As Americans prepare to head to the polls next week, We the People partnered with Ballotpedia for a rundown of the election law and voting rights issues most relevant to the 2018 midterms. Ballotpedia’s News Editor Sarah Rosier joins election law scholars Franita Tolson and Michael Morley to break down all sides of the legal arguments surrounding voter ID laws, gerrymandering, “signature matching,” the purging of voter rolls, and felon disenfranchisement. Jeffrey Rosen hosts.
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PARTICIPANTS
Sarah Rosier is Ballotpedia’s news editor. She’s been at Ballotpedia since 2013, where she has served as director of the Congress Project, and has covered everything from presidential elections and the executive cabinet to the federal courts.
Michael T. Morley is an assistant professor at Florida State University College of Law, specializing in election law, constitutional law, and federal courts. He is the author of numerous publications on election law issues including Prophylactic Redistricting? Section 2 of the Voting Rights Act and the New Equal Protection Right to Vote.
Franita Tolson is a professor at USC Gould School of Law, where her scholarship and teaching focuses on election law and constitutional law. She was previously the Betty T. Ferguson Professor of Voting Rights at Florida State University College of Law. Her forthcoming book, A Promise Unfulfilled: Section 2 of the Fourteenth Amendment and the Future of the Right to Vote, will be published in 2019.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
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This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott.
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TRANSCRIPT
This text may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen president and CEO of the National Constitution Center. And welcome to We The People weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. We're thrilled to produce this episode of We the People in partnership with Ballotepedia the digital encyclopedia of American politics and elections. Ballotpedia shares objective neutral information that informs millions of voters and candidates. And we are excited that they're here to join our nonpartisan exploration of the text and history of the election clause of the Constitution and some of the leading court cases that are bubbling up in America. From Ballotpedia we're thrilled to have joining us Sarah Rosier. Sarah is Ballotpedia's news editor. She's been a Ballotpedia since 2013 and has served as director of the Congress Project and covered everything from presidential elections to the federal courts. Sarah thank you so much for joining.
Sarah Rosier: [00:01:10] Thanks for having me.
Rosen: [00:01:11] Sarah is joined by the co-authors of our interactive constitution explainer on the Elections Clause. Michael Morley and for FranitaTolson. And dear listeners just as Franklin Roosevelt asked the American people to take out their maps during a radio show I want you to take out the interactive constitution explainer on the election clause so you can explore Michael and for Anita's areas of agreement and disagreement. Michael Morley is assistant professor at Florida State University College of Law where he specializes in constitutional law and election law. He's the author of many publications including Prophylactic Redistricting: Section 2 of the Voting Rights Act and the New Equal Protection Right to vote. Michael thank you so much for joining us.
Michael Morley: [00:01:51] Thank you very much for having me.
Rosen: [00:01:53] And for FranitaTolson is professor at USC Gould School of Law where her scholarship and teaching focus on election law and constitutional law. She was previously the Betty T. Ferguson professor of voting rights at Florida State University College of Law. Her forthcoming book A Promise Unfulfilled. Section 2 of the 14th Amendment and the future of the right to vote will be published in 2019 by Cambridge University Press. For Nina, congratulations on the book and glad to have you with us.
Franita Tolson: [00:02:21] Thank you, I'm really delighted to be here.
Rosen: [00:02:22] Wonderful. All right let's jump right in. Michael describe if you will. What you and Franita agreed was the core original meaning of the elections clause?
Morley: [00:02:36] Well the elections clause is the constitutional provision that confers power to regulate the the congressional election process and the the clause primarily empowers state legislatures to enact what the Supreme Court has called a complete code for the regulation of federal elections. So under this grant of power from the Elections Clause state legislatures are allowed to pass voter registration laws, determine how to assign polling places right, determine how what the canvassing rules will be, what the ballot counting rules will be. All of the various aspects that go into conducting a congressional election. The elections clause says state legislatures have the power to do that. However Congress gets to make or alter such rules so if Congress either disagrees with laws that certain legislatures have passed or even if legislatures haven't regulated on an on a particular issue at all. Congress is free to step in and enact its own federal statutes to address a particular particular aspect of the of the congressional election process. I think the most remarkable thing about the clause is that it shows structurally and in fact it's one of multiple constitutional provisions that structurally empower the political branches right elected state legislatures elected chambers of Congress to regulate congressional elections.
Rosen: [00:04:02] Thank you so much for that for any of them. Franita you note with Michael in your common explainer about some important cases where the court has held that the election clause doesn't permit a state to refuse to print on the ballot the names of candidates who've already served three terms and validating term limits that's the Thornton case. And you also note that the court doesn't confer the power to regulate congressional elections on the state as a whole but instead a legislature of the state. I think you disagree in your separate statements about how broadly the legislature should be interpreted. And you note that in the Arizona state legislature case the Supreme Court read the legislature broadly enough to encompass the ballot initiative process that Arizona residents used to delegate the legislature's redistricting authority to an independent redistricting commission. Tell us why you think that the Arizona case was correctly decided and legislature should be interpreted broadly as well as any other things you'd like to signal about the elections clause
Tolson: [00:05:02] So I think one of the things that Michael mentioned in his excellent opening is the fact that the clause also delegates to Congress the authority to veto state regulations with respect to time place and manner of federal elections. And so it's it's my view that as a part of that control in essence the clause gives gives Congress final policymaking authority when it comes to federal elections, even though states can in the first instance set the time place and manner of federal elections. So with respect to the ability of redistricting to take place through ballot initiative there was actually a law in 1911 that Congress passed that that that sort of allow states to have broad authority in that area and because Congress had signed off on it in essence and because Congress has final authority under the clause I thought that you know that broad interpretation of legislature was OK in part because Congress played a role in sort of determining the scope of state power and because it has the final say. I thought that the case was correctly decided.
Rosen: [00:06:06] Thanks so much for that. Michael I sense from your common statement that you disagree on that point and think that the Arizona state legislature case was wrongly decided. Can you tell us why and why you think the court was wrong to ignore the plain meaning of the elections clause.
Morley: [00:06:21] Absolutely. The Constitution has many clauses. There are many phrases rather like equal protection of the laws, due process of the laws, where they employ vague language that many people argue point to general principles point to abstract concepts that it's very easy to have debates about. The word legislature which appears in the Elections Clause or the elections clause specifically delegated authority not to the state as a whole but specifically to the legislature of the state is one of those terms in the Constitution that is very concrete that is very specific. The term legislature appears at least ten times throughout the Constitution and in every other single context where the word legislature appears it is clear from the context it is clear from the use that it is referring to what we would think of as the institutional state legislature; a multi member body of elected officials that periodically convenes to enact laws. And so the notion that legislature as used in the elections clause means something else than it means throughout the entire rest of the Constitution; means something different that it meant in every single state constitution that existed at the time the US Constitution was was ratified, I think is indefensible.
Rosen: [00:07:42] Thank you so much for that. Well We the People listeners you now have a sense of the agreement and disagreement about the scope of the word legislature and elections clause. And I want you to dig in on the cases to learn more for yourself. Sarah let's now run through the major constitutional voting rights cases that are bubbling up in the lower courts and up to the Supreme Court and then ask our dream team of experts to give us the legal arguments on both sides. There are a series of controversies involving voter I.D. laws including in North Dakota and elsewhere. Tell us about some of the major ones and help us set up the legal issues there.
Rosier: [00:08:18] Let's talk about North Dakota first. So this has gone back to 2016 when we thought a federal court case tackling the North Dakota voter I.D. law. Doug Brigham the governor of North Dakota at the time has had re-established and signed into law another state voter I.D. requirement and that now that's made its way up to the courts. The last we heard was from the Supreme Court. They stayed the law and that will go into effect in North Dakota. I'd love to hear from the panelists some some factoids on how rare the North Dakota law is, what this means for the voters. One thing of note is that in North Dakota it is the only state in which there is no formal formal voter registration system. So while they do have this voter I.D., there isn't like other states that you have to register by such and such date and prove your proof of residency through the voter registration. There's no sort of system in place for that. So this is kind of a different voter I.D. case. So Franita I'd love to hear from you first and then Michael about your thoughts on this North Dakota voter I.D.?
Rosen: [00:09:27] Yes that would be great and Franita you might give us a sense of what the broad constitutional challenges to voter I.D. laws are and what the courts are holding on on both sides of the issue and then give us a sense of your thoughts of the North Dakota case.
