In the inaugural episode of The Continuous Action, former Office of Government Ethics Director Walt Shaub and journalist Virginia Heffernan begin exploring the issues confronting democracy by examining the wave of voter suppression efforts crashing across the states.
They interview Janai Nelson, president and director-counsel of the NAACP’s Legal Defense Fund, about the fight for voting rights. They also speak with Supreme Court expert Dahlia Lithwick about the judiciary’s role in ripening the conditions for voter suppression. Their message: The fight for voting rights is urgent and requires the public to act – right now.
The Late John Lewis said . . .
The name of the podcast, The Continuous Action, comes from a quote by the late John Lewis, so it’s only fitting that we open the series with a quote from the great man himself.
[00:09] John Lewis: “In a democracy, the right to vote is the most powerful, nonviolent tool we have.”
These words come from remarks that Rep. John Lewis made on the floor of the House of Representatives on July 18, 2018.
Rep. Lewis went on to say: “We should be able to participate in a democratic process. On May 7, 1965, I gave a little blood on the Edmond Pettis Bridge for the right to vote. Before the Voting Rights Act of 1965 was passed, some people had to count the number of bubbles on a bar of soap, the number of jelly beans in a jar. And all across America today, when people go out and attempt to vote, they stand in long, immovable lines. That’s not right, it’s not fair, and it’s not just. We can do better, and we must do better. We have a moral obligation, a mission, and a mandate to empower all of the American people, not just a select few. We must do what is right, what is fair, and what is just. Today our democracy is under attack by forces within and forces abroad. We need to fix it and fix it now.”
It’s about voting rights!
Walt and Virginia discuss the wave of voter suppression crashing through state legislatures and the menacing poll watchers and others who have, at times, intimidated voters. An audio clip from Steve Bannon sets the stage:
[05:48] Steve Bannon: Guess what? We’re – we’re going to take over the election apparatus
[06:34] Virginia Heffernan: I’m sure you remember the first debate when I think Donald Trump was asked about, you know, whether he would let the vote proceed, and he started to invoke the idea that there would be a kind of menacing set of poll watchers who would be around.
[07:58] Walt Shaub: One of the most repressive pieces of state legislation to have passed during this nearly unprecedented wave of voter suppression is a bill in Texas that became law called SB1. And, in an attempt to prevent its passage, some legislators from Texas left and came to D.C. to try to deprive the Texas state legislature of a quorum.
During the discussion, Walt mentions testimony that one of these Texas legislators, Senfronia Thompson, gave before the U.S. House of Representatives while in D.C. last summer. She talked about the intimidating effect of poll watchers in her district and about the long history of voter suppression in Texas. The video of this octogenarian powerhouse’s testimony is worth watching. (“You damn right I left Texas, and I am glad I did. And you know why, Pete, I left? I left Texas to give my people a right to be able to vote without them being infringed upon.”)
Virginia and Walt also talk about the lie spread by former President Trump that massive voter fraud is rigging elections.
[13:08] Walt Shaub: And there’s a reason voter fraud doesn’t exist. It can’t work. You cannot get enough people to commit voter fraud to actually influence the outcome. It’s like throwing a bucket of tomato soup in the Mississippi from St. Louis and hoping to turn the water red down by New Orleans. It is simply not enough to have an effect.
Janai Nelson Interview
[17:40] Janai Nelson: I would describe the wave of voter suppression legislation that we’ve seen across the country over the past year as absolutely horrific and, frankly, in many ways, unprecedented.
[18:43] Janai Nelson: What I think many states are trying to do in this effort is to silence that emerging majority of people of color, along with their allies, who do make up the majority of people in this country.
Asked what types of voter suppression laws she finds most alarming, Nelson has a compassionate response that focuses on the humanity of voters:
[19:33] Janai Nelson: Anything that keeps people from exercising their right to vote I find deeply concerning. But the ones that are most pernicious are those that really dehumanize the experience. . . [T]he idea that there are laws that ban them from receiving food and water as they try to fulfill their duty as citizens is just appalling.
And she talks about what it takes to have fair elections:
[25:51] Janai Nelson: It takes the investment of a civic community and civil rights groups in particular to protect the right to vote.
Dahlia Lithwick Interview
Virginia and Walt speak with Dahlia Lithwick next. Dahlia covers the Supreme Court for Slate and hosts the legal podcast Amicus. They ask Dahlia how we got to this moment of crisis with the voter suppression effort.
Dahlia talks about the watershed moment in American history when Congress enacted the Voting Rights Act of 1965.
[31:21] Dahlia Lithwick: It’s called the — the crown jewel of the civil rights era, and it really basically secures, for the first time, the right for Black people to assert the protections they were supposed to get under the 14th and 15th Amendments, but never got.
Section 5 of the Voting Rights Act required states with a history of racist voter suppression to get preclearance from the Justice Department or a federal appeals court before they could make any changes to their laws. That process ensured that states could not impose new racist voting restrictions. But Dahlia explains that the Supreme Court did away with section 5 in a 2013 case known as the Shelby County case.
[31:21] Dahlia Lithwick: And the crazy, crazy part of Shelby County that everyone knows — and this is in 2013 — is that it’s somehow rooted in this crazy theory, crazy banana theory that the states have dignity, that the states have some right to equal sovereignty, and that the sovereignty of the states themselves who live under the indignity of pre-clearance is some kind of like crippling wound.
