The future of U.S. democracy hangs in the balance as states battle over voting rights
DAVE DAVIES, HOST:
This is FRESH AIR. I'm Dave Davies, in today for Terry Gross.
As former President Donald Trump and his allies continue to press unfounded claims that the 2020 election was stolen, voting rights activists have been sounding alarms about bills proposed in state legislatures which would restrict voting in future elections. A new report from the Brennan Center for Justice finds that as of mid-January, legislatures in 27 states are considering more than 250 bills with restrictive provisions, compared to 75 such bills a year ago - a tripling of proposals to restrict the vote. The report also finds that there are at least 41 bills that would undermine the electoral process by, among other things, giving partisan actors more influence and permitting citizens to initiate or conduct post-election audits. At the same time, the survey noted, 32 states are considering bills which would expand access to voting.
To get a sense of how election rules might change and their impact, we've invited Michael Waldman to join us. He's president of the Brennan Center for Justice at the NYU law school, a nonpartisan law and policy institute focused on improving systems of democracy and justice. He was the director of speechwriting for President Bill Clinton from 1995 to 1999. He's written several books, including "The Fight To Vote," about the history of American battles over voting rights. An updated edition released last month includes new material on Trump's efforts to reverse the results of the 2020 election and the new wave of restrictive voting bills.
Well, Michael Waldman, welcome to FRESH AIR. This report says there is a dramatic increase in bills in state legislatures restricting voting rights or threatening the vote-counting process. You know, we should note here that, you know, in state legislatures, any lawmaker can introduce a bill, and they do it for lots of reasons - to get attention, to, you know, get the support of a certain actor or constituency. It doesn't mean they're all going to pass. What can you tell us about the real impact or threat of these proposals?
MICHAEL WALDMAN: Well, you're certainly right that there are many bills introduced this year and many bills carried over from last year in the new legislative sessions. And not all of them are serious, and not all of them will pass. But what we also know from looking at last year is very often these bad bills become bad laws. In 2021, inspired by the big lie of a stolen election, we saw 19 states pass 34 new laws that in one way or another made it harder for people to vote. And not all of them are as bad as others. Some are worse than others. Uncannily, though, they tend to target Black voters, Latino voters, Asian and Native voters. They seem very mischievous and even targeted in that way. And we see this trend continuing, and there is far less protection for voters from the federal government or the federal courts than we would want at a moment like this.
DAVIES: Right. And I guess we should just note, I mean, these proposals and the battles over them fall strictly on partisan lines, don't they?
WALDMAN: That's very true. There've been times in American history where there's been bipartisan agreement on voting. Very often throughout the whole country's history, it has divided along party lines. And right now, these bills are being pushed through on a party-line vote very unambiguously in states across the country by Republicans.
DAVIES: Republicans proposing, Democrats opposing. All right, so let's talk about some of these proposals and some of the areas that they would affect. A lot of this, of course, has to do with mail-in voting, which dramatically expanded during the pandemic. Some of these involve requirements to apply for a mail-in ballot, right?
WALDMAN: Well, that's right. When it comes to voting, there have always been things that have been controversial. Just think of something like voter ID. Absentee balloting or mail-in voting was not one of them until 2020, when Donald Trump started claiming that it was all a big fraud.
The 2020 election was really something of a civic miracle. Despite the pandemic, you had the highest voter turnout since 1900. And one of the reasons for that was expanded use of mail voting. And the election was, by all accounts of Donald Trump's own Department of Homeland Security and others, very secure.
Too many of these proposals would cut back on vote-by-mail. They would limit who has access to it. In Texas, for example, a law passed that would provide criminal penalties for an election official who sent out application forms for absentee ballots unless the person specifically requested one - that's an example of both how the election system is being targeted, as well as the way vote-by-mail is being pushed back. And in recent days, a federal court actually blocked that law.