Tolson: [00:09:41] Of course. So voter I.D. laws have been challenged over the last few years on a number of grounds so litigants have challenged them on constitutional grounds as violations of the 14th the 15th Amendments the 14th Amendment right to vote that it burdens the right to vote and also the 15th Amendment in terms of the ban on racial discrimination in voting. They've also also been challenged under the Voting Rights Act. And I think litigants have had more success challenge in challenging these laws under that provision. The North Dakota law is interesting because and I mean interesting in a bad way, in that it requires residents to have a street address in North Dakota. And the problem with that is that there are quite a few Native Americans who live on reservations where there are no street addresses and the state was well aware of this when they pass this law. The Supreme Court allowed it to go into effect which is which is also unusual in the sense that the court generally does not permit laws that would change the election rules close to an election set to go into effect. And as you know we're only at this point eight days out from the midterms and I think we were maybe a little over a month out when the Supreme Court allowed it to go into effect. And so the effect of this law is to to disenfranchise a significant portion of Native Americans who don't have street addresses and because they also don't have the supplemental information that they will be able to use in order to to supplement theirI.D. that doesn't have a street address. They can come forward with for example a utility bill or a check issued by the federal state or local government and so on in order to further verify their identification. But a lot of them don't even have that. So the end result is that a significant percentage of Native Americans in North Dakota will be disenfranchised by this law. But one thing that gets ignored in this conversation is the fact that a significant portion of white people will also be disenfranchised because of this law. So one of the things that the district court found here was that almost sixty five thousand non-native voters don't possess qualified voterI.D. under the new law. So I know we typically think about voterI.D. and how it affects communities of color but it also affects white people in North Dakota as well and in other communities as well. And I think that's worth bringing into the conversation so that we have an understanding of how devastating voterI.D. can be in certain situations. One thing I also want to point out before I be quiet, is that keep in mind that in 2016 which is a presidential election year only three hundred fifty thousand people voted in North Dakota. So it's not like it's a state that has a substantial population where it could sort of absorb if twenty five hundred people are disenfranchised. Twenty five hundred people. Twenty five hundred Native Americans is a lot because it's a small population. Sixty five thousand non-Native Americans who are affected by thisI.D. is a lot in light of the fact that only 350000 people voted in 2016. So the effect of this law is actually pretty devastating. If you think about it in context.
Rosen: [00:12:53] Thank you so much for all that. Michael, thirty three states have enacted voterI.D. laws of different kinds and in 2008 and the Crawford against Marion County Election Board case the U.S. Supreme Court upheld an Indiana law requiring voters to provide photographic identification. So tell us about the significance of the Crawford case, how it affects the North Carolina case and broadly what the legal debate is in these voterI.D. challenges that are bubbling up across the country for and against.
Morley: [00:13:26] Franita's absolutely right. The main issues that that you tend to see focus on from a constitutional perspective around whether there was intentional racial discrimination in violation of the 15th Amendment whether there is a substantial burden in violation of the 14th Amendment Section two issues under the Voting Rights Act. Crawford in Crawford the Supreme Court rejected a facial challenge to a voter ID statute. Here the North Dakota challenge the constitutional aspect of it, was brought primarily as a facial challenge because the as the 8th Circuit held the individual plaintiffs actually had street addresses and so the Supreme Court or excuse me the 8th Circuit held they weren't in a position to bring an as applied challenge. So most of the controversy centered around whether this law was facially valid and specifically it centered around the requirement that theI.D. has to have a street address on it that the voter'sI.D. has to have a street address on it rather than simply a P.O. box. And I think that that's where the context matters greatly that we're talking about a state here that doesn't have voter registration. There are no centralized voter databases to let state officials know. Individual cities if they wish were allowed to set up their own, but on a statewide basis there is no database to even let officials know where people are supposed to be registered and what what their proper precinct is what slate of local officials there they're supposed to be they're supposed to be voting on and the state legislature at least according to the according to the 8th Circuit opinion considered alternatives like having a map at the at the polling place and having each voter try to find on the map exactly where they are and then trying to cross reference from that what ballot they should get and whether they're whether they're eligible to vote. And so particularly in the context of not having voter registration records what the what the 8th Circuit wound up suggesting and apparently the Supreme Court we at least to some extent appears to have agreed with that that there is a legitimate interest here in simply, hadn't even even putting aside even putting aside fraud concerns, just in managing the election accurately in managing the election efficiently having some government document. And I'll emphasize by the way it includes tribalI.D. that this isn't a situation where they're trying to engage in I.D. gerrymandering so to speak by by targeting the modes of identification or methods of identification that just certain groups are able to have and so even a tribalI.D. as long as it has the street address could be valid and apparently they simply by calling the county there's a 9 1 1 coordinator in each county voters who don't have street addresses can actually get them assigned to them ahead of time and they can they can get it they'll get a letter from the county just saying use this as your street address and they can they have a choice. They can either use that letter to get an I.D. with the street address on it or they can bring that letter along with some otherI.D. that otherwise wouldn't comply with the statute. And that would be and that will satisfy the law. And the other point that that that Franita raised right. This isn't a law targeting Native American voters for every Native American voter 13 non-native, according to the statistics that the that the 8th Circuit relied upon, 13 non-native voters are are impacted by the law and will have to go through the process of getting a street address so that election officials know where they're supposed to be voting from. So it particularly in this in this context I think that this voterI.D. law especially given that it at least appears that the street address requirement can be satisfied by making a phone call I think doesn't really pose serious constitutional questions.
Rosen: [00:17:23] Many thanks for that. Sara because of voterI.D. challenges are so important can you give our listeners a sense of the situation on the ground how many voterI.D. challenges are pending How are courts tending to rule. And we've heard the arguments on both sides on the one hand avoiding racial discrimination both under the 14th and 15th amendment. On the other avoiding voter fraud and allowing efficient administration of elections. Are courts all over the place, or how are they tending to rule on these issues.
Rosier: [00:17:52] So we saw quite a few 34 states now have voter ID requirements. Seventeen of those you are required to present photo ID while the other 17 there are different other accepted non photoI.D. requirements for for showingI.D. We're seeing we're seeing some cases this year in North Dakota being a very big one. It's attracted the attention of celebrities. I think there is a big concert out on one of the reserves last weekend where Mark Ruffalo and I think the Dave Matthews Band were there protesting this and encouraging the tribes to get out and vote. So we are seeing in those 34 states in 2016 there are the big ones. I think North Carolina Texas we saw the big cases there and I expect that the Supreme Court will in the next two sittings take up these as they make their way through the courts. But we're we're seeing some of the precedent kind of trickled down through. I think that's that's the context that we'll be tracking we have a page called voter ID laws by state where if you are unsure what is required for you as you go out to vote either through early voting this week or next Tuesday we have a full breakdown of what is required for for your state. You can get a good sense before you get caught up at the polls.
Rosen: [00:19:19] Thanks for that. Franita moving forward. How many of these cases do you expect to succeed ultimately before the Supreme Court and how will the scope of voting in America be changed by the legal challenge or not?
Tolson: [00:19:35] I don't expect that they'll be very many successes with respect to challenging voter ID laws. I think that the current lineup of the court will not be sympathetic to empirical evidence showing that these laws have a disproportionate impact on people of color. Also that there are people who are impacted who may not be a part of a minor minority group. I don't mean to suggest that you know if it if it affects more people then it means that the state didn't seek to single out a particular group. I think the fact that it affects more people is also problematic. But I don't think that the court will be sympathetic to that because they think that the state's interest in preventing voter fraud even if there is no empirical evidence that the law necessarily is designed to address fraud. This is about being deferential to the state in a way that it unfortunately has a negative impact on the scope of voting rights.
Rosen: [00:20:35] Thank you for that. Michael, with the addition of Justice Kavanaugh to the court can you imagine any challenges to voterI.D. laws succeeding and if not what would the court's reasoning rejecting the challenges look like?
Morley: [00:20:47] Absolutely under under current doctrine, if a voterI.D. law is adopted with a racially discriminatory purpose then that is a flat violation of the 15th Amendment and the court would strike it down and I certainly don't see any narrowing of 15th Amendment protections or or any change in the approach to that doctrine. And I also think that as more of these laws are enacted as there's more as there's more litigation we get to say we're going to see most of the litigation in my in my opinion most likely tending to focus on as applied challenges as well as Franita mentioned before a section two challenges under the under the VRA. But at least what what I would hope is that based on having a both a variety of statutes as well as variety of cases that shows the different ways that populations are affect are affected by voterI.D. laws that eventually we can move past kind of the knee jerk partisan reactions on both ends of the spectrum and start crafting laws that do have as some do and craft laws that have escape valves for somebody who is in a really unique situation or really unpredictable situation and try as they might there really is no realistic way for them to be able to to satisfy the ordinary requirements or get an ID will get the typical ID properly crafted. These, particularly if they're enacted well in advance of elections when there is enough time to comply particularly if they are somewhat liberal so to speak in terms of what counts as as voter as as valid forms of ID, they do not need to be tools of disenfranchisement they literally can be mechanisms for ensuring efficient elections more than more than anything else for reinvigorating public confidence in the electoral process and I hope we continue to see the evolution of these laws in order to try to address all of the competing interests at stake.
