• Live at the National Constitution Center Podcast

A Constitutional History of the Right to Vote

July 21, 2020

What did the original Constitution say about the right to vote? How has that changed over time, and why? In celebration of the 100th anniversary of the 19th Amendment and the 150th anniversary of the 15th Amendment in 2020, the National Constitution Center hosted a program featuring a panel of voting and election law experts who addressed those questions and more. They also reflected on the memory of legendary voting and civil rights advocate Congressman John Lewis, the anniversaries of two landmark suffrage amendments, and other key laws and Supreme Court decisions that changed the scope of suffrage in America. National Constitution Center President and CEO Jeffrey Rosen was joined by Alexander Keyssar of the Harvard Kennedy School, Derek Muller of Iowa Law School, and Franita Tolson of the USC Gould School of Law.

This program was part of the Center’s yearlong initiative, Women and the Constitution, celebrating the 100th anniversary of the 19th Amendment, and was made possible through the generous support of SteegeThomson Communications.

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PARTICIPANTS

Alexander Keyssar is the Matthew W. Stirling Jr. Professor of History and Social Policy at the John F. Kennedy School of Government at Harvard University. He is the author of several books, including The Right to Vote: The Contested History of Democracy in the United States and Why Do We Still Have the Electoral College?. In 2004 and 2005, Keyssar chaired the Social Science Research Council's National Research Commission on Voting and Elections. He writes frequently for the popular press about American politics and history.

Derek Muller is professor of law at the University of Iowa College of Law. His work has appeared in the Arizona Law Review, Indiana Law Journal, the Arizona State Law Journal, the Florida State University Law Review, the Harvard Journal of Law & Public Policy, Fordham Law Review, and the peer-reviewed Election Law Journal. He previously taught at the Caruso School of Law at Pepperdine and Penn State Law. Muller practiced as a litigation associate at Kirkland & Ellis LLP in Chicago. His opinion pieces have been published in the Wall Street Journal and the New York Times.

Franita Tolson is vice dean for faculty and academic affairs and professor of law at Gould School of Law at the University of Southern California. Her forthcoming book is Rethinking the Constitutional Structure of Political Rights: The Evolution of Federal Voting Rights Enforcement from the Founding to the Dawn of the Progressive Era. Her research also has appeared in several leading law reviews and she has written or appeared as a commentator for various mass media outlets including The Huffington Post, The Hill, Reuters, and Bloomberg Law. Prior to joining USC Gould, Tolson was the Betty T. Ferguson Professor of Voting Rights at Florida State University College of Law. 

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

This episode was engineered by the National Constitution Center's AV team and produced by Jackie McDermott and Tanaya Tauber. 

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. The podcast sharing live constitutional conversations hosted by the national constitution center. I'm Jackie McDermott. The show's producer. What did the original constitution say about the right to vote? How has that changed over time and why? National constitution center president Jeffrey Rosen hosted a panel addressing those questions yesterday.

It featured voting and election law experts. Alex Keyssar of Harvard. Derek Muller of Iowa law and Franita Tolson of the USC Gould School of Law, they also discuss the memory of legendary voting rights advocate, Congressman John Lewis and milestone anniversaries for the 15th and 19th amendments. Here's Jeff to get the conversation started.

Jeffrey Rosen: [00:00:45] Alex, Franita and Derek. Thank you all so much for joining. Thank you. Thank you. Us began with Alex's book and friends. Please consider getting it because it's definitive history of the right to vote in America and perfect, homework, which I hope you'll be inspired to read after today's discussion. In this important book, Alexander Keyssar, you argue that the right to vote has not been a steady bending of an arc toward justice or toward universal suffrage.

Instead, it's been a bumpy ride with peaks and valleys, and you note a similar series of cases of outright reversals of the right to vote. For example, women in New Jersey had the right to vote until 1807 and then lost it for more than a century, you know, until the 19th amendment African Americans in many Northern States had the right to vote at the time of the founding.

And, then lost that right in the 1820s and fifties and people of foreign birth similarly had the right to vote in the Midwest and Southwest. And then lost it in the 19 hundreds in an effort to limit the power of immigrants. A broad question, but tell us about that. The unsteady progress of suffrage in the United States.

Alexander Keyssar: [00:01:59] Thank you, Jeff. Thank you for the introduction. Thank you for, for this question, you know, there used to be, you know, a history that was much more comforting of the right to vote, which was okay. Yes. When the nation was f founded the suffrage rights were limited to white male property owners, but then it's been onward and upward ever since.

So it's a Chronicle of progress. What I found in doing the research for the book was precisely what you described and what seems to happen is that each advance or most advances are accompanied or followed by conflict over those advances or conflict over the actual exercise of the expanded franchise.

I mean, you mentioned several examples. let me mention a few more in the early 19th century and the first sort of third. between 1810 and 1850 property requirements are eliminated in most States, in all States by 1850. There are no property requirements to vote, but often the same constitutional conventions that did that.

Instituted other requirements, such as a prohibition of poppers voting, poppers, being defined as anybody who was dependent on the state, some of those same conventions that, that eliminated property requirements in Northern States, disenfranchised African Americans who had not been franchised earlier.

After the civil war, you mentioned the broad pattern of immigrants being restricted. And we find these, these remarkable quotes from leading intellectual figures in the 1870s saying, if we had known there were going to be all of these immigrants, these poor immigrants flocking into the country, we never would have eliminated it property requirements.

And so what they turn around and do. It's very hard to actually re-institute a property requirement after you've gotten rid of it. But what they do is to create a lot of procedural obstacles to those immigrant voters voting. If one wanted to be a little bit shorthanded about it, they switched from disenfranchisement to voter suppression.