DAVIES: Yeah, this is an interesting thing. You know, typically, there are state election codes with myriads of - with lots and lots of provisions, but I've never heard of a state election official being criminally prosecuted for misapplying one. Have you?
WALDMAN: We saw in 2021 laws or proposed laws to cut back on vote-by-mail, to cut back on early voting, to cut back on voter registration. I wouldn't call them good, old-fashioned voter suppression laws, but some of them were like that. But on top of it now, we see laws to subvert the elections, to make the counting of the ballots more partisan or to make the job of election officials harder. You see in places like Texas actual criminal penalties aimed at election officials. You see in a place like Georgia a law passed to change who counts the results and to take the secretary of state out of the line of really having the significant role in deciding the winner of elections.
DAVIES: Let's just focus a bit on these proposed restrictions and, in some cases, already enacted restrictions on mail voting. You know, there was an enormous amount of mail voting in the 2020 election. Take one of these laws, either enacted or proposed, and tell us how mail voting would be different if they were enshrined in law.
WALDMAN: Well, in Texas, for example, they passed a law that's on the books that said you had to put your voter ID number or your Social Security number - last four digits - on your application for a mail-in ballot. That doesn't sound so bad, right? But many people don't remember which one they used when they registered to vote. And if you don't get it exactly and precisely right, they reject your ballot request. In one county in Texas, as the primary is coming up in Texas, half the requests for absentee ballots were rejected in the last few weeks. This is a series of obstacles designed to trip up voters, and those obstacles are succeeding. You see things like that in these laws all over the place.
Many of the laws originally were even worse as they were proposed. In Georgia, for example, they basically ended vote-by-mail for anyone under 65. There was such an outcry that they didn't pass that, but the kinds of restrictions that you see with giving officials the ability to reject ballots if the wrong identification number is used or something else has the same consequence of making it harder for many people to vote. And we ought to be trying to make it easier, safer and more secure.
DAVIES: Now, I think we should note that the Brennan Center does not oppose, you know, security measures for mail voting. I mean, over the years, there have been some cases where absentee ballots have been abused, most notably in 2018 in North Carolina at a congressional race. You're not opposed to, for example, ID requirements in some cases, right?
WALDMAN: Right. It's really important that elections be secure. It's really important that the integrity of elections be protected. A lot of the worries that people had, that we had about vote-by-mail have been very much improved by new developments, by bar codes being put on the envelopes and things like that - basic security things familiar to all of us from when we send a package somewhere - that really have made it much, much more secure than it used to be. I'm not against voter ID, for example, which is a, you know, often a controversial topic. I think it makes sense for people to be who they say they are and to be able to prove it. What the problem is is requirements for voter ID that lots of people don't have.
And to give just one maybe surprising example, about 11% of eligible voters in the United States don't have a driver's license. I can't imagine getting around without a driver's license, but my kids resisted getting driver's licenses for a long time. Eleven percent don't have a driver's license. And when you pick the kind of voter ID, it can be very mischievous and malicious. You may remember there was a law back in Texas that said that you could not use your University of Texas ID as a government ID to vote, but you could use your concealed carry gun permit. That's the kind of example of picking and choosing the rules in a way that has a pretty clear implication of who it helps.
DAVIES: The new report that the Brennan Center has issued says that there are a number of states that are considering laws to expand voting rights and voting access. You want to describe some of them and their chances of passage?
WALDMAN: Yes. One of the interesting stories is that in recent years, until the 2020 election and its aftermath, the big story has been, on a bipartisan basis, moves to expand access to voting and modernize the election system - everything from automatic voter registration, which is now the law in 19 states, that increases people's ability to participate, laws that expand early voting so that working people have more time to vote than they have in the past, laws dealing with the system of felony disenfranchisement - that is the set of rules that limit who can vote if they've had a criminal conviction in the past. Some states have very strict rules, Florida being the main one, dating back to the Jim Crow era, that say that if you've had a criminal conviction of any kind, that you are banned from voting for a lifetime. Well, what happened in 2018 is voters overturned that by 64%.
