Of americas town hall. I am jeffrey rosen, the president of this wonderful institution. As folks who have joined us before know, we begin our programs by reciting together the National Constitution centers Inspiring Mission so we can prepare ourselves for the learning ahead, so here we go. Recite virtually after me. The National Constitution center is the only institution in america chartered by congress to increase awareness and understanding of the u. S. Constitution among the American People on a nonpartisan basis. Beautiful. That is a wonderful recitation, and before we begin, i want to provide a quick plug for our next town hall on august 4. Please join us for the 2020 annual Supreme Court review in partnership with the antidefamation league, and it will feature the distinguished. Egal scholars it will be a wonderful discussion of the most important cases of the term. I must tell you with great 26th,re that on august circumstances permitting, the National Constitution center will open our new exhibit, how vote, about the 19th amendment. It is very relevant to todays topic. It is an exhibit about the history of the expansion of womens suffrage. Our team is hard at work to reopen the National Constitution center building, which is glimmering behind me on the backdrop. They opened the doors and welcomed people. And remember, throughout the program, please put your questions in the chat box, and i will introduce them to our panelists as soon as possible. And now, it is my great pleasure to introduce our phenomenal guests. He is a professor of history and social policy for the john f. Kennedy school of government at harvard. He is the author of many books including the right to vote. The contested history of democracy in the United States, which was a finalist for both the Pulitzer Prize and the Los Angeles Times book prize. His forthcoming book coming out in 10 days is why do we still have the Electoral College . Ands vice dean for Faculty Academic Affairs and professor of law at the gould school of law at the university of southern california. Her forthcoming book is rethinking the constitutional structure of political rights, the evil lucian of federal Voting Rights enforcement, from the founding to the dawn of the progressive era. And Derek Mueller is professor of law at the university of iowa college of law. Andas published widely before joining the university of iowa, he was a professor of law at Pepperdine University Caruso School of law and a visiting professor at penn state law school. Sox and derek, thank you much for joining. Thank you. Thank you. With alexsgin book. Friends, please consider getting homework, which i hope you will be inspired to read after todays discussion. In this important book, you argue that the right to vote has not been a steady bending of an towardsrds justice or universal suffrage. Instead, it has been a bumpy ride with peaks and valleys and you note a series of cases about reversals of the right to vote. Women in new jersey had the right to vote until 1807 and then lasted for nearly a century. Africanamericans in many northern states have the right to vote at the time of the founding and then lost that right in the 1820s, and people have the right to vote in the midwest and the southwest and then lasted in the 1900s to limit the power of immigrants. A broad question, but tell us about the unsteady progress of suffrage in the United States. Thank you for the introduction and thank you for this question. Be a is there used to history that was much more comforting of the right to vote. Which was ok, yes, when the nation was founded, the suffrage rights were limited to white male Property Owners but then it is on ward and upward ever since. So it is a chronicle of progress. What i found in doing the research for the book is what you describe. And what seems to happen is that each advance or most advances are accompanied or followed by conflict over those advances or conflict over the actual exercise of the expanded franchise. You mention several examples, let me mention a few more. In the early 19th century, in the first third, through 1810 and 1850, property requirements are illuminated in most states, in all states by 1850. There are no property requirements to vote. But often the same constitutional conventions that did that instituted other requirements such as a prohibition of paupers voting, being defined as anybody dependent on the state. Some of the same conventions that illuminated property requirements in northern states, disenfranchised africanamericans would disenfranchise earlier. After the civil war, you mentioned the broad pattern of immigrants being restricted and we find these remarkable quotes from leading intellectual figures in the 1870s saying if we had known there were going to be all of these poor immigrants flocking into the country, we never would have eliminated property requirements. And so what they turn around and do, they cant it is very hard to actually reinstitute a property requirement after you got rid of it. But what they do is create a lot of procedural obstacles to those immigrant voters voting. Ok. If one wanted to be a little bit shorthanded about it, they switch from disenfranchisement to voter suppression. And the big story, the largest story in the late 19th century is that africanamericans, who are technicallien franchised by the 15th amendment to the constitution after the civil war, are removed wholesale from the electorate in the south by 1900. And the pattern continues in ways small and large. And just to round this out, i would say that the kinds of restrictions on and obstacles created to the exercise