Transcripts For CSPAN3 National Constitution Center Discussion On The Right To Vote 20240712

The National Constitution Center Hosted a discussion with legal scholars on the 100th anniversary of the 19th amendment. Guaranteeing women the right to vote. It was moderated by jeffrey rosen, president of the ncc. Ladies and gentlemen, welcome to the National Constitution center. And to todays version of americas town hall. I am jeffrey rosen, the president of this wonderful institution. And 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. 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 4th, please join us for the 2020 annual Supreme Court review presented in partnership with the antidefamation league, and it will feature the distinguished legal scholars erwin chemarinsky and dahlia renfrwick. I must tell you with great pleasure that on august 26th, circumstances permitting, the National Constitution center will open our new exhibit, how women won the vote, about the 19th amendment. Very relevant to todays topic. Its an exhibit about the history of the expansion of womens suffrage and our team is hard at work and it will be so meaningful to reopen the National Constitution center building, which is glimmering behind me on the fake backdrop, to actually open the doors and welcome people to see the exhibit. Throughout the program, please put your questions in the chat box, and ill introduce them to our panelists as soon as possible. Now, its my great pleasure to introduce our phenomenal guests. Alexander cizahr, matthew sterling professor of history and social policy at the john f. Kennedy school of government at harvard. Hes the hauther of many books including the right to vote, the contested history of democracy in the United States. Which was a finalist for the Pulitzer Prize and the Los Angeles Times book prize, and his forthcoming book coming out in ten days is why do we still have the Electoral College. Franita tolson is vice dean for faculty and Academic Affairs at the gould school of law, university of southern california. Her forthcoming book is rethinking the constitutional structure of political rights, the evolution of federal Voting Rights enforcement. From the founding to the dawn of the progressive era. And Derrick Mueller is professor of law at the university of iowa college of law. He has published widely and before joining the university of iowa, he was a professor of law at pepperdine university, Caruso School of law, and a visiting assistant professor at penn state law school. Alex, franita, and derrick, thank you all so much for joining. Thank you. Thank you. Let us begin with alexs book, and friends, please consider getting it, because its a definitive history of the right to vote in america and perfect homework, which i hope youll be inspired to read after todays discussion. In this important book, alexander, you argue that the right to vote has not been a steady bending of an arc toward justice or toward universal suffrage. Instead, its been a bumpy ride with peaks and valleys. And you note a similar a series of cases of outright reversals of the right to vote. For example, women in new jersey had the right to vote until 1807 and then lost it for more than a century, until the 19th amendment. Africanamericans in many northern staets had the right to vote at the time of the founding, and then lost that right in the 1820s and 50s. And people of foreign birth, similarly, had the right to vote in the midwest and southwest and then lost it in the 1900s in an effort to limit the power of immigrants. A broad question, but tell us about the unsteady progress of suffrage in the United States. Thank you, jeff. Thank you for the introduction and thank you for this question. There is there used to be, a history that was much for comforting of the right to vote which was okay, yes, when the nation was founded, the suffrage rights were limited to white male Property Owners but then it has been onward 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, who were not disenfranchised 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. Okay. 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 technically enfranchised 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 immigrants and speakers of foreign languages. So i think this pattern continues, 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 distillation of the wisdom of your book. It is meaningful to learn that there is a precedent for efforts to restrict the franchise by imposing voter i. D. Requirements or trying to prevent fraud, and in this period you identify in particular from about 1850 through the past world war i, where the franchise restricted 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. Franita tolson, 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 of that book and to what degree was the contraction that alex talks about from the end from the mid19th century through the progressive era, driven by the withdrawal of federal Voting Rights enforcement . 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. I think alex has 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 contractions bah a lot of that stuff was 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. But one thing that came to mind for me was 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, the shelley county v. 