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tv   National Constitution Center Discussion on the Right to Vote  CSPAN  July 31, 2020 2:07pm-3:16pm EDT

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the manhattan project and working on the nagasaki bomb. an exhibit marking the anniversary of the bombings. exploring the american story. watch american history tv this weekend on c-span3. >> during the summer months, reach out to your elected officials with c-span's congressional directory. it contains all of the contact information you need to stay in touch with members of congress and state governors. order your copy online today at in august, the united states will mark the 100th anniversary of the 19th amendment to the constitution which gave women the right to vote. the national constitution center hosted a discussion about that anniversary and the history of voting rights in the united
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states. this is just over an hour. >> ladies and gentlemen, welcome to the national constitution center and to today's version of america's 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 center's inspiring mention. here we go. recite after me. the national constitution center is the only institution in america to increase awareness and increasing of the u.s. constitution among the american people on a nonpartisan basis. beautiful. that is a wonderful recessation. before we begin, i want to provide a quick plug for our next town hall. join us for the 2020 annual
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supreme court review presented with the anti-defamation league. and it will feature presidential scholars. it will be a wonderful discussion of the most important cases of the term. and, friends, 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. it's very relevant to today's topic. it's an exhibit about the history of the expansion of women's suffrage and our team is hard at work and it will be meaningful to reopen the national constitution center building which is glimmering behind me on the fake backdrop to open the doors and welcome people to see the exhibit. please put your questions in the chat box and i will introduce
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them to our panelists as soon as possible. we have the previofessor of hisy and social policy at harvard. he's the author of many books including "the right to vote" which was a finalist for both the pulitzer prize. franita tolson is vice dean and professor at law at the gould school of law. her forthcoming look is "rethinking the structure of voting rights, from the founding to the dawn of the progressive era." and derrick mueller is professor
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at the university of iowa school of law. before joining the university of iowa, he was a professor of law at pepperdine university. thank you for joining. >> thank you. >> thank you. >> let us begin with alex's book. friends, please consider getting it because it's a definitive history of the right to vote in america and perfect homework which i hope you'll be inspired to read after today's discussion. in this important book, alexander, you argue that the right to vote has not been a steady bending of an arc towards justice. it's been a bumpy ride with peaks and valleys and you note a series of cases of reversals of
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the right to vote, for example, women in new jersey had the right to vote until 1807 and lost it for more than a century. african-americans in many northern states 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 lost it in the 1900s, the effort to limit the power of grinimmigrants. 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. you know, there is or there used to be, you know, a history that was much more 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's
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been on ward and upward ever since. it's a chronicle of progress. what i found was precisely what you described. 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 mentioned several examples, let me mention a few more. in the early 19th century or the first or third -- 1810 and 1850, property requirements are eliminated 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 pauper's voting.
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pauper's being defined as anybody who was dependent on the state. some of those same conventions that eliminated property requirements in northern states disenfranchised african-americans. after the civil war you mentioned the broad pattern of immigrants being restricted. we find these remarkable quotes from leading 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 can't -- it's very hard to actually reinstitute a property requirement after you've gotten rid of it. what they do is to create a lot of procedural obstacles to those immigrant voters voting.