of the right to vote that have been going on that are going on this year and have been going on for the last 20 years, perhaps 30, are in a key respect a reaction against [technical difficulties] but also grants and speakers of foreign languages. So i think this patterns and we have to recognize that not all of the American Population has been happy about the expansion of the franchise. Thank you very much for that powerful installation of the wisdom of your book. It is meaningful to learn that there is a precedent for restricting the franchise by trying to prevent fraud and this period from 1850 through past world war i where the franchise did not only on the basis of race but also with new property requirements as you said to prevent africanamericans and immigrants from voting is deeply meaningful to learn about. Frenita tollson, i cant wait to read your new book, which will be coming out soon. Rethinking the constitutional structure of political rights, the evolution of federal Voting Rights enforcement from the founding to the dawn of the progressive era. Tell us about the thesis and to what degree was the contraction that alex cassar talks about from the mid 19th century through the progressive era, driven by the withdrawal of federal Voting Rights enforcement. So, i think alex is too modest so, i think alex is too modest in talking about his book and sort of how it informed the thinking of everyone who works in this area. So my book is it looks like the same issue from a bit of a different perspective. So i think alice was done a wonderful job of showing how the right to vote has expanded and contracted at various points in history. And in reading his work, it raised a question in my mind about how Congress Responded to those contracts. Because this is happening at the state level. So reconstruction is a time when you see congress becoming more involved in sort of regulating the right to vote and sort of forcing states to be more aggressive about enfranchising the formerly enslaved population. What about the period before reconstruction . What did congressional power look like then. And i think the assumption is that congress didnt do much. We thought about the right to vote as a creature of state law. And so congress, at least in my mind before i started studying this, congress didnt really have much to say about it. But then Shelby County came out, versus the holder decision, was the decision in which the Supreme Court invalidated a portion of the preclearance regime of the Voting Rights act of 1965. And in that decision, the Supreme Court said that congress had overstepped the bounds of its authority under the 14th and 15th amendments when it required certain jurisdictions, mostly in the Southern States, to clear any changes with the laws with the federal government before they go into effect. And so finding that congress had overstepped, i had questions about whether that was true. Because i conceived of federal power in the areas being quite proud. And im maybe just sort of inherit to the warren court and ive drunk the cool aid so i decided to take a close look and a deep dive into this question. So that is the motivation for writing the book, which started at the founding. And what i found was that congressional power was in some ways before the civil war quite modest. But it manifested in ways that i dont think we in the Legal Community really talk about. For example the book talks about how congress exercised his authority under the elections clause which gives congress the power to make or alter state regulations that governor federal elections. And also the guarantee clause, in which congress guarantees each stay a republican form of government and finally congresss power under article 1, section 5, which allowed us to judge the election of the membership. So these are authority that congress has used in order to influence state political systems. And i realize this is an important part of the conversation that we were not having. And in many ways it laid the foundation for exercises of congressional power during reconstruction. So not only did the 14th and 15th amendment provide additional basis for congress to act, so those are the provisions that we think of as being directly relevant to the right to vote. So the 15th amendment enfranchise africanamericans by prohibiting discrimination on the basis of race with respect to voting. But congress used its authority under the guarantee clause to force Southern States to pass new constitutions and to remake the political systems and they have constitutional conventions in which they were required to have multiracial coalitions. These werent staffed purely by White Property males. So essentially, by reconstruction, you see this marriage of the constitution of political structure as i call it or congresss power under the election clause and a guarantee clause in article 1, section 5, that delegate power directly to congress. So congresss power under the 14th and 15th amendment in particular Gave Congress a quite broad basis to act to remaim southern political structures. And it is this understanding and i argue that influences that should influence what congress could do now when we think about the scope of congressional power over elections. Instead of just focusing solely on the 14th and 15th amendments. Thank you so much for that. And i have to say how exciting it is to read your work and to find you pointing our attention to the very few parts of the constitution you just described, the structural guarantees as well as the as pecks of the 14th and 15th amendments with theright to vote teaching us with the right to vote