The National Constitution center is the only institution in america chartered by congresr to increase awareness and understanding of the u. S. Constitution among the American People on a nonpartisan basis. That is a wonderful representation and before we begin, i want to provide quick for the next couple august 4, please join us for the annual Supreme Court review would be Antidefamation League Frederick Lorenz and it will be a wonderful discussion of the important pieces of th cases ofm inferencing must tell you what a great pleasure on august 2 26th house circumstances permitting will open up our new exhibit how women won the vote about the 19th amendment as it is relevant to todays topic that examine exhibit about the history of the expansion of womens suffrage at workteam is hard glimmering behind me on the backdrop of. Throughout the program please put your questions in a box and they will introduce them as sooe as possible. Now it is my great pleasure to introduce our phenomenal taste. Matthew sterling professor of history, social policy at the john f. Kennedy school of government at harvard and the author of many books including the right to vote, the contested history of democracy which was a finalist for the Los Angeles Times book prize and the book coming out in just ten days, why do we still have the Electoral College. For the Academic Affairs and professor of law Southern California her forthcoming book is rethinking the constitutional structure of the political right, l the evolution of the federal Voting Rights enforcement. From defending the dawn of the progressive era. And Derek Mueller is professor of law at iowa college of law. He has published widely and before joining the university of iowa, he was a professor of law at Aberdeen University school of law. Thank you for joining us. Thank you. Let us begin and please consider getting it because it is a bit of history and i hope that they will be inspired to read it after todays discussion. In thisin important book, you argue the right to vote thousand and eight steady bending to justice for universal suffrage. Instead its been a bumpy ride and you know that its a similar cases with the reversal of the right to vote. There is or there used to be a history that was much more comforting of the right to vote. Yes when the nation was founded the suffrage rights were white meal Property Owners but onward and upward ever since but what i found during research it is precisely what you described and what seems to happen is each advance our most advances are followed by a conflict with the actual exercise of the expanded franchise. You mentioned several in the early 19th century between 1810 and 1850 property requirements are in most states. The nono property requirements all from the same Constitutional Convention that instituted other requirements such as prohibition as being defined anybody that is dependent. So those same conventions that illuminated property requirements disenfranchised those from earlier. After thee civil war and we find these remarkable quotes from these figures in 18 seventies saying if we had known there would be all these poor immigrants flocking into the country we never would have change property requirements. Its very hard to reinstitute a property requirement are to have gotten rid of it but instead they create procedural obstacles for those who are voting. They wanted to be a little shorthanded but they switch to Voter Suppression instead of disenfranchisement. Thehe largest story is that africanamericans who are technically enfranchised of the 15th amendment to the constitution after the civil war are removed wholesale in the south by 1900. And that pattern continues small and large. Just around the south i would say the kinds of restrictions on and the obstacles created for the right to vote going on this year in the last 20 years in a key respect are a reaction against. [inaudible] so i think this pattern continues. We have to recognize that not all of the American Population has been happy of the expansion of the franchise. Thank you for that powerful dissertation it is meaningful to learn it is to restrict the franchise by imposing voter id requirements or for friday and in this. You identify in particular 1850 past world war i it was not only on the basis of race but new property requirements and it is deeply meaningful. So i cant wait to read yourri newf book which is coming out soon we thinking that structure so tell us of the thesis of that book into what degree to talk about from the mid 19th century to the progressive era and to be driven by the withdrawal of Voting Rights. I think thats that she was a little too modest of his book pretty much he works in thisis area. My book looks like the same issue from a differentnk perspective i think alex has done a wonderful job showing how the right to vote has expanded and contraction but in reading his work it raises a question because a lot of this was happening at the state level. Reconstruction is a time to become involved to regulate the right to vote and to be more aggressive of enfranchisement of the slave population. One thing that came to mind for me is what about that. I th . R reconstruction the assumption is congress didntt do much without the veright to vote was state law basis instead of just focusing solely on the 14th and 15th amendment. That. Nk you so much for to read your work and pointing attention for what you just described the structural guarantees as well as the aspects to teach us historically they have been relied on and with those articles you argue they could provide a Solid Foundation to protect Voting Rights today. I want to ask you more specifically but for those who are watching the time and to talk about article one section five that says that returns qualifications of its own members and the guarantee of a republican form of government that has a provision in section two to say if any state denies thert franchise they will be representation in congress. But in your important work you argue deference to the states when it comes to elections and that the constitution doesnt create a federal right to vote and you say that diversity is appropriate