And of course the big story, the largest quantitative story in the late 19th century, is that African Americans who are technically, enfranchised by the 15th amendment to the constitution after the Civil War are removed wholesale from the electorate, in the South by 1900. and the, you know, the pattern continues in ways small and large.

And just to round this out, I would say, that the kinds of restrictions on and obstacles created to the exercise of the right to vote that have been going on. That are going on this year. And that have been going on for the last 20 years, perhaps 30. Are in a key respect, reaction, against the broadening of the franchise, which occurred in the 1960s and the 1970s, which is a very, very significant historical development involving not only African Americans, but also, immigrants and speakers of foreign languages.

So I think this pattern continues and. we have to recognize that not all of the American population has been happy about the expansion of the franchise.

Rosen: [00:05:36] Thank you very much for that. A powerful distillation of the wisdom of your book. It is meaningful to learn that there is a precedent for efforts to restrict the franchise by imposing voter ID requirements or trying to prevent fraud and this period, you identify in particular from around 1850 through World War One, where the franchise is restricted, not only on the basis of race, but also with new property requirements. As you said to prevent African Americans and immigrants from voting.

Is deeply meaningful to learn about. Franita Tolson. I can't wait to read your new book, which will be coming out soon. Rethinking the constitutional structure of political rights, the evolution of federal voting rights enforcement from the founding to the Dawn of the progressive era. Tell us about the thesis of that book and to what degree was the contraction that Alex Keyssar talks about from the mid 19th century through the progressive era, driven by the withdrawal of federal voting rights enforcement.

Franita Tolson: [00:06:37] So I think Alex is actually a little bit too modest in talking about his book and sort of how it informed the thinking of pretty much everyone who works in this area. So my book it looks at the same issue from a bit of a different perspective, right? So I think Alice has done sort of a wonderful job of showing how, the right to vote has, expanded and contracted at various points in history.

and in reading his work. It really raises a question in my mind about how Congress responded to those contractions, because. A lot of this stuff was happening at the state level. and so, you know, reconstruction is a time when you really see Congress becoming more involved in sort of regulating the right to vote and sort of forcing States to be more aggressive about enfranchising the formerly enslaved population.

but one thing that came to mind for me is, what about the period before reconstruction? What did congressional power look like then? And I think the assumption is that well Congress didn't really do much, right. We thought about the right to vote as a creature of state law. and so Congress, at least in my mind before I started studying this, Congress didn't really have much to say about it.

but then Shelby County came out. So the Shelby County versus Holder decision was, the decision in which the Supreme court. invalidated a portion of a pre-clearance regime of the voting rights act 1965. and in that decision, the Supreme court said that Congress had overstepped the bounds of his authority under the 14th and 15th amendments, whenever required certain jurisdictions, mostly in the Southern States, to preclear any changes to their laws with the federal government.

Before those laws could go into effect. and so in finding that Congress had overstepped, I had some questions in my mind about if that was in fact true, because I've always conceived of, federal power in this area as being quite broad.  I'm like, maybe I'm just, you know, sort of inherent to the Warren court and I've drank the Kool-Aid so I decided to just really take a close look and a deep dive into this question and.

So that was the motivation for writing the book, which starts at the founding. And what I found was that congressional power, was in some ways before the civil war quite modest, but it manifested in ways that I don't think we, in the legal community really talk about. So for example, the book talks about how Congress exercised this authority under the elections clause, which gives Congress the power to make or alter state regulations that govern federal elections.

and also the guarantee clause in which Congress guarantees to each state, a Republican form of government. And finally Congress has power under article one, section five, which allows it to judge the elections of its membership. So these are all sources of authority that Congress has used in order to, influence state political systems.

and I realized this was an important part of the conversation that we were not having. And if in many ways that laid the foundation for exercises of congressional power during reconstruction. So not only did the 14th and 15th amendments provide an additional basis for. Congress to act. So those are the provisions that we typically think of as being directly relevant to the individual right to vote.

 So as Alex mentioned, the 15th amendment, basically enfranchised African Americans right by prohibiting discrimination on the basis of race with respect to voting. but Congress also used this authority under the guarantee clause. For Southern States to pass new constitutions and to remake their political systems.

And they had constitutional conventions in which they were required to have, you know, multiracial coalitions, right? These weren't constitutional conventions that were staffed purely by white. property males, right? So, so essentially by reconstruction, you see this marriage of the constitution of political structure as I call it, or Congress's power under the elections clause and the guarantee clause in article one, section five, which I think of the structural provisions that delegate power directly to Congress.

But also these individual rights provisions, right? So Congress has power under the 14th and 15th amendments in particular, really gave Congress a quite broad basis, to remake Southern political structures. and it is this understanding that I argue that should influence what Congress can do. Now, when we think about the scope of congressional power over elections, instead of just focusing solely on the 14th and 15th amendment.

Rosen: [00:10:48] Thank you so much for that. And I have to say how exciting it is to read your work and to find you pointing our attention to the very few parts of the constitution. And you just described the structural guarantees as well as the aspects of it in the 14th and 15th amendments, dealing with the right to vote.

Teaching us that historically these provisions have been relied on to protect the franchise and in your really creative and important articles, you argue that these clauses could provide a solid foundation for protecting voting rights today. And I want to ask you more specifically about all of those arguments.

Soon, the friends who are watching let's just review some of the provisions that professor Towson has called our attention to in article one. Article one, section four, the time, place, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.