teaching us that historically the provisions have been relied on to protect the franchise and in your creative and important articles you argue that the clauses could provide a Solid Foundation for protecting Voting Rights today and i want to ask you more specifically about those arguments soon. So lets preview what professor toll has called our attention to. In article 1, section 4, the time place and manner of Holding Elections for senators and representatives shall be prescribed by the legislature but congress may at any time make or alter such regulations except at the place of choosing and article 1, section 5, that said each house shall be the judge of elections. She talked about the guarantee of a republican form of government and then talked about the 14th amendment which has a little considered provision in section 2 which said that if any state denies the franchise then it loses representation in congress. So these are really important arguments and were going to return to many of them in a moment. Derek mueller, in your very important work, youve argued that deference to the states when it comes to elections is important. You note that the constitution doesnt create any federal right to vote. But leaves it up to the states to set voter qualifications and you say that that kind of diversity is appropriate and should be deferred to by the courts. Tell us more about that argument and your reaction to what your colleagues have said. Yeah. No, i think it is a fascinating structure that we have in the United States of federalism. And we talk about it sometimes, you think about it as the negative about whether it is the state or federal government that someone is not acting appropriately or exercising the authority in the right way, and there has been plenty of instances in American History where we could point owe that. To that. But the constitution default setting for that in elections is that the states are going to run them. The states pick the times and places and manner of Holding Elections unless Congress Steps in. The states get to choose the qualifications of eligible voters for the house of representatives and later after the 17th amendment for the senate but there is a floor in the constitution saying, states, when you establish the right to vote for your citizens for members of the house, it has to be the same as the right to vote for the for the citizens of the Largest Chamber in the state legislature, the notion being were going to create this floor for the states and hopefully the thought is the states are going to enfranchise broadly and at the founding that was White Property males who would have the franchise and it is broadened since then with fits and starts as alex pointed out. So the constitution structure sets this up in an interesting way. If we want to expand the qualifications of the electorate, the presumption is either it happens in the states and we have to amend the constitution and that is what happened with the 15th amendment to say essentially that we think that the freed man has the right to vote and be sure theyll not be deprived of any africanamerican in any of the states. And when it comes to the 19thamendment and womens suffrage, it is a slightly different story, right. Because that is states that start this movement of enfranchising women out west as the lore tells it, it is a motive for the women to move out west and vote and participate in the elections so the womens suffrage movement, we celebrated it as 100 years this year but that is 100 years of the 19th amendment, and it was happening across the country and even today when we talk about noncitizens and whether they should vote, it is something that happened as alex points out in his book at points early in the history of the United States. Today, there is actually a federal law that prohibits you from doing so. I think there are questions about the constitutionality, is that some that the federal government can do, under the immigration authority, i dont know. But there are a lot of states that have localities and School Board Elections and say we want noncitizens to vote. So when we think about what the right to vote means and we focus on a lot of the instances where states denied the right to vote to a number of individuals and we passed a constitutional amendment to ensure a authority for the federal government to intervene and set some minimum standards. But it is an interesting story to think about this overlap in relationship between the state and federal government when it comes to defining the right to vote and who should participate in our political system. Show less text thank you for that. And for reminding us of this important and complicated relationship between the federal government and the states. Which we will revisit throughout the conversation. If the chat box, edward sharpson says can we please take a minute or two to recognize the world of john lewis to protect Voting Rights. Thank you so much for what i meant to do at the beginning of the program and jump right in. Because of my enthusiasm. Representative lewis, one of the great constitutional heroes of the 20th century and the expansion of Voting Rights in the century. The Constitution Center was honored in 2016 to award the Liberty Medal to representative lewis and it was so inspiring to hear him invoke the legacy of his mentor, dr. King, in inspiring his nonviolent protest at the pettus bridge which led to the Voting Rights act of 1965 and the shining example of his moral and constitutional vision is one that will live with all of us for many years. So just take a moment for all of us to recognize and celebrate