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they switch from disenfranchisement to voter suppression. of course the big story, the largest quantitative story in the late 19th century is that african-americans 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, you know, 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 are going on this year and that have been going on for the last 20 years, perhaps 30, are in a key respect a reaction against -- but also
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people -- 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's a precedent for efforts to restrict the franchised by imposing voter i.d. requirements or trying to prevent fraud and this period you identify in particular from around 1850 through the past world war i when the franchise is restricted not only on the basis of race but also with new property requirements as you said to
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prevent african-americans and immigrants from voting is deeply meaningful to learn about. franita, i can't wait to read your new book which will be coming out soon, rethinking the constitutional structure of political rights. tell us about the thesis of that book and to what degree was the contraction that alex talks about from the end -- from the mid 19th century through the progressive era driven by the withdrawal of federal voting rights enforcement. >> i think alex is too modest in talking about his book and how it informed the thinking of everyone who works in in this area. it looks at the same issue from a bit of a different perspective. alex has done a wonderful job of
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showing how the right to vote has expanded and contracted throughout history. it raises a question in my mind how congress responded to those contractions. a lot of the stuff was happening at the state level. and so, you know, reconstruction is a time when you really 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 formally enslaved population. one thing that came to mind for me, what about the period before reconstruction? and i think the assumption is that congress didn't really 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 didn't have much to say about it. but then shelby county came out. the decision was the decision in which the supreme court invalidated a portion of their preclearance regime of the
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voting rights act of 1965. in that decision, the supreme court said that congress has overstepped the bounds of its authority under the 14th and 15th amendments when it required certain jurisdictions, mostly in the southern states, to any changes to their law with the federal government before the laws go into effect. in finding that congress overstepped, i had questions in my mind about if that was in fact true. i've always conceived of federal power being quite proed. maybe i'm just, you know, sort of adherent to the court and i've drunk the kool-aid. i decided to take a close look and a deep dive into this question. and so that was the motivation for writing a book which starts 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 don't think we in a legal community really talk about. for example, the book talks about how congress exercises
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authority under the elections clause which gives congress the power to make or alter state regulations that governor federal actions. and also the guarantee clause in which congress guarantees a republican form of government and congress's power which allows us to judge the loeelects of its membership. these are all sources of authority that congress has used in order to influence state political systems. and i realize this was 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. not only did the 14th and 15th amendments provide an additional basis for congress to act, so those are the provision that is we think of as being directly relevant to the individual right to vote. as alex mentioned, the 15th amendment enfranchised african-americans by prohibiting discrimination on the base of
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race. but congress has used its authority under the guarantee clause to force southern states to pass new constitutions and remake their political systems and they had constitutional conventions in which they were required to have, you know, multiracial coalitions. these weren't constitutional conventions that were staffed purely by white property males. so essentially you see this reconstruction and a guarantee clause and article i section five which are -- i think of as instructional provisions. but also these individual rights provisions. congress's 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's this understanding that i argue that influences what -- that should influence what congress can do now when we think about the scope of congressional power over
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elections. instead of just focusing soully -- solely on the 14th and 15th amendments. >> thank you so much for that. it's exciting 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 rights to vote, teaching us that these provisions have been relied onto protect the franchise. and your important articles, you argue 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. friends who are watching, let's review some of the provisions that the professor has called our attention to. in article i, section 4, the time place and manner of holding elections for senators and representatives shall be prescribed in each state by the
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legislature there of but congress may alter such regulations which you talked about in article i, section five which says that each house shall be the judge of elections, returns and qualifyingsications its members. and the 14th amendment which has a provision in section two which says that if any state denies the franchise, then it loses representation in congress. so these are really important arguments and we're going to return to many of them in a moment. in your very important work, you've argued that deference to the states when it comes to elections is important. the constitution doesn't really 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
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colleagues have said? >> i think it's a fascinating structure that we have in the united states of federalism and we talk about it sometimes, you know -- we think about it sometimes as the negative about, you know, whether it's the state or federal government that someone is not acting appropriately or not exercising sort of its authority in the right way and there's been plenty of instances in american history where we can point to that. but the constitution's default setting is that the states are going to run them. the states pick the times, 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 after the 17th amendment for the senate. there's a place 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 lowest chamber -- or the largest chamber in the state legislature.