But Congress may at any time make or alter such regulations except to the place of choosing senators. She talked about our article one section five, which says that each house shall be the judge of elections returns and qualifications of its own members. She talked about the guarantee of a Republican form of government.

And then she talked about the 14th amendment, which has a little considered provision in section two, which says that if any States denies the franchise then it correspondingly loses representation in. Congress. So these are really important arguments and we're going to return to, many of them in a moment, Derek Mueller in your very important work you've argued that a deference to the States when it comes to elections is important.

You note that the, that the constitution doesn't create any federal right to vote, but leaves it up to the States to set voter qualifications. And you say that that kind of diversity is appropriate and should be deferred to by the courts. Tell us more about that argument and your reaction to what your colleagues have said.

Derek Muller: [00:12:42] Yeah, I think it's a fascinating, structure that we have in the United States of federalism. And we talk about it sometimes. you know we think about it sometimes as the negative about, you know, whether it's the state or federal government, that someone is not acting appropriately or not exercising, sort of its authority in the right way.

And there's been plenty of instances in American history where we can point to that. But the constitution's sort of default setting for most things in elections is that the States are going to run them, right? The States pick the times, places and manner of holding elections, unless Congress steps in, the States get to choose the qualifications of eligible voters for the house of representatives and.

Later after the 17th amendment for the Senate, but, there was a floor place in the constitution. Well, States when you establish the right to vote for your citizens, for members of the house, it has to be the same as the right to vote for the citizens of the lowest chamber or the largest chamber in the, in the state legislature, the notion being we're going to sort of create this floor for the States.

And hopefully the thought is the States are going to enfranchise broadly. And at the founding that was white property, males, who would have the franchise and it's broadened since then with some fits and starts as Alex's pointed out. So the constitution structure sort of sets this up in an interesting way and it presumes a couple of things.

The first is if we want to expand the qualifications of the electorate, right? The presumption seems to be either it happens in the States or we have to amend the constitution. And that's what happens with the 15th amendment to say, essentially, listen, we think that the Freedman has the right to vote and should be given the right to vote.

And so we're going to pass the 15th amendment to ensure that we will not be deprived of any African American in any of the States.  And when it comes to like the 19th amendment and women's suffrage, it's a, it's an interesting and slightly different story, right? Because it's States that really start this movement of enfranchising women out West.

As the Lord tells it that it's a motive to have women move out West and it will be an opportunity for them to vote and participate in these elections. And so the women's suffrage movement, you know, we celebrated as a hundred years this year, but that's a hundred years of the 19th amendment. It was happening much earlier and many other places throughout the country.

And even today, when we talk about, non-citizens and whether or not non-citizens should vote, It's something that, you know, happened as Alex points out in his book at points early in the history of the United States, today, there was actually a federal law that prohibits you from doing so, any state from doing so I think there's some questions about the constitutionality.

Is that something that the federal government can do? Is that something under its immigration authority? I don't know, but there are a lot of States that have their localities in school board elections do experiment and say, we want non-citizens to vote and participate in these elections. So when we think about what the right to vote means, and we are obviously understandably focused on a lot of those instances where States denied the right to vote to a number of, of individuals. And we passed the constitutional amendment to ensure there would be authority for the federal government to intervene or to ensure that we believe set some minimum standards.

but it's an interesting story to think about this overlap in the relationship between the state and federal government, when it comes to defining the right to vote and who should participate in our political system.

Rosen: [00:15:53] Thank you for that. And for reminding us of this important and complicated relationship between the federal government and the States, which we will revisit throughout the conversation in the chat box, Edward Chapson, says, can we please take a minute or two to recognize the role of John Lewis and the fight to grant and protect voting rights.

Thank you so much, Mr. Chapson for reminding me of what I meant to do at the beginning of the program and jumped right in because of my enthusiasm, but it is deeply meaningful to pause, to recognize the role of representative Lewis. one of the great constitutional heroes of the 20th century and one of the most important figures for the expansion of voting rights in the century, the constitution center was greatly honored in 2016 to award the Liberty medal to representative Lewis.

And it was so inspiring. To hear him invoke the legacy of his mentor, dr. King in inspiring his nonviolent protest at the Pettus bridge, which helped lead to the enactment of the voting rights act of 1965. And the shining example of his moral and constitutional vision is one that will live with all of us for many years.

So. Just take a moment for all of us to recognize and celebrate his blessed memory,

Alex, with that in mind, what does representative Lewis's achievements and those of the civil rights movement and passing the voting rights act of 65? How did that transform the nature of voting rights in America? And describe that period from 1965 to the present, where it seems that the path toward the expansion of voting rights was still not steady and secure.

Alexander Keyssar: [00:17:46] Sure I think, you know, the place I like to start with talking about the voting rights act of 1965 is to point to its little-known subtitle. I mean, it is, is called the voting rights act in 65. And the subtitle of it is an act to enforce the 15th amendment to the U.S. Constitution. I mean, it is a law to enforce a constitutional provision that had existed already for a century.

In effect the path that led to that, was a path of activism and also a conclusion by Congress. by many other participants that the Southern States by themselves, we're not going to really reform themselves with respect to African American suffrage and enforcement.

Of the 15th amendment. This is the darker side of what Derek was talking about before of the autonomy of the States. In some areas, even though constitutionally, they ought to have been required to register and enfranchise African Americans and the passage of the voting rights act, which follows years of, of activism.