and should be deferred bysa the courts and your reaction. It is a fascinating structure of federalism. Sometimes we think of it as the negative whether the state or federal government is somebody is not acting appropriately or using authority in the right way there are plenty of times we can point to that but as a default studying is the states will run them the states can choose the qualifications of eligible voters and that there is a place of the constitution that we establish the right to vote for citizens they have to be the same as right to vote for the Largest Chamber to create a floor. And the White Property emails and it has broadeneds since then. So that structure sets it up in an interesting way and presumes a couple ofs in things but if we want to expand the qualifications of thee electorate the presumption is thats what happens with the 15h amendment to say essentially we think the free man has the right to vote so we will pass the 15th amendment to ensure it will not be deprived and then with the 19th amendment and womens suffrage its a different story because the states start the movement to enfranchise women out west so the motive to have women move out west ast an opportunity for them to participate in elections. The Womens Suffrage Movement 100 years this year but thats of the 19th amendment it was happening much earlier and even today when wewe talk about noncitizens if they should vote it points early in the history of the United States had federal law that prohibits me from doing so there are questions about the constitutionality but a lot of states have localities in School Board Elections to do experiments. And think about what the right to vote means with a have been denied the right to vote and we passed the amendment to authoritythere is for the federal government to intervene but its an interesting story to define the right to vote and who should participate in our politicall system. Thank you for that and reminding us of this complicated relationship between the federal government and the states which we will revisit throughout the conversation in the chat box can you please take a moment or two to reflect on john lewis. Thank you so much for reminding me what i meant to do at the beginning of the program but is deeply meaningful to pies to recognize the role of representative lewis one of the great constitution all heroes some of the most important figures to the expansion Voting Rights. To award the liberty met all to representative lewis and was so inspiring to inspire a nonviolent protest on the bridge that helped theng enactment and the shining example of his constitutional vision will live with all of years. Many take a moment for all of us to recognize and celebrate his memory. With that in mind with his achievements in passing the Voting Rights act of 65, how does that transform the nation in america . And describe the period from 1865 through the president and still not steady secure . The place i would like to start is to point to the subtitle and it is an act to enforce the 15th amendment of the u. S. Constitution and enforce the constitutional provision. And what led to that was activism and also a conclusion by congress by many other participants the Southern States by themselves would not reform themselves with the 15th amendment which is the darker side with the autonomy of the states in some areas even though constitutionally they are required to register the enfranchised americans so years of activism and it continues doesnt do it in itself is still very slow to get people registered but it was truly transformative voting patterns in the south the entire economically critical independent class of people had no rights and that is an enormous shift and barack obama would he have been elected president . Know. Just the sheer numbers so this is a transformation and is often the case in american histor history, the issues that deal with race to link to those analogous issue and that happens within a few years after the Voting Rights act that there is a whole large package franchise extensions that have been and then they extend fund extend the language and then again with largescale immigration so to summarize this more succinctly this has been a dramatic expansion of voting rates and followed by reaction which john lewis recognized and saw going on. By that point he is in congress and he fights against it after the Court Decides of the Voting Rights act and to restore them and he sees the arc of what washaha happening ad the victories he and his colleagues were involved with those were being reversed and then had to start fighting again. And he had a deep understanding that Voting Rights is not something you just achieve at a given moment and dont have to protect thereafter. Host talk about the Voting Rights act and the backlash against it. And representative lewis his heroic efforts to respond politically. Like to ask you about the judicial response with the Shelby County decision in the questionandanswer. For my understanding they said the main issue was a lack of updating with a simple reauthorization from congress would be enough. And then i was so struck through your series of articles that might be invoked to protect Voting Rights so tell us about those provisions. Okay. Trying to figure out where to start. [laughter] so actually want to piggyback on the john lewis, question. And what needs to be done. And one of the youngest speakers on the march in washington and the fact he continued to serve and then to protect Voting Rights. And then there wasa disenfranchisement and what john lewis wasth fighting for and why he continued to fight is the Shelby County decision did not come out of the blue it didnt just happen in 2013 a 2009 decision where the Supreme Court warned us and indicated it was a problem. But to some extent come im not trying to say here and criticize congress, yes i am. They did have the chance to update it and they did not so with that reauthorization we knew that would be a problem. It wasnt as if they couldnt updated they did a pretty good job to capture the problem because after Shelby Countyin decided mississippi and alabama and they all took