The Fight – and the Right – to Vote

BILL MOYERS: Welcome. It’s unbelievable, and frankly outrageous, that in the last four years, close to half the states in this country have passed laws making it harder for people to vote. But it’s true. And whereas once upon a time, in the South of my youth, it was Democrats who used the poll tax, literacy tests and outright intimidation to keep black people from voting, today it’s the Republicans working the levers of suppression, as if something in their DNA demands it. Listen to one of the founding fathers of the conservative movement, Paul Weyrich, back in 1980:

PAUL WEYRICH at the Religious Roundtable, August 1980: I don’t want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country, and they are not now. As a matter of fact our leverage in the elections quite candidly goes up as the voting populace goes down.

BILL MOYERS: So, the right has become relentless in trying every trick to keep certain people from voting. And conservative control of the Supreme Court gives them a leg up. Last year’s decision – Shelby County v. Holder – revoked an essential provision of the 1965 Voting Rights Act, and that has only upped the ante, encouraging many state Republican legislators to impose restrictive voter ID laws, as well as gerrymander Congressional districts and limit registration and voting hours.

The right’s rationale is that people are manipulating the system to cheat and throw elections. But rarely can they offer any proof of anyone, anywhere, trying illegally to cast a ballot. So what’s going on? A question for my guests.

Sherrilyn Ifill is president of the NAACP Legal Defense and Educational Fund. She’s a noted civil rights litigator, whose work has included landmark voting rights cases. She is the author of “On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century.”

Ari Berman is a contributing writer at “The Nation” magazine and, during the 2012 elections, the first national reporter to cover voter suppression issues. He is currently writing a book titled “Give Us the Ballot: The Modern Struggle for Voting Rights in America,” to be published be out next summer. Welcome to you both.

SHERRILYN IFILL: Thank you, Bill.

ARI BERMAN: Thank you.

BILL MOYERS: So just a couple of weeks before the midterm elections, how do we know if these voter suppression efforts are working?

SHERRILYN IFILL: Well, what we do know in Texas where we just litigated a major case involving voter ID, we know that more than 600,000 registered voters will not be able to vote in this November’s election because they lack the photo ID required by the new Texas law. And because the Supreme Court has said that the election can proceed, even though a federal court has found that that photo ID law discriminates against black and Latino voters.

BILL MOYERS: Yes, the judge in Texas ruled that it was unconstitutional. And yet last Saturday the Supreme Court said, “Let the election go forward.” What was their rationale?

SHERRILYN IFILL: I think the rationale— the most charitable rationale we can give to the Supreme Court’s decision is that it’s consistent with other decisions they’ve made in which essentially their view is if it’s very close to the election (and certainly this was close to the election, early voting started this week) that they shouldn’t disturb the status quo, that you don’t change the processes of election so close to an actual election. And—

BILL MOYERS: And what’s your objection to that?

SHERRILYN IFILL: We have a federal judge who found that this photo ID law was created to intentionally discriminate against black and Latino voters, in violation of the United States Constitution.

And it seems to me this puts that case in an entirely different category to allow that election law to go forward and to allow the disfranchisement of more than half a million voters based on a law that a federal judge has found intentionally discriminates to me really challenges at the core our democracy.

BILL MOYERS: Run down, if you can, some of the states where voter suppression is happening as we speak.

ARI BERMAN: After that Shelby County decision, North Carolina passed the most sweeping set of voting restrictions since the passage of the Voting Rights Act in 1965.

Key parts of that law are now in effect: Cutting early voting by a week, eliminating same day registration during the early voting period, preventing out-of-precinct ballots from being counted, eliminating public financing of judicial elections, down we go. That’s now in effect. That’s a crucial swing state where Democrat Kay Hagan is running against Republican Thom Tillis. That race alone could control the Senate.

We have Kansas, another state where there’s a very contested Senate race where they’re adopted a new proof of citizenship requirement for voter registration. You have to now show your birth certificate to register to vote. 15,000 voter registrations are currently on hold as a result of that decision. You look at Georgia, another state where there’s a highly contested Senate race. 85,000 new voters have been registered by a group called the New Georgia Project.