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 those laws could go into effect. And so finding that congress had overstepped, i had questions in my mind about whether that was in fact true. Because i conceived of federal power in the areas being quite broad, and im like, maybe im just, you know, sort of an adherent to the warren court and ive drunk the koolaid, so i decided to take a close look and a deep dive into that 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 its authority under the elections clause, which gives congress the power to make or alter state regulations that govern federal elections. And also the guarantee clause, in which congress guarantees to each state a republican form of government, and finally, Congress Power under article 1, section 5, which allows it to judge the elections of its 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 typically 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 constitutional conventions 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 Congress Power under the elections clause and the guarantee clause in article 1, section 5, which are on the structural provisions that delegate power directly to congress, but also these individual rights provisions. So Congress Power under the 14th and 15th amendments in particular, really Gave Congress a quite broad basis to act to remake 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 aspects of the 14th and 15th amendments, dealing with the right to vote, teaching us that historically, these provisions had been relied on to protect the franchise, and in your really creative and important articles, you argue that these clauses could provide a Solid Foundation for protecting Voting Rights today. I want to ask you more specifically about all of those arguments soon. But friends who are watching, lets just review some of the provisions that professor tolson has called our attention to. Article i, section 4, the time, place, and manner of Holding Elections for senators and representatives shall be prescribed in each state by the legislature thereof, but congress may make or alter such regulations except the place of choosing such senators. She talked about article i, section 5, which says each house shall be the judge of elections. She talked about the guarantee of a republican form of government, and then the 14th amendment, which has a little considered provision in section 2 which says if any state denies the franchise, it correspondently loses representation in congress. These are really important arguments and were going to return to many of them in a moment. Derrick, in your very important work, you have 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 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. I think its a fascinating strucksure we have in the United States of federalism. We talk about it sometimes as the negative, whether its the state or federal government that someone is not acting appropriately or not exercising its authority in the right way, and theres been plenty of instances in American History where we can point 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 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. It presumes a couple things. The first is if we want to expand the qualifications of the electorate, the presumption seems to be it happens in the state or we have to amend the constitution. Thats what happens with the 15 amendment. Essentially, we think that friedman has the right to vote and should be given the right to vote, so were going to pass the 15th amendment to insure that will not be deprived of any africanamerican in any of the states. And when it comes to Something Like the 19th amendment and womens suffrage, its an interesting and slightly different story because it states that really start this movement of infranchising women out west. As the lore tells it, a motive to have women move out west and it will be an opportunity for them to vote and participate in these elections. And so womens suffrage movement, we celebrate it as 100 years this year, but thats 100 years of the 19th amendment. It was happening much earlier, and many other places throughout the country. And even today, when we talk about noncitizens and whether or not noncitizens should vote, it is something that happens, 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. Any state 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 do experiments and say we want noncitizens to vote and participate in these elections. 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 insure there would be authority for the federal government to intervene or insure that we 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. 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 in the role of fighting to protect Voting Rights. Thank you so much for reminding me of what i meant to do at the beginning of the program and jumped right in, because of my enthusiasm, but it is deeply meaningful to pause to recognize the role of representative lewis, one of the great constitutional heroes of the 20th century, and one of the most important figures forthexpansion of Voting Rights in this century, the Constitution Center was greatly 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 helped lead to the enactment of the Voting Rights act of 1965 and a 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 memory. Al alex, with that in mind, what does representative lewis achievements and those of the Civil Rights Movement in passing the Voting Rights act of 65, how did that transform the nature of Voting Rights in america . And describe that period from 1965 to the present, where it seems that the path toward 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 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 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 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 focus on race