Now, the legislature stepped in and tried, in effect, to undo that and actually made it very hard for people, still, to exercise their rights. But the trend in many states is for strengthened voting rules, for expanded voting rules. It has not just been Democrats. It's been both parties. But what we've seen since the 2020 election and Donald Trump's claims - false claims of a stolen election is that restricting the vote or taking on the election system or undermining the confidence in elections has become a cause among many of Trump's followers. And we see it animating politics in places like Arizona and Texas and many other states.
DAVIES: We need to take a break here. Let me reintroduce you. We are speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School. It has a new report on proposed changes in voting rules in state legislatures. Waldman's book "The Fight To Vote," by the way, is out in an updated edition. We will continue our conversation in just a moment. This is FRESH AIR.
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DAVIES: This is FRESH AIR, and we're talking about proposals in state legislatures to restrict voting and, in some cases, undermine the integrity of election processes. We are speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School, which has just released a new report on those proposals.
Apart from efforts to restrict voting and restrict access to voting, the report says that there are these proposals, some inactive, which undermine the integrity of the electoral process. Can you give us examples?
WALDMAN: Well, look at a state like Georgia. Brad Raffensperger is the conservative Republican who's secretary of state, and he's fought with voting rights groups over the years. He's no pushover. And we all know that Donald Trump, in his effort to overturn the election, called Raffensperger and demanded that he, quote, "find 11,000 votes," which was what Trump needed to take back the state. And Raffensperger showed some real courage. He stood up to it. He released the tape of the phone call. The response was the Republican state legislature removed the secretary of state as the chair of the state board of elections - took him out of the power of actually deciding the results of elections. That's a pretty pointed example of the political payback that's involved here.
We see bills in places like New Hampshire and Virginia that would potentially allow the removal of professional election officials and replacing them with partisans. We see proposals in a place like Virginia, which might not pass given the political makeup of the state, to remove election officials if they think that they are, quote, "demonstrating less-than-satisfactory performance" decided by the legislature.
Election administration is something that has been at its best when it's nonpartisan, when it's professional. And election officials of both parties right now feel tremendously threatened. They're threatened by these laws. They're threatened often by partisans in the state government. But unfortunately, also, they're now being threatened by people riled up about this stuff. We did a survey of election officials, along with the Bipartisan Policy Center, and 1 out of 3 election officials feels threatened, and many of them have had actual threats of violence. And, you know, these are not the most glamorous jobs. (Laughter) These are not - they're not in this for the big bucks. A lot of them are looking potentially to leave their jobs. And if we wind up in a situation where not just partisans, but people who believe false things about elections being stolen wind up running the elections, that's going to be something that would give us a lot of reason to worry in years to come.
DAVIES: Right. So if these provisions were - some of these provisions were - had been in effect in 2020, how might things have gone differently?
WALDMAN: We now know more and more every day that Trump really did try to steal the election, and people stood in his way - governors of his own party who certified the results, secretaries of state of his own party, local election officials in places like counties in Michigan who certified the results. And we know Trump tried to overturn the election, and it was chaotic and clown-like. But there's no reason to think it will be chaotic and clown-like next time, either by him or by someone else. You see not efforts led by, you know, Rudy Giuliani with hair dye dripping down his face at a press conference, but party operatives systematically removing obstacles to partisan decisions about who wins the next election.
DAVIES: I want to just mention one thing about Donald Trump's call to the Georgia secretary of state, Raffensperger. I've listened to that entire tape. What Trump actually says in the tape is, I need to find 11,700 votes or whatever the number was. He didn't tell Raffensperger you have to find them, but that's clearly the import of the call. He listed a half-dozen things that he should do.
WALDMAN: He also threatened to criminally prosecute him, and since he's the head of the federal government, that had a little bit of oomph at the time.