Then in 2021, in another case known as the Brnovich case, the Supreme Court effectively guts section 2 of the Voting Rights Act, which prohibits election practices that discriminate based on race or certain other things. Justice Samuel Alito wrote the opinion, and Justice Elena Kagan wrote a blistering dissent that Dahlia discusses.
[35:55] Dahlia Lithwick: [Justice Kagan] essentially just calls the majority opinion by Justice Alito a law-free zone. Like he is just finger painting his way through reasoning, basically making it impossible for voters who were promised in Shelby County that they had the ability to use Section Two that Section Two is now foreclosed to them as well.
A Path Forward
The show ends with a mix of alarm and hope, focusing attention on the danger and urging the public to act.
[46:10] Janai Nelson: [T]hese two pieces of legislation together will restore some of the key provisions of the Voting Rights Act and allow for some of the voter suppression laws that we are seeing proliferate to be interrogated before they come into force, to make sure that they don’t have the voter-suppressive and racially discriminatory effect that we are seeing on the ground and that we’re so deeply concerned about.
[46:34] Janai Nelson: What these bills also do in concert is ensure that there are national standards for the right to vote.
A Call to Action
The show ends with a call to action [49:31]: put pressure on your members of Congress and on the president to step up the fight for these voting rights … [and] … go get trained to be a poll worker — not poll watcher, poll worker — an election worker
Walt Shaub: This podcast is sponsored by the Project on Government Oversight, a nonpartisan, independent government watchdog.
John Lewis: In a democracy, the right to vote is the most powerful, nonviolent tool we have.
Virginia Heffernan: Hello and welcome to The Continuous Action. I’m Virginia Heffernan. Back when I was hosting Trumpcast, a show about the former president, I got to know the great Walter Shaub. He’s the former director of the Office of Government Ethics, and he now leads the Government Ethics Initiative at the Project on Government Oversight. That’s POGO. In 2017, Walt famously resigned his position as head of OGE when it became clear that Donald Trump was refusing to divest his personal assets and would run his presidency as one gruesome conflict of interest after another. Over the years, Walt has become one of my favorite fellow citizens. Like you, he and I have watched things get very, very hairy for American democracy over the past several years, as the country blew past one nuclear option after a constitutional crisis, two impeachments, the erasure of the public interest, and the smashing of centuries of moral standards. Oh, and let’s not forget an attempted coup. The American experiment often seems on the brink of being snuffed out. All along, Walt and I have traded notes about how we might clarify the fix we’re in and find some pragmatic remedies. Walt regularly reminds me of the words of the late John Lewis: “Freedom is the continuous action we all must take, and each generation must do its part to create an even more fair, more just society.” Walt and I and POGO bring you this podcast, “The Continuous Action,” as part of a commitment to help create the democracy we deserve. So, into the thick of it, we’re starting with voting rights today; the keystone of the whole democratic project. They’re, as you may have heard, in peril – and they require our continuous action. Walt, hello.
Walt Shaub: Hi, Virginia. I always love talking to you. I just wish it was under better circumstances. But it never is, is it?
Virginia Heffernan: That’s right. We always dream of a day when we’ll be in some land of milk and honey, and we can just talk about how great and solid our democracy is. But no, we’re in the midst of things. You know, we saw the last president lie repeatedly about voter fraud, and he did such a masterfully evil performance, eroding confidence, little bits here and there, in the vote. Why is that even significant? I mean, why would that stop people from voting just to tell us, on some level, there’s some anomaly or some discontinuity in the vote in Arizona? What does that have to do with a larger vote?
Walt Shaub: You know, we see the power of words when we go back, and we look at the January 6thinsurrection. We saw an entire mob of enraged Trump supporters attacking a building that we never thought we’d see masses of people pouring into and smashing, smearing feces on the wall, beating the stuffing out of police officers, and causing multiple deaths. In fact, the consequences would have been so much worse if it hadn’t been for the brave actions of the Capitol Police officers who ushered the members of Congress to safety. And that’s just the beginning. I don’t think the insurrection ever ended. We’ve got Trump still out there telling his lies about the outcome of the election and his allies in state legislatures are out there trying to pass voter suppression law. There are hundreds of bills pending in various state legislatures, with dozens having passed.
Virginia Heffernan: Yeah, it’s just locking in the madness and somehow making it lawful. And also raising the specter (right?) of state legislatures that submit false electors. As we saw revealed some months ago, that happened in 2020, which it just — it makes the head spin. I mean, how did we get here?
Walt Shaub: Yeah, it’s on all fronts, assault on democracy, and it’s happening at many levels. You’ve got the state legislatures trying to pass laws that will suppress votes. You’ve also got a ground game where you’ve got individual, well-funded groups and deep-pocketed shadowy supporters trying to foment discord. You know, ultimately, these voter suppression efforts don’t have to succeed in overturning elections or changing the outcome of a vote. They have to succeed only in creating enough chaos to spark another attack like January 6th, and to inspire members of Congress to reject the popular vote and simply put an end to the American experiment with democracy.
Virginia Heffernan: By the way, I mean, just in the annals of outrage on this score, I don’t know if you heard that quote from Steve Bannon. He’s like a voter suppression Bond villain, basically.
