0:00:00.0 Speaker 1: We'll hear arguments next in 721589, Richardson against, Ramirez and others.

0:00:12.4 Leon: Hey everybody. This is Leon from Fiasco and Prologue Projects, but you can just call me dad. On this episode of 5-4, which I am so happy to be introducing after all that time away raising my new baby. My other children, Peter Rhiannon and Michael, are talking about Richardson v Ramirez. As you'll hear in this episode, there is a rarely discussed provision of the 14th Amendment punishes states for denying citizens the right to vote, the penalty losing seats in the House of Representatives. So in 1974, when a group of formerly incarcerated men brought suit against California, arguing that they could not be denied voting rights on the basis of a felony record, what do you think the Supreme Court had to say about it?

0:00:58.7 Speaker 1: We further hold that the California does not violate the Equal Protection Clause by disenfranchising convicted felons who have completed their sentences and paroles.

0:01:08.5 Leon: Ever since this decision, the voting population in the United States has been warped and fragmented because depending on where you live, being in prison or having a felony on your record may or may not strip you of your right to vote. The result is a nationwide patchwork of laws and a lot of Americans who are unclear on whether they can vote or not. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:40.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have burned down our civil rights, like a person trying to deep fry a turkey burning down their home.

0:01:51.8 Rhiannon: It's that time of year. Those videos make me LOL every time.

0:01:57.2 Leon: Can't wait to see a few people absolutely ruin their family's lives trying to deep fry a turkey.

0:02:04.0 Michael: Try to get their Turkey 5% tastier, or less dry.

0:02:10.7 Rhiannon: Right. Yeah.

0:02:12.0 Peter: I am Peter, I'm here with Michael.

0:02:13.3 Michael: Hey, everybody.

0:02:15.2 Peter: And Rhiannon.

0:02:15.6 Rhiannon: Hello.

0:02:15.9 Peter: Guys. This is like the third episode straight that we've recorded in the morning. And I gotta say I'm sick of it.

0:02:22.5 Michael: It's no good.

0:02:22.8 Rhiannon: Yeah. You're sick of it. It's the latest for you in Eastern Time Zone. I'm Central Michael's Mountain Time.

0:02:31.0 Peter: I was just gonna say though, that it's kind of the same for all of us, just in terms of proximity to when we wake up. Like Michael's, like, "I just got up a half hour ago." Ree's like, "I just got up a half hour ago." I'm like, "Ne too. I mean, this is, I know it's 10:00 AM but I don't live that kind life, you know."

0:02:49.7 Rhiannon: Yeah. You live the podcaster life.

0:02:52.1 Peter: Alright. Today's case, Richardson v. Ramirez. This is a case from 1973 about felon disenfranchisement in this case, several "ex felons" meaning people who were convicted of felonies and had completed their sentences sued, claiming that they should be able to vote again since they had finished serving their time. But the Supreme Court says, no dice states can actually deny you the right to vote for the rest of your life. We will talk about their analysis about disenfranchisement more broadly and a bit about a fairly important part of the constitution that our government has ignored for 150 years.

0:03:37.9 Rhiannon: Yeah, yeah. Like it was written. They cared about it for like five minutes and then, meh. Let's talk a little bit first about kind of a general survey of disenfranchisement in the US across the states disenfranchisement based on a past criminal conviction, millions of people in the US are disenfranchised, excluded from the democratic process on the basis of criminal disenfranchisement laws that strip voting rights from people with past criminal convictions. In the 2020 presidential election, for example, it was estimated that 5.1 million people in the United States were disenfranchised on account of a criminal conviction that is one in 44 people who could not vote in the 2020 election, purely based on a past criminal conviction. In some states, having a felony conviction on your record disenfranchises you, disqualifies you from being able to vote in the future, even after your sentence is done.

0:04:40.6 Rhiannon: But many other states deny the right to vote for people who are currently in prison. So, criminal disenfranchisement laws vary on the specifics, but they fall into a few broad categories. First of all, there's permanent disenfranchisement. If you live in the state of Virginia and you have a felony conviction on your record, you are permanently disenfranchised for life. You cannot vote In the state of Virginia. There is another category of disenfranchisement laws based on criminal convictions. It's permanent disenfranchisement for some people with criminal convictions. An example is Arizona. If you have two felony convictions in the state of Arizona, you get permanent disenfranchisement for life in Alabama Another example, some certain felony convictions are permanent, while other felony convictions you can apply to get your voting rights restored. Right. Another category of criminal disenfranchisement laws is disenfranchisement until the completion of your sentence. So if you're convicted for a felony and you are sentenced to prison, once you finish that prison time, you get your voting rights back.