spill over into linked and analogous issues, for example lowering the voting age. Which happened within a few years after the Voting Rights act. The shortening of residence requirements. Theres a whole large package of franchise expansions that happen 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 late 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 it is followed by a reaction it is followed by a 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 undering that Voting Rights and democratic rights were not something that you simply achieved once and for all at a given moment and didnt have to protect thereafter. Thank you. That was both succinct and iluminati iluminating, and you talked about representative lewis h o heroic efforts to respond politically, and franita tolson, i would like to ask you 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 state and counties met the necessary discrimination answer. In light of this, would a simple reauthorization by congress be enough or would it need more to avoid being struck down again. And i was really so truck 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 a bit about some of those provisions. Okay, so, wow, im trying to figure out where to start. Good luck with that. So i actually want to start, i want to kind of piggyback a little bit on the john lewis question because i do think that it ties into what needs to be done. So i find it remarkable he was if not the youngest speaker, one of the youngest speakers at the march on washington in 1963 and the fact he continued to serve up to his death pretty much, and you know, that just sort of highlights how the struggle for Voting Rights is ongoing, and its not about, you know, sort of reaching a peak and then stepping back. You have to be vigilant about protecting Voting Rights, even after you achieve some successes. I think were living in a period of retraction, because theres a lot of voter suppression. A lot of disenfranchisement. It highlights everything john lewis was fighting for, and part of the reason why he continued to fight is because i think the Shelby County decision did not come out of the blue. It wasnt a decision that just happened in 2013. That was a 2009 decision called northwest austin where the Supreme Court warned us, they indicated that the preclearance formula was a problem, that it hadnt been updated since the 1970s. But i think to some extent, you know, and im not trying to sit here and criticize congress. Yes, i am. Im sitting here criticizing congress because they did have the opportunity to abate it and they did not. And there were people, scholars who testified during the reauthorization hearings that the preclearance formula would be a problem, and you know, it wasnt as if they couldnt update it. The jurisdictions that were covered, they did a good job of capturing the problematic jurisdictions. Because after Shelby County was decided, states like texas and mississippi and alabama all took steps to further disenfranchise and suppress the vote. Vote. It wasnt rocket science. This is based on a historic understanding of what these jurisdictions do. So, yes, the formula was a problem. And the Supreme Court was not willing to read congressional power broadly. They were coming from a baseline, as they point out, our system is one in which the states regulate elections. If that is your baseline then federal power seems exceptional and then Congress Needs to justify any acts that intrude on the power of the states. I think a lot of my work tries to challenge that narrative. So one thing i dont do, i dont argue that there is a federal right to vote in a traditional sense. Derek is right that the constitution is not explicit in saying there is a right to vote. A lot of this happens by influence, with the court coming in and saying were going to read the 14th amendment broadcast enough to say there is a right to vote. But what the court creates, the court could take away. That is why it is important to have those things in the text instead of relying on the court. Because the court is taking the lead in shaping this Juris Prudence around the right to vote, if we are trying to reauthorize the Voting Rights act how do we do it as was laid out in Shelby County. Any reading of the tee leaves is the court was committed in striking this down. But to do so requires a bit of sticking your head in the sand. You have to ignore the fact that there is still Racial Discrimination in voting. Race, as alex points out, bleeding over in a lot of other things. Racism bipartisanship is heavily intwined into our country. So, its very difficult to think of a formula that would be consistent with what the court is looking for in Shelby County. Part of my book is trying to highlight that congress has comprehensive authority to intervene when there is a problem. And it doesnt just stop with the 14th and 15th amendment. So one of the arguments i made around Shelby County was that the election clause is also a sort of authority. If you look at congressional power in aggregate, so states could set the time, place and manner of election but congress could alter or make its own regulations and in conjunction with the 14th and 15th amendment, that is a broader stretch of authority than just look at the 15th or the 14th and 15th amendments. Let me explain the Practical Implications of that. And then ill wrap up. Sorry. The implication is if you focus on the 14th and 15th amendment, the court is looking for a record of intentional discrimination on the basis of race. So theyre looking for a pattern that they found wanton when they looked at the legislative record behind