Walt Shaub: Yeah, it’s really sinister. Let’s take a listen to what he said.
Steve Bannon: Guess what? We’re – we’re going to take over the election apparatus, American citizens that are volunteering. I understand that you don’t think that’s democracy because the globalists have kind of done the misdirection plays and had everybody looking the other way. No, no, no, no, no. Those days are over. Because this audience has given of themselves before, they’ve — they’ve been in the military, they’ve been, you know, police officers and first responders. They volunteered for their country before; they’ve taken an oath to the Constitution before. And guess what? They are now going to volunteer again to go to become a precinct committeeman. They’re going to volunteer to become an election official.
Virginia Heffernan: You know, it reminds me of that terrible summer of 2020 before the election. I’m sure you remember the first debate when I think Donald Trump was asked about, you know, whether he would let the vote proceed, and he started to invoke the idea that there would be a kind of menacing set of poll watchers who would be around. And then he was asked about the Proud Boys, the white nationalist, white supremacist group who ended up showing up in force for January 6th. And that’s where he said, “Proud Boys, stand back and stand by,” really shocking the country. That quote makes you catch your breath.
And what he was alluding to was, as you say, these poll watchers who come in and — and intimidate voters at the polls, kind of loom over them. And there are very specific rules about how they can stand. But, you know, if it’s already been a hardship for someone to vote, and they show up at the polls, and there are these, you know, goons standing around kind of menacing them on the way in, closely “observing” — which is hardly the real word for this — everyone’s vote, that’s enough to keep people away. That’s enough to keep people home. It’s — it’s already difficult enough to get to the polls, and then to have the polls turn into a kind of bad neighborhood with people who are all but armed, posing as poll watchers just seems — just a shock about how we got here.
Walt Shaub: One of the most repressive pieces of state legislation to have passed during this nearly unprecedented wave of voter suppression is a bill in Texas that became law called SB1. And, in an attempt to prevent its passage, some legislators from Texas left and came to DC to try to deprive the Texas state legislature of a quorum. While they were here, one of the members of the Texas delegation testified in a U.S. congressional hearing about a time when there had been poll watchers at her polling site in 2010 or 2012, and she described them as looking like Proud Boys and intimidating minority voters, in particular, with their mere presence. She said they looked at voters like they wanted to arrest people, and I think that’s the type of intimidation that some of this is intended to spark.
There’s a story from October 2020 when a private investigator hired by a political activist in Harris County, Texas, assaulted an innocent air conditioner repairman. He drove him off the road with his car — and held him at gunpoint until the police saw this and disrupted the citizen’s arrest, I guess. And while the guy was holding the air conditioner repairman at gunpoint, some of his associates drove away in the man’s repair truck. They found it just down the road and found inside nothing but air conditioner repair equipment. But the guy who had pulled him over and assaulted him was claiming that he was suspicious, that there were hundreds of thousands of fake ballots in the back of that truck. And you have to ask yourself, “How does that craziness happen?” And I think it traces its roots to things like that comment by Donald Trump, “stand back and stand by,” and it culminates in the January 6th insurrection, the terrorist attack on the Capitol building. Unfortunately, though, I don’t think the attack stopped with January 6th. I think it has taken a different form, temporarily, as they try to create the conditions for chaos that will spark another violent attack, if it’s not checked.
Virginia Heffernan: Yeah, I mean, of all the arrests they’ve made — I think it’s somewhere around 800 now — from January 6th, the repeated refrain among the insurrectionists, the would-be authors of the coup, is that they really thought they were under orders from the U.S. president to sack the Capitol. And as we saw in the second impeachment, Trump very explicitly called for those things. So, you know, being under the spell of this lie is, I think, what we can say is the beginning of this kind of extreme violent restlessness that would cause someone to stop this air conditioner repairman thinking that he was — what — carrying a lot of illicit votes or something.
Walt Shaub: All of this sort of anti-democracy authoritarian movement has underneath it a rumbling of violence. And it has something else. And I think Mitch McConnell may have spilled the beans on exactly what’s driving this movement right now.
Virginia Heffernan: Oh God. OK, yes. Let’s hear the quote.
Mitch McConnell: Well, the concern is misplaced because if you look at the statistics, African American voters are voting in just as a high a percentage as Americans.
Virginia Heffernan: Aha, so African American voters aren’t American voters. This is really classic and ruthless disenfranchisement by McConnell. For him to intimate that some people, Black people, aren’t Americans is one step from depriving them of their rights as citizens, including the right to vote. You know, Walt, there’s some terminology here that I have to get straight in my mind, two phenomena that sound so similar and yet they signify in entirely different ways. The first is voter fraud. And the second is voter suppression. Can you remind me and listeners about the difference between those two things?
Walt Shaub: So, voter fraud is the lie that Trump and his supporters have been spreading. They know it’s not true. There is no large-scale voter fraud in this country. It’s been studied. None has been found. You might find an individual case here or there. For instance, the current governor of Virginia, Glenn Youngkin, his 17-year-old son, tried twice to vote in the election where his father was running. And of course, nothing happened to him because he was white and his father’s politically powerful. In contrast, you have Crystal Mason in Texas, who is Black and was on parole and didn’t know that she couldn’t vote while on parole and got sent back to jail for five years. So, these laws are also very selectively enforced in an effort to create a narrative that one side is doing all of the voter fraud, which, of course, doesn’t exist.