Rosen: [00:22:56] Thank you so much for that. Sarah, let's turn next to the Florida Felon Disenfranchisement Law. There is an overview on Ballotepedia which answers the question “What would a Florida amendment change about the voting rights of convicted felons.” The amendment was designed to automatically restore the right to vote for people with prior felony convictions except those convicted of murder or felony sexual offense. Tell us about Amendment 4 in Florida and how it would change the voting rights of convicted felons and what the legal challenges are.
Rosier: [00:23:27] Yes this is fought on Amendment 4. Currently in Florida law, Florida is one a fourth states where convicted felons do not regain the right to vote until and unless a state officer or board restores an individual's voting voting rights. So they have to petition for their voting rights to be restored. We saw that this was part of the original Florida Constitution amended in 1968. That's active still today in 2018. We saw aU.S. District Court Judge, Mark Walker, rule that Florida's process for the restoration of voting ability for felons was unconstitutional stating that it did violate the First Amendment and the 14th Amendment. So we'll see what happens here. Governor Scott announced that he would appeal the ruling to the 11th Circuit and the 11th Circuit did concur with Governor Scott's request. So we're seeing the court amendment stands in the constitution. But this Florida Amendment 4 depending on what happens on November 6th could could be adjusted.
Rosen: [00:24:33] Thanks for that great overview. Franita what are the constitutional arguments for and against felon disenfranchisement laws?
Tolson: [00:24:41] So felon disenfranchise. The Supreme Court in a case Richardson vs. Ramirez found that a state could disenfranchise their felons consistent with section 1 of the 14th Amendment the Equal Protection Clause in part because Section 2 of the 14th Amendment has an exemption for felon disenfranchisement an exemption with respect to applying the penalty of reduced representation to those states that abridge the right to vote. So the the Supreme Court reasoned that because Section 2 exempted felon disenfranchisement from the reach of its provisions then therefore felon disenfranchisement did not violate Section 1 of the Fourteenth Amendment. So that's generally the legal argument for felon disenfranchisement laws. Of course the response is, there are actually many responses one can make. So one thing is that it has a, they're racially discriminatory both in purpose and effect. So around the turn of the century, I forget that this isn't 2000 so I guess that would be the turn of the last century. All right it's been a while. So let's just say that eighteen eighteen eighties eighteen nineties many states adopted felon disenfranchisement laws in order to prevent their black populations from being able to cast a ballot. And so the Supreme Court in a case called Hunter vs. Underwood actually struck down Alabama's Felon Disenfranchisement Law because it was enacted with racially discriminatory purpose because during their constitutional convention for their state constitution there were actually comments made that the law was adopted in order to further racial discrimination. But for most states you don't have those you know smoking gun statements where you have legislators making comments that they are trying to disenfranchise African-Americans. Now Florida's law did have the effect of disenfranchising a substantial portion of African-Americans within the state and also the process used to restore voting rights was very ad hoc and arbitrary. So individuals would have to go before the governor and two other cabinet officials usually the attorney general and I forget the third official in order to sort of make their case that their their voting rights could be restored. And the committee could deny you for any reason. So there was no systematic way to get your rights restored. Florida Amendment 4 seeks to change that by just doing automatic restoration which will probably have the effect of changing the political landscape of the state. So it is remarkable in that sense but but generally speaking felony disenfranchisement laws, unless you prove that they are enacted with discriminatory purpose as in the case of Alabama, is very difficult to lodge a constitutional challenge against them. There have been some successful cases under Section 2 of the Voting Rights Act because two court of appeals found that the laws had a racially discriminatory effect but generally speaking those cases are rare as well.
Rosen: [00:27:42] Many thanks for that. Michael your thoughts on the constitutional challenges to disenfranchisement laws the likelihood of success and your thoughts about laws like Florida's Amendment Four which seeks to restore the voting rights of felons.
Morley: [00:27:55] I agree with Franita that from a from a constitutional perspective the fact that Section 2 of the 14th Amendment expressly contemplates the possibility of states not extending the right to vote to people convicted of crimes makes most types of 14th Amendment challenges, forecloses the possibility really of any types of 14th Amendment challenges other than ones based on intentional racial discrimination that it given that the Constitution's plain text expressly contemplates the possibility of not extending the right to vote to to people convicted of crimes it's very difficult to try to say the very same amendment also makes it per say unconstitutional. So to the extent there is evidence of intentional racial animus behind felon disenfranchisement provisions then as with any provision of law it would be unconstitutional. One of the points that the 11th Circuit made when it upheld the constitutionality of Florida's provision was that Florida's felon disenfranchisement provision the court held was not motivated by any form of racial animus and one of the considerations that the court took into account is the fact that the Florida Constitution either authorized felon disenfranchisement or provided for felon disenfranchisement prior to the eighteen sixties before the state had even extended the franchise to African-Americans. The Court held it would literally be impossible for the felon for the predecessors of the felon disenfranchisement provision to have been motivated by any sort of racial animus because the franchise had already been limited on racially just racially discriminatory grounds.
Rosen: [00:29:42] Thanks so much for that. Sarah, our next topic and it's a big one is gerrymandering. In the Gill v. Whitford case last year the Supreme Court refused to rule on the merits of whether partisan gerrymandering might violate the First Amendment to the constitution among other provisions. In light of Gill there's been a lot of lower court activities including in late August in North Carolina where the district court ruled that the state's gerrymandered districts were unconstitutional. Tell us about the state of the play in North Carolina, Michigan, Pennsylvania, and elsewhere and what are the pending challenges to gerrymandering?
Rosier: [00:30:25] So I'll Michael for me to talk a little bit about those court cases but what we're looking at Ballotpedia specifically is what's going to happen in 2019 with redistricting. So if you allow me to give you give you a little bit of background on the different state by state redistricting procedures. So as of August 1 some of these court cases are being ruled. Congressional redistricting was the province of state legislatures in 37 states. So we saw in four states there were independent commissions which I think some of these court cases revolve around the legality of what the independent commission does, and who's in charge of appointing these commissioners. In two states, it fell to political commissions and gubernatorial appointments and things like that. And then the remaining seven states are some of the states that only have the one congressional district so that kind of nullifies the need for redistricting commission or the congressional level. So one thing we're noticing is you look at the National Democratic Redistricting Commission this political group that has come out I believe from Eric Holder in 2018, fundraising specifically for state legislative elections. We're so excited at Ballotpedia because these state legislative elections often don't get their deal. But this year they are and what we've been tracking are trifectas meaning one partisan party is in charge of both the governor's mansion and the full legislature. This is the state House and the state Senate. And what that could mean for these redistricting cases these gerrymandering cases in 2019 and beyond. So when you look at trifectas you see that 27 states are Republican trifectas. Again that that means that Republicans have a hold on the state governments in those 26 states. Only eight states are Democratic factors and 16 states are under divided government. If you remember I mentioned that in thirty seven states the state legislature controls us. So this is a big deal. Whether or not these states will still have this trifecta status heading out of 2018 because we could see some of these court cases being vacated if Democrats pull back some of these legislatures in these states if there is a quote unquote Blue Wave next week. But that's what we're focusing on right now is all right, so we have so many cases making their way up. We've seen a lot of them get ruled on in the past couple of years. But what happens if Democrats do have this blue wave. Some of these trifecta are broken up who will be in charge of this next census. It's going to be a very big issue. I'm based out of Maryland and the likelihood of Larry Hogan getting reelected is not great for Democrats because of how redistricting is set up in Maryland state elections really really matter this year because this next census and this next round of redistricting will happen in the next four years. So that's one thing we're tracking here but I'll turn it back over to the panelists for more on the court cases involved.
Rosen: [00:33:45] Thanks very much for that. Thanks for giving us a breakdown of the states where one party controls both the governorship and the state legislature and Franita, now let's turn to the constitutional challenges. Describe what Gill and Whitford held didn't hold. And in light of Gill and Whitford, what are lower courts holding when confronted with challenges to partisan gerrymanders and are they likely to succeed or not?