the 2006 reauthorization. The chief justice was clear that there wasnt the same pattern at the time they reauthorized the Voting Rights act. But the clause did not require at pattern of Racial Discrimination. So even if the court is still looking for a legislative record, that gives congress more room to legislate because they have provisions that they could rely on that dont require the same pattern of discrimination as the 14th and 15th amendments and that makes a real difference in terms of what congress could do in order to protect the right to vote. Thank you so much for that. It is such an important argument that the elections clause, which doesnt require intentional discrimination might be broader protection and i really urge viewers to read and learn from your other articles which note that there are other provisions of the constitution, including section 2 of the 14th amendment that might protect against disenfranchisement. Derek, lots of phenomenal questions from the audience, julia fracas asks, with the reintroduction of the bipartisan Voting Rights in the senate bill this week, a bill with 46 cosponsors named after john lewis, that the congress fought so mightily for, what are the chance this is might pass in the senate and that leads to the important question, is this purely a bipartisan issue, the Voting Rights advancement act has democratic cosponsors and to independents but no republicans. Is it just because it is viewed as not in republican partisan interest or the principled objections to it and i want our audience to hear the arguments on behalf of the Shelby County case for the majority which youve i think defended, why do you think the court was correct to strike down preclearance decisions and what, if anything, do you think that the states could do constitutionally to restore those protections . Well lots to get to. Let me start with the late representative john lewis. If you in the audience have not seen some of the video footage of that march 1965 where a very Young John Lewis is at the front of the line in a peaceful march and watching Alabama State troopers firing tear gas and beating him, it is a miracle that hes alive much less what it means to sort of stand up and think about Voting Rights in a different era. And the Voting Rights act of 1965 did incredible tremendous work. It took a march. It took deaths. It took beatings for congress to sort of get the attention that, you know what, there are some real problems in portions of this country. And so the Voting Rights act of 1965 went a long way in enfranchising a tremendous numbers of africanamerican voters who have previously been disenfranchised and began to participate actively participate in ways they havent in hundreds of years. So when we talk about today, about congress s intent or motivation, it is a tough thing to figure is it partisan in nature. Is it something for sinister. Franita was talking about the relationship between race and party. In 1965 there was one party in the south. It was the Democratic Party essentially. So the fights about white and black voters were intraparty feuds and that has shifted in the sense that we now have partisan polarization so that is changed a lot of the dynamics on how we view the relationship between race and party and the right to vote. I think about the votering rights act, some of the early ones that alex points out, there were provisions that change things like residency requirement. Congress said while we think that the Supreme Court has said literacy tests are constitutional, we in congress think there is a good chance theyre being administered in a way designed to suppress black voters. So congress, again, sort of steps up to the plate and make shes sort of decisions. So the roting rights advancement act, the proposal out of the house and into the senate, tries to cure some of the things that the court identified as a problem in Shelby County. The formula had not been updated by the court since in the 1975 and this was supposed to extend until the 2030s and for the court to sit there and say congress has done its homework, it seems like it was the path of least resistance for congress. Why update or change something. Youre starting to make political enemies. So the act at least is designed to address those precise addresses to the court and it is looking at past actions of states or localities to say if youve been found engage in intentional Racial Discrimination when it comes to Voting Rights, youll be subject to this provision where you have to seek preclearance of your laws. We want to provide notice to the people about changes. And things like providing notice, it is so important to emphasize things like the elections clause. There are the advancement act within the congresss 14th, 15th amendment power, i think are squarely within the elections clause power of congress to step in and talk about the times and place and manner of Holding Elections and here is how it is going to look. You cant change your laws close to election day and notify of public election laws an things like that. But it requires political will, and congressional will in congress. And for whatever reason, whether we say it is partisanship, polarization, whatever it might be, its a dicey proposition to figure out whether or not congress is going to unify as it has in the past on a bipartisan basis to enact some of the votingrelated reforms. It was difficult even for congress to agree on funding for states in the time of the coronavirus, right. It took a little bit of muscle for that to happen in congress. Whether or not more robust things happen ahead of the 2020 election