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the notion being, we're going to create a floor for the states and hopefully the thought is, the states are going to enfranchise broadly. and that was white property males who would have the franchise and it's broadened since then with some fits and starts, as alex as pointed out. the constitution structure sets this up in an interesting way and it presumes a couple of things. the first is if we want to expand the qualifications of the electorate, right? the presumption seems to be it happened in the states or we have to amend the constitution. that's what happens with the 15th amendment. we think that the free man has the right to vote and so we're going to pass the 15th amendment to ensure they will not deprived of any african-american in any of the states. when it comes to the 19th amendment and women's suffrage, it's a different story. it's states that start this movement of enfranchising women out west as the lore tells it,
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it will be an opportunity for them to vote and participate in these elections. and so the women suffrage movement, we celebrate it as 100 years this year, that's 100 years of the 19th amendment. it was happening much earlier throughout the country and even today when we talk about noncitizens and whether or not noncitizens should vote, it's something that, you know, happened as alex points out in his book at points early in the history of the united states. today there's a federal law that prohibits you from doing so. any state from doing so. i think there's some questions about the constitutionality. is that something that the federal government can do. is that something under its immigration authority. there's a lot of states that have their localities in school board elections say we want noncitizens to vote and participate in these elections. when we think about what the right to vote means and we obviously understandably focus on a lot of those instances where states denied the right to vote to a number of individuals and we passed a constitutional
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amendment to ensure there would be authority for, you know, the federal government to intervene or to ensure that we've set some minimum standards, but it's 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 of this important and complicated relationship between the federal government and the states which we will revisit throughout the conversation. in the chat box, edward says, can we recognize the fight of john lewis to protect voting rights. thank you for reminding me. 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 for the
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expansion of voting rights in the century. the constitution centered was honored in 2016 to award the liberty medal to representative lewis and it was inspiring to hear him invoke the legacy of his mentor, dr. king, in inspiring his nonviolent protest which helped to lead 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
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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. >> i think, you know, a place that i like to start with talking about the voting rights act of 1965 is to point to its little known subtitle. it's called the voting rights act of 1965. and the subtitle of it is an act to enforce the 15th amendment to the u.s. constitution. it's a law to enforce a constitutional provision that existed already for a century. and, you know, in effect the
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path that led to that was a path of activism and also a conclusion by congress by many of the participants that the southern states by themselves were not going to really reform themselves with respect to african-american suffrage and enforcement of the 15th amendment. this is the darker side of what derrick 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 african-americans. and the package of the voting rights which follows years of activism -- and the activism continues. just the package -- passage of the law doesn't do it itself. but it was truly transformative
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of voting patterns in the south and then also in some other places. we 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. would barack obama have been elected president if there had not been the voting rights act of 1965? no. even just in the sheer numbers of who was enfranchised or not. so i think this is really, really a transformation. as is often the case in american history, issues that deal with race are problems that focus on race spill over into linked issues. for example, lowering the voting age which happens within a few
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years after the voting rights act. it's shortening of residency requirements. there's a whole large package of franchise expansions that happen in about five or six years. and then they're extended to language minorities, largely the spanish-speaking population but not only. and here, again, we're entering a period of large-scale immigration in the early 20th century. i think -- i guess what -- so summarize this more succinctly than what i've said so far is that this has been a dramatic expansion in voting rights and it is followed by a -- and then it is followed by a reaction which john lewis recognized, lived through. he saw it going on. his -- by that point, he is in
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congress by the time the reaction happens 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 as he often mentioned shed blood for, were being reversed and that then you had to start fighting again. i think he had a deep understanding that voting rights and democratic rights were not something that you simply achieved once and for all at given moment and didn't have to protect thereafter. >> thank you. that was both succinct and illuminating and you talked about the achievement of the voting rights act and the backlash against it and talked
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about representative lewis's heroic efforts to respond politically and, franita, i would like to ask you about the judicial response. first, tell us a little more about the sehelby county decision. david olson asks, the court said a main issue was the lack of updating which states and counties met the necessary disdiscrimination standard. would a simple reauthorization from congress be enough or would something else need to be included to avoid being struck down again. 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 the shelby county. tell us a bit about some of those provisions. >> okay. so -- wow.
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i'm trying to figure out where to start. i actually want to start -- i want to piggyback a little bit on the john lewis question. it ties into what needs to be done. i find it remarkable that he was one -- if not the youngest speaker, one of the youngest speakers at the march on washington in 1963 and the fact that he continued to serve up to his death pretty much. and that just sort of highlights how the struggle for voting rights is ongoing and it's not about reaching a peak and then stepping back. you have to be vigilant about protecting votes rights. we're living in a period of retraction. there's a lot of voter suppression. there's a lot of disenfranchisement. it highlights everything that john lewis was fighting for. part of the reason why he continued to fight is because i think the shelby county decision did not come out of the blue.