And there’s a reason voter fraud doesn’t exist. It can’t work. You cannot get enough people to commit voter fraud to actually influence the outcome. It’s like throwing a bucket of tomato soup in the Mississippi from St. Louis and hoping to turn the water red down by New Orleans. It is simply not enough to have an effect.
On the other hand, voter suppression is anything that’s designed to make it harder for a targeted population to vote. And make no mistake about it, these voter suppression laws are targeting Black voters. They’re targeting Latinx voters; they’re targeting Native American voters. The goal is to make it harder for people who are not white to vote, and the way you do that is increase barriers to voting.
So, take, for instance, when I go to vote. I drive up in front of my polling site. I park my car on the street. I walk in. I don’t wait in line. I show them my I.D. I vote. I get back in the car and I leave, and I never have to wait. In contrast, you might have somebody living in a city who has to take off of work because we don’t have a national holiday for voting and who has to take three different bus transfers to get to a polling site where she has to wait in line for eight hours before she can vote. So, you can’t say that she’s not allowed to vote, but it affects her voting rights that she and I face different barriers, and maybe any one person would be so determined to vote that they’d overcome these hurdles. But voting is about statistics, and any time you throw up obstacles, you’re going to shave off a percentage of voters in the targeted population. And that’s the goal here: to keep voters white.
Virginia Heffernan: So, we can think of it as the idea, in quotation marks, of voter fraud is simply fraud. There’s just no coherent example of any significant number. And this was said by Bill Barr, Trump’s A.G., and said by every single entity that audited the 2020 election, there was no significant voter fraud. So, the idea of voter fraud is, itself, a fraud, while voter suppression is the story of voting in this country, alas. Fortunately, we have lots of organizations — and notably the NAACP and other organizations — that really work at creating a more perfect union of universal enfranchisement, meaning it is not more difficult to vote for some populations than other populations, for some parties than other parties. Equal access to the polls is the kind of thing that we need to do to confront voter suppression.
Walt Shaub: And in fact, that’s the perfect way to put it. Voting rights is about equal access because, sure, people can vote, but if you make it hard enough for some people to vote, that’s just no way to run a democracy. You don’t have all people having a say in their future.
Virginia Heffernan: One more terminology question that I also have a hard time keeping clear for myself is the difference between poll watchers and poll workers.
Walt Shaub: So, a poll worker is someone who is supposed to be in a nonpartisan role overseeing the administration of the election. They’re supposed to be fair and impartial. A poll watcher, in contrast to someone sent by a party to represent their interests during the election. They’re there to look for problems and complain to their party, which can then take it up with the secretary of state of the particular state in which the voting problem occurred.
Virginia Heffernan: So, poll workers are people we all have a stake in protecting because they’re working for election integrity across the board. They’re nonpartisan. Where poll watchers – and by the way, the Trumpites thrive on confusion over which is which – but poll watchers are strictly partisan and come right up to the line of illegal behavior in intimidating voters. And I think that’s an important distinction, even as difficult as it sometimes can be to keep it in our heads.
Virginia Heffernan: So, we spoke to Janai Nelson, our hero and the leader-designate of the NAACP Legal Defense Fund. Let’s listen to what she said.
Janai Nelson: I would describe the wave of voter suppression legislation that we’ve seen across the country over the past year as absolutely horrific and, frankly, in many ways, unprecedented. It’s unprecedented in that we have largely been on a path towards progress, towards more expansive voting rights, towards more inclusivity. This is a backlash, the likes of which we haven’t seen in well over a century. And it’s at a time when our democracy is becoming more diverse, becoming much less homogeneous than it has been in the past. And we really should be working in the opposite direction and creating a vision of how we can leverage our greatest asset, which is our diversity as a nation. Instead of trying to create political factions and marginalized communities within our electorate who have no voice — or who will soon have no voice if these laws take hold and are not adequately challenged.
What I think many states are trying to do in this effort is to silence that emerging majority of people of color, along with their allies, who do make up the majority of people in this country. There’s a distinct effort for the elected officials in these states to guard their power. So, there is certainly an incentive for incumbents to maintain the power that they’ve amassed, but also to put a lid on what is a bubbling up of change and transformation that is coming from the ground up and that many people in power fear and do not know what to do with and therefore want to do away with it.
Walt Shaub: What types of voter suppression measures concern you the most?
Janai Nelson: There are so many. There’s so many. Anything that keeps people from exercising their right to vote I find deeply concerning. But the ones that are most pernicious are those that really dehumanize the experience. Our election system is fraught in ways that are quite embarrassing for a democracy of our size, for a nation of our wealth and infrastructure. And our voters have, you know, taken it on the chin and will wait in long lines and stand on their feet for hours to be part of this experimental democracy and have their ballots cast. Laws like the ones we’ve seen enacted in places like Georgia that ban the ability for those voters who are engaging in their civic duty, who are actually answering the call of participation in our democracy — the idea that there are laws that ban them from receiving food and water as they try to fulfill their duty as citizens is just appalling.