is a dicey proposition. Fire congress, in other words. Fire congress. Fascinating. Well the question and answer box is on fire there are so many phenomenal questions. But not but, and we have to talk about the role of the Electoral College. Alex, your book coming out on july 30th asks the question why do we still have the Electoral College. And so ill ask why we still have it and the through line between your two books is Justice Scalias observation that pointed out that there is no right to vote for president guaranteed in the u. S. Constitution. Youve noted that the framers both of the Electoral College and the revisions didnt anticipate a winner take all system. They would prefer the district system but that is not the way things turned out. And ill know finally we have a Great Program on the Electoral College with jesse wegman who has a book out too and he notes that congress came within a few votes of proposing an amendment that would have adopted a National Popular vote in the 1970s, endorsed by both political parties, president nixon and democrats. But it was democrats in the south who killed it. So what could we expect from your new book and why do we still have an Electoral College. Ive been bedevilled by the title i game to the book because people turn to me and say so why do it. I was supposed to come up with a twosentence answer which my own title set up and to which i end up saying if i could have said it in two sentences i wouldnt have written the book. But there is i guess for this one, there are several things id like to sort of make clear as takeaway. One, is that people should know that there have been very large scale efforts to modify or get rid of the Electoral College in various pieces. We forget that there are a lot of different pieces of this system. And ill say a little bit more about that. But there has been large scale efforts since the early 19th century and more constitutional amendments ins deuced into congress on this subject than any other subject in u. S. History and there were several occasions when we came close to altering the system. You mentioned 196970 which was to have the popular vote. Between 1860 and 1821 and the Senate Approved a constitutional amount to require district elections and in the house they are just a few votes short of the twothirds needed. So one thing we should note, this has long been a problem. In terms of what has prevented, there is not a single factor at all times but let me mention three. One is, as i alluded to, the complexity of the institution itself. For example it includes this whole contingent, what happens if nobody wins a majority of the Electoral College. The answer is to goes to the house and each state delegate gets one vote. Well that, in the 19th century, people thought that would be used a lot. And there was you couldnt reform the rest of the Electoral College without reforming that and that remains true today. There have a lot of different features, going back to Justice Scalias quotation that the constitution leaves it to the states to decide the manner in which electors will be chosen so they could do winner take all or by district and could they take that dimension away. The second factor is partisanship. The partisan interest and this is almost always true with electoral system. Partisan interests reform around it and if they think a change in the system might hurt them, theyre going to tend to oppose it. That doesnt always happen. But there have been a lot of principal players in congress and elsewhere who thought that a National Popular vote was a better system. But partisan interests do insert themselves frequently. But the last point i want to make sure is that, and i think probably what is the point most frequently noted about the book is two part. One, the conventional wisdom that Electoral College reform has been blocked by the small states is simply not true. It is simply not true. It is a plausible argument because the small states do get slightly disproportionate quantity of Electoral College but historically that has not played a role and we could talk about the tails of that if anyone wishes to. And then on the other hand, i think that probably the single most important factor in preserving the Electoral College since the 1870s, 1880s, which means were talking a good 140 years now, the single most important factor for a lot of that period was the desire of the white south and after reconstruction, the White Supremacists regimes of the south to retain the Electoral College because it gave them extra power in president ial elections and thus extra influence in national politics. Why was that the case . And again ill try to be brief. We all know about the threefifths clause. Before the civil war where Southern States got representation in congress and electoral votes for threefifths of their slaves. Well by the 1890s after the white supremacist regimes returned to power and disenfranchised africanamericans, there was, in effect, a five fifths clause that operated for the benefit of the south. Africanamericans counted at 100 toward representation and electoral votes but they still couldnt vote. The white south wanted to preserve that system and kept the idea of a National Popular vote off the table for decades and decades and that you alluded to before in the end in 1969, 70, when we came close to the National Popular vote, it was southern segregationist senators who led the opposition. Thank you for all of that and we very much look forward to your new book which we put a link to in the chat box, why do we still have the Electoral College. Greg has put in the q a box a link to a rank