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it wasn't a decision that 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. it hadn't been updated since the 1970s. but i think to some extent, you know, and i'm not trying to sit here and -- yes, i am. they did have the opportunity to update it and they did not. there were scholars that testified during the reauthorization hearings that the preclearance formula would be a problem. it wasn't as if they couldn't update it. the jurisdictions that were covered, the formula did a good job of capturing the problematic jurisdictions. after shelby county was decided, states like texas and mississippi and alabama all, you know, took steps to further disenfranchise and suppress the vote. it wasn't rocket science, right? this is based on a habituistori
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understanding of what these districts do. the supreme court was not willing to recongressional power very broadly. they were coming from a baseline in which our system is one in which the states regulate elections. if that's your baseline, then federal power seems exceptional. iffal pow if federal power is exceptional, they need to challenge that narrative. i don't argue that there's a federal right to vote in a traditional sense. derrick is right that the constitution is explicit in saying there's a right to vote. a lot of this happens with the court coming in and say we're going to read the 14th amendment. but anytime you have a situation like that, what the court creates, the court can take away. it's important to have those things in the text instead of
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relying on the courts. but because the court is taking the lead and sort of shaping this juris prudence around the right to vote, there's a question about what congress can do. how do we do so in accordance with what the court has laid out in shelby county. i think it's very, very difficult. my reading of the tea leaves is that the court was committed in striking it down. they want to return to this world in which the states take a lead on all of this. but to do so requires, you know, a bit of sticking your head in the sand, right? you have to ignore the fact that there is still racial discrimination in voting. race as alex points out bleeds over into a lot of other things. race and partisan is heavily intertwined in our system now. there's a partisan incentive to disenfranchise certain racial groups. it's very difficult to think of a formula that would be consistent with what the court is looking for in shelby county
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unless we look beyond the 14th and 15th amendments. part of my book project is to try to highlight that congress has pretty comprehensive authority to interconvevene whe there's a problem. one of the arguments i made around the shelby county decision was that the elections clause is also a source of authority here. if you look at congressional power in the aggregate, congress's power to -- so states can set the time, place and manner of an election but congress can alter or make its own regulations. and in conjunction with the 14th and 15th amendments that's a much broader source of authority than looking at the 15th amendment and let me explain the practical implications of that and then i'll wrap up. if you focus on the 14th and 15th amendment, the court is looking for a record of intentional discrimination of the basis of race. and so they're looking for this pattern that they found when they looked at the legislative
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record behind the 2006 reauthorization. the chief justice was clear there wasn't the same pattern of discrimination that existed back in 1965 at the time that they reauthorized the voting rights act. if you look beyond the 14th and 15th amendments, the elections clause does not require a pattern of intentional discrimination. and so even if the court is still looking for a legislative record, that gives congress more room to legislate because they have additionals provisions that don't require the same pattern of descriptiiscrimination as th and 15th amendments. that makes a difference in in terms of congress can do in order to protect the right to vote. >> thank you for that. it's an important an argument that the elections clause might be broader protection and i really urge viewers to read and learn from your other articles which note that there are other
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provisions of the constitution, including section 2 of the 14th amendment that might protect against disenfranchisement. lots of phenomenal questions from the audience. julia asks, with the reintroduction of the bipartisan voting rights act this week, a bill with 46 cosponsors named after representative john lewis that would restore voting protections that the congressman fought for throughout his life, what are the chances that this fight pass in the senate and that leads to the important question, is this purely a partisan issue? the act has democratic cosponsors and two independents but no republicans. is it just because it's viewed as nonin republican partisan interest or are there principled objections to it. and i want our audience to hear the arguments on behalf of the shelby county case for the
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majority which you've i think defended. why do you think the court was correct to strike down the reclearance decisions and what do you think the states could do constitutionally to restore those protections? >> lots to get to. let me start with the late representative john lewis. i think if you in the audience have not seen some of the video footage from that march where a very young john lewis is at the front of the line in a peaceful march and watching state troopers firing tear gas and beating him, you know, it's a miracle in some senses that he's alive, much less what it means to stand up and think about voting rights in a different era. i think the voting rights act of 1965 did incredible work. it took a lot of effort from congress to do it, right? 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
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real problems in portions of this country and so the voting rights act of 1965 went a long way in enfranchising tremendous numbers of african-american voters who had previously been disenfranchised and who began to participate actively in ways they hasn't for nearly 100 years in the south. but it requires congressional will, right? when we talk about today, about congress's intent or motivation, that's a tough thing to figure out. is it partisan in nature? is it something nor sin stister. in 1965, there was one party in the south. it was the democratic party, essentially. and so a lot of the fights about white and black voters were essentially intraparty feud and is that's shifted that we now have a lot of partisan polarization. that's changed a lot of the dynamics in how we view the relationship between race and party and the right to vote. i think about the voting rights
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act, alex points out, there were some provisions that changed things like residency requirements. congress said we think that while the supreme court has said literacy test that is are fairly administered are constitutional, we think there's a good record that literacy records are not being fairly administered. we think they're being administered in a way that is designed to suppress black voters. congress, again, sort of steps up to the plate and makes these sorts of decisions. the voting rights advancement act tries to sort of cure some of the things that franita identified and things that the court identified as a problem in shelby county. the formula had not been actively updated by the courts since 1975 and this provision of the voting rights act was supposed to extend until the 2030s. for the court to say congress has done its homework seems like it was the path of least resistance for congress.