They’ve subsequently been subpoenaed by the Republican Secretary of State there for alleged voter registration fraud even though there’s been almost no cases. Now we have 50,000 new voter registration applicants that are on hold in Georgia, people who might not be able to register, might not be able to vote in that state. So those are just three crucial swing states in which there are new voting restrictions on the books.

BILL MOYERS: Why are you both convinced that these efforts are malevolent? The other side claims that they’re necessary to prevent voter fraud, to make sure that the person who’s voting is actually the person who should be voting.

SHERRILYN IFILL: Well, we’ve been hearing about this for some years. Remember, Bill, prior to 2006, no state required a photo ID to vote. You and I voted, I’m sure, for many years, for many decades, we arrived at the polls, we had our voter registration card which does not have a photo on it, and we voted.

And this was fine until suddenly we had this issue of voter fraud being raised. And although the issue of voter fraud has been raised, it’s never been proven. In Texas, where we litigated this case, where the state of Texas was all in to defend their photo ID law, they were only able to identify two instances of in person voter fraud since 2002. If you look at all of the data that’s been collected and analyzed by the best political scientists and social scientists, there is no evidence of statistically significant voter fraud. So you’ve created a system that disenfranchises millions of voters to try and solve a problem that you can’t prove exists.

ARI BERMAN: There’s been one billion votes cast since 2000 and only 31 cases of voter impersonation. So that just shows you that it’s not a problem. Why do we suddenly start hearing about this after the 2000 election? What happened in 2008? The election of Barack Obama. And what we saw is this coalition of the ascendant that came out for the president—

BILL MOYERS: The what?

ARI BERMAN: Coalition of the ascendant is—

BILL MOYERS: Emerging demographics?

ARI BERMAN: What they called it. Yes, young people, blacks, Hispanics, Asians, women, that’s the future of the country, not just the future of the electorate but the future of the country demographically.

BILL MOYERS: Is racism behind this?

SHERRILYN IFILL: Well, I can only tell you what the judge in Texas said. What she said is that the voter ID law in Texas intentionally discriminates against African-American and Hispanic voters. It’s not my opinion. That’s what was found by a federal district judge.

I think you’re absolutely right about the 2008 election of President Obama and this kind of ascendant electorate. But when people first began really talking about voter fraud in the 2006/2007 period, what were they talking about? Who were these people who were showing up allegedly to vote when they couldn’t vote?

Remember it was happening in the context of what was a very ugly conversation about immigration. The idea— and this is where again I have to return to the issue of race and ethnicity, the idea of who was engaging in this voter fraud was very much happening in the context of a conversation we were having in this country about undocumented individuals, about immigration, about our border, about border security.

The idea was that there were Latinos who were showing up, Hispanic people showing up from Mexico and other countries who couldn’t vote who were now voting. So once again the engine that was driving the voter fraud conversation really had at its root this issue of race and ethnicity.

BILL MOYERS: This is the first election since the Supreme Court’s decision last year throwing out the provision of the 1965 Voting Rights Act which required states with the worst discriminatory practices to approve their voting changes with the federal government. To what extent is all of this the result of that decision?

SHERRILYN IFILL: Can I just say very quickly, Texas once again, we litigated this case before the Shelby decision. We challenged it under Section 5 of the Voting Rights Act. And we won. A federal court found that in fact it violated Section 5 of the Voting Rights Act.

Then we get the Shelby decision in which the Supreme Court essentially hollows out Section 5 of the Voting Rights Act. And Texas within two hours of that decision actually the attorney general tweeted his intention to re-impose the voter ID law that we had successfully struck down under Section 5. And that’s precisely what he did.

And so what’s just happened is we’ve just re-litigated the same case that we had won before, this time under Section 2 of the Voting Rights Act. And we prevailed. Texas would not have been able to use this voter ID law in this election had the Supreme Court not decided what it decided in the Shelby case.

ARI BERMAN: And so one-third of the states that were previously covered by Section 5 are— have passed or implemented new voting restrictions since that decision. And so we’re seeing right now the greatest restriction of voting rights since the end of reconstruction where states feel like they can now get away with this.