And the activism continues because you know, just the passage of the law doesn't do it in itself it's still very slow to get people registered, to get things enforced. but it was truly transformative of. Voting patterns in the South. And then also in some other places, I mean, you have an entire economically critical and somewhat dependent class of people who have been, who had been disenfranchised, who had no rights. And they gained power. And that is an enormous shift. I mean would Barack Obama have been elected president. If there had not been the voting rights act of 1965. No. I mean, even just in the sheer numbers of who was enfranchised, or not. So I think this is really a true transformation.

And as, as is often the case in American history, so. Issues that deal with race or problems that focus on race spill over into linked and analogous issues, for example, lowering the voting age, which happens within a few years after, the voting rights act, the shortening of residency requirements.

there was a whole. Large package of franchise expansion that happened in about five or six years. and then they get their extended to language minorities, largely the Spanish speaking population, but not only. And here again, we are entering a period of large-scale immigration in the late 20th century.

so I think to summarize this more succinctly than what I've said so far is that this has been a dramatic expansion in voting rights, and it is followed by a reaction, which John Lewis recognized. Lived through. I mean, he saw it going on. I mean, by that point he's in Congress.

By the time the, the reaction is happening and he fights against it. He fights within Congress. After the court decides that the pre-clearance provisions of the, of the voting rights act are unconstitutional. He fights to restore them. He saw the arc of what was happening. He saw that the victories that he and his colleagues had been involved with, and as you mentioned, shed blood for were being reversed and that then you had to start fighting again.

And I think he had a deep understanding that voting rights and democratic rights were not something that you simply achieved once and for all at a given moment. And didn't have to protect thereafter.

Rosen: [00:21:46] Thank you. That was both succinct and illuminating. And you've talked about the achievement of the voting rights act and the backlash against it, consistent with the historical pattern and talked about representative Lewis's heroic efforts to respond politically.

And Franita Tolson I'd like to ask you about the judicial response. And first, tell us a little more about that. The Shelby County decision David Olson says in the question and answer box from my understanding of Shelby County, the court said a main issue was the lack of updating, which States and counties met the necessary discrimination standard in light of this.

Would a simple reauthorization from Congress be enough, or would something else need to be included in a new voting rights act to avoid being struck down again? And then Franita Tolson if you will, I really was so. Struck and learned so much from your series of articles, invoking different constitutional provisions, protecting voting rights that you say might be invoked to protect voting rights today, even in the wake of Shelby County. Tell us a bit about some of those provisions.

Franita Tolson: [00:22:49] Wow. I'm trying to figure out where to start.  I actually want to start, I want to kind of piggyback a little bit on the John Lewis question, because I do think that it ties into, what needs to be done. so I find it remarkable that he was one of, if not the youngest speaker, one of the youngest speakers at the March on Washington in 1963.

And the fact that he continued to serve, up to his death pretty much. And you know, that that just sort of highlights how the struggle for voting rights is ongoing. And it's not about. You know, sort of reaching a peak and then stepping back, you have to be vigilant about protecting voting rights even after you achieved some successes.

And I think we're living in a period where a period of retraction, right? Because there's a lot of voter suppression. there's a lot of disenfranchisement. And so I think it sort of highlights everything that John Lewis was fighting for. and part of the reason why he continued to fight is because I think the, the Shelby County decision, did not come out of the blue.

Right. It wasn't a decision that just happened in 2013. That was a 2009 decision called Northwest Austin. where the Supreme court, warned us. They indicated that the pre-clearance formula was a problem that it hadn't been updated since the 1970s. but I think to some extent, You know, and I'm not trying to sit here and criticize Congress.

Yes, I am. I am sitting here criticizing Congress because they did have the opportunity to update it and they did not. And there were people scholars who testified during the reauthorization here is that the pre-clearance form, that will be a problem. and you know, it wasn't as if they couldn't update it.

The, the jurisdictions that were covered, the formula did a pretty good job capturing the problematic jurisdictions. Because after Shelby County was decided, States like Texas and Mississippi and Alabama all, you know, took steps to further disenfranchise and suppress the vote like this, wasn't it wasn't rocket science

right? This is based on sort of a historical understanding of what these jurisdictions do. So yes, the, the preclearance formula was a problem. and the, the Supreme court was not willing to reconstructional power very broadly. Like they were coming from a baseline in which as Derek points out. Our system is one in which the States traditionally regulate elections.

Right? If that is your baseline, then federal power seems exceptional. And if federal power is exceptional, then Congress needs to justify any acts that intrude on the power of the States. I think a lot of my work tries to challenge that narrative. so one thing I don't do, I don't argue that there's a, a federal right to vote in a traditional sense, right?

Derek is absolutely right. That the constitution is not explicit in saying that there is a right to vote. A lot of this happens by inference. A lot of this happens with the court coming in and saying, look, we're going to read the 14th amendment equal protection clause. Broad enough to say that there's a right to vote.

But anytime you have a situation like that, what the court creates the courts and take away, right? This is why it's important to sort of have those things in the text instead of relying on the courts. but because the court is taking the lead and sort of shaping this jurisprudence around the right to vote, there is a question about what Congress can do, right?

If we are trying to reauthorize the voting rights act, how do we do so in accordance to what the court has laid out in Shelby County? And I think it's very, very difficult. my reading of the tea leaves is that the court was pretty committed in striking it down, right. They want to sort of return to this world in which the state take a lead on all of this.

But to do so requires, you know, a bit of sticking your head in the sand, right. When you sort of have to ignore the fact that there is still racial discrimination in voting, race, as Alex points out, bleeds over into a lot of other things like race and partisanship is very heavily intertwined in our system now.