his blessed memory. Alex, with that in mind, what does representative lewis achievements and those of the Civil Rights Movement in passing the Voting Rights act of 1965, how did that transform Voting Rights in america and describe that period from 1965 to the present where it seems that the path the expansion of Voting Rights was still not steady and secure . Well, i think that a place i like to start with talking about the Voting Rights act of 1965 is the point to which little known subtitle, it is called the Voting Rights act of 1965 and the subtitle is an act to enforce the 15th amendment to the u. S. Constitution. It is it is a law to enforce a constitutional provision that existed already for a century. And in effect the path and that led to that was a path of activism and also a conclusion by congress by many other participants that the Southern States by themselves were not going to really reform themselves with respect to africanamericans suffrage and enforcement of the 15th amendment. This is the darker and enforcement of the 15th amendment. This is the darker side of what derek was talking about before, the autonomy of the states in some areas. Even though constitutionally they ought to have been required to register and enfranchise africanamericans. So the passage of the Voting Rights act which follows years of activism and the activism continues because just the passage of the law doesnt do it in itself. I think it is still very slow to get people registered to get things and get things enforced. But it was truly transformative of voting patterns in the south and then also in some other places. You have an entire economically critical and somewhat dependent class of people who have been disenfranchised who had no rights an rights and they gained power and that is an enormous shift. It is would barack obama have been elected president if there had not been the Voting Rights act of 1965. No. Even just on the sheer numbers of who was enfranchised or not. So i think this is really a transformation. And as is often the case, in American History, issues that deal with race are problems that or problems that focus on race spill over into linked and analogous issues, for example lowering the voting age. Which happened within a few years after Voting Rights act. The shortening of residence requirements. There is a whole package of franchise expansion that happened in about five or six years. And then theyre extended to language minorities, largely the Spanish Speaking population but not only. And here again were entering a period of large scale immigration in the 20th century. So i think to summarize this more succinctly than what i said so far, is that this has been a dramatic expansion in Voting Rights and that is followed by reaction which john lewis recognized, lived through. I mean, he saw it going on. By that point, hes in congress by the time the reaction is happening and he fights against it. He fights within congress after the Court Decides that the preclearance provisions of the Voting Rights act are unconstitutional. He fights to restore them. He saw the arc of what was happening. He saw that the victories that he and his colleagues had been involved with and as you often mentioned shed blood for, were being reversed and then you had to start fighting again. And i think he had a deep understanding that voting right and democratib rights were not something you achieved once and for all at a given moment and didnt have to protect thereafter. Thank you. And was both illuminating. Both assisting to and illuminating. You talked about representative lewiss efforts to respond politically and frenita, i would like to you ask about the judicial response. And first tell us more about the Shelby County decision, david olson said in the question and answer box, from my understanding of Shelby County the court said a main issue was the lack of updating which states and counties met the ness discrimination answer and in light of this would a simple reauthorization from congress be enough or would it avoid being struck down again and i was so struck in learning so much from your series of articles invoking different constitutional provisions protecting Voting Rights that you say might be invoked to protect Voting Rights today. I was so struck and learned so much from your series of articles invoking different constitutional provisions protecting Voting Rights that you say might be invoked to protect Voting Rights today even in the wake of Shelby County. Tell us about some of those provisions. Prof. Tolson okay, so, wow, im trying to figure out where to start. [laughter] so i actually want to start, i want to piggy back on the john lewis question because i do think that it ties into what needs to be done. Remarkable that he was not only one of the youngest speakers on the march on washington in 1963 and he continued to serve up to his death and that is highlighting how the struggle for Voting Rights is ongoing and it is not about reaching a peak and then stepping back. You have to be vigilant about protecting voters rights even after you achieve success and we are living in a period of retraction because there is a lot of voter disenfranchised so i think it highlights everything i think it highlights everything john lewis was fighting for. Part of the reason he continued to fight is the Shelby County decision did not come out of the blue. It was by the decision that just happened in 2019. It was a 2009 decision where the Supreme Court warned us, they indicated the formula was a problem and hadnt been updated, but to some extent i am not trying to criticize congress. They did have