Tolson: [00:34:07] so Gill vs. Whitford, the court found at the plaintiffs didn't have standing to challenge the gerrymander in Wisconsin in part because they try to use evidence as of sort of statewide bias when trying to prove that they were individually harmed so they didn't have standing because they couldn't prove an injury based on evidence that they used. So the interesting thing about Gill though is for at least for me is less the majority opinion and more justice Kagan's opinion because what she does say is she tries to lay out a plan forward. Now I was one of the people who prior to the decision thought that the court would find that partisan gerrymandering claims were non-justiciable. I just you know and maybe I should be in the business of making predictions. I concede that. But I did think that they were going to find that they were non-justiciable. So it's really interested in that Justice Kagan lays out this this map for trying to bring this type of claim that tries to overcome some of the hurdles that the plaintiffs have with respect to the evidence that they wanted to that they tried to rely on in order to establish a claim. So she frames it as a First Amendment issue. So it sort of harkens back to Justice Kennedy's opinion in the case where he suggested that the First Amendment might be a better vehicle to challenge a partisan gerrymander but she does it in a different way. She outlines it as a form of vote delusion. That a plaintiff will be able to show that their right of association is impacted by the cracking and packing that goes on in any given gerrymandered point. And so what she's doing so even though the majority kicks it all standing, I think that litigants can sort of look to Justice Kagan's opinion as a a road map for litigating these cases going forward.
Rosen: [00:35:49] Thanks so much for that. Michael your thought about the roadmap moving forward. Do you imagine that the court with Justice Kavanaugh might be sympathetic on the merits to the argument that Justice Kagan spelled out in her opinion or not. And how does that impact the cases that are bubbling up.
Morley: [00:36:07] I would be surprised if the Supreme Court were to, or if a majority of the court, were to accept Justice Kagan's invitation. And in part I would trace this reluctance back to the chief justice. Any, or at least most forms of political gerrymandering claims, are typically are based on the premise that through expert testimony, in particular through political science testimony, courts can find as constitutional facts how voters are likely to vote in particular elections under different sets of circumstances years into the future and are and are and are able to predict the outcomes of a particular redistricting schemes with sufficient certainty that they can declare certain schemes unconstitutional or not. I don't remember if the if the chief justice referred to this as argle bargle or gobbledygook these these are highly technical terms that that that sometimes are used to interchange
Rosen: [00:37:13] Argle bargle was Justice Scalia wasn't it? Gobbledygook was the Chief, absolutely. Yes absolutely.
Morley: [00:37:20] And so the the chief has has expressed a skepticism through whichever way through or through which whichever technical term he employed is expressed the skepticism about relying on this type of of of social science data in this context. And I think that the 2016 election and in particular right for those people who were following the famous needle on election night I think the outcome for 2016 elections simply reaffirms the propriety of at least a degree of skepticism in the notion that courts are institutionally capable of sorting through this this type of testimony looking into the future. And I will also add by the way to a certain extent many types of political gerrymandering claims view voters, require courts to treat voters, as fungible interchangeable automatons that essentially no matter who the candidates are, no matter what the issues are, no matter how the districts are drawn, that they're going to reliably vote Democrat or Republican. And particularly in states that don't have party registration where you don't even have where you don't even have the hint so to speak of people who have chosen to register as Democrats who chosen to register as Republicans. And of course we know many of those people it's sometimes split their tickets don't necessarily vote vote straight party lines. I think it puts it puts courts in very difficult institutional positions that if that if courts do feel they have this power to to to to look at the future it somewhat calls into the question well why are we going through through this electoral process at all. I think if you look at first amendment case law if you look at the what the Supreme Court has said about the importance why political parties have a fundamental First Amendment right to pick their standard beare,r why candidates have and other politically involved entities have a First Amendment right to spend unlimited amounts of money on independent expenditures on political advertising on political communications. The notion is it's because all of this matters it's because many people's votes are going to hinge on who the candidates are what the issues are what what the debates are and a lot of that tends to get abstracted away in the context of most of these theories underlying political gerrymandering claims.
Rosen: [00:39:43] Thank you so much for that. Sarah, we were at our last broad set of cases on the Ballotpedia election policy page, you identify redistricting laws, voterI.D. laws, and then there's a category for early voting and absentee voting laws, and you helpfully spell those out state by state. Tell us about the early voting and absentee voting laws and what some of the legal controversies arising from them are.
Rosier: [00:40:10] Yes. So we have we just did a big project that we're doing in our daily morning newsletter just for each voter in each state outlining when they can go to the polls what their early voting looks like. Again there's some overlap here with some of the policy related to voterI.D. but we have seen the majority of the country has already been able to go to the polls if they want to. So this year seven states began their early voting periods in September. So we've already had now a month over a month of voters in Illinois, Minnesota, New Jersey, North Dakota, South Dakota, Vermont, and Wyoming have the ability to go to the polls starting in September. Another 24 states began in October and then there are 13 states who do not have any sort of early voting and those are spread across the country. It's not just one geographic area or another it's states like every state from New York to I think New Hampshire and down there a few Alabama and Mississippi. So we have seen it depending on where you are in the country. It definitely varies by your locality in your state but a good chunk of the country has already started voting. If they would want and of course there are the Washington, Oregon, and Colorado who they only vote via mail-in ballots. So those are things we track and if you have questions about how to vote in your state, please please head to Ballotpedia.org But those are mainly controlled by, similarly to redistricting, those types of laws are mainly controlled by the legislature. So again 2018 could have a dramatic effect on what that early voting map looks like for 2020 and beyond. And that will likely be an issue as we start talking about presidential on November 7th. So that's that's one thing we'll be tracking over here.
Rosen: [00:42:06] Michael there was some controversy over Ohio in the last cycle. Tell us what you can about the legal framework for early voting and absentee voting challenges.
Morley: [00:42:16] The major challenge that I was aware of with regard to absentee voting was a procedural due process challenge with regard to signature match. That with with with regard to absentee voting, obviously the whole point of it is that you're not showing up your're you're you're doing it typically by mail and in order to make sure that ballots are being submitted by the voters who claim to be submitting them, the main safeguard that many states implement is signature match where you are after you after the voter you request or absentee ballot the ballot comes back you fill out the ballot selecting the candidates that you want you put the ballot back in the envelope you then have to sign the sign the envelope across the seal. And then when the ballots are submitted to election officials they compared the signature to the signature they have on record potentially even for many many years ago when you had first registered to vote or if you did it through Motor Voter when you got your got your driver's license and if if either someone forgets to sign the absentee ballot or if the signatures do not appear to match that that they did that if it looks like that the signature might not have been from the person who had filled out the registration form that there's that that there is some kind of concern about potential fraud that under these signature match laws the absentee ballot then does not get counted. And so in Georgia a court if a federal court entered a restraining order against enforcement of the signature match statute. And I know in many states and as the absentee ballot these these results are court or are coming in, there is concern about the application of the signature match laws because you put in depending on state law voters might not even necessarily know that they're that their vote isn't being counted that their vote has been rejected due to either the fact they forgot to sign the ballot or the signature didn't match.
Rosen: [00:44:29] Thank you for that. Franita, I think we're gonna give the last word to you in light of the arguments that Michael hasdescribed for challenges to previous voterI.D. and signature law matches. What do you make of those arguments and do do you find them persuasive or not?
Tolson: [00:44:45] So I get larger concerns about sort of making sure that people are who they are about matching the signatures. But I think especially you know all of this is happening in a context where there is broad disenfranchisement in Georgia right. So not only do we have the signature match which was challenged and stopped and then the secretary of state who's also running for governor reinstituted it but he also purged 300000 plus voters. So it really is a combination of things. Right. So the signature match combined with the voter purges really does have the effect of disenfranchising a substantial portion of voters in Georgia in a way that I think raises significant concerns. You know, it's a good thing that you know voting rights advocates are being vigilant about you know sort of watching what's going on there and consistently filing lawsuits because the secretary of state's willingness to reimpose signature match even after a federal court told him not to do it sort of shows his dedication to making sure that everyone cannot vote.
Rosen: [00:45:47] Thank you so much for that. Well it's time to close but we the people listeners I want to end by encouraging you to continue to educate yourself about the constitutional arguments surrounding voting rights. Begin with Franita and Michael's wonderful joint explainer on the Elections Clause. Also read Michael's joint explainer on the twenty sixth amendment which changed the voting age to 18 as well as the provisions on the 15th Amendment joint explainers involving racial discrimination in voting. As always the best way to be an engaged citizen is to educate yourself about the Constitution. The interactive constitution is the best place to begin and we're so grateful to our partners at Ballotpedia for helping us sponsor this constitutional exploration of the right to vote. Sarah Rosier, Franita Tolson and Michael Morley. Thank you so much for joining.
Morley: [00:46:40] Thank you very much.
Rosier: [00:46:41] Thanks.
Tolson: [00:46:41] Thank you.