Right? And so there's a partisan incentive to disenfranchise certain racial groups. So, it’s very difficult to think of a formula that will be consistent with what the court is looking for in Shelby County. Unless we look beyond the 14th and 15th amendment, right? This is part of my book project is to try to highlight that Congress has pretty comprehensive authority to intervene

when there's a problem. And it doesn't just stop 14th and 15th amendments. So one of the arguments I made around the Shelby County, decision around the time it was decided was that the elections clause is also a source of authority here. Right? And if you look at congressional power in aggregate, right?

So Congress has power to, so States can set the time, place and manner of election, but Congress can alter or make its own regulations and also in conjunction with the 14th and 15th amendments. That's a much broader source of authority than looking just at the 15th amendment or at the 14th and 15th amendments.

And let me explain the practical implications of that. And then I'll wrap up, sorry. the practical implication of that is that if you just focus on the 14th and 15th Amendments the court is looking for a record of intentional discrimination on the basis of race. Right. And so they're looking for this pattern that they found once.

And when they looked at the legislative record behind the 2006 reauthorization, right? The chief justice was clear that there wasn't the same pattern of discrimination that existed back in 1965 at the time that they reauthorize the voting rights act. But if you look beyond the 14th and 15th amendments, the elections clause does not require a pattern of intentional racial discrimination.

And so even if the court is still looking for a legislative record, that gives Congress more room to legislate because they have additional provisions that they could rely on that don't require the same level of pattern of discrimination as the 14th and 15th amendments. And that, makes a real difference in terms of what Congress can do in order to protect the right to vote.

Rosen: [00:28:17] Thank you so much for that. It is such an important argument that the elections clause, which doesn't require intentional discrimination might be broader protection. And I really urge viewers to read and learn from your other articles, which note that there are other provisions of the constitution, including section two of the 14th amendment that might protect against disenfranchisement.

Derek lots of phenomenal questions from the audience. Julia Frackus asks with the, the reintroduction of the bipartisan Voting rights. Advancement Act in the Senate this week, a bill with 46, co-sponsors named after representative John Lewis, that would restore voter protections that the congressmen fought so mightily for throughout his life.

What are the chances that this might pass in the Senate? And that leads to the important question. Is this purely a partisan issue? The voting rights advancement act has a Democratic co-sponsors and two Independents, but no. Republicans is it just because it's viewed as not in Republican partisan interest or are there principled objections to it?

And then I really do want our audience to hear the arguments, on behalf of the Shelby County case for the majority, which you've I think defended, why do you think the court was correct to strike down the pre-clearance decisions? And what, if anything, do you think that the States could do constitutionally to restore those protections?

Derek Muller: [00:29:40] Well lots to get to a, well, let me start with the late representative. John Lewis, I think, if you and the audience have not seen some of the video footage of that march in, 1965, where a very young John Lewis is at the front of the line, in a peaceful March and watching Alabama state troopers, essentially firing tear gas and beating him.

you know, it's a miracle in some senses that he's alive much less what it means to sort of stand up and think about voting rights, in a very different era. And I think, the voting rights act of 1965 did incredible, tremendous work. It took a lot of effort from Congress to do it, right. It took, it took a march, took deaths.

It took beatings for Congress to sort of, get the attention that, you know, what, there are, there are some. Some real problems in portions of this country. and so the voting rights act, in 1965 went a very long way in enfranchising, tremendous numbers of African American voters who had previously been disenfranchised and who began to participate actively in ways they hadn't for nearly a hundred years in the South.

So, you know, But it requires congressional will. Right. So when we talk about today about congresses intent or motivation and that's a tough thing to figure out, right. Is it partisan in nature? Is it, is it something more sinister? No, as Franita was talking about the relationship between race and party, you know, in 1965, there was one party in the South.

It was the democratic party, essentially. And so a lot of the fights about white and black voters were essentially internal party feuds. And that has since sort of shifted in the sense that we now have a lot of partisan polarization in addition to racial polarization. So that's changed a lot of the dynamics and how we view the relationship between race and party and the right to vote.

I think about the voting rights act. you know, some of those early ones that, you know, Alex points out there were some provisions that changed things like residency requirements. Congress went in and said, you know what? We think that while the Supreme court has said literacy tests that are fairly administered are constitutional, we in Congress think there's a pretty good record.

That literacy tests are not being fairly administered. We think they're being administered in a way that's, that's designed to suppress black voters.  Congress, again, sort of steps up to the plate and makes these sorts of decisions. So the voting rights advancement act, the sort of proposal that came out of the house and is now in this, the Senate tries to, to sort of cure what are some of the things that Franita identified and things that the court identified as a problem in Shelby County.

Right. That the formula had not been actively updated by the courts since 1975. and this provision of voting rights act was supposed to extend until the 2030s. and for the court to sit there and say, well, Congress sort of has done its homework. And just seems like it was the path of least resistance for Congress.

Why update, why change something? You're starting to make new political enemies. So the voting rights advancement act at least is designed to sort of address those precise concerns from the court and say, it's a dynamic formula one that looks at past recent past act actions of States or municipalities or localities to say, if you've.

Been found to engage in intentional racial discrimination. When it comes to voting rights, you will be subject to this provision where you have to seek pre-clearance of your laws. We want to provide notice to the people about changes to their laws and things like providing notice. As Franita knows, it's so important to emphasize things like the elections clause. There are a lot of provisions of the voting rights advancement act that are not sort of, I think, within Congress's 14th, 15th amendment power. They're the kinds of things that I think are squarely within the elections clause, power of Congress to step in and, say, we want to talk about the times places and manner of holding elections and here's how.