the opportunity to update it and did not. The reauthorization will be a problem. And not as if they couldnt update it. The jurisdictions that recovered, capturing the problem with jurisdiction because after Shelby County was decided, things like texas, mississippi and alabama took steps to disenfranchise and suppress the vote. It wasnt rocket science. It was based on historical understanding of what these jurisdictions would do. It was a problem. The Supreme Court was not willing, they were coming from a baseline where the states traditionally regulate elections. The federal power seems exceptional. The federal power is exceptional, to justify any act that intrudes on the power of the state. My work tries to challenge the narrative. I dont argue about a traditional sense. The constitution is not explicit in the right to vote. It is about influence and the court coming in and saying the equal protection clause means a right to vote. When you have a situation like that that the court can take away. It is important to have those things in the text instead of relying on the court but because the court is taking the lead in shaping jurisprudence around the right to vote theres a question what congress can do. How do we reauthorize the Voting Rights act in accordance to how the court laid it out. It is difficult. My reading of the tea leaves is the court was committed in striking it down, returning to a world where the states take a lead on this but to do so requires sticking your hand in the fan. You have to ignore the fact there is discrimination in voting. And there are a lot of other things. It is heavily intertwined in the system now. They are the partisan incentive to disenfranchise racial groups. It is difficult to think of something that would be consistent unless we look at the on the fourteenth amendment. Congress has comprehensive authority to intervene when theres a problem and it doesnt stop with the fourteenth or fifteenth amendment. Something that we decided is elections call for authority here. Congresss power so states test the time with the matter of election but congress can make its own regulation and in conjunction with the fourteenth or fifteenth amendment that is broader authority. Let me explain the Practical Implications and i will wrap up. The practice of implication of that is if you just focus on the fourteenth or fifteenth amendment the court is looking for a record of intentional discrimination on the basis of race. They are looking for a pattern he found once and when they look at the legislative record behind the reauthorization the chief justice was clear there wasnt the same pattern of discrimination that existed in 1965 at the time they reauthorized the Voting Rights act but be on the fourteenth or fifteenth amendment it does not require a pattern of discrimination. Even if the court is looking for a legislative weapon that gives congress more room to legislate because they have additional provisions they can rely on and dont require the same level of discrimination is the fourteenth and fifteenth amendment and that is a real difference in terms of what congress can do to protect the right to vote. Thank you so much for that. Such an important argument that the election clause requires what dissemination might be broader protection and i urge viewers to look at your other articles and other provisions of the constitution including section 2 of the fourteenth amendment that might protect against disenfranchisement. Phenomenal questions from the audience, with reintroduction of the Voting Rights advancement act, a bill with 46 sponsors named after john lewis, what the congressman fought for throughout his life, what are the chances this might pass in the senate and that leads to the important question is it purely a partisan issue . The Voting Rights act have democratic in two independent but now republicans. Is it just because it is viewed is not republican partisan interest or principled objections, and i want the audience to hear the arguments on behalf of the Shelby County case. Why do you think the court was correct in striking down the decisions, what do you think the states could do to restore those protections . Let me start with john lewis. If you have not seen the video footage of the march in 1965 where a Young John Lewis is in the front of the line in a peaceful march, Alabama State troopers firing tear gas and beating him, a miracle that he is alive much less what it means to stand up about Voting Rights in a different era, the Voting Rights act of 1965 is tremendous work. Took a lot of effort from congress to do it. Took a march, took death, took a beating for congress to get the attention, there are real portions of this country, the Voting Rights act went a long way in and franchising numbers of africanamerican voters who were previously disenfranchised in ways they hadnt for 100 years in the south. It requires congressional will. Congresss intent or motivation is tough to figure out. Is it partisan in nature or something more sinister, the relationship between race and party. In 1965 there was one party in the south, white and black voters were essentially feuds that shifted in the sense that we have a lot of partisan polarization, that has changed dynamics in how we view the relationship between race and party and the right to vote. The early ones had provisions that changed things like residency requirements. Congress went into while we think of Supreme Court said literacy tests fairly administered or constitutional, we think theres a good record that are not fairly administered, administered in a way that is designed to suppress black