Rosen: [00:46:48] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please remember to rate, review, and subscribe to We the People wherever you listen and tune in to our companion podcast, Live in America's Town Hall, we release those episodes on Tuesday and those are the audio for our great public programs here in Philadelphia and around the country which are so important in spreading constitutional light. If you'd like to keep up with the Constitution Center through your inbox please sign up for our email newsletter Constitution Weekly at bit.ly/constitutionweekly. It's a compilation of all of our content the videos the podcast selections from the interactive constitution - a veritable constitutional feast. Or as Tocqueville called it a gratuitous public school. So We the People listeners it would be great if you signed up and of course as you know I want you so much to sign up and become a member of the National Constitution Center to support our crucial work in increasing awareness and understanding of the Constitution among the American people. You’re such great ambassadors for us and I want you to join us as part of our common crusade. On behalf of the National Constitution Center. I'm Jeffrey Rosen.
Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen president and CEO of the National Constitution Center. And welcome to We The People weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. We're thrilled to produce this episode of We the People in partnership with Ballotepedia the digital encyclopedia of American politics and elections. Ballotpedia shares objective neutral information that informs millions of voters and candidates. And we are excited that they're here to join our nonpartisan exploration of the text and history of the election clause of the Constitution and some of the leading court cases that are bubbling up in America. From Ballotpedia we're thrilled to have joining us Sarah Rosier. Sarah is Ballotpedia's news editor. She's been a Ballotpedia since 2013 and has served as director of the Congress Project and covered everything from presidential elections to the federal courts. Sarah thank you so much for joining.
Sarah Rosier: [00:01:10] Thanks for having me.
Rosen: [00:01:11] Sarah is joined by the co-authors of our interactive constitution explainer on the Elections Clause. Michael Morley and for FranitaTolson. And dear listeners just as Franklin Roosevelt asked the American people to take out their maps during a radio show I want you to take out the interactive constitution explainer on the election clause so you can explore Michael and for Anita's areas of agreement and disagreement. Michael Morley is assistant professor at Florida State University College of Law where he specializes in constitutional law and election law. He's the author of many publications including Prophylactic Redistricting: Section 2 of the Voting Rights Act and the New Equal Protection Right to vote. Michael thank you so much for joining us.
Michael Morley: [00:01:51] Thank you very much for having me.
Rosen: [00:01:53] And for FranitaTolson is professor at USC Gould School of Law where her scholarship and teaching focus on election law and constitutional law. She was previously the Betty T. Ferguson professor of voting rights at Florida State University College of Law. Her forthcoming book A Promise Unfulfilled. Section 2 of the 14th Amendment and the future of the right to vote will be published in 2019 by Cambridge University Press. For Nina, congratulations on the book and glad to have you with us.
Franita Tolson: [00:02:21] Thank you, I'm really delighted to be here.
Rosen: [00:02:22] Wonderful. All right let's jump right in. Michael describe if you will. What you and Franita agreed was the core original meaning of the elections clause?
Morley: [00:02:36] Well the elections clause is the constitutional provision that confers power to regulate the the congressional election process and the the clause primarily empowers state legislatures to enact what the Supreme Court has called a complete code for the regulation of federal elections. So under this grant of power from the Elections Clause state legislatures are allowed to pass voter registration laws, determine how to assign polling places right, determine how what the canvassing rules will be, what the ballot counting rules will be. All of the various aspects that go into conducting a congressional election. The elections clause says state legislatures have the power to do that. However Congress gets to make or alter such rules so if Congress either disagrees with laws that certain legislatures have passed or even if legislatures haven't regulated on an on a particular issue at all. Congress is free to step in and enact its own federal statutes to address a particular particular aspect of the of the congressional election process. I think the most remarkable thing about the clause is that it shows structurally and in fact it's one of multiple constitutional provisions that structurally empower the political branches right elected state legislatures elected chambers of Congress to regulate congressional elections.
Rosen: [00:04:02] Thank you so much for that for any of them. Franita you note with Michael in your common explainer about some important cases where the court has held that the election clause doesn't permit a state to refuse to print on the ballot the names of candidates who've already served three terms and validating term limits that's the Thornton case. And you also note that the court doesn't confer the power to regulate congressional elections on the state as a whole but instead a legislature of the state. I think you disagree in your separate statements about how broadly the legislature should be interpreted. And you note that in the Arizona state legislature case the Supreme Court read the legislature broadly enough to encompass the ballot initiative process that Arizona residents used to delegate the legislature's redistricting authority to an independent redistricting commission. Tell us why you think that the Arizona case was correctly decided and legislature should be interpreted broadly as well as any other things you'd like to signal about the elections clause
Tolson: [00:05:02] So I think one of the things that Michael mentioned in his excellent opening is the fact that the clause also delegates to Congress the authority to veto state regulations with respect to time place and manner of federal elections. And so it's it's my view that as a part of that control in essence the clause gives gives Congress final policymaking authority when it comes to federal elections, even though states can in the first instance set the time place and manner of federal elections. So with respect to the ability of redistricting to take place through ballot initiative there was actually a law in 1911 that Congress passed that that that sort of allow states to have broad authority in that area and because Congress had signed off on it in essence and because Congress has final authority under the clause I thought that you know that broad interpretation of legislature was OK in part because Congress played a role in sort of determining the scope of state power and because it has the final say. I thought that the case was correctly decided.
Rosen: [00:06:06] Thanks so much for that. Michael I sense from your common statement that you disagree on that point and think that the Arizona state legislature case was wrongly decided. Can you tell us why and why you think the court was wrong to ignore the plain meaning of the elections clause.
Morley: [00:06:21] Absolutely. The Constitution has many clauses. There are many phrases rather like equal protection of the laws, due process of the laws, where they employ vague language that many people argue point to general principles point to abstract concepts that it's very easy to have debates about. The word legislature which appears in the Elections Clause or the elections clause specifically delegated authority not to the state as a whole but specifically to the legislature of the state is one of those terms in the Constitution that is very concrete that is very specific. The term legislature appears at least ten times throughout the Constitution and in every other single context where the word legislature appears it is clear from the context it is clear from the use that it is referring to what we would think of as the institutional state legislature; a multi member body of elected officials that periodically convenes to enact laws. And so the notion that legislature as used in the elections clause means something else than it means throughout the entire rest of the Constitution; means something different that it meant in every single state constitution that existed at the time the US Constitution was was ratified, I think is indefensible.
Rosen: [00:07:42] Thank you so much for that. Well We the People listeners you now have a sense of the agreement and disagreement about the scope of the word legislature and elections clause. And I want you to dig in on the cases to learn more for yourself. Sarah let's now run through the major constitutional voting rights cases that are bubbling up in the lower courts and up to the Supreme Court and then ask our dream team of experts to give us the legal arguments on both sides. There are a series of controversies involving voter I.D. laws including in North Dakota and elsewhere. Tell us about some of the major ones and help us set up the legal issues there.
Rosier: [00:08:18] Let's talk about North Dakota first. So this has gone back to 2016 when we thought a federal court case tackling the North Dakota voter I.D. law. Doug Brigham the governor of North Dakota at the time has had re-established and signed into law another state voter I.D. requirement and that now that's made its way up to the courts. The last we heard was from the Supreme Court. They stayed the law and that will go into effect in North Dakota. I'd love to hear from the panelists some some factoids on how rare the North Dakota law is, what this means for the voters. One thing of note is that in North Dakota it is the only state in which there is no formal formal voter registration system. So while they do have this voter I.D., there isn't like other states that you have to register by such and such date and prove your proof of residency through the voter registration. There's no sort of system in place for that. So this is kind of a different voter I.D. case. So Franita I'd love to hear from you first and then Michael about your thoughts on this North Dakota voter I.D.?
Rosen: [00:09:27] Yes that would be great and Franita you might give us a sense of what the broad constitutional challenges to voter I.D. laws are and what the courts are holding on on both sides of the issue and then give us a sense of your thoughts of the North Dakota case.