The manner of holding elections is going to look States. You can't change your laws too close to election day. You have to notify people. You have to publicize changes to your election laws, things like that. But again, it requires sort of political will congressional will in Congress and for whatever reason, whether we say it's partisanship, polarization, whatever it might be it's a dicey proposition to figure out whether or not Congress is going to unify as it has in the past, on a bipartisan basis to enact some of these voting related reforms. It was difficult even

for Congress to agree on some funding for States at the time of the coronavirus, right? It took a little bit of sort of muscle for that to happen in Congress, whether or not more robust things happen, ahead of the 2020 election I think is, is, is a dicey proposition.

Franita Tolson: [00:33:59] Fire Congress, in other words.

Rosen: [00:34:01] Fire Congress, that's fascinating. The question and answer box is on fire. There are so many phenomenal. Questions and among them, we've got to talk about the role of the electoral college, Alex, your forthcoming book coming out on July 30th, asks the question. Why do we still have the electoral college? So I'll ask you why we still have it.

And note that you've said that the through line between your two books is Justice Scalia's observation that the late justice Scalia who pointed out that there is no right to vote for president guaranteed in the us constitution. You've noted that the framers, both of the electoral college and of the revisions to that after the election of 1800, didn't anticipate a winner take all system for the distribution of electoral votes would have preferred a district system, but that's not the way things turned out.

And I'll note finally, that we had a great program on the electoral college with Jesse Wegman, who has a new book out too. And he notes among other things that Congress came within a few votes, of proposing an amendment that would have adopted a national popular vote, in the 1970s proposed by Birch Bayh endorsed by both political parties, president Nixon and, Democrats.

But it was Democrats in the South who killed it. So what can we expect from your new book and why do we still have an electoral college?

Alexander Keyssar: [00:35:24] I've been a little bit bedeviled by the title that I gave to the book because, I'm finding that people sort of turn to me and then say, so why do we have it?

I'm supposed to come up with a two-sentence answer, which my own title set up and to which I ended up saying, if I could have said it in two sentences, I wouldn't have written the book, there's several things I'd like to make clear you know as takeaways. One, is that people should know that there have been very large-scale efforts to modify it or get rid of the electoral college and its various pieces. We forget that there are a lot of different pieces of this system. And I'll say a little bit more about that, but there have been large scale efforts since the early 19th century.

There've been more constitutional amendments introduced into Congress on this subject than on any other subject in U S history. And there have been several occasions when we came very close to altering the system. You mentioned the 1969-70, which was to have a national popular vote. but, equally, so between 1816 and 1820 and 1822, and, in 1821, the Senate approved by a two thirds vote, a constitutional amendment to require a district elections for electives and in the house.

They're just a few votes short of the two thirds needed. So one thing we should know, this has long been a problem in terms of what has prevented it. there's not a single factor at all times, but let me mention. Three, one is, as I alluded to the complexity of the institution itself, for example, it includes this whole contingent election system.

What happens if nobody wins the majority of the electoral vote? that's still part of the constitution. The answer is it goes to the house, and each state delegation gets one vote. Well, that's that 19th century people thought that that was going to be used a lot. And you couldn't reform the rest of the electoral college without reforming that, and that remains true today.

There are a lot of different features, including the fact going back to Justice Scalia's, quotation that the constitution leaves it to the States to decide the manner in which electors will be chosen. So that they can do winner take all, or they can do it by district. Can they take that dimension away?

the second factor is partisanship, partisan interests, and this is almost always true with electoral systems. Once you have an electoral system in place. Partisan interests form around it. People want to defend their own interests. And if they think that the change in the system might hurt them, they're going to tend to oppose it.

That doesn't always happen though. There've been a lot of principled players in Congress and elsewhere who thought that a national popular vote for example, was a better system. but partisan interests do, insert themselves frequently. But the last point I want to make here is that. And I think probably what's the point it's going to be most frequently noted about the book is two part.

One, the conventional wisdom that electoral college reform has been blocked by the small States. Is simply not true. It's simply not true. It's a plausible argument because the small States do get a slightly disproportionate quantity of electoral votes, but historically that has really not played a role.

and we can talk about the tales about that if anyone wishes to, but then on the other hand, I think that probably the single no most important factor in preserving the electoral college since the 1870s, 1880s, which means, you know, we're talking a good hundred and 40 years now. the, yeah, most important factor for a lot of that period.

Was the desire of the white South and after reconstruction, the white supremacist regimes of the South to retain the electoral college because it gave them extra power in presidential elections. Right. And thus extra influence in national politics. Why was that the case? And again, I'll try to be brief.

We all know about the three fifths clause, before the civil war where Southern States got representation in Congress and electoral votes for three fifths of their slaves. Well, by the 1890s, after these great white supremacist regimes that are returned to power and. Disenfranchised African Americans.

There was in effect of five fifths clause. That operated for the benefit of the South, African Americans counted a hundred percent towards representation and electoral votes, but they still couldn't vote. The white South wanted to preserve that system. And it sort of kept the idea of a national popular vote off the table for decades and decades.

And as you alluded to before, in the end, in 1969-70, when we came extremely close to adopting a national popular vote, it was Southern segregationist senators who led the opposition.

Rosen: [00:40:39] Thank you for all that. And we will very much forward to your new book, which we put a link to in the chat box. Why do we still have the electrical college? Greg blonder has put in the Q and A box a link to a proposal for a national popular ranked choice vote constitutional amendment. In practice that we're facing an uphill battle. Cause it's very hard to pass constitutional amendments and alternative is the national popular vote interstate compact Franita Tolson tell us about that compact do you support it, might it pass and would it be consistent with the constitution?