voters so Congress Steps up to the plate and makes these decisions so the Voting Rights advancement act is a proposal that came out of the house that is now in the senate tries to queue or the things the court identifies as a problem in Shelby County. The formula was not actively updated since 1975 in this provision of the Voting Rights act, extend until 2030s. For the court to say congress has done its homework, seems like the path of least resistance, why update, why change something, the Voting Rights advancement act is designed to address of those precise concerns from the court and say it is a dynamic formula that recent actions of states or municipalities or localities, if you have been found to engage in Racial Discrimination when it comes to Voting Rights you will be subject to this provision where you seek free clearance of your laws. We want to provide notice about changes and providing notice, so important to emphasize the elections clause. A lot of things im not in the fifteenth amendment power but squarely in election clause power, talk about the places and manner of Holding Elections, you cant change your laws too close to election day, you have to notify people, publicize changes your election laws, things like that. It requires political will, congressional will in congress. Whatever reason, partisanship, polarization, whatever it might be, a proposition to figure out whether congress will unify as it has in the past on a bipartisan basis to enact some voting related reforms. Difficult even for congress to agree on funding for state in terms of the coronavirus. Whether more robust things happen in the 2020 election is Fire Congress in other words. Fire congress, fascinating. The question and answer box is on fire but among them the role of the Electoral College. Your forthcoming book asks the question why do we still have the Electoral College. Why do we still have it . Justice scalias observation was there is no right to vote for president guaranteed in the constitution. You noted framers of the Electoral College and revisions after the election of 1800 didnt anticipate a winner take all system for distribution of electoral votes. Thats not the way things turned out and i will note we have a Great Program on the Electoral College, a new book and other things that congress came within a few votes of proposing an amendment that would adopt a National Popular vote in the 1970s endorsed by both political parties, democrats in the south killed it. What can we expect from your new book and why do we still have an Electoral College . Im be doubled by the title i gave the book. I am finding people say why do we have this . My own title set up to which i end up saying if i could have said it in two sentences i wouldnt have written a book but for this, there are several things to make clear. One is that people should know there have been largescale efforts to modify or get rid of the Electoral College in various pieces. We forget there are a lot of different pieces of the system. There have been largescale efforts since the early Nineteenth Century, more constitutional amendments on this subject than on any other subject in us history and there have been several occasions where we came close to altering the system. You mentioned 6970, equally so between 18161822. In 1821 the Senate Approved a constitutional amendment to require constitutional elections and the house was a few votes short, this has long been a problem. There is not a single factor at all times. Let me mention three. As i alluded to, this contingent election system, a majority of the electoral vote. Each delegation gets one vote. In the Nineteenth Century people thought that would be used a lot and you couldnt reform the rest of the Electoral College without that and that is true again today. Going back to justice scalia, the constitution leaves it to the states to decide the manner in which a lectors would be chosen so they can do it by district. The second factor is partisanship, partisan interests, this is almost always true with electoral systems, partisan interests form around it and if they think changing the system might hurt them they will propose it. That didnt always happen. A lot of principal players in congress and elsewhere, a better system. Partisan interests do insert themselves frequently. The last point, the point that will be most frequently noted is two part. The conventional wisdom Electoral College reform is blocked by the small states is not true, it is a plausible argument because both small state, the quantity of electoral votes but historically that is not played a role. We will talk about that too. The single most important factor since the 1870s, 1880s, the single most important factor for that period was the desire of the white south and after reconstruction, the white supremacist regimes of the south to retain the Electoral College, gave extra power in president ial elections and extra influence. Why was that the case. We all know about the 3 fifths clause before the civil war where Southern States got representation in congress and electoral votes were 3 fifths of their saves. By the 1890s, disenfranchised africanamericans, there was a 5 fifths clause that operated for the benefit of the south. 