Tolson: [00:09:41] Of course. So voter I.D. laws have been challenged over the last few years on a number of grounds so litigants have challenged them on constitutional grounds as violations of the 14th the 15th Amendments the 14th Amendment right to vote that it burdens the right to vote and also the 15th Amendment in terms of the ban on racial discrimination in voting. They've also also been challenged under the Voting Rights Act. And I think litigants have had more success challenge in challenging these laws under that provision. The North Dakota law is interesting because and I mean interesting in a bad way, in that it requires residents to have a street address in North Dakota. And the problem with that is that there are quite a few Native Americans who live on reservations where there are no street addresses and the state was well aware of this when they pass this law. The Supreme Court allowed it to go into effect which is which is also unusual in the sense that the court generally does not permit laws that would change the election rules close to an election set to go into effect. And as you know we're only at this point eight days out from the midterms and I think we were maybe a little over a month out when the Supreme Court allowed it to go into effect. And so the effect of this law is to to disenfranchise a significant portion of Native Americans who don't have street addresses and because they also don't have the supplemental information that they will be able to use in order to to supplement theirI.D. that doesn't have a street address. They can come forward with for example a utility bill or a check issued by the federal state or local government and so on in order to further verify their identification. But a lot of them don't even have that. So the end result is that a significant percentage of Native Americans in North Dakota will be disenfranchised by this law. But one thing that gets ignored in this conversation is the fact that a significant portion of white people will also be disenfranchised because of this law. So one of the things that the district court found here was that almost sixty five thousand non-native voters don't possess qualified voterI.D. under the new law. So I know we typically think about voterI.D. and how it affects communities of color but it also affects white people in North Dakota as well and in other communities as well. And I think that's worth bringing into the conversation so that we have an understanding of how devastating voterI.D. can be in certain situations. One thing I also want to point out before I be quiet, is that keep in mind that in 2016 which is a presidential election year only three hundred fifty thousand people voted in North Dakota. So it's not like it's a state that has a substantial population where it could sort of absorb if twenty five hundred people are disenfranchised. Twenty five hundred people. Twenty five hundred Native Americans is a lot because it's a small population. Sixty five thousand non-Native Americans who are affected by thisI.D. is a lot in light of the fact that only 350000 people voted in 2016. So the effect of this law is actually pretty devastating. If you think about it in context.
Rosen: [00:12:53] Thank you so much for all that. Michael, thirty three states have enacted voterI.D. laws of different kinds and in 2008 and the Crawford against Marion County Election Board case the U.S. Supreme Court upheld an Indiana law requiring voters to provide photographic identification. So tell us about the significance of the Crawford case, how it affects the North Carolina case and broadly what the legal debate is in these voterI.D. challenges that are bubbling up across the country for and against.
Morley: [00:13:26] Franita's absolutely right. The main issues that that you tend to see focus on from a constitutional perspective around whether there was intentional racial discrimination in violation of the 15th Amendment whether there is a substantial burden in violation of the 14th Amendment Section two issues under the Voting Rights Act. Crawford in Crawford the Supreme Court rejected a facial challenge to a voter ID statute. Here the North Dakota challenge the constitutional aspect of it, was brought primarily as a facial challenge because the as the 8th Circuit held the individual plaintiffs actually had street addresses and so the Supreme Court or excuse me the 8th Circuit held they weren't in a position to bring an as applied challenge. So most of the controversy centered around whether this law was facially valid and specifically it centered around the requirement that theI.D. has to have a street address on it that the voter'sI.D. has to have a street address on it rather than simply a P.O. box. And I think that that's where the context matters greatly that we're talking about a state here that doesn't have voter registration. There are no centralized voter databases to let state officials know. Individual cities if they wish were allowed to set up their own, but on a statewide basis there is no database to even let officials know where people are supposed to be registered and what what their proper precinct is what slate of local officials there they're supposed to be they're supposed to be voting on and the state legislature at least according to the according to the 8th Circuit opinion considered alternatives like having a map at the at the polling place and having each voter try to find on the map exactly where they are and then trying to cross reference from that what ballot they should get and whether they're whether they're eligible to vote. And so particularly in the context of not having voter registration records what the what the 8th Circuit wound up suggesting and apparently the Supreme Court we at least to some extent appears to have agreed with that that there is a legitimate interest here in simply, hadn't even even putting aside even putting aside fraud concerns, just in managing the election accurately in managing the election efficiently having some government document. And I'll emphasize by the way it includes tribalI.D. that this isn't a situation where they're trying to engage in I.D. gerrymandering so to speak by by targeting the modes of identification or methods of identification that just certain groups are able to have and so even a tribalI.D. as long as it has the street address could be valid and apparently they simply by calling the county there's a 9 1 1 coordinator in each county voters who don't have street addresses can actually get them assigned to them ahead of time and they can they can get it they'll get a letter from the county just saying use this as your street address and they can they have a choice. They can either use that letter to get an I.D. with the street address on it or they can bring that letter along with some otherI.D. that otherwise wouldn't comply with the statute. And that would be and that will satisfy the law. And the other point that that that Franita raised right. This isn't a law targeting Native American voters for every Native American voter 13 non-native, according to the statistics that the that the 8th Circuit relied upon, 13 non-native voters are are impacted by the law and will have to go through the process of getting a street address so that election officials know where they're supposed to be voting from. So it particularly in this in this context I think that this voterI.D. law especially given that it at least appears that the street address requirement can be satisfied by making a phone call I think doesn't really pose serious constitutional questions.
Rosen: [00:17:23] Many thanks for that. Sara because of voterI.D. challenges are so important can you give our listeners a sense of the situation on the ground how many voterI.D. challenges are pending How are courts tending to rule. And we've heard the arguments on both sides on the one hand avoiding racial discrimination both under the 14th and 15th amendment. On the other avoiding voter fraud and allowing efficient administration of elections. Are courts all over the place, or how are they tending to rule on these issues.
Rosier: [00:17:52] So we saw quite a few 34 states now have voter ID requirements. Seventeen of those you are required to present photo ID while the other 17 there are different other accepted non photoI.D. requirements for for showingI.D. We're seeing we're seeing some cases this year in North Dakota being a very big one. It's attracted the attention of celebrities. I think there is a big concert out on one of the reserves last weekend where Mark Ruffalo and I think the Dave Matthews Band were there protesting this and encouraging the tribes to get out and vote. So we are seeing in those 34 states in 2016 there are the big ones. I think North Carolina Texas we saw the big cases there and I expect that the Supreme Court will in the next two sittings take up these as they make their way through the courts. But we're we're seeing some of the precedent kind of trickled down through. I think that's that's the context that we'll be tracking we have a page called voter ID laws by state where if you are unsure what is required for you as you go out to vote either through early voting this week or next Tuesday we have a full breakdown of what is required for for your state. You can get a good sense before you get caught up at the polls.
Rosen: [00:19:19] Thanks for that. Franita moving forward. How many of these cases do you expect to succeed ultimately before the Supreme Court and how will the scope of voting in America be changed by the legal challenge or not?
Tolson: [00:19:35] I don't expect that they'll be very many successes with respect to challenging voter ID laws. I think that the current lineup of the court will not be sympathetic to empirical evidence showing that these laws have a disproportionate impact on people of color. Also that there are people who are impacted who may not be a part of a minor minority group. I don't mean to suggest that you know if it if it affects more people then it means that the state didn't seek to single out a particular group. I think the fact that it affects more people is also problematic. But I don't think that the court will be sympathetic to that because they think that the state's interest in preventing voter fraud even if there is no empirical evidence that the law necessarily is designed to address fraud. This is about being deferential to the state in a way that it unfortunately has a negative impact on the scope of voting rights.
Rosen: [00:20:35] Thank you for that. Michael, with the addition of Justice Kavanaugh to the court can you imagine any challenges to voterI.D. laws succeeding and if not what would the court's reasoning rejecting the challenges look like?
Morley: [00:20:47] Absolutely under under current doctrine, if a voterI.D. law is adopted with a racially discriminatory purpose then that is a flat violation of the 15th Amendment and the court would strike it down and I certainly don't see any narrowing of 15th Amendment protections or or any change in the approach to that doctrine. And I also think that as more of these laws are enacted as there's more as there's more litigation we get to say we're going to see most of the litigation in my in my opinion most likely tending to focus on as applied challenges as well as Franita mentioned before a section two challenges under the under the VRA. But at least what what I would hope is that based on having a both a variety of statutes as well as variety of cases that shows the different ways that populations are affect are affected by voterI.D. laws that eventually we can move past kind of the knee jerk partisan reactions on both ends of the spectrum and start crafting laws that do have as some do and craft laws that have escape valves for somebody who is in a really unique situation or really unpredictable situation and try as they might there really is no realistic way for them to be able to to satisfy the ordinary requirements or get an ID will get the typical ID properly crafted. These, particularly if they're enacted well in advance of elections when there is enough time to comply particularly if they are somewhat liberal so to speak in terms of what counts as as voter as as valid forms of ID, they do not need to be tools of disenfranchisement they literally can be mechanisms for ensuring efficient elections more than more than anything else for reinvigorating public confidence in the electoral process and I hope we continue to see the evolution of these laws in order to try to address all of the competing interests at stake.
Rosen: [00:22:56] Thank you so much for that. Sarah, let's turn next to the Florida Felon Disenfranchisement Law. There is an overview on Ballotepedia which answers the question "What would a Florida amendment change about the voting rights of convicted felons." The amendment was designed to automatically restore the right to vote for people with prior felony convictions except those convicted of murder or felony sexual offense. Tell us about Amendment 4 in Florida and how it would change the voting rights of convicted felons and what the legal challenges are.