0:05:53.3 Rhiannon: But while you're in prison, or if you're serving a different kind of sentence, if you are on probation or if you're released early from prison, and so you're on parole until the technical end of your prison sentence, you are not allowed to vote while you're serving that sentence. But then afterwards, you might be able to in many states. So states also vary widely and whether pending legal financial obligations that are related to a criminal conviction make you ineligible to vote. Right. So in addition to serving a prison sentence, part of your sentence might be that you also have to pay a fine. Right. Or if you're on probation, you have to pay probation fees. So in certain states, if you haven't paid those things, then that could also continue your disenfranchisement until basically you square up with the state. Right. And you have a zero balance. Florida is an example of this. Florida in the past several years has had a lot of back and forth, a lot of controversy actually about felon disenfranchisement in Florida. And recently Governor DeSantis signed into law that if you have not paid up, if you have finished your prison sentence, you've finished probation, you've finished parole, but you have not paid all of your fines and fees, you still cannot vote in the state of Florida.

0:07:15.6 Michael: Right. And last I checked, I don't know if this is still true, but state of Florida often couldn't tell people whether they were all paid up.

0:07:22.0 Rhiannon: That's Right.

0:07:23.2 Peter: Right. It was incredibly difficult to find out whether you were and if you weren't, how much you owed. But of course, that didn't matter to Ron DeSantis, who's just trying to prevent people from voting.

0:07:34.6 Rhiannon: Exactly. That's exactly right. And leads into my next point, which is that navigating the specifics of your state's criminal disenfranchisement laws can be extremely difficult and can confusing. State election officials themselves often misunderstand their own state's laws. So de facto, what this leads to is preventing some people from voting, even though they do have the right to vote under the law. Right. But they don't think that they do, or they're afraid that they don't because the laws are confusing and they're not sure. Right. I have experience in Texas, so I know that criminal disenfranchisement in Texas is one of those laws that is disenfranchisement until completion of the sentence. So in Texas, you can't vote while you're in prison. You cannot vote while you're on parole or on probation, but after you have completed your sentence, your voting rights are restored. People don't know that. They hear about felon disenfranchisement. They think, "Well, I have a felony or two convictions on my record. I'm not allowed to vote."

0:08:38.7 Michael: They see stories like that one woman who tried to vote, I guess, when she was still on parole or whatever, and ended up getting thrown in jail in Texas.

0:08:46.8 Rhiannon: Exactly.

0:08:47.1 Michael: And it reinforces the idea that like, "Oh no, I can never vote again."

0:08:51.2 Rhiannon: Exactly. Exactly. And it's really scary. So these laws being confusing, misunderstood, even by state election officials. It absolutely leads to a sort of understood disenfranchisement that prevents people from voting. Period. Okay. So let's talk about this case. At the time, in the early '70s in California, the California state Constitution said that, "No person convicted of any infamous crime shall ever exercise the privileges of an elector in this state." Infamous crime. The word infamous is just like an old word, not really used anymore in criminal law to describe a felony. So three plaintiffs, including Abran Ramirez, sued when in 1972, they were refused voter registration in San Luis Obispo county in California on the grounds that they had been convicted of one or more felonies. So one plaintiff had been convicted of robbery, another had a burglary and a forgery on his record, and another had been convicted for heroin possession. All three of them, again, had been denied The right to vote, refused voter registration. And so they sued in a class action, and that case made its way to the Supreme Court, where in the early '70s noted a segregationist William Rehnquist was primed and ready to take this case.

0:10:19.0 Michael: That's Right.

0:10:19.7 Peter: A young William Rehnquist.

0:10:20.5 Rhiannon: A young racist William Rehnquist.

0:10:24.5 Peter: Spry.

0:10:25.1 Michael: Just getting started on his project of keeping down the poor and the brown citizens of this country.

0:10:36.0 Rhiannon: Right. Yep.