So, it’s those types of laws that concern me the most because those are the most direct in their messaging to the electorate that, “We don’t want you here. We want to make it as difficult as possible for you to participate in this election.” And we’re doing this through — through tricks and tactics that are, you know, frankly, just — just absolutely silly when you think about them. The idea that we would make mail-in voting more difficult when it has served so many populations over many decades without, you know, without issue. And that worked extremely well in our last general elections, where many people had to avail themselves of this method of voting. The idea that we would try to make it more difficult in the middle of a pandemic, that we would threaten people’s health, that we would force people to come together in throngs to cast a ballot, again, is a way of dehumanizing voters that I think is just one of the most dangerous exhibits of anti-democratic, anti-majoritarian efforts that I’ve seen.
Walt Shaub: You know, it seems like a matter of very deliberate choice that some people have to stand in very long lines. I know when I vote, I pull right up in front of the building, park, I run in. Except for this past year, I’ve never had to stand in a line to vote. And yet I see on TV people standing in line for hours and hours, and that can’t be a coincidence or an accident.
Janai Nelson: No, I mean, many studies show that people of color are more likely to be in urban areas where there are dense populations and there are issues in terms of transportation, accessibility, machine malfunctions, that all converge to make the voting experience very different, depending on where you live in this country. I should also say that rural voters often have a difficult time voting because they don’t have polling sites that are often proximate to where they live. The fact that in places like Arizona, where the very unfortunate Brnovich decision rose out of, you’re not allowed to cast a ballot out of your particular county, even if it’s a ballot for a statewide office where it really doesn’t even matter where you cast it. As long as it’s cast within the state, it should be counted. That makes it difficult for working people who may work far from their assigned polling site, which is based on their residence. The fact that we don’t have Election Day off.
There’s so many things that make voting in this country much more difficult and allow for various Americans to have very disparate voting experiences. If you live in a state where you can vote early, where you have multiple weeks and days to cast your ballot, not only does that make it easier for you, but it makes it easier for the folks who show up on Election Day and don’t have to face as many people at their polling site because some of their fellow neighbors voted early. So, a lot depends on where you live and depends on the rules of that state and that locale. And sadly, many of those laws are targeted against communities of color. People with disabilities are also deeply affected, as are — as are the elderly. Anyone who might need a bit more assistance in voting is also disproportionately affected.
Virginia Heffernan: There’s a paradox I want to ask you about, Janai, that really interests me, which is that, as we saw, in 2020, there were just massive efforts at the level of the federal government, the former president, to discourage voting, to turn mail-in voting into a shitshow, to keep people standing in long lines, to intimidate them at the polls. And yet we have the freest, fairest election — presidential election — in American history, and also massive turnout. Is there a way that sometimes some of these measures come to throw down the gauntlet and make it still more heroic to vote and lead people to move heaven and earth, to stand in those lines and support other people and getting to the polls? It could have a rebound effect on people trying to suppress the vote.
Janai Nelson: Yeah, I do think that often when you know something has been taken away from you and that a right is being denied you, that can be a catalyst for activism; that can be a catalyst for participation. But we certainly don’t want our democracy to run on that theory, to feel that we have to compromise and threaten people’s rights in order for them to feel motivated to exercise them. There, you know, are we using a carrot or a stick? And I’m all for the carrot. We should be paving a road for people to vote. We should be inviting them. We should be making it a celebratory community national event, which, if you look at other countries that encourage voting and create incentives to vote, you see very robust turnout. And what’s deeply unfortunate is that it actually costs. We always talk about how much political candidates have to raise in order to run for office and how costly our elections are from the vantage point of candidates. We don’t talk about how costly it is to allow for these free and fair elections that we like to brag about as a nation and tout as something inherent to American democracy. It takes the investment of a civic community and civil rights groups in particular to protect the right to vote. Of organizations that help get out the vote and bring people to the polls and litigate cases to prevent these barriers from taking hold. It takes an enormous amount of money from folks who are pro-government, from folks who protect civil rights, to invest in the functioning of our democracy. And that really should not be what happens in a fair and well-functioning democracy such as ours.
Virginia Heffernan: Thank you, Janai.
Virginia Heffernan: I mean, I think Janai just nails this, and she said something I’d never thought of: This idea that there’s something dehumanizing about disenfranchising people. It’s just, in some ways an effort to just erase voices and, with that, erase humanity. I thought that was a really powerful point.
Walt Shaub: Yeah. And it was a surprising answer because I thought she was going to focus on de-registration of voters or the reassignment of authority over counting and certifying votes to partisan actors. But it was really touching and really powerful to have her surprising answer. And it answered something in my mind, because viscerally, that business of barring giving food and water to people after they’ve been standing in line for eight hours has bothered me, but I’ve had trouble articulating it. I saw on Twitter one sort of pointy-headed, brainy type focused on voting rights who expressed frustration that people were focused on that instead of some of the other, more technical legal problems. And I felt like she had gotten lost in the weeds, and I think Janai helps answer that. And it’s — sure, maybe in an academic sense, some of these other things are more threatening — but dehumanizing people keeps them from showing up at the polls. It’s a psychological operation, a psy-op attack, that keeps people from even having the motivation to overcome the obstacles that are thrown in the way, because it says to them, “You’re not humans, so you don’t deserve food, you don’t deserve to vote.” And with our long, brutal history when it comes to suppressing votes in this country, I think that is a powerful deterrent that is probably, if you really looked at the broader impact, much more threatening than some of the more technical issues.