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why update and change something? you're starting to make new political enemies. so it's designed to address those precise concerns from the court and say, it's a dynamic formula, one that looks at past -- recent past actions of states or municipalities or localities to say if you've been found to engage in intentional racial discrimination when it comes to voting rights, you will be subject to this provision where you have to seek preclearance of your laws. we want to provide notice to the people about changes to their laws. and things like providing notice. it's so important to emphasize things like the elections clause. there are a lot of provisions that are not, i think, within congress's 14th, 15th amendment power. those are the kinds of things that are squarely within the elections clause of powers to say we want to talk about the time and place of holding elections. you can't change your laws too
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close to election day. you have to publicize changes to your election laws, things like that. but, again, it requires sort of political will, congressional will and congress. for whatever reason, whether we say it's partisanship, polarization, whatever it might be, it's a dicey proposition to figure out whether or not congress is going to unify on a bipartisan basis to enact some of these voting-related reforms. it was difficult even to -- for congress to agree on some 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 i think is a dicey proposition. >> fire congress, in other words. >> fire congress, that's fascinating. the question and answer box is on fire. there are some phenomenal questions. but we -- not but.
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and. we have to talk about the role of the electoral college. alex, your forthcoming book coming out on july 30th asks the question, why do we still have the electoral college. i'll ask you why we still have it and note that you've said that the through line between your two books is justice scalia's observation who pointed out that there's no right to vote for president guaranteed in the constitution. you've note that had the framers, both of the electoral college and of the revisions to it after the election of 1800 didn't anticipate a winner take all system for the distribution of electoral votes. we had a great program on the electoral college. and it was noted that congress came within a few votes of proposing an amendment that would have adopted a national popular vote in the 1970s and
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endorsed by both political parties, president nixon and democrats. but it was democrats in the south who killed it. what can we expect from your new book? >> i've been a little bit bedevilled by the title that i gave to the book. i'm finding that people turn to me and say, so, why do we have it? i'm supposed to come up with a two-sentence answer which my own title set up and to which i end up saying, if i could have said it in two sentences, i wouldn't have written the book. there are several things i would like to make clear, you know, as takeaways. one, is that people should know that there have been very large scale efforts to modify or get rid of the electoral college in its various pieces. we forgot that there are a lot of different pieces of this system. i'll say a little bit more about that. there have been large scale
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efforts since the early 19th century. there have been more congressional amendments introduced on this subject than on any other subject in u.s. history. there have been several occasions when we came very close to altering the system, you mentioned the 1969/70 which was to have a national popular vote. but equally so between 1816 and 1822, 1821, the senate approved by a two-thirds vote an amount to require district elections and in the house, just a few votes short of the two-thirds needed. so one thing we should know, this has long been a problem. in terms of what has prevented, there's 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 election
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system. what happens if nobody wins a majority of the electoral vote? that's part of the constitution. the answer is it goes to the house and each state delegation gets one vote. in the 19th century, peoplecent thought that that was going to be used a lot. and you couldn't reform the rest of the electoral college, without reforming that, and that remains true today. there are a lot of different features, including going back to justice scalia's -- so they can take all or they can do it by district. can they take that dimension away? the second factor is partisanship. the partisan interests, and this is almost always true with electoral systems. once you have an electoral system in place, partisan interests form around it. people want to defend their own interest. and if they think that a change in the system might hurt them, they're going to tend to oppose
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it. that doesn't always happen. there have been a lot of principal players in congress, and elsewhere, who thought that a national popular vote, for example, becauwas a better syst. but partisan interests do insert themselves, frequently. but the last point i want to make here is that -- and i think probably what's -- the point that's going to be 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's simply not true. it's a plausible argument because the small states do get slightly disproportionate quantity of electoral votes. but historically, that has really not played a role. and we can talk about the tales about that, if anyone wishes to. and then, on the other hand, i think that, probably, the
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single-most important factor in preserving the electoral college since the 1870s, 1880s, which, you know, we're 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 supremacist regimes of the south, to retain the electoral college because it gave them extra power in presidential elections. and thus, extra influence in national politics. why was that the case? and again, i'll try -- i'll try to be brief. we all know about the three-fifths clause. before -- before the civil war. where southern states got representation in congress and electoral votes for three-fifths of their slaves. well, by the 1890s, after these white supremacist regimes had returned to power and