0:10:36.3 Peter: So these guys are claiming that they are being denied the vote in violation of the Equal Protection Clause. Now, this case actually ends up revolving around another part of the 14th amendment, what's called the penalty clause. The 14th Amendment has a clause that says, "If a state disenfranchises voters, their representation in Congress will be reduced proportionately unless the disenfranchisement is based on "participation in rebellion or other crimes."" This clause was meant to prevent the south from disenfranchising black voters. Right. That was the intent. It has never been enforced. So what ends up happening here is that we're talking about the Equal Protection Clause, but really we're just analyzing the penalty clause because this is the only part of the constitution that talks so explicitly about disenfranchisement for crimes. So Rehnquist does what's basically like a very simple textual analysis here. He says, "Look, the penalty clause doesn't outright say you can disenfranchise voters for committing crimes, but it does seem to contemplate disenfranchisement for rebellion or other crimes, and felonies count as other crimes. So there you go."

0:11:54.7 Michael: Easy peasy.

0:11:57.4 Peter: Yeah. They also do some originalist analysis. They look at the common practice at the time. Right. And they're like, "Look, disenfranchisement for criminal convictions was fairly common at the time the 14th amendment was written. And that's that, that's really the gist of the majority opinion." Now the dissent lays out some arguments against the majority that we will get into, but I want to zone in on a few textualist arguments. First, if you wanna get technical, the majority's reasoning doesn't make a ton of sense here. Yes, there's this penalty clause that references disenfranchisement for crimes, but that's not a blank check to do it. The clause is basically saying, here's what happens if someone is disenfranchised for a crime. You can't infer from that that disenfranchisement for any crime is necessarily allowed. This is like your basic LSAT logic stuff, like, it just doesn't quite follow. You could maybe make the argument that what that means is that some crimes can lead to disenfranchisement, but not necessarily all. It just doesn't quite make sense.

0:13:11.7 Rhiannon: Did they have the LSAT when William Rehnquist was getting into law school in like 1803 or whatever the fuck?

0:13:17.4 Peter: No. It was just firmest handshake. That's how they went.

0:13:20.8 Rhiannon: Yeah, that's right.

0:13:22.4 Peter: Yeah, the sharpest looking boy would be admitted. The phrase also says rebellion and other crimes. Which strongly implies that the other crimes being referenced are those similar to rebellion. Because if it meant all crimes, like the court thinks it does, they could just say all crimes. This is a classic rule of textual interpretation. If Amtrak says, "Dogs, cats, and other pets are allowed on the train," and you bring your pet elephant, they'll be like, "You know what we meant you fucking asshole."

0:13:58.9 Michael: That's right.

0:14:00.9 Peter: Get your fucking, it's too big.

0:14:01.0 Michael: No service emus. Like you cannot bring an emu on Amtrak. Even if it's your emotional support emu. Yeah. I believe that textual canon is called ejusdem generis. Because I remember my canons, baby.

0:14:16.3 Rhiannon: Thank you.

0:14:18.3 Peter: Yeah, you sure do.

0:14:18.8 Rhiannon: Michael's the canon guy.

0:14:21.5 Peter: And it's also worth pointing out that the court does not interpret similar clauses consistently. The Sixth Amendment says that you have a right to a jury trial, "in all criminal prosecutions." Just take a guess as to how literally the court reads that, right? Just three years before this case, in 1970, there's a case called Baldwin v. New York, where they said that this does actually not include all prosecutions. It only applies to those where there's a risk of six months or more in jail. So with Richardson, it feels like what the court is trying to do is avoid a difficult question. They're saying, "Well, you can disenfranchise anyone for any crime." Because if they don't say that, then they might have to parse what's constitutional and what's not. What sorts of crimes can you disenfranchise someone for and what can't you? And those are difficult questions. And so they would rather just deny rights to everyone rather than have to figure out who has rights and who doesn't. Rather than have to take an hour and a half thinking about this, they're like, let's just say that no one gets to vote.

0:15:35.0 Peter: Exactly.

0:15:37.6 Michael: And something we were talking about in prep was just that this part of the 14th Amendment has never been enforced. No state has ever had its representation in Congress reduced despite the fact that we have well over a century of documented voter suppression efforts happening throughout the country and especially in the South. The whole basis for the Voting Rights Act is that there are certain states with a history of voter suppression efforts. Nonetheless, never enforced. But somehow we're doing this bizarre hypertextual narrow analysis of this clause as if it's like the operative clause of the amendment here or like a jurisdiction defining scope of power clause here when it's unenforced, when it's unused in any other context, it's ignored.