DAVIES: Oh, yeah. Everything about the call was improper, including Raffensperger getting on the phone with a disgruntled candidate, I think. I mean, you don't - you shouldn't have secretaries of state doing that. You know, there's a process for contesting an election. But, you know, it occurs to me that if you have a situation in which partisan actors under these new laws are in control and can, you know, reverse results, it would still require them to make a factual showing. I mean, there's still going to be a tabulation by systems that are in the main pretty reliable, and there will be a result. And those individual actors will have to, you know, make a raw power play and kind of say, well, you know, black is white. You know, what you see isn't true. I wonder if there's some hope that just being put on the spot and having to say, having to make a factual case that you can't make might be a break on this, which is not to say that the laws are not harmful.
WALDMAN: And that is, of course, what happened in 2020. It was the facts of the election results were underlying why people stood up and, regardless of whatever their party affiliation was, why they did the right thing. The election in 2020 and now, in fact, is quite secure. The ability to have paper ballots, which is now widespread, gives people the ability to count and to recount if necessary. The system actually has gotten quite effective and precise in avoiding some of the confusion about election results that we saw in the past, in our country's history and in the recent past. Think about the Florida recount in 2000. We saw a 60 or so lawsuits brought against the results in the 2020 election, and they were all thrown out of court and not just on technical grounds. They were deemed to be very flimsy.
And over and over again, every time there's been a recount, an audit or anything else, people have said, you know what? The system got it right. The results were counted accurately. And interestingly, the expanded electorate, the record turnout, people voting by mail didn't really help one political party or another. As you know, the Republicans actually did very well in the congressional race. They did much better in the House than expected. They did better in the Senate than expected. Only Trump lost, and he actually even did better than expected.
So it's not as though having this safe and effective election in the middle of a pandemic, it's not as if it benefited one party or another. I guess I would say it just benefited voters, which makes the false claims about it all the more maddening because they're really so at variance with what actually happened.
DAVIES: If Democrats could rig votes any way they want, surely they would have taken control of the Senate.
WALDMAN: You know, the claim that the machines were rigged to only throw votes to Biden, but at the same time, the Republican congressional candidates won - doesn't make a ton of sense.
DAVIES: We need to take a break here. Let me reintroduce you. We are speaking with Michael Waldman. He's president of the Brennan Center for Justice at the NYU Law School, which has just released a new report on proposed changes in voting rules in state legislatures. Waldman's book, "The Fight To Vote," is out in an updated edition with new material on former President Donald Trump's efforts to reverse the results of the 2020 election and the new wave of restrictive voting bills. We'll be back to talk more after this short break. I'm Dave Davies, and this is FRESH AIR.
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DAVIES: This is FRESH AIR. I'm Dave Davies, in for Terry Gross. Our guest is Michael Waldman, president of the Brennan Center for Justice at the NYU Law School, which has just released a new report on the growth in proposals among state legislatures to restrict voting access, to give partisan actors more influence in the electoral process, and in some cases, to expand access to voting. An updated edition of Waldman's book "The Fight To Vote" has just been published with new material on former President Donald Trump's efforts to reverse the results of the 2020 election and the new wave of restrictive voting bills.
You know, in your book, you go back to the early days of the republic and note that, you know, voting has never been easy. There have been fights over it for all of the history of the United States. You know, we - way back in the late 18th century, it wasn't even just only white men who got the vote, but in most places, only white men with property. And that's changed over the years.
And then, you know, eventually slavery ended, and eventually the Civil Rights Act was passed, and women were permitted to vote. There is one debate among the founders that has relevance today that you mention. And it specifically is about the role of state legislatures in deciding - well, the role of the states in deciding the rules for voting in the republic. You want to outline what was at issue in that debate as they were drafting the Constitution?