And they’ve been waging really a two-pronged war. One is to pass these new voting restrictions in the states that we’ve been talking about. The second is to then challenge the constitutionality of key provisions of the Voting Rights Act to make it harder to block these changes. And I think, again, coming back to North Carolina is a really good example of the Shelby decision.

The North Carolina House passed a 14-page vote ID bill in April of 2013. It was a relatively strict voter ID bill, but it wasn’t the strictest in the country. Then a month after the Shelby County decision, that 14-page bill becomes a 57-page bill that essentially either repeals or curtails every voting reform in North Carolina that made it easier for people to vote. So then that voter ID law becomes much, much stricter, as strict as Texas.

They’re cutting early voting, they’re eliminating same day registration. They’re doing all these things. And they did it as they said because they no longer had to deal with the quote-unquote, “headache” of having to approve their voting changes with the federal government. So Texas and North Carolina are really case studies of what’s happens in this post-Shelby era.

BILL MOYERS: Talk about early voting. What’s the argument against it?

ARI BERMAN: Well, I think there’s two arguments against it. One argument that has been made is that it’s too expensive to allow early voting, that you can’t have extended hours ’cause that means that election administrators have to be open longer. The problem with that argument is that when you have fewer days, you have to open more offices, you have more voter confusion and it ends up being more expensive to run an election and far more problems.

The second argument against it, I think, is more of a philosophical argument which is that you shouldn’t make it too easy for people to vote. We’ve heard, for example, Republican legislators in states like Georgia basically say, “I want a more informed electorate,” that early voting makes it too easy for people to vote and therefore you’re getting an uneducated electorate. This is the same kind of arguments that were made in Texas about the poll tax.

SHERRILYN IFILL: Literacy—

ARI BERMAN: About the literacy test, exactly. And now we’re seeing them in the context of things like early voting and voter ID.

BILL MOYERS: I’m sure both of you know that there are people who say that people like you are patronizing African Americans, poor folks as victims again because you’re trying to make it easy for them to vote.

SHERRILYN IFILL: Well, I mean, if you look at photo ID for a second because I think people, Bill, sometimes don’t understand what we mean when we talk about voter ID. People say, “Well, you know, what’s wrong with having an ID?” There’s nothing wrong with having an ID.

If you look at Texas, I mean, you talk about an informed electorate, here is a state in which their photo ID law, the strictest in the country, will not allow my clients who are students at a Texas university to use their university ID to vote, which they were able to use in 2012 and before that. They can no longer use that to vote. Now, if you have a concealed gun carry permit, you can use that to vote.

BILL MOYERS: How do they explain that?

SHERRILYN IFILL: Well, different states have different requirements, right. So in some states, in Indiana for example, if you vote absentee, you don’t have to show a photo ID. Then Wisconsin said, “Well, if you vote absentee, you have to show that photo ID the first time you ask for the absentee ballot.”

Places like Wisconsin said, “You can use your tribal ID if you’re a member of a Native American tribe.” Texas, you can’t use your tribal ID. You can use your veteran’s ID. Indiana, you can use your veteran’s ID. So you have a hodgepodge happening in various states. But what you see the trend is, that it’s getting increasingly, increasingly restrictive. The forms of photo ID that are required are increasingly restrictive. And what we showed in this Texas case is that there are many people who cannot afford to get the photo ID. Because you’ve got to first get the birth certificate, which may cost you between $20 and $42.

You’ve got to go to the agency, which means you’ve got to take off work to get that birth certificate. You’ve got to go to the Motor Vehicle Bureau to get the photo ID and you’ve got to pay for it. And that actually means you have to take another day off of work.

So you essentially left it to the devices of individuals, working people, working poor people who can’t take days off work, who don’t have the underlying documents to jump through this regulatory obstacle course in order to exercise what is their right as a citizen.

BILL MOYERS: Does it make sense to you that the right as a citizen depends upon state legislatures as opposed to the constitution and the federal government?

SHERRILYN IFILL: Well, I don’t know if I would describe it that way, I guess because I’m not willing to let state legislatures off the hook in this sense. Why is it that we should accept that a state legislature would have as a motivation or have an interest in restricting its own citizens from participating in the political process?