0:16:36.6 Peter: Think about the irony here. This clause, it's basically saying if you disenfranchise people, we will reduce your representation in Congress. Right. Your state gets less representation. No one ever does anything with that. Right. There are attempts to enforce it right after the amendment is passed. There is an attempt to use the census to get people to report, self-report whether their rights are being infringed, their voting rights are being infringed. Doesn't really work. There are lawsuits in the early '70s, but they end up getting squashed by appellate courts that say, "Well, we just passed the Voting Rights Act, so let's let that play out first." So you basically have a situation where you have this clause designed to punish voter suppression. A hundred years later, the Supreme Court analyzes the clause as part of an effort to do more voter suppression, to do more disenfranchisement. So not only is no one enforcing this clause against states that disenfranchise voters, it's being leveraged to disenfranchise voters without any hint of irony. Right. Just wild.

0:17:51.0 Rhiannon: This feels like a good time for a break. And we're back.

0:17:56.4 Michael: So Peter mentioned there's a dissent. We should talk about it. It's by Thurgood Marshall. It's pretty good, I think, overall. It starts a little slow. It's a slow burn. I think the first half is.

0:18:08.5 Rhiannon: Is getting warmed up.

0:18:10.6 Peter: Like Blade Runner.

0:18:12.4 Michael: Yeah. That's right. Yeah. The first half kind of puts you to sleep, but at the end you're like, "Okay, that's got a real something there at the finish." So the first half is a lot of very technical and jurisdictional stuff about whether or not the Supreme Court should have even taken this case because it was on appeal from the California Supreme Court. And Marshall was saying they had an adequate and independent state ground for their decision. So it wasn't really reviewable. There was discussion of mootness doctrine since the state had allowed the plaintiffs who had originally been denied the right to vote to register to vote. So like what was the controversy here? A lot of stuff like that at first before he gets into the merits, the merit stuff, I think it's pretty good. He mentions like the drafting history of the 14th Amendment that this clause originally just said disenfranchisement for rebellion and then some committee changed it to rebellion in other crimes with no real record as to why. But, you know, to Peter's point, there's good reason to think they meant other rebellion like crimes like, you know, if you were a militia, say, called the Oath Keepers and you're convicted on seditious conspiracy for storming the capitol on the day of counting the electoral votes. Maybe that would be another crime, right? Like rebellion. Just an example off the top of my head.

0:19:42.9 Peter: Sure.

0:19:43.0 Michael: Might consider, but he also gets into this idea, I think when he really picks up steam is when he starts talking about.

0:19:51.2 Michael: Disenfranchisement of people convicted of felonies, and he talks about this idea that people who have been subject to criminal punishment are invested in the political system and should not be driven from it... Right?

0:20:47.6 Rhiannon: Right.

0:20:47.9 Michael: And he says, I thought this was a particularly good little bit, "The ballot is the democratic system's coin of the realm, to condition its exercise on support of the established order, is to debate that currency beyond recognition." So his point is like, "Look, there are a lot of crimes that people don't really believe should be criminal," like he mentions marijuana, "and if they are convicted for something more approaching civil disobedience or whatever, they should still be able to participate in the political process to change the conditions under which they were originally punished."

0:20:53.4 Peter: Right. This is something we were talking about in prep a little bit, where these are people who have more of a stake in the system.

0:20:57.3 Rhiannon: Yes.

0:20:57.9 Peter: Than your average person, right?

0:21:00.4 Michael: Yeah.

0:21:00.7 Peter: And it creates a situation where like, yeah, let's say you get arrested for Marijuana...

0:21:07.5 Peter: Right, and you're like, "Well, that's bullshit. I would like to vote to make marijuana legal and maybe even in the process, help get me out of prison for possession," and you can't... You, this very direct stakeholder in this issue, no longer has a say, it's just sort of this very obvious tension with your basic democratic input.

0:21:33.5 Michael: Right.

0:21:33.8 Rhiannon: Yeah, exactly.

0:21:34.7 Michael: Where it's more like a almost like a caste system where you're creating a lower cast of untouchables or whatever right?

0:21:44.5 Peter: Right.