Franita Tolson: [00:41:15] So, the national popular vote initiative is a, compact amongst States who pledged that their electoral college votes will go to the winner of the popular vote, the national popular vote.

And so, right now I think there are 16 States that are signed on for a total of 196, electoral votes. and so the compact will go into effect when they reached 270, which is what's necessary to win the presidency.  I support it in theory. Right. I sort of recognized that the electoral college is a problem.

but you know, it's, it's difficult to think about changing the structure of the constitution by compact. And that's, that's the struggle that I have because the electoral college is there. Right. And so really for me, the question is can we come up with a statutory alternative or work around that essentially negates part of the constitution in some ways, you know?

So on one hand, I'll look at article two, which gives States control over how they allocate their electors. Right? So one might say that this is within the text of the constitution. States are deciding to join this compact. And that is a way of determining how they will award their electors. But on the other hand, they're also holding an election, right?

So it is conceivable that a state can have an election. You can have candidate A when the election, but the candidate B get the electoral votes because that person has won the national vote. and so for me, If Bush versus Gore taught us anything. Now, Bush versus Gore was the decision following the 2000 election that stopped the recount in Florida.

And part of the, the reasoning of that case is that the, the failure to set recount standards was a post-election change, right. That, violated the equal protection clause. And so if the Supreme court view the national popular vote initiative, and the possibility of candidate B winning electoral votes of a state in which candidate actually won the popular vote in that state.

And that is a possible post-election change. Right? So I don't think the Supreme court as currently constituted would uphold the national popular vote initiative, even if in theory is a good idea. And so I'm just sort of. Leery about the idea of changing the structure of the constitution through a statute.

Rosen: [00:43:27] Derek, similar question to you picking up on Michelle Greene’s question about please address the concept of a compact among the States. Do you think it's constitutional and do you think it's a good idea?

Derek Muller: [00:43:37] Well, I think the constitutionality question is, is tricky. As Franita has pointed out, there's some sort of implied sort of structural concerns that we have.

I think one more express. Concern is that there's a provision of the constitution called the compact clause, which says no state shall enter into any compact with each other without the consent of Congress so at the very least I think Congress would have to consent to any agreement like this. but even if Congress consents, can you essentially sort of.

Transform this system where you are sort of having all these different States, doing different things and throwing their votes into one big bucket, you know on the good idea, bad idea. In my opinion, I think whether or not you think the electoral college is a good idea or bad idea in my view, the national popular vote has some problems in terms of.

Being a good idea as the way to go as a statutory method. so again, one of these core things I've mentioned is we, we presume the States sort of pick voter qualifications, right? So in all 50 States, the voter qualifications are a little bit different, right? So when we think about, those who are, who've committed a felony and whether or not they're eligible to vote, In, in Maine and in Vermont incarcerated felons can vote and they can't do that anywhere else in the country.

There's a bill in the district of Columbia to authorize them to do so. when we think about, children, so we right now, anyone 18 and up votes that’s in the constitution, but there have been sort of fits and starts in some States about reducing the voting age. And we think about mental capacity or we think about non-citizens, you know, Those are, there are different rules that we could have in place in different States.

And if you throw everything into one bucket, Congress is not sort of defining that one bucket, right? When we think about who's on the ballot, we know we all know Donald Trump and Joe Biden are going to be on the ballot. Kanye West is going to be on the ballot in at least one state we think, right. It seems a little strange to have a national election.

That's still being run on a state by state basis. So in my view, if we're going to reform the electoral college, if we're going to do the kind of thing that was proposed in 1970, it really has to be a constitutional amendment. It has to be a constitutional amendment that defines sort of some uniform set of voting qualifications that.

Expressly empowers Congress to provide some of that uniformity. And that anticipate some of these problems that can arise based upon again, sort of the implied structure of how we handle the, these constitutional provisions pertaining to presidential elections. so in my view, even whether or not you think it's a good thing or a bad thing, I think the national popular vote falls short of the kinds of things that we would want in a system that, that reforms our presidential election.

Rosen: [00:46:13] Thank you. Well, this is the last round and there are so many phenomenal questions. So I'll just pose a couple to each of you for closing statements and, and bring all these strands together. As you think best, David Muslim and asked, can you discuss the Florida constitutional amendment, granting the right to vote

the convicted felons and the subsequent imposition by the state have a requirement that they pay their court costs prior to be able to vote. That relates to a question about commenting on the recent. Supreme court decision leaving in place and appeals court stay of a trial court ruling that the Florida voting restrictions ex-felons were unconstitutional. And it also picks up on Derek's recent statement that currently only Maine and Vermont allow felons to vote. So Alex, the question is about the Florida constitutional amendment granting the right to vote to. convicted felons, the Supreme court's refusal to hear it. And then the other recent Supreme court decisions about voting rights that you think are worth noting in your closing thoughts?

Alexander Keyssar: [00:47:12] Sure. I think that, what happened in Florida in effect. Was is that the Supreme court said it was okay for a partisan legislature being the Florida legislature, which is, which is entirely Republican to override the efforts of what had been a multi-year popular mobilization in order to.

Allow convicted felons to have the rights restored after they had served their sentences. I mean, that's really, that's not the Maine and Vermont, model it's simply is to eliminate permanent and lifetime disenfranchisement, which add an effect in Florida law. And there was an extraordinary, popular movement to, overturn that and it worked.