WALDMAN: Well, there's a provision in the Constitution called the elections clause. That's been pretty important, though it's not terribly widely known. What it says is that legislators set the times, places and manner of elections, but Congress has the power to alter those rules at any time. And James Madison insisted that the elections clause be in the Constitution not because he loved state legislatures, but precisely because he thought state legislatures were corrupt and would be taken over by what they called factions - but of course, we call political parties - and that they would do things like gerrymander and voter suppression.
Of course (laughter) they didn't use those words in those days. Among other things, Elbridge Gerry - it's actually how it's pronounced - was standing right there, but that is actually what they were talking about. They were talking about rules drafted by states to favor the political interests of the people drafting the rules. There was a big debate over it in the Constitutional Convention. Madison insisted that it stay in, and he prevailed. The intent of the Constitution is quite clear. The goal is to make sure that partisan mischief does not upend our elections.
You're right that they didn't have a guarantee of the right to vote in the original Constitution though five amendments ever since then have talked about the right to vote. But they were very focused on representation, and they knew very acutely the risks of corruption and self-dealing, and they tried to put in those protections, which makes it all the more ironic that that very provision is now being used or argued for as a basis for giving more power to people who would twist the rules, in my view.
DAVIES: Right. I mean, the clause itself mentions the states, gives them a function, but says that Congress can exercise its will. But now we have this notion that states are supreme and independent in matters of election. Where does this come from?
WALDMAN: Well, what you're hearing people say is that because it uses the word legislature, which was basically meant states - but because it uses the word legislature, then supposedly, the only people who have any power over these elections are state legislatures, you know, the guys in ill-fitting suits under the dome (laughter) basically. And that would cut out the state constitutions. That would cut out the state courts, who rely on those state constitutions. It would cut out governors. And certainly, it would cut out election officials from having any ability to do anything.
This has never been found by a court. This is not some big doctrine that exists in the Constitution, but it is also the case that at least four of the very conservative, current members of the U.S. Supreme Court think this is a good idea. And it's very likely that there'll be some major constitutional showdowns over this in years to come, maybe even very soon.
DAVIES: Right. It's the state legislatures that are enacting these new voting provisions. And I think in some proposals, the state legislature itself would be the deciding entity in the case of, say, a presidential election and where the electors go.
WALDMAN: That is what some people want. It hasn't happened yet, and those laws have not passed yet. It's important to remember that when it comes to presidential elections, things are a little murkier because of the Electoral College. But what the Supreme Court said, again, most recently in - and at least, an aside in a case in 2020 is under the Constitution, state legislatures can pick any way to pick a president. But all of them have chosen to give the voters the say.
And once voters are given that say, then the state legislatures cannot just step in and say, you know what? We don't actually like who people voted for. We're going to vote for the different person. So I think that if, in fact, state legislatures claim the role of undoing what the voters had done, that would be just an outrageous, of course, affront to democracy. And I think it would be incredibly divisive and would not stand.
DAVIES: There have been efforts in Congress to exercise some controls and establish rules, which would - you know, which would reverse some of the decisions that have been made in states that restrict ballot access or alter the election process. Give us a sense of where all that stands.
WALDMAN: Well, it's been one of the great political clashes of the past year and of current times just as it has been throughout the country's history. In this period, states have been rushing forward to pass these restrictive voting laws, and Congress has the power, legally and constitutionally, to stop it, to set national standards. The question has been, does it have the political will? And so far, the answer is, you know, not yet.
Over the course of the past year, two key pieces of legislation were moving through Congress. I was very supportive of them. The Freedom to Vote Act set national standards on voting and banned partisan gerrymandering among other things. And the John Lewis Voting Rights Act restored the strength or would restore the strength of the Voting Rights Act, which was the great landmark and highly effective civil rights law enacted in 1965, which has been basically gutted by the United States Supreme Court.
These bills were eventually combined into one bill. It passed the House of Representatives. It had the strong support of the president. It has the support of a majority of the Senate. But it has been filibustered. And as you know, two of the Democratic senators, Senator Manchin and Senator Sinema, although they support the bills, would not make the rules changes to actually enable them to pass. So it was a very big disappointment for those of us who think this legislation is pretty important, pretty necessary.