Rosier: [00:23:27] Yes this is fought on Amendment 4. Currently in Florida law, Florida is one a fourth states where convicted felons do not regain the right to vote until and unless a state officer or board restores an individual's voting voting rights. So they have to petition for their voting rights to be restored. We saw that this was part of the original Florida Constitution amended in 1968. That's active still today in 2018. We saw aU.S. District Court Judge, Mark Walker, rule that Florida's process for the restoration of voting ability for felons was unconstitutional stating that it did violate the First Amendment and the 14th Amendment. So we'll see what happens here. Governor Scott announced that he would appeal the ruling to the 11th Circuit and the 11th Circuit did concur with Governor Scott's request. So we're seeing the court amendment stands in the constitution. But this Florida Amendment 4 depending on what happens on November 6th could could be adjusted.
Rosen: [00:24:33] Thanks for that great overview. Franita what are the constitutional arguments for and against felon disenfranchisement laws?
Tolson: [00:24:41] So felon disenfranchise. The Supreme Court in a case Richardson vs. Ramirez found that a state could disenfranchise their felons consistent with section 1 of the 14th Amendment the Equal Protection Clause in part because Section 2 of the 14th Amendment has an exemption for felon disenfranchisement an exemption with respect to applying the penalty of reduced representation to those states that abridge the right to vote. So the the Supreme Court reasoned that because Section 2 exempted felon disenfranchisement from the reach of its provisions then therefore felon disenfranchisement did not violate Section 1 of the Fourteenth Amendment. So that's generally the legal argument for felon disenfranchisement laws. Of course the response is, there are actually many responses one can make. So one thing is that it has a, they're racially discriminatory both in purpose and effect. So around the turn of the century, I forget that this isn't 2000 so I guess that would be the turn of the last century. All right it's been a while. So let's just say that eighteen eighteen eighties eighteen nineties many states adopted felon disenfranchisement laws in order to prevent their black populations from being able to cast a ballot. And so the Supreme Court in a case called Hunter vs. Underwood actually struck down Alabama's Felon Disenfranchisement Law because it was enacted with racially discriminatory purpose because during their constitutional convention for their state constitution there were actually comments made that the law was adopted in order to further racial discrimination. But for most states you don't have those you know smoking gun statements where you have legislators making comments that they are trying to disenfranchise African-Americans. Now Florida's law did have the effect of disenfranchising a substantial portion of African-Americans within the state and also the process used to restore voting rights was very ad hoc and arbitrary. So individuals would have to go before the governor and two other cabinet officials usually the attorney general and I forget the third official in order to sort of make their case that their their voting rights could be restored. And the committee could deny you for any reason. So there was no systematic way to get your rights restored. Florida Amendment 4 seeks to change that by just doing automatic restoration which will probably have the effect of changing the political landscape of the state. So it is remarkable in that sense but but generally speaking felony disenfranchisement laws, unless you prove that they are enacted with discriminatory purpose as in the case of Alabama, is very difficult to lodge a constitutional challenge against them. There have been some successful cases under Section 2 of the Voting Rights Act because two court of appeals found that the laws had a racially discriminatory effect but generally speaking those cases are rare as well.
Rosen: [00:27:42] Many thanks for that. Michael your thoughts on the constitutional challenges to disenfranchisement laws the likelihood of success and your thoughts about laws like Florida's Amendment Four which seeks to restore the voting rights of felons.
Morley: [00:27:55] I agree with Franita that from a from a constitutional perspective the fact that Section 2 of the 14th Amendment expressly contemplates the possibility of states not extending the right to vote to people convicted of crimes makes most types of 14th Amendment challenges, forecloses the possibility really of any types of 14th Amendment challenges other than ones based on intentional racial discrimination that it given that the Constitution's plain text expressly contemplates the possibility of not extending the right to vote to to people convicted of crimes it's very difficult to try to say the very same amendment also makes it per say unconstitutional. So to the extent there is evidence of intentional racial animus behind felon disenfranchisement provisions then as with any provision of law it would be unconstitutional. One of the points that the 11th Circuit made when it upheld the constitutionality of Florida's provision was that Florida's felon disenfranchisement provision the court held was not motivated by any form of racial animus and one of the considerations that the court took into account is the fact that the Florida Constitution either authorized felon disenfranchisement or provided for felon disenfranchisement prior to the eighteen sixties before the state had even extended the franchise to African-Americans. The Court held it would literally be impossible for the felon for the predecessors of the felon disenfranchisement provision to have been motivated by any sort of racial animus because the franchise had already been limited on racially just racially discriminatory grounds.
Rosen: [00:29:42] Thanks so much for that. Sarah, our next topic and it's a big one is gerrymandering. In the Gill v. Whitford case last year the Supreme Court refused to rule on the merits of whether partisan gerrymandering might violate the First Amendment to the constitution among other provisions. In light of Gill there's been a lot of lower court activities including in late August in North Carolina where the district court ruled that the state's gerrymandered districts were unconstitutional. Tell us about the state of the play in North Carolina, Michigan, Pennsylvania, and elsewhere and what are the pending challenges to gerrymandering?
Rosier: [00:30:25] So I'll Michael for me to talk a little bit about those court cases but what we're looking at Ballotpedia specifically is what's going to happen in 2019 with redistricting. So if you allow me to give you give you a little bit of background on the different state by state redistricting procedures. So as of August 1 some of these court cases are being ruled. Congressional redistricting was the province of state legislatures in 37 states. So we saw in four states there were independent commissions which I think some of these court cases revolve around the legality of what the independent commission does, and who's in charge of appointing these commissioners. In two states, it fell to political commissions and gubernatorial appointments and things like that. And then the remaining seven states are some of the states that only have the one congressional district so that kind of nullifies the need for redistricting commission or the congressional level. So one thing we're noticing is you look at the National Democratic Redistricting Commission this political group that has come out I believe from Eric Holder in 2018, fundraising specifically for state legislative elections. We're so excited at Ballotpedia because these state legislative elections often don't get their deal. But this year they are and what we've been tracking are trifectas meaning one partisan party is in charge of both the governor's mansion and the full legislature. This is the state House and the state Senate. And what that could mean for these redistricting cases these gerrymandering cases in 2019 and beyond. So when you look at trifectas you see that 27 states are Republican trifectas. Again that that means that Republicans have a hold on the state governments in those 26 states. Only eight states are Democratic factors and 16 states are under divided government. If you remember I mentioned that in thirty seven states the state legislature controls us. So this is a big deal. Whether or not these states will still have this trifecta status heading out of 2018 because we could see some of these court cases being vacated if Democrats pull back some of these legislatures in these states if there is a quote unquote Blue Wave next week. But that's what we're focusing on right now is all right, so we have so many cases making their way up. We've seen a lot of them get ruled on in the past couple of years. But what happens if Democrats do have this blue wave. Some of these trifecta are broken up who will be in charge of this next census. It's going to be a very big issue. I'm based out of Maryland and the likelihood of Larry Hogan getting reelected is not great for Democrats because of how redistricting is set up in Maryland state elections really really matter this year because this next census and this next round of redistricting will happen in the next four years. So that's one thing we're tracking here but I'll turn it back over to the panelists for more on the court cases involved.
Rosen: [00:33:45] Thanks very much for that. Thanks for giving us a breakdown of the states where one party controls both the governorship and the state legislature and Franita, now let's turn to the constitutional challenges. Describe what Gill and Whitford held didn't hold. And in light of Gill and Whitford, what are lower courts holding when confronted with challenges to partisan gerrymanders and are they likely to succeed or not?
Tolson: [00:34:07] so Gill vs. Whitford, the court found at the plaintiffs didn't have standing to challenge the gerrymander in Wisconsin in part because they try to use evidence as of sort of statewide bias when trying to prove that they were individually harmed so they didn't have standing because they couldn't prove an injury based on evidence that they used. So the interesting thing about Gill though is for at least for me is less the majority opinion and more justice Kagan's opinion because what she does say is she tries to lay out a plan forward. Now I was one of the people who prior to the decision thought that the court would find that partisan gerrymandering claims were non-justiciable. I just you know and maybe I should be in the business of making predictions. I concede that. But I did think that they were going to find that they were non-justiciable. So it's really interested in that Justice Kagan lays out this this map for trying to bring this type of claim that tries to overcome some of the hurdles that the plaintiffs have with respect to the evidence that they wanted to that they tried to rely on in order to establish a claim. So she frames it as a First Amendment issue. So it sort of harkens back to Justice Kennedy's opinion in the case where he suggested that the First Amendment might be a better vehicle to challenge a partisan gerrymander but she does it in a different way. She outlines it as a form of vote delusion. That a plaintiff will be able to show that their right of association is impacted by the cracking and packing that goes on in any given gerrymandered point. And so what she's doing so even though the majority kicks it all standing, I think that litigants can sort of look to Justice Kagan's opinion as a a road map for litigating these cases going forward.