0:21:44.8 Rhiannon: Yeah, I think that's exactly right. This case makes me think about the creation of the perpetuation of second-class citizenship, right. Disenfranchisement based on a past criminal conviction, really is about extending punishment, right. Running the punishment machine into all areas of a person's life... Right. Disenfranchisement is one possible collateral consequences of criminal convictions, you can have housing consequences, you can have family law consequences, you can have obviously employment consequences all flowing out of contact with the criminal legal system.

0:22:24.8 Rhiannon: Disenfranchisement is another one of them. And disenfranchisement, when you are excluded from the democratic process from civil engagement in this way, you are talking about disconnecting people from this fundamental activity and involvement in civil society in choosing political representatives, and I think Peter's point about disenfranchising directly impacted people... People who are directly impacted by laws that they should have a say on, I think it's a really sharp point, because the people who are experts on the system and should have involvement in the system and input in the system, an input on the laws, are the people who have been directly impacted by those laws, right. In this case, people who have been caged and surveyed according to all the various criminal laws all over the United States, and then as a result, aren't able to participate as full people, as full human beings, in how those laws are enacted in what those laws say.

0:23:34.2 Rhiannon: Right, you really have the punishment machine, like I said, extending beyond the prison walls, extending beyond just somebody's criminal record into all of these other aspects of our person's life.

0:23:47.2 Michael: Right.

0:23:48.9 Peter: And let's zoom out and talk about penalty clauses for a bit, so again, this clause says that if a state disenfranchises voters, unless it's for a rebellion or other crimes, the state has its representation in Congress reduced proportionately, so like if Alabama disenfranchises 10% of its voting population, 10%, fewer representatives, right. The whole point of this is to prevent southern states from disenfranchising black voters after the Civil War, that was very explicitly the purpose.

0:23:56.6 Rhiannon: Yes.

0:23:56.8 Peter: And as we've mentioned, never been enforced in any way, but think about what it would mean if it were voter ID laws that disenfranchise people who don't have valid ID, would reduce your State's representation in Congress, laws that remove people from the voter roles on mass for failing to respond to mailers would reduce your representation in Congress, any disenfranchisement for reasons other than a crime would qualify. So, of course, this has never been done, attempts to have Congress enforce it or sue in courts, to have courts enforce have failed in the early 70s, this got up to the appellate court level, and the DC Court of Appeals was just like, "Well, hold on we just passed the Voting Rights Act."

0:25:17.1 Peter: "So let's see how that goes first, before we start enforcing the constitution," There have been lawsuits in recent years against the Census Bureau saying that maybe they are responsible constitutionally.

0:25:30.3 Rhiannon: Yeah, and a lot of these lawsuits have really gone nowhere, have been thrown out for a lot of different reasons, a lot of different excuses, frankly, in some situations, courts will say, "Well, they need so much this high high level of proof that disenfranchisement... Purging voter roles, that there's real sort of malicious intent behind that," there's also the sense in courts with judges, there's also a question of like, "We don't really wanna enforce this, right, we don't wanna put something into motion that would really actually be changing the system in big ways, we would be creating a huge administrative burden for states election officials etcetera."

0:26:12.2 Peter: Creates tension between the judiciary and Congress too, right?

0:26:16.6 Michael: Yeah, obviously on the conservative side, part of their project is reducing access to the ballot, and that's been the case for a very long time, but then I think on the liberal side, there's just not a lot of appetite for this political fight... This takes work, it takes effort, it takes a constant struggle.

0:26:41.9 Peter: Well, they have an alternate solution, which is just to scream at us to vote all the time.

0:26:44.0 Peter: They're like, "Look, it's fine if like 10% of all democratic voters are just being perpetually disenfranchised, that's okay, because we'll just get more 22-year-olds to register to vote, and they'll vote for us that's the plan."

0:27:00.4 Rhiannon: Yes exactly.

0:27:02.0 Peter: No one even knows how this would be enforced, is Congress supposed to do it itself, that doesn't really make sense because that requires states to vote against their own interests, like representatives in Congress aren't gonna pass laws saying that they're no longer representatives, so it doesn't seem like Congress can do it. Courts have seemingly abdicated their duty. The Census Bureau doesn't wanna do it. Who does this? Right, we have this crucial constitutional provision going totally un-enforced.

0:27:29.6 Peter: So what do we do about that? A reasonable solution in my mind, if you're not going to enforce it would be to say, "Well, then you just can't disenfranchise people for these purposes... Right, if the penalty mechanism isn't properly in place, then you can't disenfranchise them... Right, that's just how it goes, right?" Of course, that doesn't fly, because the entire project is that they are purposefully ignoring the penalty clause so that they can disenfranchise voters right.