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disenfranchised african-americans. there was, in effect, a five-fifths clause that operated for the benefit of -- of the south. african-americans kept it 100% representation and electoral votes but they still couldn't vote. the white south wanted to preserve that system. and it sort of kept the idea of a national popular vote off the table for decades and decades. and as you alluded to before, in the end, in 1969-'70, when we came extremely close with the national popular vote, it was southern segregationist senators who led the opposition. >> thank you for all that. and we will, 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 blander has put in the q and a box, a link to a proposal for a national popular choice
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vote constitutional amendment. in practice, that will face an uphill battle because it's very hard to pass constitutional amendments. an alternative is the national popular vote interstate compact. for anita tolson, would you support it? and would it be consistent with the constitution? >> so the national popular vote initiative is a contract among states that pledged their electoral college votes will go to the winner of the popular vote. the national popular vote. and so, right now, i think there are 16 states that are signed on, for a total of 196 electoral votes. so it will go into effect once they reach 270, which is what's necessary to win the presidency. so, i support it, in theory, right? i sort of recognize that the electoral college is a problem. but, you know, it's difficult to
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think about changing the structure of the constitution, by statute or by compact. and that's the struggle that i have because the electoral college is -- is there, right? and so, really, for me, the question is can we come up with a satisfactory alternative or workaround that essentially negates part of the constitution, in some ways. so, you know, on one hand, i look at article ii, which gives states control over. states are deciding to join this compact, and that is a way of determining how -- how they will award their electors. but, on the other hand, they're also holding an election, right? so it is -- it is conceivable that a state can have an election. you can have candidate a win the election. but then, candidate b get the electoral votes because that person has won the national vote. and so, for me, if bush versus
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gore taught us anything. now, bush versus gore was the decision following the 2000 election that stopped the recount in florida. and part of the reasoning of that case is that the -- the failure to set recount standards was a post-election change, right? that violated the equal-protection clause. and so, if the supreme court viewed the national popular vote initiative and a possibility of candidate b winning electoral votes of a state, in which candidate a won in that state. that is a popular election change. so i don't think the supreme court is currently constituted with upholding national popular vote initiative. even if, in theory, it's a good idea. so i'm just sort of leary aboer changing through a constitution statute. >> thank you for that. derek, similar question to you picking up on michelle green's,
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please address the compact of the united states. do you think it's constitutional? and do you think it's a good idea? >> the constitutionality is tricky, as anita's pointed out. there sort of constructconcerns we have. there is a constitution called the compact clause, no state should enter into compact with each other, without the consent of congress. at the very least, i think, congress would have to consent to any agreement like this. but even if congress consents, can you essentially sort of transform this system, where you are sort of having all these different states, doing different things, and throwing their votes into one big bucket. on the good idea/bad idea, in my opinion, i think whether or not you think the electoral college is a good idea or bad idea, in my view, the national popular vote has some problems in terms of being a good idea as the way to go as a statutory method.
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so again, one of these core things i've mentioned is we presume the states sort of pick voter qualifications, right? so, in all 50 states, the voter qualifications are a little bit different. right? so, when we think about those who are -- who have committed a felony, and whether or not they're eligible to vote. in maine and in vermont, incarcerated felons can vote and they can't do that anywhere else in the country. there is a big in the district of columbia to authorize them to do so. when we think about children. so, right now, anyone 18 and up votes. that's in the constitution. but there have been sort of fits and starts in some states about reducing the age. when we think about mental capacity or we think about noncitizens. you know, those are -- there are different rules that we could have in place, in different states. and if you throw everything into one bucket, congress is not sort of defining that one bucket. when we think about who is on the ballot. yeah, we all know donald trump and joe biden are going to be on the ballot. kanye west is going to be on the
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ballot in at least one state we think, right? it seems a little strange to have a national election that's still being run on a state-by-state basis. so in my view, if we are going to reform the electoral college, if we're going to do the kind of thing that was proposed in 1970, it has to be a constitutional amendment that defines some sort of uniform set of voting qualifications. it expressly providand these pr that can arise, based upon, again, the implied structure of how we handle constitutional divisions pertaining to presidential elections. in my view, whether you think it's a good thing or a bad thing, i think the national popular vote falls short of the kinds of things we would want in a system that reforms our presidential election. >> thank you for all that. well, this is the last round. and there's so many phenomenal questions. so i'll just pose a couple to each of you for closing