100 representation and electoral votes but they still couldnt vote. The white south wanted to preserve that system. It kept the idea of National Popular vote off the table for decades, in 196970 when we came extremely close to a national vote, southern segregation. The new book in the chat box. Greg has put in the q and a box a proposal for a National Choice vote, constitutional amendment, in practice will face an uphill battle to face constitutional amendments, alternative is the National Popular vote interesting come back. Tell us about that compact. Do you suppose it will be consistent with the constitution. The National Popular Vote Initiative is a compacted pledge there Electoral College votes will go through the popular vote and right now there are 16 states that are signed on, 196 total and will go into effect when they reach 270. I support it in theory and it is a problem but it is difficult to know what happened to the structure of the constitution. And Electoral Colleges, this alternative or workarounds for the constitution. We look at article 2 which gives control over how they are located there a lectors within the text of the constitution. We determine how they award there a lectors but on the other hand also holding an election. It is conceivable they have an election you can have candidate a win the election or candidate be gets the electoral vote because that person won the national vote. Bush versus gore was a decision following the 2000 election, the recount in florida. Part of the reason of that case is the failure of the recount standards was a post election change that violated the intersection clause. If the Supreme Court initiative, the possibility of candidate be winning the electoral state in which candidate a won the popular vote that is a possible postelection change. I dont think the Supreme Court as constituted would uphold the popular Vote Initiative even if the theory is a good idea so i am leery about the idea of changing the structure of the constitution. Thank you for that. A similar question to you on michelle greens question about the concept of a compact, is it constitutional and is it a good idea . The constitutionality question is tricky. There is an implied structural concern. One more expressed concern is a provision of the constitution called the compact clause, they will not enter compact without consent of congress. Congress would have to consent to any agreement like this, to transform this system. Doing Different Things and throwing their votes into one big bucket. I think whether or not the Electoral College is a good idea or bad idea, there are problems in terms of going where to go. Voter qualifications, are a little different. Those who committed a felony and whether they are in eligible to vote. In maine and vermont, they authorize them to do so. When you think about children, anyone 18 and up, there have been fits and starts about reducing the voting age or noncitizens, those there are different rules we could have in place in different states and we throw everything into one bucket. Congress is not defining that bucket. When you think of who is on the ballot, donald trump and joe biden will be on the ballot, kanye west will be on the ballot in at least one state. It is strange to have a National Election that is still being run on a statebystate basis. If we reform the Electoral College and do the kind of thing proposed in 1970 it has to be a constitutional amendment. It has to be a constitutional amendment that defines a uniform set of regulations that empowers congress to provide some of that uniformity and anticipates the problems that can arise based on the implied structure of these constitutional provisions regarding president ial elections. Whether you think it is good or bad, the National Popular vote falls short of the kind of things we would want in a system that reforms our president ial election. Thank you for the. There are so many questions. Bringing all of these things together, can you discuss the florida constitutional amendment granting the right to vote to convicted felons and the position of the state requirement they pay court costs prior to being able to vote that relates to a question about commenting on the recent Supreme Court decision in place, the trial court were unconstitutional and picks up on dereks recent statement that currently allowed felons to vote. The question is about the florida constitutional amendment granting the right to vote to convicted felons, Supreme Court refusal to hear it and the other recent Supreme Court decisions about Voting Rights noting in your closing remark. What happened in florida in effect was the Supreme Court said it was okay for partisan legislature, the Florida Legislature which is entirely republican to override the effort of a multiyear Popular Mobilization for convicted felons to have their rights restored after they served their sentences. And vermont, permanent and lifetime disenfranchisement which was under the law. There is an extraordinary Popular Movement to overturn that and it worked in the legislature turns around and said you have to pay your court fees and fines and if you dont pay that, you will be put in jail. We cant tell you how much money you owe because we dont have a record of the court fees. I found it very disturbing that the Supreme Court said at least for this election cycle that stay in effect preventing hundreds of thousands of people from voting, that the Supreme Court upheld that. Also, juanita and derek were with the Supreme Court decisions, it seems to me to fit with the recent drift, decisions of the Supreme Court to weigh in on the side of sanctioning obstacles to voting rather than supporting efforts to make it easier for people to vote. Thank you for all that. Franita tolson, we have several questions about recent cases arising out of the covid19 crisis. The Supreme Court weighed in on several cases of this, the Democratic National Committee Case in wisconsin where the court invoked to say courts should generally be reluctant