Rosen: [00:35:49] Thanks so much for that. Michael your thought about the roadmap moving forward. Do you imagine that the court with Justice Kavanaugh might be sympathetic on the merits to the argument that Justice Kagan spelled out in her opinion or not. And how does that impact the cases that are bubbling up.
Morley: [00:36:07] I would be surprised if the Supreme Court were to, or if a majority of the court, were to accept Justice Kagan's invitation. And in part I would trace this reluctance back to the chief justice. Any, or at least most forms of political gerrymandering claims, are typically are based on the premise that through expert testimony, in particular through political science testimony, courts can find as constitutional facts how voters are likely to vote in particular elections under different sets of circumstances years into the future and are and are and are able to predict the outcomes of a particular redistricting schemes with sufficient certainty that they can declare certain schemes unconstitutional or not. I don't remember if the if the chief justice referred to this as argle bargle or gobbledygook these these are highly technical terms that that that sometimes are used to interchange
Rosen: [00:37:13] Argle bargle was Justice Scalia wasn't it? Gobbledygook was the Chief, absolutely. Yes absolutely.
Morley: [00:37:20] And so the the chief has has expressed a skepticism through whichever way through or through which whichever technical term he employed is expressed the skepticism about relying on this type of of of social science data in this context. And I think that the 2016 election and in particular right for those people who were following the famous needle on election night I think the outcome for 2016 elections simply reaffirms the propriety of at least a degree of skepticism in the notion that courts are institutionally capable of sorting through this this type of testimony looking into the future. And I will also add by the way to a certain extent many types of political gerrymandering claims view voters, require courts to treat voters, as fungible interchangeable automatons that essentially no matter who the candidates are, no matter what the issues are, no matter how the districts are drawn, that they're going to reliably vote Democrat or Republican. And particularly in states that don't have party registration where you don't even have where you don't even have the hint so to speak of people who have chosen to register as Democrats who chosen to register as Republicans. And of course we know many of those people it's sometimes split their tickets don't necessarily vote vote straight party lines. I think it puts it puts courts in very difficult institutional positions that if that if courts do feel they have this power to to to to look at the future it somewhat calls into the question well why are we going through through this electoral process at all. I think if you look at first amendment case law if you look at the what the Supreme Court has said about the importance why political parties have a fundamental First Amendment right to pick their standard beare,r why candidates have and other politically involved entities have a First Amendment right to spend unlimited amounts of money on independent expenditures on political advertising on political communications. The notion is it's because all of this matters it's because many people's votes are going to hinge on who the candidates are what the issues are what what the debates are and a lot of that tends to get abstracted away in the context of most of these theories underlying political gerrymandering claims.
Rosen: [00:39:43] Thank you so much for that. Sarah, we were at our last broad set of cases on the Ballotpedia election policy page, you identify redistricting laws, voterI.D. laws, and then there's a category for early voting and absentee voting laws, and you helpfully spell those out state by state. Tell us about the early voting and absentee voting laws and what some of the legal controversies arising from them are.
Rosier: [00:40:10] Yes. So we have we just did a big project that we're doing in our daily morning newsletter just for each voter in each state outlining when they can go to the polls what their early voting looks like. Again there's some overlap here with some of the policy related to voterI.D. but we have seen the majority of the country has already been able to go to the polls if they want to. So this year seven states began their early voting periods in September. So we've already had now a month over a month of voters in Illinois, Minnesota, New Jersey, North Dakota, South Dakota, Vermont, and Wyoming have the ability to go to the polls starting in September. Another 24 states began in October and then there are 13 states who do not have any sort of early voting and those are spread across the country. It's not just one geographic area or another it's states like every state from New York to I think New Hampshire and down there a few Alabama and Mississippi. So we have seen it depending on where you are in the country. It definitely varies by your locality in your state but a good chunk of the country has already started voting. If they would want and of course there are the Washington, Oregon, and Colorado who they only vote via mail-in ballots. So those are things we track and if you have questions about how to vote in your state, please please head to Ballotpedia.org But those are mainly controlled by, similarly to redistricting, those types of laws are mainly controlled by the legislature. So again 2018 could have a dramatic effect on what that early voting map looks like for 2020 and beyond. And that will likely be an issue as we start talking about presidential on November 7th. So that's that's one thing we'll be tracking over here.
Rosen: [00:42:06] Michael there was some controversy over Ohio in the last cycle. Tell us what you can about the legal framework for early voting and absentee voting challenges.
Morley: [00:42:16] The major challenge that I was aware of with regard to absentee voting was a procedural due process challenge with regard to signature match. That with with with regard to absentee voting, obviously the whole point of it is that you're not showing up your're you're you're doing it typically by mail and in order to make sure that ballots are being submitted by the voters who claim to be submitting them, the main safeguard that many states implement is signature match where you are after you after the voter you request or absentee ballot the ballot comes back you fill out the ballot selecting the candidates that you want you put the ballot back in the envelope you then have to sign the sign the envelope across the seal. And then when the ballots are submitted to election officials they compared the signature to the signature they have on record potentially even for many many years ago when you had first registered to vote or if you did it through Motor Voter when you got your got your driver's license and if if either someone forgets to sign the absentee ballot or if the signatures do not appear to match that that they did that if it looks like that the signature might not have been from the person who had filled out the registration form that there's that that there is some kind of concern about potential fraud that under these signature match laws the absentee ballot then does not get counted. And so in Georgia a court if a federal court entered a restraining order against enforcement of the signature match statute. And I know in many states and as the absentee ballot these these results are court or are coming in, there is concern about the application of the signature match laws because you put in depending on state law voters might not even necessarily know that they're that their vote isn't being counted that their vote has been rejected due to either the fact they forgot to sign the ballot or the signature didn't match.
Rosen: [00:44:29] Thank you for that. Franita, I think we're gonna give the last word to you in light of the arguments that Michael hasdescribed for challenges to previous voterI.D. and signature law matches. What do you make of those arguments and do do you find them persuasive or not?
Tolson: [00:44:45] So I get larger concerns about sort of making sure that people are who they are about matching the signatures. But I think especially you know all of this is happening in a context where there is broad disenfranchisement in Georgia right. So not only do we have the signature match which was challenged and stopped and then the secretary of state who's also running for governor reinstituted it but he also purged 300000 plus voters. So it really is a combination of things. Right. So the signature match combined with the voter purges really does have the effect of disenfranchising a substantial portion of voters in Georgia in a way that I think raises significant concerns. You know, it's a good thing that you know voting rights advocates are being vigilant about you know sort of watching what's going on there and consistently filing lawsuits because the secretary of state's willingness to reimpose signature match even after a federal court told him not to do it sort of shows his dedication to making sure that everyone cannot vote.
Rosen: [00:45:47] Thank you so much for that. Well it's time to close but we the people listeners I want to end by encouraging you to continue to educate yourself about the constitutional arguments surrounding voting rights. Begin with Franita and Michael's wonderful joint explainer on the Elections Clause. Also read Michael's joint explainer on the twenty sixth amendment which changed the voting age to 18 as well as the provisions on the 15th Amendment joint explainers involving racial discrimination in voting. As always the best way to be an engaged citizen is to educate yourself about the Constitution. The interactive constitution is the best place to begin and we're so grateful to our partners at Ballotpedia for helping us sponsor this constitutional exploration of the right to vote. Sarah Rosier, Franita Tolson and Michael Morley. Thank you so much for joining.
Morley: [00:46:40] Thank you very much.
Rosier: [00:46:41] Thanks.
Tolson: [00:46:41] Thank you.
Rosen: [00:46:48] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please remember to rate, review, and subscribe to We the People wherever you listen and tune in to our companion podcast, Live in America's Town Hall, we release those episodes on Tuesday and those are the audio for our great public programs here in Philadelphia and around the country which are so important in spreading constitutional light. If you'd like to keep up with the Constitution Center through your inbox please sign up for our email newsletter Constitution Weekly at bit.ly/constitutionweekly. It's a compilation of all of our content the videos the podcast selections from the interactive constitution - a veritable constitutional feast. Or as Tocqueville called it a gratuitous public school. So We the People listeners it would be great if you signed up and of course as you know I want you so much to sign up and become a member of the National Constitution Center to support our crucial work in increasing awareness and understanding of the Constitution among the American people. You’re such great ambassadors for us and I want you to join us as part of our common crusade. On behalf of the National Constitution Center. I'm Jeffrey Rosen.