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statements and bring all these fans together, as you think fast. david, can you discuss the florida constitutional amendment granting the right to vote to convicted felons? and that they pay their court costs, prior to be able to vote. that relates to a question about 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 it also picks up derek's recent statement that, currently, only maine and vermont allow felons to vote. so, alex, the question is about this florida constitutional amendment granting the right to vote to convicted felons, the supreme court's refusal to hear it, and then, the other recent supreme court decisions about voting rights that you think are worth noting in your closing thoughts. >> sure. i mean, you know, i think that
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what happened in florida, in effect, was that the supreme court said it was okay for a partisan legislature. being the florida legislature, which -- which is entirely republican. to override the efforts of what has been a multiyear popular mobilization, in order to allow convicted felons to have their rights restored. after they had served their sentences. i mean, that's really -- that's not the main and, you know, and -- and -- vermont model. it's simply to eliminate permanent and lifetime disenfranchisement. and there was an extraordinary, popular movement to -- to overturn that. and it worked. and then, the legislature turned around and said, but you have to pay all your court fees and you have to pay all your fines. and if you don't pay that and you vote, that's a felony,
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again, so you'll be put in jail. but meanwhile, we actually can't tell you how much money you owe because we don't have a record of the -- you know, 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 of people from voting that -- that the supreme court upheld that. it has, also, and i think franita and derek were much closer students of supreme court decisions than i am. but it seems, to me, to fit with a recent -- drift may be too mild a word -- decisions of the supreme court to weigh in on the side of sanctioning okbstacles o
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voting, rather than supporting efforts that make 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. the supreme court has weighed in, on several cases on this. most notably, on the republican national committee versus democrat democratic national committee court out of wisconsin to say that courts should, generally, be reluctant to impose new voting requirements at 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? >> so, we're going to see a lot of this. i think, right now, there is covid-related litigation pending in -- pending in, like, 38 or 39 states. so the road between here and
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november will be sort of peppered with these decisions, where you see -- and i -- i hope i'm wrong about this. but 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 had sort of drifted more towards 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. this is still a court that has not been protective of the right to vote. and, in fact, some of the decisions that they've made with respect to the covid, voting litigation. so the rnc versus dnc decision that came out of wisconsin and sort of last-minute efforts of the governor to sort of close the polls. and then, you know, you had people who had filed the paperwork to get absentee
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ballots did not receive them. and they were forced to go to the polls on election day. and then, you have the partisan wrangling between the governor and the state legislature. it was an absolute 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 who were trying to do the right thing. right? they filed their paperwork to get their absentee ballot on time. did not receive it. the district court tried to accommodate that. the supreme court stopped that effort from happening. and so, one -- one of the things that struck me about the language in that opinion, and which is why i feel sort of comfortable predicting that they will not be sympathetic to covid-related forms. this idea that you should not have last-minute election changes, without any consideration of context. it did not matter to the court that we are in the middle of a
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once-in-a-lifetime global pandemic. hey, this is an election. and they pretended this is an election occurring, like any other election and it's not. you can imagine an opposite story, right? you can imagine a story, in which the court paints the picture of the importance of the right to vote. and giving district courts room to sort of 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 that this is an election, and so, we have to play by normal rules even though we're living in a once-in-a-lifetime situation. so as long as that is the court's posture, i wouldn't anticipate that any decisions, moving forward, would be favorable to voting rights. and i just want to piggyback on one other point that alex made about the florida litigation. i cannot emphasize enough how disappointing the supreme court's decision is. in light of the fact alex points out, a lot of people do not know how much they owe. and not only do they not know,
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the state doesn't know. right? so when you think about that and think about how the law operates, given that reality, it does function as a poll tax, right? it's not enough to say, well, they could just pay their fines and fees, if the state doesn't have this information. and one other additional thing. it would take an additional 21 workers in order to handle the influx of people coming in trying to register to vote and find out how much they owe and basically comply with the state legislature's law. the state legislature made zero efforts in order to hire that number evof people. so this is clearly a state when state legislature has some ulterior motive. and they refuse to hire the number of workers needed to actually implement the law. that tells us this is about something else, and that the supreme court completely ignored that. >> thank you for all that. you've said many things, including arguing that the florida requirement was the equivalent of a poll tax.