You know, there are just times in the country's history where federal action is the only real, strong answer when states are abusing the rights of their people, and I think that's where we are now. And it gives me great concern because if it is the case that Congress can't pass voting rights legislation because of the filibuster and the courts will not protect voting rights because they've been turning away from it, then that gives a green light to states to do their worst. And there's just no reason to think that whatever we're seeing right now is as bad as it can get.
DAVIES: We need to take another break here. Let me reintroduce you. We're speaking with Michael Waldman. He's president of the Brennan Center for Justice at the NYU law school, which has just released a new report on proposed changes in voting rules in state legislatures. We'll be back after this quick break. This is FRESH AIR.
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DAVIES: This is FRESH AIR, and we're speaking with Michael Waldman. He's president of the Brennan Center for Justice at the NYU law school, which has released a report on proposed changes in voting in state legislatures. Waldman's book "The Fight To Vote" is out in an updated edition with new material on former President Trump's efforts to reverse the results of the 2020 election and that new wave of restrictive voting bills.
You know, Michael Waldman, this is such an extraordinary time, and we're seeing democracy under assault and fights over voting procedures, access and counting in so many places. Is this unique in American history?
WALDMAN: You know, in a lot of ways, there are new things, but in a lot of ways, this is one of the great stories of American history from the very beginning. At the time we started as a country, we were anything but what any of us would consider a democracy. As you said, only white men who owned property could vote. But the ideals of the American Revolution and the Declaration of Independence and the idea that government is legitimate, as it said, only if it rests on the consent of the governed, that started to shake things up from the beginning.
That year, in 1776, each of the newly independent states had to write their own constitution. And in Pennsylvania, Benjamin Franklin was in charge of writing the constitution, and they eliminated that property requirement so that men could vote - working-class and poor men as well. And Franklin explained why they did it. He said, there's a man who owns a jackass. It's worth $50, so the man can vote. Then the jackass dies. So the man is older, the man is wiser, but the jackass is dead, so the man can't vote. So who, Ben Franklin asked, really has the right to vote - the man or the jackass? Good question. One more reason we love Ben Franklin.
Well, up in Massachusetts, John Adams was writing their constitution. And people there said, hey, you ought to do what they did down in Pennsylvania, eliminate the property requirement. And Adams was aghast at this idea. He 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. John Adams said, there will be no end of it.
And that's really the story of the country. There has been no end of it. From the beginning, people have demanded access to democracy, have demanded a seat at the table, demanded to be able to vote or have their votes counted, and other people have fought back against that to try to stop it. And that fight has continued all throughout history. And in many ways, that's what we're seeing again today. As the country's changing, it's demographically changing, there's a backlash against that, and we're seeing it play out in these fights over voting.
DAVIES: I guess what I wonder about in some of these cases is, yeah, it's convenient in some cases to have people believe this notion that elections can be stolen, but eventually, if elections lack credibility, that's not really good for anybody, is it?
WALDMAN: No, it's very worrisome. Many of the basic elements of a democracy, which we have taken for granted in our country, is that when someone loses, they're not happy about it, but they congratulate the winner and accept the results and that people effectively accept the legitimacy of the process of counting votes or of the voting system. And the more polarized we are as a country, the more partisan the fights get, the harder it is to maintain that.
You know, we see this kind of thing not just in the United States, unfortunately, but in many other places in the world at the same time. There's a real pushback against democracy. There was a big wave of democratization after the Cold War, especially, and now, whether in Hungary, whether in Turkey, whether in the Philippines or Brazil or here in the United States, we see people really calling into question, as Trump has, the legitimacy of our democracy. And it's a scary thing. It's something that we, I guess, feel we need to fight against it. We need to stand up. People from all political persuasions need to say, no, our democracy is not rigged, no, our democracy is legitimate, and we need to try to make it work.