Now I’m not talking about political parties. I’m talking about those who take an oath of office to uphold the constitution and to protect those individuals who they represent. They should not be let off the hook whether it is the national government or the state government. Obviously our history is replete with examples of the state government restricting the ability of minorities to participate in the political process.

ARI BERMAN: And that’s what’s so interesting is this happened for so many years that voting rights were restricted. It was finally in 1965 that the Congress and the president, prodded over and over and over by a very determined civil rights movement said, “This isn’t going to happen anymore. We can’t be a democracy where half the country doesn’t vote, where seven percent of African Americans are registered in Mississippi. That can’t be what we are.”

And we made a commitment, both parties made a commitment, the Congress made a commitment. The courts made a commitment to uphold this Voting Rights Act. This law has been scrutinized more than any other law on the books. It’s been reauthorized four times by the Congress. It’s been challenged multiple times in the courts and upheld. And over and over and over there was a bipartisan consensus in Congress, in the courts for the Voting Rights Act. And only recently has that consensus fallen apart. And one segment of one party has basically decided that the way they’re going to win election is to make it harder to certain people to vote.

So we’re not just turning our back on recent history. We’re turning our back on the most important civil rights law that’s ever been passed and the fundamental commitment that we’ve made as a democratic society to being a functioning democracy, which we weren’t before the passage of the Voting Rights Act in 1965.

BILL MOYERS: Why do the left and the right see so differently this universal right?

SHERRILYN IFILL: You know, I don’t know. I have to say, I think about somebody like Representative James Sensenbrenner, Republican, who has been our closest ally on trying to amend the Voting Rights Act since the Shelby decision. He stands shoulder to shoulder with Representative John Lewis, the great civil rights hero and congressman from Georgia in seeking to amend the Voting Rights Act to essentially reverse the Supreme Court Shelby decision.

I’m not prepared to actually paint all Republicans that way. As Ari pointed out, the Voting Rights Act has always been overwhelmingly bipartisan. What we’re seeing is something that’s emerged very recently with a segment of one political party.

ARI BERMAN: And the problem is that the incentives for the Republican Party have changed. Remember in 2000 and 2004, George W. Bush courted the Hispanic vote. Now, you have a situation where the Tea Party was elected in 2010. They helped elect candidates on a wave election that was much wider, more conservative, than the electorate in 2008.

And they wanted to keep it that way. So, the incentive for them was, “How, in the face of changing demographics, can we make the electorate more favorable to our candidates?” And they, so they started looking at all these new voting restrictions. And they said, “Look who doesn’t have photo ID, 25 percent of African Americans, 18 percent of Hispanics, 18 percent of young voters, relative to the rest of the population.

“Look who used early voting. Look who registered to vote in 2008. Young people, minorities, those kinds of people.” And, so, really, what’s happened is the Republican Party, at least some segments of it, they’ve analyzed the electorate, they’ve figured out where they can try to cut down voter turnout, and they’ve passed laws to do that. And only when, I think, the Republican Party gets back to the idea that when everybody votes, it’s good for us are we going to have an end for this. Because right now, they view the political incentives as such that they want to make it harder for certain segments of the electorate to vote.

BILL MOYERS: At the beginning of our show, I showed the clip of Paul Weyrich who was a founding father, one might say of the modern conservative movement, and a co-founder of the organization known as ALEC, the American Legislative Exchange Council, which is a lobby of conservative politicians and corporate lobbyists. What’s been ALEC’s role in this?

ARI BERMAN: They’ve played a major role. After the Supreme Court upheld Indiana’s voter ID law in 2008, ALEC drafted model voter ID legislation for states. It was distributed all around the country. They showed states how to pass the bill. They gave them the exact language to introduce. And they said, “This is how you can make it constitutional.” And then, states considerably toughened ALEC’s language. And we saw in state after state after state, whether it was Texas or Pennsylvania or Wisconsin, virtually identical pieces of legislation being introduced all by ALEC members.

