try to say, well, we can count the absentee ballots even if they come in after election day, if it’s not the voters fault because they requested it on time but they didn’t get the ballot in time to have it arrive on election day, the Republican party has stepped in to try to block that in court. That’s what happened in Wisconsin. The Supreme court made a ruling. So, in Wisconsin you had the State Supreme Court, which is very politicized and they’re running for office and in fact, one of the justices was up for reelection.

Michael Waldman:

The state Supreme court had blocked the governor from postponing the election. In the US Supreme court it was a more technical question of whether the ballots would be counted after election day and the majority, five to four said, oh, this is just a technical matter and this election day isn’t really any different from any other election day and nothing to see here folks. Again, the dissent on this was basically, you’ve got to be kidding. If you wanted to sum up the dissent it was that this is not… this is just like any other election. One hint that this was not the court’s finest moment is the majority ruling was per curiam, which as you know means nobody would sign their names.

Preet Bharara:

I’m sorry. Right.

Michael Waldman:

I think they were hiding under their desks too, using their robes as masks.

Preet Bharara:

Can I ask you a sort of broad question about where we are in voting in this country? Because a surprisingly small number of people vote, I think in presidential election years it hovers between 55 and 60%, which is not what you would want in the oldest democracy in the world. So my question is, are all these restrictions and difficulties and technical rules with respect to voting that we’re trying to undo, is that responsible for the low voting rate or is a bigger problem, generalized apathy on the part of the electorate?

Michael Waldman:

I think that voter suppression has had something to do with it, but I think there are bigger and deeper challenges. It all works together. Things like gerrymandering, where people don’t really feel they have a reason to vote because most districts, most elections, they pretty much know the outcome before the ballots are cast. That’s a reason people don’t vote, I think. The general demobilization of political parties in the United States over many years is another reason. A lot of the baked in inequality, people just don’t think their voice counts even people’s sense that big money is so dominant. This goes pretty deep in the American psyche, but there’s an interesting trend here which is, first of all, these core democracy issues, the issues of how our democracy works, which are becoming more front and center and I really think have to be at the heart of American politics.

Michael Waldman:

Throughout most of the country’s history, whether it was the John Adams days or Lincoln or the suffrage era or civil rights, those questions have been really central to American politics and it’s at those times that people have been really engaged. I think that the recognition that some people are trying to curb democracy is actually spurring people to get more involved. In 2014 voter turnout was at the lowest level in 72 years and that is really a sign of people being turned off and disengaged from the system but then Trump gets elected.

Preet Bharara:

2018 was a different story.

Michael Waldman:

It was the highest voter turnout in over a century and there was every reason to believe that this election would have record turnout. Now again, it’s still lower than a lot of other countries, but for the American context, people are surging back to the polls and for some people that’s a scary prospect. The country is changing, as we all know, it’s becoming less white. The rising share of the electorate from Latino voters, from Asian voters and voters of color and African Americans, that is a very scary prospect to some people and just as whenever there is big change if throughout the country’s history, part of the way people are responding to that is by trying to change the rules of democracy so it’s no longer representative so that the new voices can’t be heard, that’s really what the fight is about.

Michael Waldman:

The real question here is, if we’re going to have an election in 2020 that people can really participate in, that is free and fair and secure and safe, then we’re going to have to really pressure Congress and pressure the States to do it. It turns out that getting Congress to pass money, getting the States to make it so people can vote by mail or have adequate early voting, all of that is going to require a very loud voice from the public in the middle of this craziness, but if we don’t do it, we’re going to have a lot of Wisconsin’s in November.

Preet Bharara:

Michael Waldman, you’ve given a lot of your time. Thank you again for speaking with us and educating us in all the work you do with the Brennan Center. Thanks again.

Michael Waldman:

Thank you.

Preet Bharara:

The conversation continues for members of the CAFE Insider Community. To hear the Stay Tuned bonus material with Michael Waldman and get the exclusive weekly CAFE Insider Podcast and other content head to cafe.com/insider. Right now, you can try a CAFE Insider membership free for two weeks at cafe.com/insider. Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Michael Waldman.

Preet Bharara:

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 hashtag #askPreet or you can call and leave me a message at 669-247-7338. That’s 669-24 Preet or you can send an email to [email protected] Stay Tuned is presented by CAFE. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore and the CAFE team is Julia Doyle, Matthew Billy, David Kurlander, Calvin Lord, Sam Ozer-Staton, and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara. Stay Tuned.

 

STAY TUNED WITH PREET

Ballot Battles (with Michael Waldman)

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