I think it’s also important to point out that voter suppression is partisan, but voting rights are not. Clearly, one party is seeking a political advantage by this nationwide effort at voter suppression. And right now, that’s the Republicans. But you can point to things the Democrats have done in history. There’s a law on the books in New York that is similar in respects to the one in Georgia in that it bans giving food and water to voters standing in line — and that was pushed by Democrats. Democrats in Maryland have been accused of gerrymandering, and that’s certainly one of the major tactics of the current assault on voting rights by the other party that’s going on right now. But I’m not interested in aligning with one party or the other. You could push for voting rights and not care what the outcome is, in terms of who wins an election.
The idea of voting rights is to make sure that every voter has the chance to have a say in their future. And you cannot say the same about voter suppression, which is a calculated effort to help a party. And so, there’s an asymmetry here, and it is possible to muddy the waters by playing both sides or by pointing fingers at one side or the other. But again, I truly do not believe that the fight for voting rights is partisan. It’s about giving every American a chance to have a say in their future.
Virginia Heffernan: I guess we do have to get a little bit into the weeds, but there’s no person I’d rather go there with than Dahlia Lithwick. As you know, she covers the Supreme Court for Slate. She hosts the terrific podcast Amicus, and on Trumpcast, she was my one stop source for all things Supreme Court and U.S. Constitution. So, let’s hear what Dahlia has to say.
Can you walk us through for people who like me, don’t follow the court very closely how we got here from Citizens United? I mean, just a thumbnail sketch of Citizens, Shelby, Brnovich, and the other one you mentioned about gerrymandering.
Dahlia Lithwick: You have to go back to the passage of the — the post-Civil War amendments, where it became clear that the states were not going to let people vote and that the states were going to be actually a part of suppressing the vote and, therefore you needed constitutional protections for the right to vote. And once those were passed, it became still clear that the states, as fast as a court was going to invalidate some law, the states were going to enact new ones, right?
And that’s a very compressed way of getting us to the Voting Rights Act of 1965, right? Which is hugely, hugely consequential. It’s called the — the crown jewel of the civil rights era, and it really basically secures, for the first time, the right for Black people to assert the protections they were supposed to get under the 14th and 15th Amendments, but never got.
And so, you know, we can talk about Citizens United is simply — and Walt could teach a clinic on this, so I won’t bore you with it — but this is just an effort to get money out of politics and money out of campaigns. And Citizens United was a move by the court — again, decades in the making — to say “no, no, no, no, no, money is speech, all money is speech,” therefore, you know, opening the spigot for money in politics.
And then really following on to that we get in 2013, the Supreme Court does Shelby County. And Shelby County has to do with Section Five of the Voting Rights Act. And that was the part of the Voting Rights Act that said that any state with a history of voting discrimination practices had to get pre-approval either from, you know, the Justice Department or a federal appeals court before they would enact new laws. And Section Five was essentially the way – and it was the states that had these history of racist voting practices couldn’t basically just willy-nilly create a new law and say, “Now you need to like, you know, stand on one foot and juggle in order to vote” because, hey, you’re Georgia and you’re under pre-clearance and you have to like, get cleared that you can do this practice because otherwise all you would get is sort of old wine in new bottles, right, new voter suppression measures that that are called different things.
And so, in 2015, in Shelby County, the Supreme Court for the first time does away with pre-clearance and essentially says Section Five of the Voting Rights Act is unenforceable because we don’t like the formula. The coverage formula that Congress has enacted in order to say who is covered. And the crazy, crazy part of Shelby County that everyone knows — and this is in 2013 — is that it’s somehow rooted in this crazy theory, crazy banana theory that the states have dignity, that the states have some right to equal sovereignty, and that the sovereignty of the states themselves who live under the indignity of pre-clearance is some kind of like crippling wound. Right? And that’s entirely invented from whole cloth. And so, after Shelby County, it’s very, very clear — and it’s in the opinion — “Don’t worry about Section Five, because you’ve still got Section Two of the Voting Rights Act.” So, we’re going to wait for Congress to come back and have a new pre-clearance formula, still waiting. “But don’t worry, you can still effectuate your rights under Section Two of the Voting Rights Act.” And Section Two was supposed to be the escape hatch.
And that’s where we get to Brnovich, where last year, in the one-two punch, the Supreme Court now says, “We’re doing away with that Section Two, and we’re not going to say we’re doing away with it.” We’re just going to say that the – the plain meaning of Section Two that didn’t allow burdens, racial burdens, on voting now has to be subject to these quote-unquote guideposts that Justice Alito fashions again from whole cloth and that anyone — any future challenges by racial minorities to voting laws that deny or abridge the right to vote on the basis of race, have to go through this incredible process of proof, including things like, “Was this law in existence in 1982?” As though that matters. And I guess I would just say — I don’t know if this is super helpful — but the single most coherent indictment of the ends-driven thinking in Brnovich, when the court essentially guts the power to use Section Two to get into courts, is Elena Kagan’s dissent in that case. It is an extraordinary like, really a tour de force going through, like all of the jumbled-up history that I just belched out at you, she does it in this just eloquent, step-by-step eviscerating way, and then essentially just calls the majority opinion by Justice Alito a law-free zone. Like he is just finger painting his way through reasoning, basically making it impossible for voters who were promised in Shelby County that they had the ability to use Section Two that Section Two is now foreclosed to them as well.