vote constitutional amendment in practice that will fate an uphill battle because it is hard to pass constitutional amendments. An alternative is the National Popular vote interstate compact. Franita tollson, tell us about that compact and do you support it . Might it pass . And would it be consistent with the constitution . So the National Popular Vote Initiative is a contact among states who pledges that their Electoral College votes will go to the winner of the popular vote. The National Popular vote. So right now i think there are 16 states that are signed on for a total of 196 Electoral College. So the compact will go into effect when they reach 270, which is what was necessary to win the presidency. So, i support it in theory. I sort of recognize that the Electoral College is a problem. But it is difficult to think about changing the structure of the constitution by statute or by compact. And that is the struggle that i have. Because the Electoral College is there, right. And so really for me the question is can we come up with a status alternative or work around that negates part of the constitution in somes. I look at article two that gives control over how they allocate electors. This is within the text of the constitution. States are deciding to join this compact and this is a way of determining how they will how they will award their electors. On the other hand theyre also holding an election. So it is conceivable that a state could have an election, you could have candidate a. Win the election but then candidate b. Gets the Electoral College because that person has won the national vote. And so for me, if bush versus gore taught us anything, now bush versus gore was the recount of florida and part of the reasoning of the case is that the failure to set recount standards was a postelection change. Right, that violated the equal protection clause. And so if the Supreme Court viewed the National Property Vote Initiative and the possibility of candidate b. Winning the Electoral College of which candidate a. Won the popular vote in that state, that is a possible post election change, right. So i dont think the Supreme Court is currently constituted would uphold the National Popular Vote Initiative even if in theory it is a good idea. Im leery about the idea of changing the structure of the constitution through a statute. Thank you very much for that. Derek, similar question to you picking up on michelle greens question about please address the concept of a compact among the states, is it constitutional . Do you think it is constitutional . And do you think it is a good idea. The constitutionality question is tricky as franita pointed out. There is sim employed socomply implied concern that there is a provision of the constitution called the compact clause which is no state shall enter into any compact without the consent of congress. So at the very least congress would have to consent to any agreement like this. But even if congress consents, you could essentially sort of transform this system where you are sort of having all of these different states doing Different Things and throwing their votes into one big bucket. On the good idea, bad idea, in my opinion, whether or not you think the Electoral College is a good or bad idea, it has some problems in terms of being a good idea as the way to go as a statutory method. So, again, one of the core things ive mentioned is we presume the states pick voter qualifications. So in all 50 states the voter qualifications are a little bit different. So when we think about those who have committed a felony and whether or not theyre eligible to vote. And in maine and vermont, incarcerated felons could vote and there is a bill in the district of columbia to authority them to do so. When we think about children, so right now anybody 18 and up votes, that is in the constitution but there have been fits and starts about reducing the voting age or think being mental capacity and noncitizens. There are different rules in place in different states and if you throw everything in one bucket, congress is not defining that one bucket. When we think about who is on the ballot, we all know donald trump and joe biden are going to be on the ballot. Kanye west will be on the ballot in one state. It is strange to have a National Election still being run on a state by state basis. If were going to reform the Electoral College and do the kind of thing proposed in 1970, it has to be a constitutional amendment that defines sort of uniform set of voting qualifications that expressly empowers congress to provide some of that uniformity and that anticipates the problems that could arise based upon again sort of the implied structure of how we handle these constitutional provisions pertaining to president ial elections. In my view, whether or not you think it is good thing or bad thing, i think the national pop lor vote falls shore in the type of things that we would want for our president ial election. Thank you for all of that. This is the last round and there are so many phenomenal questions so im just posing a couple of each to you for closing statements an bring these together as you think best. David, muslim asked could you discuss the florida constitutional amendment granting the right to vote by convicted felons and that they pay their court costs prior to being able to vote. That is a question commenting on the recent Supreme Court decision leaving in place an Appeals Court stay of the Trial Court Ruling that the florida voting restrictions on ex felons were unconstitutional and picks up on dereks statement that currently only maine and vermont allows