0:28:16.5 Rhiannon: Yes.

0:28:16.9 Peter: It's a singular project, the same people telling you that they are the ones who are seriously invested in the project of constitutional interpretation, are very willing to just ignore a major cause of it because it means that they would have less power.

0:28:19.4 Michael: Right.

0:28:19.5 Peter: Right.

0:28:19.8 Rhiannon: Yeah.

0:28:20.0 Michael: This isn't competing definitions of the 14th Amendment or something. Everyone knows what this means. Everyone knows what it should result in... It's just that some people don't want it to happen. So even if you think, "Well, this case is right. Felon disenfranchisement, that should be allowed under the Equal Protection Clause," even if you can see that, you still have this problem, you still have this problem about, "Well, what about other types of disenfranchisement and how are we going to hold states accountable?" No one at the Supreme Court.

0:28:49.7 Peter: No one in the appellate courts, no one in the executive branch, no one in Congress is seriously invested in answering that question.

0:28:56.4 Rhiannon: That's exactly right, Peter. And in addition to all of the ways people are disenfranchised and then the states are not punished for it by getting the sort of proportional reduction in their representatives... Voter ID laws, etcetera. All the examples that you said, Peter, in addition, there's this other special example, an interesting thing that a lot of jurisdictions do, this is prison gerrymandering, so when a state is doing redistricting, a lot of states count people where they are incarcerated in order to inflate the population but none of those people that are in prison can vote.

0:29:08.7 Michael: Right.

0:29:09.0 Rhiannon: So the community where the prison is located, often these communities are rural, often these communities, are majority white, have inflated their population numbers to give them more than their fair share of representation in legislative bodies, while large portions of that population cannot vote in addition to those people that cannot vote likely being mostly black and brown people... Right.

0:30:11.9 Michael: Right, right. It's like a small scale of recreation of the three fits compromise. Right.

0:30:16.4 Rhiannon: Absolutely. And so this means that white people in many places are getting more representation by counting people of color in their population who cannot participate in choosing those representatives, so we're not just not enforcing the full penalty clause... Right, by proportionally reducing the representation that states get if they disenfranchise in many places, disenfranchising people who are in prison is being rewarded with more representation.

0:30:48.9 Peter: Think about the theoretical extreme of that, where like I form a state with a dozen prisons and then just me.

0:30:58.8 Rhiannon: Right, yeah, and you're like, "Oh, we have 50,000 people."

0:31:01.6 Peter: I get two senators and four congressmen or whatever, just for theatre.

0:31:02.7 Michael: Yeah, and that leads me to what I wanted to talk about, which is three years after the 14th Amendment was passed, I think probably recognizing a lot of the issues we were having here, Congress passed the 15th Amendment, which reads, "The right of the citizens of the United States to vote shall not be denied or abridged by the United States or any state on account of race, color, or previous condition of servitude." So, this is obviously going a step further than the 14th Amendment penalty clause and saying, "Look, freed slaves have the right to vote, and you cannot deny them their right to vote simply because they are black or brown, or were previously enslaved. You don't get to do it. Now, I want you to consider something though, which is that if your right to vote can be abridged based on your status as having been formerly convicted of a crime, and that status itself is contingent on your race, if the enforcement of the criminal code is racial. Is racially charged. Is racially enforced.

0:32:25.8 Rhiannon: Right.

0:32:25.9 Michael: Whether the 15th Amendment has any force and there are numbers for this, it turns out loh and behold, who would have guessed black people are far more likely than white people to be disenfranchised because of the status as being formally convicted, this is far more common, and the disenfranchisement is harsher in the south.

0:32:28.5 Peter: This is the first I'm hearing about this.

0:32:28.9 Michael: Yeah.

0:32:49.1 Rhiannon: What?

0:32:52.3 Michael: Who would have guessed what? No way. I think if something like black men are three times more likely than white men to be disenfranchised because of their status as formerly convicted of a crime...

0:33:04.4 Peter: Yes.

0:33:05.2 Michael: And the numbers were going up for decades, it was something like 1.1 million adults in the 70s, it peaked at around 6.1 million adults in the 2016 election, and it has actually declined lately because of state level movements and referenda to roll back...