Walt Shaub: So Dahlia, let me just ask, “How did we get here?” Why do we have an assault on voting rights? What’s the Supreme Court’s role in unleashing this hell on us?
Dahlia Lithwick: I mean, I guess, you know, part of the answer is this has always been the way it was. And, as with almost any story you can tell about the march of Civil Rights, we have this funny notion that we’ve been on this glorious progression upward toward justice. But in fact, they’re — like the Supreme Court had a good like seven-year run in there, right? Like, there was a couple of really good years for principles of equality, and dignity, and, you know, respect and that ended a very long time ago. We just, I think in some sense, hit “screen save” and just kept telling ourselves that we were still in the Warren Court era, right? So, I think it’s just important to begin and end with the principle that the Supreme Court is, and has almost always been, a revanchist, hyper-conservative, minoritarian entity that has not been the friend of — not just voting rights, but, you know, equality and so many of the sort of democratic values.
So, I guess I just want to start by being like, not so, so, so romantic about the court. It had a good run, but really in the 22 years I’ve been covering it, it has been inexorably on this path, even though we may not have woken up to it until really recently. And I think if you look at people like John Roberts, right, he has been working on constricting the vote since he was a very young lawyer working in the administration. And that, again, this has been a project that has been undertaken since the founding and really re-upped after the Civil War and the Reconstruction Amendments and re-upped again immediately after the Voting Rights Act. And the court has been intimately involved — again with the exception of a couple of years in there, where they really, I think, believe that they were on the side of expanding the vote — I think that this has been the route that the court has been on through most of history. So, let’s just start without illusions, then that will be healthier for everybody.
Virginia Heffernan: I see plenty of evidence that equality, equity, respect are not particular values of the court, or at least not in the way we construe them. But I think I have to admit it was a surprise to me to see just enfranchisement and the vote and democracy itself of almost no interest to the justices, to the to the six at least, and sort of no — no transition to when they started to do that. You know, I just I have a little bit of whiplash because at first, I thought they were making some mistakes or just putting other values first. Then I thought that they were just partisans and realized like, say, Mitch McConnell, that Republicans couldn’t win without suppressing the vote or controlling vote or repealing the Voting Rights Act. But I’m not totally sure that that’s actually what’s in it for jurists like John Roberts. I mean, I don’t think he —he really is gunning for Trump to win and in — in, you know, the next election, it seems more likely that the Supreme Court is just an elitist, hierarchical, undemocratic, minoritarian in the extreme board that is in some ways undemocratic. It’s divorced from democracy in ways that that those values just were never were never written into the charter.
Dahlia Lithwick: I mean, Roberts is a sort of peculiar case, right? Because if you take him at his word, and I’m thinking of, you know, quotes about, you know, “the sordid business of divvying us up by race,” you know, or “the best way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” And I kind of think he really believes them. I mean, I think in a weird way, some of the justices, like, it’s really hard to read Alito in Brnovich and credit him with being in good faith. Like, that’s the guy who just wants to stop people of color from voting. And he’s like, “I’m going to have some, I’m going to have some factors here. I get it just like make up some stuff.” That, I don’t know that I can say, that’s like a good faith project other than voter suppression.
Roberts, I don’t know if it’s just the twinkly blue eyes, and you can check me on it if it is. I think he genuinely believes that America has no race problem and that we have passed whatever that line was, where there was discrimination, and now we need to move to a better, brighter future where we all stop thinking about it. And it’s insane, right? Because I’m thinking of his parents, the school busing case, the Seattle school busing case. He genuinely thinks the discrimination is not white people discriminating against people of color; the discrimination is against white men. And I think John Roberts genuinely believes that if we, like, took the Etch-A-Sketch and shook it over our heads and, like, restarted America tomorrow without race consciousness on any part, we would be fine. I think he really believes that.
Walt Shaub: OK. But let me push back on that. Isn’t that a very sinister, willful blindness? Because you can’t see those long lines at voting polls in mostly Black districts when you, probably, certainly John Roberts, and, definitely I, pull up to the voting polls, go in, vote, and leave without much inconvenience at all. And you have legislatures ripping out drop boxes and limiting the number of votes and dehumanizing people by saying you can’t give them a drink of water. And to not see that feels like a very conscious choice.
Dahlia Lithwick: Well, again, I would say, you know, read Justice Alito and Brnovich. I think they genuinely believe that vote fraud is rampant in America and that for every vote suppression measure that you just listed, Walt, there is 10 times as much busloads of Mexicans and Canadians pulling in at the border, all of whom vote 17 times under the name of Mickey Mouse and Donald Duck. Like, they believe that reality is more exigent than the reality of vote suppression.