And then the legislature turned around and said, but you have to pay all your court fees and you have to pay all your fines. And if you don't pay that and you vote, that's a felony again. So you'll be put in jail. But meanwhile, we actually can't tell you what your, how much money you owe, because we don't have a record of the fines and the court fees.

 I found that very disturbing that the Supreme court in effect preventing hundreds of thousands of people from voting so that the Supreme court upheld that it has also. And I think Franita and Derek are much closer students of Supreme court decisions, than I am, but it seems to me to fit with a recent drift, just maybe two mild the word.

Decisions of the Supreme court to weigh in on the side of sanctioning obstacles to voting rather than supporting efforts to make it easier for people to vote.

Rosen: [00:48:58] Franita, we have several questions about recent cases arising out of the COVID crisis and absentee ballots. The Supreme court has weighed in, in several cases on this most notably in the.

Republican national committee versus democratic national committee case out of Wisconsin, somewhere the court invoked a principle called the Purcell principle to say that courts should generally be reluctant to impose new voting requirements at the last minutes. How might that principle play out in controversies, over absentee ballots moving forward. And what kind of cases are you watching most closely?

Franita Tolson: [00:49:36] So were going to see a lot of this, I think right now there is Covid related litigation pending in like 38 or 39 States. so the road between here and November will be sort of peppered with these decisions where you see, and I, I hope I'm wrong about this, where you would, as suspect the Supreme court will hold the line and not be very protective of the right to vote despite the circumstances.

 I know at the end of the, the most recent term that was, a few stories about whether or not the court has sort of drifted more towards the center after that, after this past term. And if you look at the voting rights cases, that is not true. this is still a right lane in court. This is still a court that has not been protective of the right to vote.

And in fact, some of the decisions that they've made, with respect to the COVID voting related litigation has, has proven that point. so the RNC vs DNC decision, which came out of Wisconsin and sort of last-minute efforts by the governor to close the polls and then, you know, you had.

People who had filed the paperwork to get absentee ballots did not receive them. And they were forced to go to the polls on election day. And then you had the partisan wrangling between the governor and the state legislature. I mean, it was absolute nightmare. and so the Supreme court did not seem very sympathetic to any of that.

Right. And so at least in my mind, you should at least think about the, poor souls who were trying to do that right thing. Right. They, they filed their paperwork to get their absentee ballot on time, did not receive it. the district court tried to accommodate that the Supreme court stopped that effort from happening.

And so, one of, one of the things that struck me about the language in that opinion, and which is why I feel comfortable, sort of predicting that the Supreme court will not be sympathetic to claim COVID related claims moving forward is. The courts seem to apply the Purcell principle, this idea that you should not have last minute election changes.

without any consideration of context, it did not matter to the court that we are in the middle of a once in a lifetime global pandemic. Right. They, you know, Hey, this is an election. And they pretended like this is an election occurring, like any other election, and it's not, you can imagine an opposite story, right? You can imagine a story in which the court paints the picture of the importance of the right to vote and given district course room to have the sort of remedial power in order to accommodate voters who experienced difficulties through no fault of their own.

But that is not the opinion that the court wrote. Instead, the court wrote an opinion that assumed that this is an election. And so we have to play by normal rules, even though we're living in a once in a lifetime situation. So as long as that is the court's posture, I wouldn't anticipate that any decisions moving forward will be favorable to voting rights.

and I just want to piggyback on one other point that Alex made about the Florida litigation. I cannot emphasize enough how disappointing the Supreme court's position is and why to the fact, as Alex points out, a lot of people don't know how much they owe and not only do they not know the state doesn't know.

Right. And so when you think about that and think about how the law operates, given that reality. It does function as a poll tax, right? It's not essential. It's not enough to say that. Well, they could just pay their fines and fees. The state doesn't even have this information. And one other additional thing, it will take an additional 21 workers in order to handle the influx of people coming in and trying to register to vote and find out how much they owe and to basically comply with the state legislature's law.

The state legislature made zero efforts in order to hire that number of people. Right. So this is clearly a situation in which the state legislature has some ulterior motive in passing this law. When the state doesn't have information, right. Regarding what people owe and they refuse to hire the number of workers needed to actually implement the law that tells us that this is about something else and at the Supreme court completely ignored that.

Rosen: [00:53:21] Thank you for all that. You said many things, including arguing that the Florida requirement was the equivalent of a poll tax friends. I was reminded from Alex's book, the origin of poll tax doesn't mean poll you're going to the polls, but poll is a head tax, a tax that each individual voter pays.

And of course it was the 24th amendment that abolished poll taxes and said that the right to vote shall not be abridged by account of failure to pay taxes. Well, Derek, it falls to you to have the last word in this incredibly rich discussion. There's so much talk about but I would love are viewers to hear the defense

if you were inclined to make it of the courts decisions, both in the Wisconsin absentee ballot case and the Florida case broadly you've argued in favor of judicial deference to the States and against courts changing rules. But, why don't you bring whatever strands together you'd like. And tell us why you think as a constitutional matter of the Supreme court in some of these recent cases has been correct.

Derek Muller: [00:54:21] It's really hard on the constitutional dimension only because when we talk about sort of the Purcell principle, we talk about this case, you know, Purcell versus Gonzales, where the court says we shouldn't engage in sort of last-minute changes to election law rules. This is really kind of a wonky, in the best sense of the word, right?

Sort of, Power of federal courts, timing of litigation, a little bit of article three power of the judiciary, right? So it's a lot of these are sort of cropping up all in the same sort of procedural posture. These are sort of emergency applications to the Supreme court on an extremely short timeline.

They're not sort of they're not. Argued before the court. There's not sort of the parties filing a

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