0:33:25.1 Peter: Podcasts.

0:33:26.6 Michael: These laws podcasts. Us, me being specific.

0:33:32.0 Rhiannon: Michael from five to five.

0:33:33.9 Michael: I've done it, I did it...

0:33:35.3 Michael: No, there have been movements that have been picked up by the Democratic Party, even establishment party hacks, like the former Governor of Virginia, mass re-enfranchising felons commuting, their sentences, but it's also I wanted to note sort of tangential to this case, but important is that there are a lot of ways you can disenfranchise people, there's a recent study that found that simply being subject to a traffic stop reduced the likelihood of political participation and voting, especially in after mid-term elections, but in main term elections as well, and the effect is small. It's like 2% less likely to vote, but it's real, and traffic stops are notoriously racially disparate... Let's put it right.

0:34:27.4 Rhiannon: That's right.

0:34:28.1 Michael: So there are just a lot of ways in which the power of the state can be used to reduce political participation under our current regime that's imposed racistly... And as a result. I think it's hard to argue that the 15th Amendment has its full force in modern America.

0:34:31.5 Peter: All of this together just serves as an end run around the 15th Amendment.

0:34:57.9 Michael: That's right.

0:34:58.2 Peter: And the prohibition on racial discrimination in voting, they heavily created functional loop holes through the 15th Amendment, the penalty for doing so, the penalty claws, which would serve as at least somewhat of a penalty for doing so is completely ignored. They have sort of re-created a constitutional order that allows for the subjugation of certain voters...

0:35:24.6 Michael: That's right.

0:35:25.2 Peter: Any time we're talking about the Equal Protection Clause in the voting context, and the conservatives are like, "Well, come on, this is preposterous." And then you just think about the fact that when it was Bush v. Gore... The year 2,000 and shit was on the line, for the Republicans, all of a sudden, they were like, "The Equal Protection Clause, it plays a crucial role in our democracy, so let us treat every vote the same."

0:36:00.2 Peter: "Okay, raise every voice, folks."

0:36:02.4 Rhiannon: Right.

0:36:03.3 Peter: George Bush is president. Thank you.

0:36:05.1 Peter: Never to be mentioned again.

0:36:06.6 Michael: The conservatives don't like the Equal Protection Clause for anything, they've never liked it...

0:36:10.9 Peter: You can tell from the name of it.

0:36:13.9 Michael: Yes, exactly. And its origin, it was, how we ended the Civil War and the re-integration of the South into the United States. How does the South feel about that today? You know, 150 years later, still unhappy about it, still flying the Confederate battle flag, still talking about states rights, because they don't like this shit when it was Southern Democrats in the Jim Crow era or conservatives now, they've never liked this, and the only time they've ever found use for it was either making up freedom to contract bullshit or weaponizing it to fight the scourge of reverse racism.

0:37:01.1 Michael: This is it otherwise... They have no use for the Equal Protection Clause and would love to write it out of the constitution.

0:37:02.5 Peter: Sort of like political and intellectual movement that is built around the value of inequality is never going to like something called the Equal Protection Clause.

0:37:06.1 Michael: That's right, it goes against the hierarchy, which is their core belief.

0:37:24.6 Rhiannon: Period it's as simple as that.

0:37:30.6 Peter: Next week, premium episode, we are going to talk about the disgracing of Supreme Court Justice Abe Fortas, who was appointed to the court in 1965 by LBJ and then nominated to be the Chief Justice in 1968, which would lead to improprieties being discovered a coalition of conservatives attacking him and his eventual resignation in complete shame and disgrace, and we're gonna talk about what he did compared to like what Clarence Thomas did, just for example.

0:38:04.7 Rhiannon: Throwing the name out...

0:38:07.1 Michael: What?

0:38:07.9 Rhiannon: For example...

0:38:09.4 Peter: Follow us on social media at 5-4 Pod, subscribe to get premium episodes, such as next week's, at fivefourpod.com/support. We'll see you next week bye everybody.

0:38:21.7 Rhiannon: Bye.

0:38:22.5 Michael: 5-4 Pod is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

0:38:28.5 Peter: God, fuck him, what a dumb piece of shit Bill Rehnquist is...

0:38:29.1 Rhiannon: Was... He dead.

0:38:29.8 Michael: Yeah.

0:39:00.6 Peter: True, true.