So, they see a causal connection between what they think the world looks like, which is, I guess, we’ll just say it again, .0008 percent. I don’t know. You have the numbers, you know, of what percentage of in-person vote fraud we have. I actually do have the number if you want me to say it. I love these statistics. “A study of the 834 million ballots cast in the elections between 2000 and 2014 found 35 credible allegations of in-person voting fraud.” Right, like, this is where that Brennan Center statistic of “you’re more likely to be hit by lightning right than to do in-person vote fraud.” But because they live in a world where all of that vote fraud is everywhere and it can’t be proven, right, this is the lesson of the Kris Kobachs of the world — that the more you disprove that there’s vote fraud, the more it’s clear there’s vote fraud. And that’s what makes it OK to have lines in Fulton County, Georgia. And that’s what makes it OK not to have, you know, ballot harvesting – all these words that they use to describe the ways that they restrict voting. And so, I don’t know that it’s willful blindness. I think if you believe, in the face of all the evidence to the contrary, that millions of people are voting six times, then having long lines and getting rid of drop boxes makes perfect sense.
Virginia Heffernan: Dahlia, thank you so much for joining us on The Continuous Action and for sharing your insights. So where does this leave us? Walt, you asked Jenai a question that I think points to a step Congress could take to close some of the holes the Supreme Court and state legislatures have kind of poked in voting rights. Let’s give her answer a listen.
Walt Shaub: How might the pending legislation on the Hill help resolve some of these problems? How would the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act help?
Janai Nelson: So, the two pieces of federal legislation that are pending and that are really at the center of a very pitched battle in the Senate. They will do so much to correct what has happened to the Voting Rights Act of 1965, which is the piece of legislation that ushered in American democracy. We really weren’t a democracy before 1965, because all citizens in this country did not have an equal right to vote. The Voting Rights Act at least made that theoretically possible and really transformed our electorate and our elected officials.
But what we’ve seen in the years since, at the hand of the Roberts Court, is a real attack on the Voting Rights Act and an enfeebling of it. where it does not hold anything close to the same force that it did when it was originally enacted. And so, these two pieces of legislation together will restore some of the key provisions of the Voting Rights Act and allow for some of the voter suppression laws that we are seeing proliferate to be interrogated before they come into force to make sure that they don’t have the voter-suppressive and racially discriminatory effect that we are seeing on the ground and that we’re so deeply concerned about.
What these bills also do in concert is ensure that there are national standards for the right to vote. And what I described earlier, voters having vastly different experiences based on their zip code, based on whether they live in urban or rural areas — this helps to eliminate that by creating national standards around early voting. It guarantees that every American citizen will have two weeks of early voting when they participate in national elections. Everyone gets the same amount of time to work through their schedules and juggle their responsibilities in order to participate in our elections. It also ensures that there’s automatic voter registration, so every American, when they become eligible to vote, will be able to find themselves on a voter roll and cast a ballot if they choose. That’s quite simple. That’s just ensuring that what is a fundamental right is something that we have an administrative apparatus on a nationwide scale to support. Everyone will be automatically registered to vote. It takes one step out of the process for every person on an equal basis.
It also restores the right to vote for those individuals who were formerly incarcerated, who have completed their sentencing and whatever terms of service. They’re now ready to reintegrate into society and to participate, which is something we’d want to welcome. Studies show that individuals who are more engaged in civic life and who are able to vote and participate in community functions are less likely to recidivate, and that’s something we all want. So, it creates these types of national standards and also aims to rid some of the partisan influence in our redistricting process. The Supreme Court said that it did not have jurisdiction to adjudicate any claims around partisan gerrymandering in a case not long ago, called Rucho vs. Common Cause. And that has led to what we are seeing across the country — and that is gerrymandered maps that center partisan demands, that try to promote the interests of a single party at the expense of not only other political parties but the interests of the majority of people within a state or within another jurisdiction. And so, this eliminates that; this says that we need to draw our district lines in a fair way. We need to draw district lines in ways that don’t privilege or advantage one political party over the other, but that allow everyone to have an equally weighted right to vote.
Virginia Heffernan: You know, this issue, voter suppression, can lead to a sense of defeatism. You think: “Why even try when our votes don’t count and when we’re buried in lies and social media about voting conspiracies that simply aren’t happening?”
Walt Shaub: I have two suggestions for people. Number one, you can put pressure on your members of Congress and on the president to step up the fight for these voting rights. This is not optional. These voting rights legislation bills need to pass, or democracy is in serious danger. And the second thing you can do is go get trained to be a poll worker — not poll watcher, poll worker — an election worker, to try to help keep this election honest. If Steve Bannon is going to be sending people to infiltrate the ranks of election workers, then Americans of good conscience from both major parties and from independents and any other parties need to get in there and focus on keeping the election processes objective, and fair, and honest, and not let partisan actors infiltrate the ranks and distort the outcome.
Virginia Heffernan: So that’s it for the first episode of “The Continuous Action.” The show is a presentation of me, Virginia Heffernan, Walter Shaub, and the Project on Government Oversight, POGO. Our producer is Myron Kaplan.
Walt Shaub: In our next episode, we’re going to be talking about lies told by government officials — and, in particular, lies that send us to war and keep us at war. We have some interesting guests lined up, and, of course, Virginia and I will have lots to say about holding those government officials accountable.
Virginia Heffernan: See you next time.
Walter M. Shaub, Jr. - Co-Host
Virginia Heffernan - Co-Host
Janai Nelson - Guest Speaker
Dahlia Lithwick - Guest Speaker