stepsfr to suppress the vote. It wasnt Rocket Science but the understanding of what they do. So yes, it was a problem. They were coming from a baseline that states traditionally regulate our elections. Such a baseline the federal powers seems exceptional to justify any acts that intrude on the power of the state. A lot tries to challenge the narrative. Absolutely right the constitution is not explicit but a lot of this happens with the court to come in to read the 14th amendment with the equalno protection clause what they create they can take away thats why its important to rely on the text instead of thet court. But because they take the lead around the right to vote if we are trying to reauthorize the Voting Rights act how do we do so and its very difficult. But they want to return to the world where the states take a lead. Its a bit of sticking your head in the sand and to ignore the fact there is discrimination in voting and race bleeds over to a lot of other things and to be heavily intertwined in our system so there is a partisan incentive to disenfranchise. Its very difficult to think what is consistent with the court is looking for in Shelby County unless you look beyond the 14 the 15th amendment. Congress to intervene when there is a problem. One of the arguments i made around the Shelby Countyy iodecision is also authority and if youou look at congressional power in the aggregate and also make its own regulation and also in conjunction with the 14th and 15th amendment thats a more broader scope. But let me explain the Practical Implications and then ill stop but a vicious the 14th and 15th amendment and with that discrimination when they look at the legislative record with that reauthorization the chief justice is clear is not the same pattern that existed in 1965 at the time they reauthorize the Voting Rights act. It doesnt require a pattern from the nations of even if the court still looks for the legislative record it gives congress more room to legislate because they have additional provisions to rely on that dont require the same level of discrimination of the h amendment. That makes a real difference protecting the right to vote. Thank you for that and its an important argument the election a clause could be broader protection and i urge viewers to read and learn from your other articles other provisions of the constitution including section two of the 14h amendment that could protect against disenfranchisement there are a lot of phenomenal questions from the audience with the reintroduction of the Voting Rights act this week with 46 cosponsors and what he fought for throughout his life what are the chances it could pass in the senate leading to thely question is it truly a partisande issue and then i do want the audience to hear the argumentse on behalf of the Shelby County case why do you think the court was correct and what if anything could the states do with those protection protections . Thats a lot to get to so with john lewis if the audience has not seen the video footage of march 65 where he is at the front of the line in a peaceful march watching the state troopers firing tear gas and beating him its a miracle he is alive much less what it means to stand up and think about Voting Rights in a very different era. The Voting Rights act of 1965 did incredible tremendous work. It took a lot of effort from congress in march, death, beatings to get the attention and there are several real problems in this country so that went to a very long way to franchise tremendous numbers of africanamerican voters previously disenfranchised and to be active in ways they hadnt for 100 years. It is congressional will so with congresses motivation its something to figure out partisan in nature or more sinister talk about the relationship between race and party there was the Democratic Party essentially so a lot of the65 fights about white and black voters were feuds that has shifted in the sense we now have a lot of polarization thats changed a lot of the dynamics and how we view the relationship with the right to vote. At the Voting Rights act some provisions change Things Congress said that while the Supreme Court has said literacy test our constitutional a we think there is a pretty good chance they are not being fairly administered but designed to suppress black voters. So Congress Steps up to the plate to make these decisions the Voting Rights advancement act tries to cure the things that identify the problem in Shelby County that the formula was not actively updated since 1975. This provision was supposed to extend through the 200 thirties for the court to set their that congress has done its homework it was the path of least resistance. G. Why update if you make new political enemies so that is designed to address those concerns from the d court to say it is a dynamic formula looking at recent past actions of states or localities if you have been found to engage in intentional discrimination with Voting Rights you would s,be subject to this provision with preclearance and to provide notice. Providing like notice its important to emphasize like the elections clause it with a 414 the 15th amendment power it is clear squarely within the elections clause tot say we want to talk about the times and places and manner and this is how it will look you cant change laws to close to election day and post notice of changes that the political will and congressional well in congress and for whatever reaso reason, whatever it might be, its a nice propositionn if congress would be on a bipartisan basis with these voting related reforms and for congress to agree on funding it took some muscle for that to happen more robust things happen ahead of the 2020 election. Fire congress. [laughter] the question box is on fire and we have to talk about the role of the Electoral College so on july 30th i was asked a question why do we still have the Electoral College . In the line between your two books is Justice Scalias observation who pointed out that the framers of the Electoral College and those provisions after the election of 1800 did not anticipate the winner take all system . But thats not the way things turned out and then