felons to voighte. So the question is granting the right to vote to convicted felons, the Supreme Court refusal to hear it and the other recent Supreme Court decisions that you think are worth noting in your closing thoughts . Sure. I mean, i think that what happened in florida, in effect, was that the Supreme Court said it was okay for a partisan legislature, being with the florida legislature, which is entirely republican, to override the efforts of what would have been a multiyear Popular Mobilization to allow convicted felons to have rights restored after they have served their sentences. I mean, that is really that is not the main and vermont model, it is to eliminate permanent and lifetime dis disenfranchisement which was florida law. And there was a Popular Movement to overturn that and it worked that and then the legislature turned around and said you have to pay all of your court fees an fines and if you dont pay that and you vote, that is a felony again youll be put in jail. But meanwhile, we cant tell you what how much money you owe because we dont have a record of the fines and the court fees. I found it very disturbing that the Supreme Court in effect said at least for this election cycle that sort of stay in effect preventing hundreds of thousands people from voting that the Supreme Court upheld that. It has also, and i think franita and derek are much closer students of Supreme Court decisions than i am, but it seems to me that to fit with a recent drift, drift may be too mild of a word, and the decisions of the Supreme Court so weigh in on the side of sanctioning obstacles to voting right rather than making it easier for people to vote. Thank you for all of that. Franita, we have several questions about recent cases arising out of the covid crisis and absentee ballots. Supreme court was weighed in on several cases on this, in the republican and the Democratic National committee in wisconsin where they invoked the purcell principal and how might it play out moving forward and what kind of cases are you watching most closely . So were going to see a lot of this. I think right now there is covid related legislation pending in like 38, 39 states. So the role will be where you see, i hope im wrong about this, what i suspect the Supreme Court will hold the line and not be very protective of the right to vote despite the circumstances. I know at the end of the most recent term there was a few stories about whether or not the court has sort of drifted more toward the center after this past term. And if you look at the Voting Rights cases, that is not true. This is still a right lane in court and still a court not protective of the right to vote and in fact, some of the decisions that theyve made were respect to the covid voting related litigation has proven that vote. So the rnc versus dnc decision which came out of wisconsin and lastminute efforts by the governor to sort of close the polls and then you had people who have filed the paperwork to get absentee ballots did not receive them and they were forced to go to polls on election day and then you have the partisan wrangling by the state legislature and it was a nightmare. So the Supreme Court did not seem very sympathetic to any of that. So at least in my mind, you should at least think about the poor souls trying to do the right thing. They filed their paperwork to get their absentee ballot and didnt receive it and the District Court tried to accommodate that and the Supreme Court stopped that effort from happening. So one of the things that struck me about the language in that opinion and which is why i feel comfortable predicting that the Supreme Court will not be sympathetic to covid related claims moving forward is the court seemed to apply the principle that you should not have lastminute election changes without any consideration of context. It did not matter to the court that we are in the middle of a once in a lifetime global pandemic. Hey, this is an election. And they pretend like this is an election occurring like any other election and it is not. You could imagine the opposite story. In which the court paints the picture of the importance of the right to vote and given District Courts room to have the remedial power in order to accommodate voters who experience difficulties through no fault of their own. But that is not the opinion that the court wrote. Instead the court wrote an opinion that assumed this is an election so we have to play by normal rules, even though were living in a once in a lifetime situation. So as long as that is the courts posture, i couldnt anticipate that any decisions moving forward would be favorable to Voting Rights. And i want to piggy back on what alex said about the florida litigation, i cant emphasize enough how disappointing the Supreme Court decision is in light of the fact that alex points out, a lot of people dont know how much they owe, and the state doesnt know. Right. And so when you think about that, and think about how the law operates, given that reality, it does function as a poll tax. It is not enough to say that well they could just pay their fines and fees if the state doesnt have information. And one other additional thing, it would take additional 21 workers to handle the influx of people coming in trying to register to vote and find out how much they owe and to comply with the state legislature law. The state legislature made zero efforts in order to hire that number of people. Right. So this is clearly a situation in which the state legislature has ulterior motive in passing the law and when they refuse to hire the number of workers needed to implement