Of congressman john lewis and access to voting during the coronavirus pandemic. 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. 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 UniversityCaruso 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