DAVIES: The courts have often been a place that people turn to when bad ideas are enacted by state lawmakers. To what extents have - are the federal courts a remedy for what's going on in the current epoch?
WALDMAN: It's one of the interesting and surprising things I learned in researching the book, which is that very rarely has the fight for voting rights been successfully waged in the courts. It's really come much more in legislatures or at the ballot box or on the streets. And that is certainly true in this current era. This Supreme Court under John Roberts has actually been very aggressive in cutting back on protections for voting rights and campaign finance. The court has not struck down a single restrictive state voting law in the past decade. The Voting Rights Act of 1965 was the most effective single civil rights law probably that the country had, and it was gutted. Its most important provision was gutted in 2013 by the Supreme Court in a case called Shelby County. And then the parts of the law that were still standing were gravely weakened last year in a case that didn't get so much attention called Brnovich. And now the Supreme Court seems poised to kind of finish it off altogether.
The court undid a century of campaign finance law in the Citizens United case in 2010. And when it comes to gerrymandering - that's the drawing of the district lines either to benefit a political party or to make it harder for racial minorities to be represented - the Supreme Court looked at the issue of extreme partisan gerrymandering and washed its hands and said, we're not going to get involved. In fact, federal courts aren't even allowed to hear the cases. So I don't think that we can realistically look to the courts and certainly not this Supreme Court to be the ones defending and saving American democracy.
DAVIES: We need to take a break here. Let me reintroduce you. We are speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School. It has a new report on proposed changes in voting rules in state legislatures. Waldman's book "The Fight To Vote," by the way, is out in an updated edition. We will continue our conversation in just a moment. This is FRESH AIR.
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DAVIES: This is FRESH AIR. And we're talking about proposals in state legislatures to restrict voting and, in some cases, undermine the integrity of election processes. We are speaking with Michael Waldman. He is president of the Brennan Center for Justice at the NYU Law School, which has just released a new report on those proposals.
The Brnovich case - you mentioned this - in Arizona was a case in which the question was, would some changes in voting rules which had a disparate impact on Native Americans and people of color, are they illegal under the Voting Rights Act? And an appeals court said, yeah, these rules, regardless of their intent, had a disparate impact, and they violate the Voting Rights Act. What did the Supreme Court do? What's the implication of it?
WALDMAN: Well, what the Supreme Court said - and as with so many of these cases, it's - what matters is less the specific facts of the laws they were looking at than the legal standards they set out. What the Supreme Court said was that Section 2 of the Voting Rights Act, that's the part that was still standing that said that after the fact, you can bring a lawsuit against discriminatory voting practices, and that was what had been used in recent years to block a lot of the worst voter suppression laws. Well, the Supreme Court said that you have to prove intent to discriminate, not just the impact to discriminate. And that makes it very easy for state legislators to just basically cover their tracks. They gave them something of a how-to manual on how to pass these laws without making it look like your intention is to discriminate - just, oh, what do you know? It turns out that's the result.
This is ominous because this part of the Voting Rights Act has been very useful in recent years in blocking some of the worst voting laws, and now it is much, much more gravely weakened. And the legislation that is being considered by Congress would restore the strength of the Voting Rights Act and make it clear that if there's a really, really clear disparate impact that a voting law is something that affects Black people or Latinos or other minorities much more so than white voters, then we can say that that needs to be protected against.
DAVIES: If the federal courts aren't likely to reverse any of these changes that we're seeing, there, of course, are state laws, and there are state constitutions, and some of these state laws can be challenged by those who argue that they violate provisions of their state constitutions. Is that a meaningful avenue to pursue?