the law. That tells us this is about Something Else and the Supreme Court completely ignored that. Thank you for all of that. Youve said many things including arguing that the florida requirement was the equivalent of a poll tax. Friends, i was reminded from alexs book, the origin of poll tax doesnt mean poll going to the poll but poll as a head tax, a tax that each individual voter pays and of course it was the 24th amendment that abolished poll taxes and said that the right to vote shall know be abridged by account of paying. Derek, it falls to you to have the last word. So much to talk about. But i would love our viewers to hear a defense, if you were inclined to make it, of the courts both in the wisconsin absentee ballot case and the florida case, broadly youve argued in favor of the judicial deference to the case and against courts changing rules. But why dont you bring whatever strands together that you like and tell us why you think it is a constitutional matter that the Supreme Court has been correct. I think it is hard on a constitutional dimension only because when we talk about the purcell principal, and the case purcell versus gonzalez where the court said we shouldnt engage in last minute rules and this is a wonky, in the best sense of the word, power of federal courts, timing of litigation, a little bit of article 3 power of the judiciary. So a lot of these are cropping up in the same sort of procedural posture. Those are emergency applications to at Supreme Court on a extremely short timeline. They are not argued before the court. There is not the parties filing the briefs. Theyre firing rapid fire stuff and the court is coming out with a best guess handling the status quo right now. And so there is people frustrated about it because especially with covid, there is a lot of changing circumstances and maybe they should not look at purcell principal in the same way. Maybe answer some questions more on their merits. In 2014 there was a spate of litigation before the Supreme Court involving the lastminute changes to election laws. In some places the court said there is a voter i. D. Law that should apply and it is not going to apply and in other places it is okay, it will go into effect but the court time and again said were not going to change whatever has been the status quo. An sometimes that the definition of the status quo is fluid in the courts eyes. But it also emphasizes a point that has come up time and again which it is not the federal judicial the one that will solve all of your problems, right. It really is going to have to be solutions at the state level. If it is problems with absentee voting, with the polling places on election day, the hours of the polling places, whether or not effective social distancing requirements are in place, these are things that will have happen at the local and in the longterm, two, three year window for the challenges ahead of 2020 is a very difficult thing for a lot of litigants to win and that just shifts things back to the political process. Thank you so much. Alex kazar and franita tollson and derek for a rich and diverse discussion. Thank you for taking an hour within the day to educate about the constitution. So there is too much more learning to do. If you are so inspired, go to the Constitution Center interactive constitution and read the best liberal and conservative scholars in america describing agreement and disagreement about all of the clauses weve discussed, article 1 section 4 and 5 and the 14th and 15th amendment and more. Check out our podcast where this program will be prebroadcast for every week we bring together brilliant scholars to discuss the constitutional issues in the news and continue to read and educate yourself about the constitution. I want to thank the stiggy Thompson Communications group for making this program possible and also for supporting our year Long Initiative women in the constitution, celebrating the 100th anniversary of the 19th amendment. We look forward to welcoming you both virtually and in person to that exhibit on the 100th anniversary of the 19th amendment and to seeing you on august 4th for our Supreme Court review. Alexander, franita and derek, thank you all so much for joining. Thank you, friends. See you again soon. Thank you. Thank you. Thank you. Tonight on American History tv, our series landmark cases, produced in cooperation with the National Constitution center we are explore the issues and people and places involved in some of the most significant Supreme Court cases in our nations history. We gib at 8 00 eastern with katz v. United states. A case that expanded americans right to privacy under the 4th amendment and changed the way Law Enforcement officers conduct their investigations. And then at 9 35, brandon burg v. Ohio, a case in which the Supreme Court overturned the hate speech conviction of clarence brandenberg, a ohio ku klux klan leader. They uphold his right to Free Expression even if oppressive. Watch any time at cspan. Org. American history tv on cspan3, exploring the people and events that tell the american story every weekend. C coming up this weekend, saturday at 8 00 p. M. Eastern on lectures in history we look back to 2012 and hear from phyllis shlaughly about the modern conservative movement and then on sunday on reel america, four Police Training fillps from the 1960s. At 6 00 p. M. Eastern on american artifacts, a tour of the Ellis Island Immigration Museum and at 7 00 p. M. Eastern historians talk about recent debates over removing historical monuments. Exploring the american story. Watch American History tv this weekend on cspan3. The hou