finally we had a Great Program on thel Electoral College. And he knows that congress came within a few thoughts are proposing anno amendment that would have adopted a National Popular vote in the seventies and those by both parties but it was democrats in the south who killed that. What do we expect from your new book and why do we still have the Electoral Collegegee . Im a little the deviled by the title i gave because people say why do we have it . And then my own title a set up and i say if i could is that in two senses i wouldnt have book. N a but there are several things i would like to make clear. People should know there have been very largescale efforts to get rid of the Electoral College in there are largescale efforts for the 19th century were constitutional amendments on the subject than any other subject in history and they are several occasions only came mentioning then 1969 and 70 but equally so between 1816 and 1822, the Senate Approved two thirds voting to require district elections and in the house just a few votes short of the two thirds needed for this is long been a problem. So theres not a single factor at all times but let me mention three. The complexity itself to have electione contingent system what happens if no one wins a majority . It goes to the house and each state delegation gets one vote. Those that thought it would be usednt a lot and then that remains true today. And then going back to Justice Scalia quotation but they leave it to the state to decide the manner the electors would be chosen. Can they take that dimension away . Second is partisanship the partisan interest once you have the electoral system in place people want to defend their own interest and they think a change in the system than they would propose it theres a lot of the principal players without a National Popular vote would be a better system but they do insert themselves frequently. The last point i went to make that is most frequently noted is the conventional wisdom Electoral College is blocked is simply not true. Its a plausible argument because they are slightly disproportionate but historically we can talk about that if anyone wishes to. On the other hand probably the single most important factor since the 18 seventies or 18 eighties, the single most important factor is the desire of the white south and after reconstruction of those regimes to retain the Electoral College because it gave extra power in president ial elections an extra influence of politics i will also try to be brief we also know about the three fifths clause before the civil war were some got representation in congress and electoral votes for three fifths of the slaves. In 18 nineties after the white supremacist regimes returned to power to disenfranchise africanamericans with those electoral votes that the south wanted to preserve that system testing the idea of a National Popular vote for decades and decades and as you alluded to before coming extremely close it was southern segregationist. Thank you for all that and we look forward to your new book why do we still have the Electoral College. And a link to a proposal the constitutional amendment and in practice because its hard to pass constitutional amendments and the alternative is the National Popular vote interstate compact tell us about that do you support that it would it be consistent with the constitutio constitution . The National Popular Vote Initiative is among states that pledge their popular vote so right now they are signed on for 196 electoral votes the compact will go into effect when they reach 270 which is necessary to in the presidency. I support it in theory and i recognize the Electoral College is a problem. But its difficult to think about changing the structure. And thats the struggle that i t have. The Electoral College is they are so the question is do we come up with work around . Because on one hand i look if they have control over how they allocate their electors. Some could say its in the context of the constitution to join the compact that is way of how they were their electors but it is conceivable they could have an election and candidate a win the election that the gets the votes because they won the national vote. If bush versus gore taught us anything that was following the 2000 election for the florida recount in part of the reason of the case the failure to set we can out standards on recount standards that violated equal protection clause. The Supreme Court of one candidate to win the electoral vote that one wins a positive vote, that is a possible postelection change. I dont think the Supreme Court is currently constituted with that Initiative Even if it is a goode idea. Im leery about changing the structure of the constitution to a statute do you think its constitutional and a good idea . The constitutionality question is tricky. There are implied structural concerns that we have. One more expressed concern is the provision called the compact clause stay shall not enter any compact without the express of congress at the very least congress would have toov t consent to an agreement like this. But even if Congress Consent consents, can you transform the system to have all these different states do different wthings into one big bucket. Inin my opinion whether you think it is a good or bad idea that we do have problems with it being a good idea to go with a statutory method. So wewe presume states it is a little bit different so those who have committed a felony and are eligible too vote but in maine and that the university of columbia authorize them to do so. And children. That there have been some fitsts and starts if we think of mental capacity, noncitizens. There are different rules we could have in place in different states and if we throw into one bucket congress doesnt define the one bucket. If we think of who was ond the ballot we know trump and biden it seems a little strange to have a National Election that is still being run on a statebystate basis if are going to reform the Electoral College and what was proposed in 1870 it has to be a constitutional amendment that defines the voting qualifications to express the atempower congress to provide