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friends, i was reminded from alex's book. the origin of poll tax doesn't mean poll, you're going to the polls. but poll is 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 not be by account of failure to pay. there is so much to talk about. but i would love our viewers to hear a defense, if you are inclined to make it. of the court's decisions, both in the wisconsin absentee ballot case and the florida case. broadly, you've argued in favor of judicial deference to the states and against courts changing rules. but why don't you bring whatever strands together, you'd like. and tell us why you think as a
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constitutional matter, some of these supreme court cases have been correct. >> when we talk about sort of the purcell versus gonzales, this is really kind of a wonky, in the best sense of the word, right? sort of power of federal courts, timing of litigation. a little bit article iii power of the judiciary, right? so a lot of these are all sort of cropping up in the same sort of procedural posture. these are sort of emergency applications to the supreme court on an extremely short timeline. they're not -- they're not argued before the court. there is not sort of the parties filing all their briefs. they are firing sort of rapidfire stuff and the court is coming out with a best guess, handling the status quo right now. i understand there is a lot of people frustrated with it because, especially with covid-19, there's a lot of changing circumstances. and maybe the court should not
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be looking at something like the purcell principle in the same way. maybe handling some of these questions more on their merits. in 2018, there was a spate of last-minute changes to election laws. some places said, you know what, there is a voter i.d. law in place that the court said shouldn't apply. it's not going to apply. other places, it's okay, goes into effect. and a lot of these cases, we see the court saying, time and again, we're just not going to change sort of what ever's been the status quo. and sometimes the definition of status quo is a little bit fluid in the court's eyes. but a point which comes up time and again, it's not going to be the federal judiciary that's going to be the one that's sort of going to solve all your problems, right? it's really going to have to be solutions at the state level. if it's problems with absentee voting, the polling places on election day, the hours of the polling places. you know, whether or not
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effective social dansi effective social distancing requirements are in place. and i think litigation, while it might be successful in the very long-term, right, in the two, thee-year window for a lot of these challenges. ahead of 2020 i think is going to be difficult and so that just shifts back to the political process. >> thank you, so much, alex, franita, derek mueller, for really rich, substantive, and diverse discussion of these crucially important questions involving voting rights. friends, thank you for taking an hour, in the middle of the day, to educate yourself about the constitution. there is so much more learning to do. so what i would love you to do, if you are so inspired, go to the constitution center's interactive constitution. and read the best liberal and conservative scholars in america, describing agreement and disagreement about all of the clauses we've discussed. article i, section 4 and 5. section 2 of the xivth amendment and more. check out our podcast, we the
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people where this program will be rebroadcast. every week, we bring together brilliant scholars like you just heard, and most of all, continue to read and educate yourself about the constitution. i want to thank the thompson communications group for making this program possible. and also, for supporting our yearlong initiative women in the constitution, celebrating the 100th anniversary of the xixth amendment. we will look forward to welcoming you 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, beginning at 8:00 eastern, living historians from our american artifacts series.
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physician jack moody portrays a world war ii u.s. army battalion surgeon in carlisle, pennsylvania. dr. moody's medical tent was set up as a 101st airborne battalion aid station. watch american history tv tonight and over the weekend on c-span3. american history tv. on c-span3. exploring the people and events that tell the american story every weekend. coming up this weekend, on the 75th anniversary of the atomic bombings of hiroshima and nagasaki, japan, saturday at 10:00 p.m. eastern on real america. the 1996 film "the spirit of hiroshima." featuring the stories of bombing survivors. then on sunday, at 4:55 p.m. eastern, on oral histories, eugene talks about his
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assignment to the manhattan project and working on the nagasaki bomb. at 6:00 p.m. eastern on american artifacts, an exhibit at the american university museum. exploring the american story. watch american history tv this weekend on c-span3. book tv on c-span 2 has top, nonfiction books and authors every weekend. coming up sunday at noon eastern on in depth, our live, two-hour conversation with u.s. combat veteran and road scholar, wes moore. author of several books, including "the other wes moore" and his latest, "five days." he will be taking your phone calls, facebook comments, and tweets. and at 9:00 p.m. eastern, on afterwards, founder and president of environmental progress michael shellenber fge.
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he is interviewed by columbia university institute's andrew revkin. watch book tv on c-span 2, sunday. >> the house oversight and reform committee held a hearing on the president's effort not to count undocumented immigrants in the 2020 census. first, we'll hear from former census bureau officials. and on the second panel, census director, steven dillingham says he was not told about the plan to exclude undocumented immigrants when determining how to portion congressional seats. >> requires the secretary of commerce to report, quote, the total population, end quote, of each state to the president. and it requires the president to transmit this information to congress. in the 230-year history of the


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