WALDMAN: It is likely that this is going to be an important avenue going forward, as the federal government doesn't do its job to protect voting rights nationwide. Every state constitution but one has an explicit protection for the right to vote that is stronger than what's in the U.S. Constitution. And people are now starting to bring lawsuits in state courts to validate those rights, and we're going to see whether they are able to make some success. And there's some evidence that there will be success. My organization, the Brennan Center, for example, brought a lawsuit in Ohio on behalf of Black and Muslim voters challenging the redistricting, challenging the new legislative maps, which we said and they said did not reflect the actual population of Ohio. And the state Supreme Court, now twice, under Ohio's law and the Ohio constitution, has thrown out those maps in the kind of cases the federal courts wouldn't go near right now. So - we saw something similar in North Carolina.
One of the interesting twists here is a lot of these state Supreme Court justices are elected. And I've never been a big fan of electing judges. But you can also see the argument that, well, it may be that those courts are a little more responsive to the wide variety of people in a state.
DAVIES: One of the other things you write about is the importance of protecting election officials, people who are, you know, civil servants or in some cases elected officials but who are doing their best and have been - have received, you know, physical threats as a result of doing their jobs. How do citizens help reassure these elected officials and stand by them?
WALDMAN: It's a crazy moment. These folks are really under assault in all different kinds of ways. We need to make sure that there aren't laws that put them at risk of criminal prosecution for just doing their job. We need to stand up against the disinformation, which is often what they're flooded with when, you know, some video goes viral and they wind up getting deluged with hate and hateful messages, again, just for doing their jobs. I think we all can insist that law enforcement, both local law enforcement and federal law enforcement, step up and recognize that this is a real problem of these threats to these public servants. And in effect, just letting these election officials know that we all have their back, I think, is pretty important.
DAVIES: You know, regardless of what happens in votes in legislatures or court cases, we do have this problem of tens of millions of people who believe that elections in this country can be stolen, that tens of millions of ballots in a presidential election can be fraudulent. And it seems that something needs to be done to engage those people and get them to look at things differently. Any thoughts on that?
WALDMAN: You know, it's a big challenge for our democracy and one we haven't faced before. I point out that the southern states didn't like that Lincoln got elected. In fact, they seceded because of it. But nevertheless, they admitted that he got elected - to give just one historical example. We've not previously faced a situation where not just tens of millions of people believe the false idea that the elections were stolen, but their leaders keep telling them it was the case. And as far as they know, the former president of the United States keeps saying it. And the idea of the big lie is that if you say something outlandish often enough, people think, well, he can't be making all that stuff up.
I really think that part of what has to happen is that other Republicans need to stand up with much more courage than they've showed so far to say, you know, I don't like Biden, I don't like the Democrats, I'm a Republican, but this idea that the election was stolen is nonsense. And we hear people say that sometimes in a whisper, and then they kind of back off. I do think part of what has to happen is a little bit of courage on the part of other Republicans. It is a big, interesting, strategic question always because this idea of voter fraud is not entirely new. Elections in the United States are actually very secure. Voter fraud is vanishingly rare. As a statistical matter, you're more likely to be struck by lightning than to commit, for example, in-person voter impersonation. That's been confirmed over and over and over again. And people say, well, you know, facts are not going to persuade people.
You can't just pound people with facts on this kind of thing. But at least at the Brennan Center, partly because of how we do our research, we do really think it's important that people understand that this isn't just a claim. This isn't just a question. It's a lie. The elections are tremendously secure. But I think people have to have an understanding, too, of the basic, deep patriotic values that undergird our elections. It's very hard to be an American. It's hard to live up to the ideals that maybe they haven't been the reality, but they're certainly what we've all aspired to if we're going to just kind of cast aside our democracy. I think it's that deep an issue right now.
DAVIES: Well, Michael Waldman, thank you so much for speaking with us.
WALDMAN: Thank you.
DAVIES: Michael Waldman is president of the Brennan Center for Justice at the NYU Law School, which has just released a new report on proposed changes in voting rules in state legislatures. An updated edition of Waldman's book, "The Fight To Vote," has just been published with new material on former President Donald Trump's efforts to reverse the results of the 2020 election and the new wave of restrictive voting bills.
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