that uniformity to anticipate the problems that can arise based upon the implied pestructure of how we handle these provisions pertaining to president ial i elections. In my view good thing or bad thing the National Popular vote fall short of the things we would want and a system that reforms the president ial election. Thank you for all that. There are so many questions and then granting the right to vote in the state of requirements that relates to a question commenting on the Supreme Courtme decision in place when the Appeals Court ruling the voting restrictions unconstitutional and currently the question is about the florida constitutional amendment with convicted felonsns and any other recent Supreme Court what you think is worth noting. What happened in florida and affected is the Supreme Court said it is okay for a partisan legislature to override the efforts a multi year mobilization and then to have those rights restored after their sentences. And the vermont model with permanent a lifetime disenfranchisement. There was the extraordinary Popular Movement to overturn and it works and then the legislature turns around you have to pay your court fees all your fines if you dont pay that it is a felony we can tell you how much money that you owe we dont have a record of the fines in the court fees. And then for this election cycle and in effect to prevent hundreds of thousands of people for voting and the Supreme Court decisions but it seems to the decisions of the Supreme Court to way and on the side sanctions of obstacles rather than supporting efforts to make it easier. We have several questions about recent cases arising out of the covid crisis and absentee ballots the Supreme Court has weighed in most notably the Republican National committee versus dnc at a wisconsin called the personal principle states the courts should be reluctant to impose new voting requirements at the last minute. How does that play out over the absentee ballots moving forward . And which are you watching most closely . Right now the covid related litigation and 38 or 39 states. T and i hope im wrong about prthis and then despite the circumstances in the most recent term a few stories whether or not the court had drifted toward the center after this past term if you look at the cases that is not true the court has not been protected. Some of those decisions from the covid litigation has proven the point and that rnc decision in those efforts of the governor to close the polls and then people who filed the paperwork to get absentee ballots and then they were forced to go on electionu day it was an absolute nightmar nightmare. The Supreme Court did not seem very sympathetic to any of that. At least in my mind you should think about those souls who are trying to do the right thing they file the paperwork to get it done on time. So one of the things that struck me and then to predict the Supreme Court cannot be sympathetic they seem to apply those principles with no lastminute election changes it doesnt matter we are in the middle of the onceinalifetime pandemic. But its not. You can imagine the story with the court paints the picture and then to have that video power to accommodate voters who experience difficulties through know fight of theirt own. That this is an election to play the normal rules so as long as that is the posture and just to piggyback on one other point of the litigation in light of the fact people dont know how much they owe and not only that the state doesnt now but when we think about that and how the law operates given that reality its not enough to say to have tithat information but it would take an additional 21 workers have people coming into register to vote to find out how much they owe then to have zero effort for that number of people. Thats clearly a situation the state legislature had an ulterior motive and then the workers needed to implement the law that tells us Something Else and completely ignores that. And with that requirement is the equivalent of the poll tax that i was reminded from the book the origin of poll tax that means it is a head tax that each individual the voter pays and that it should not be abridged. And it falls to you with this incredibly rich discussion but i would love our viewers to hear a defense with that absentee ballot case in favor of deference to the states and with that constitutional matter. And with that constitutional dimension talking about the purcell principal where the court says wer should engage of election law and rules it is a wonky the power of federal courts and the timing of litigation and the power of the judiciary. This is the same procedural posture to the Supreme Court on an extremely short timeline they are not argued before the court and then the court is coming out to handle the status quo right now theres people very frustrated about it with covid19 a lot of changing circumstances maybe the cart should not look at this principle in the same way. And in 2014 there was a state of litigation coming in from the Supreme Court with these lastminute changes and there is a voter id law that it should not apply and that they go into effect in these cases they see the court time and again say we will not change whatever has been the status quo that definition is fluid. It also emphasizes a point that is come up time and again it will be the federal judiciary but to solve all of your problems. Will have to be solutions at the w state level if its absentee voting in the polling places on election day and the hours and effective social distancing it has to happen at the legislation level it could be in and long term in the two or three year a window thats can be a lot of things for litigants and that will shift things back. And with thes important constitutional questions there is so much more learning to do. Go to the interactive constitution to be the best liberal to describe the disagreement check out the podcast we the people. About the constitution. I want stiegy Thompson Group for making this Program Responsible we look forward to seeing you on august 4th for our for our Supreme Court review. Franita, and
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