to impose new voting requirements that the last minute. How might that principle play out in controversies over absentee ballots moving forward and what kind of cases are you watching most closely . We will see a lot of this. Right now theres covid19 related litigation in 39 states. The role, i hope i am wrong about this. To not be holding the line and the circumstances. The most recent term, whether the court is toward the center, if you look at the Voting Rights cases that is not true. This is still a court that has not been protective of the right to vote. With respect to covert covid19 related litigation, the rnc and dnc decision for lastminute efforts by the governor, to close the holes and people who filed paperwork to get absentee ballots and they were forced to go through the polls, and the Supreme Court did not seem very sympathetic to any of that. At least in my mind you should think about the poor souls trying to do the right thing, they tried to get the opposite on time. The District Court tried to accommodate the Supreme Court effort from happening. One thing that struck me about the language, i feel comfortable predicting the Supreme Court will not be sympathetic to covid19 related themes, applying, the election changes. Without any consideration of context it didnt matter to the court we are in the middle of a onceinalifetime global pandemic. This is an election and they pretended this is an election like any other election. Imagine the opposite story in which the fourteenth the importance of the right to vote, room to have the remedial power. To experience difficulties through no fault of their own but that is not part of that. We have to play by normal rules even though we are living in a onceinalifetime situation. They will be favorable to Voting Rights. One other point about the florida litigation. I cannot emphasize enough how disappointing the Supreme Court position is with the fact that a lot of people dont know how much they owe. Not only do they not know but the state doesnt know. When you think about that and how the law operates, it functions as a polo tax. Its not enough to say the state doesnt have this information. One additional claim, takes an additional 21 workers to handle the influx to register to vote and how much they owe and comply with the state legislatures law, their effort in terms of hiring out that number of people. When the state doesnt have information regarding, hiring the number of workers needed, personnel and the Supreme Court completely ignores it. You said many things including arguing the florida the equivalent of a poll tax. I was reminded from alexs book the origin of poll tax doesnt mean youre going to the polls but the head tax, the 20 Fourth Amendment abolished poll taxes instead of rate to vote should not be accounted by failure. It falls to you to have the last word in this incredibly rich discussion. Someone should talk about, i would love our viewers to hear the defense if you were inclined to make it of the courts decision for the wisconsin absentee ballot case in florida case for difference to the states and against courts changing rules, but tell us why is a constitutional matter that has been correct. On the constitutional dimension, in gonzalez, the court says we shouldnt engage in lastminute changes to election law rules. This is a kind of a wonky in that sense of the word, the power of federal courts, timing of litigation, a lot of these are cropping up in the same procedural posture, emergency applications on an extremely short timeline. They are not argued before the court, filing all their briefs but rapidfire stuff and the court is coming out with a best guess handling the status quo right now. People are frustrated about it particularly with covid19 there are a lot of changing circumstances and the court should not be looking at things like that in the same way, but handling questions on their merit. In 2014 a spate of litigation before the Supreme Court involved lastminute changes to infection laws and the court said theres a voter id law that shouldnt apply, not going to apply, time and again, we are not going to change the status quo. Sometimes the definition of status quo is fluid in the courts eyes but it also emphasizes a point that has come up again and again which is not it will be the federal judiciary that is the one that is an assault, it has to be solutions at the state level. And whether social distancing are in place, these things have to happen at the legislative level. Litigation might be successful in the long term, the 2 or 3 year window for a lot of these challenges ahead of the litigants to win. Thank you so much, really rich substantive and diverse discussion of constitutional questions. Thank you for educating yourself about the constitution. Go to the Constitution Centers interactive constitution and read the best liberal and conservative scholars describing agreement and disagreement, article 1 section 4 and 5, check out our podcast, we the people where the program will be rebroadcast. Every week we brought together to discuss the constitutional issues and continue to read and educate yourself. If you want to thank the Thompson Communications group for making this possible, with a yearlong initiative celebrating the one hundredth anniversary of the nineteenth amendment. We look forward to welcoming you virtually and in person, august 4th for your Supreme Court review. Thank you so much for joining, thank you. Thank you. Today, house subcommittee had a hearing to examine security for the upcoming president ial election in november. 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