BILL MOYERS: And have you found any evidence that points to why, you know, conservative politicians and corporate lobbyists would want to restrict voting?

ARI BERMAN: Well, it’s another example of trying to control who can participate in the political process and giving the one percent more power over the political system. Just like the Citizens United decision. So the idea is we’ll make the electorate older, whiter, more conservative, as opposed to younger, more diverse and more progressive. That way the corporations who are so powerful, they can increase their power over the political process. The more people that vote, the more Democratic the political system is, the less power special interests have. The fewer people that participate, the easier it is for special interests to rig the game.

BILL MOYERS: Is there a connection between the Citizens United decision, which opened the floodgates, as everyone says, to campaign contributions from wealthy people into politics; and Shelby; and these continuing efforts to suppress voting?

SHERRILYN IFILL: Well, I think the connection is in a way in which the political process is currently being viewed within the courts. And it’s actually quite dangerous. And I think we saw this last year in a Supreme Court case called McCutcheon. And the first line of the case Chief Justice Roberts says, “There are many ways that you can participate in the political process.”

And he lays out a whole list of ways. And he says, “You can campaign on you know, on behalf of a candidate. You can, you know, put up bumper stickers. You can give money. You can vote. You can—” he goes on. And vote is kind of just in the list in the litany of things you can do to participate in the political process. And I kind of, it’s almost as though no one noticed it. But I couldn’t get past the first line of that opinion.

Because, in fact, it was the Supreme Court that said, back in the 1880s, that the right to vote is preservative of all rights, that it’s fundamental because it’s preservative of all rights. It was recognized that the right to vote was separate was different in terms of your participation in the political process. And I think there’s a different philosophy that has emerged, which is that it’s kind of all on the table, carrying a placard, having a bumper sticker, supporting a candidate, voting, giving money.

When, in fact, the right to vote was sacrosanct because it was the thing that came with your citizenship. You didn’t have to do anything. All you had to do was be a citizen of this country and you are automatically guaranteed the franchise after the 13th, 14th, and 15th Amendments were passed by the United States Congress. And now, we’re seeing it diminished.

It’s not like giving money. It’s not like a bumper sticker. It’s not like endorsing a candidate. It’s not like being on a TV show. It’s the thing that makes us all equal. It’s the one thing that we all have that’s the same. My clients will not be able to contribute to an election, even pre-Citizens United, at the levels that some others would.

But on election day, it was the great equalizer. We all had one vote. And we all had the ability to use that vote to participate in the political process. And we’re seeing a different philosophy about the meaning of that exercise of citizenship.

BILL MOYERS: Your clients cannot participate, can they, under Citizens United? I mean, they don’t have the money that trumps the vote, often, now under this new political mandate.

SHERRILYN IFILL: Well, the theory, of course, is, and you’re absolutely right about that. And that’s why Citizens United is so devastating. But the theory is, the one thing that is the hope after Citizens United, is that what you can do is mobilize the vote. Is that actually, votes can trump money. Not always, but sometimes it can. And that’s what makes this voter suppression litigation and effort so stunning and so dangerous.

Because now, you’re saying, “We’re coming for that, too.” Right, the thing that’s supposed to be the equalizer, the ability to mobilize and vote and participate in the political process, the thing that is the coin of the realm for the common man, “We’re coming for that, too. And we’re going to create this obstacle course that you have to go through in order to exercise this right that should come automatically with your citizenship.”

ARI BERMAN: We have a Supreme Court that wants to make it easier for millionaires to buy an election, but harder for everyday people to vote in one. And that’s a very, very disturbing reality right now.

BILL MOYERS: Let’s continue this conversation online.

ARI BERMAN: I look forward to it.

BILL MOYERS: Sherrilyn Ifill, Ari Berman, thanks for being with me.

SHERRILYN IFILL: Thank you, Bill.

ARI BERMAN: Thank you.

BILL MOYERS: We’ll continue this conversation at our website, BillMoyers.com, where you’ll also find success stories in the struggle against vote suppression and the people fighting the good fight to make sure everyone can cast their ballot. That’s all at BillMoyers.com. I’ll see you there and I’ll see you here, next time.

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