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00:05 Leon: Hey, everyone, this is Leon from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about voting rights and voter suppression.

00:14 [Archival]: It has been two months since President Trump installed a loyal supporter as Postmaster General.

00:19 [Archival]: The Trump campaign is suing Montana's Democratic Governor to try to stop expanded mail-in voting in the state.

00:27 [Archival]: And they're suing Nevada now for expanding this mail-in voting in the middle of a public health crisis.

00:32 Leon: It all goes back to the Constitution, which, believe it or not, does not provide an individual right to vote, something the modern Court pointed out in Bush v. Gore, despite voter protections in the 14th and 15th Amendments. This is 5-4, a podcast about how much the Supreme Court sucks.

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00:55 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have toyed with American freedoms like a cat batting around a half-dead bird.

[laughter]

01:06 Peter: I am Peter, here with Michael.

01:11 Michael: Hey, everybody.

01:11 Peter: And Rhiannon.

01:15 Rhiannon: Hi.

01:15 Peter: And today, we are doing a special episode on voting rights in the United States. In recent months, there have been a lot of get out the vote efforts, and a lot of people have expressed a desire to vote by mail due to COVID, and in a fairly interesting development, the President, Donald Trump, has said, "No, you can't do that."

[laughter]

01:36 Michael: "Don't even think about it."

01:38 Peter: And people said, "Well, we want to vote, isn't this a democracy?" And he said, "No, absolutely not."

[laughter]

01:42 Peter: And he seems to maybe have ordered the postal service to start throwing out mailboxes and shit.

[laughter]

01:46 Rhiannon: Yeah.

01:47 Peter: And so, you may have borne witness to all of this and various other voter suppression efforts and asked, how can he do that? Isn't there a right to vote? Isn't that part of the Constitution? And the answer to that is, sort of. The reality is that the Constitution doesn't expressly provide for an individual's right to vote, and because of that, the right to vote in this country is incredibly fragile, and the Supreme Court has never taken the steps required to solidify it into something that could withstand attack.

02:15 Michael: Yeah.

02:15 Rhiannon: Yeah.

02:16 Peter: As a result, the last several decades have seen a steady increase in voter suppression efforts, from voter ID laws, to gerrymandering, to these newer efforts to attack mail-in voting, and the Court has been a major factor in the success of those efforts. So to contextualize why this can happen in a country that your elementary school teacher told you was a democracy, we want to walk you through what the Constitution actually says about voting, talk a little bit about the history of voting rights, and discuss the Supreme Court's failure to find a meaningful and reasonable interpretation of the Constitution that would actually protect those rights.

02:51 Rhiannon: Yes.

02:53 Peter: And to really understand this, you need to start with the Constitution, so I think we should go to the only one of us who's ever read it, Michael.

[laughter]

03:04 Michael: Okay, so let me take you back to 1789, when a bunch of white, male, professional managerial class types got together and wrote the United States Constitution.

03:16 Peter: Our fanciest boys all got together.

[laughter]

03:19 Michael: Yes, yes, exactly. I was looking... Sorry, this is an aside, but I was looking through some old cocktail notes, 'cause I like making drinks, and Benjamin Franklin, in his writings, he has cocktail recipes that people asked him about, so he was doing craft cocktails back before the phrase "cocktail" had even been invented. They are so very much like modern-day yuppies.

03:43 Peter: Right.

03:44 Rhiannon: Right, yeah.

03:46 Michael: So the Constitution kicks off with the phrase "We the People," which, in retrospect, meant the specific people in that room.

[laughter]

03:56 Peter: "It's us guys," that's what they really meant.

03:58 Rhiannon: Right. "It's just us boys."

04:00 Michael: "The fellas, here."

[laughter]

04:01 Michael: "We got some things to say." And obviously, the Declaration of Independence had a lot of nice language, but the Founding Fathers did not really trust the general public with any significant power. And so, all the original Constitution says about elections is that voting requirements for Congressional elections are determined by the states, and for presidential elections, each state appoints its own electors who vote for the President, which we call the Electoral College. Nowadays, those electors are pretty much symbolic, because the states pretty much all require that their electors vote for whoever wins the vote in their state, but that's not actually required by the Constitution, and that's it.

04:42 Michael: There's no explicit right to vote in the Constitution as it was originally written, and that's not that surprising, if you look at what elections were like back then, there were almost no direct elections for federal office. The voters could choose the House of Representatives, like we can now, and their state legislatures, but the state legislators chose the Senate, not the voters; the Electoral College chose the President, not the voters; and the President and Senate chose the Supreme Court. It was like the vast majority of the federal government was chosen indirectly by elites. And here we're talking about voters, but the voters were just white male landowners, at that, so most people couldn't even vote, and those who could vote had very little and only indirect influence on the make-up of the Federal Gov.

05:26 Rhiannon: Yeah, that's right. And so that's sort of the lay of the land on voting as the Constitution is originally written, but things change a bit after the Civil War. So the federal government is aiming to keep the South from re-establishing slavery after the Civil War ends, and the Civil War Amendments, the 13th, 14th and 15th Amendments to the Constitution, are passed in the late 1860s through 1870. So the Civil War Amendments, also known as the Reconstruction Amendments, we've talked about them before, but after the 13th Amendment constitutionally abolished slavery, the debate over ratification of the 14th and 15th Amendments was really bitterly divisive.

06:10 Rhiannon: Back in middle school and high school, we're taught about these Amendments as a group, but it's important to look at them as building on one another, they're not a three Amendment package deal, and I think it's also important to highlight that these really significant, massive upheavals in the legal foundation of this country were not the result of just the good guys winning the war, and they're nicer, so they know the good laws to do. It was the result of intense, targeted political pressure, of seeing how the South reacts, of thinking and debating really hard and pressuring bad actors to reform a better union, right?

06:51 Rhiannon: So the 13th Amendment abolished slavery, but then the Republicans... Remember, this is the party of Lincoln, the Republicans had an immediate problem on their hands. Because of the 13th Amendment, the full population of freed slaves in the South would now be counted for determining the number of Congressional representatives that the South got, but even though those freed slaves counted towards Southern states' Congressional representation, the South was determined not to let them vote. So because freed slaves would likely be voting Republican, and because Republicans didn't want to just hand over a huge advantage in Congressional control to Democrats, Republicans had to think of a way to encourage and ensure that black people in the South were going to be able to vote. And they had to do so without having to rely on just temporary political majorities in Congress, they weren't always going to be a Republican majority, and so they had to plan for that.

07:45 Rhiannon: So they pushed for a constitutional amendment, and once the 14th Amendment was drawn up and sent to the states for ratification, of course, the Southern states refused to ratify. And so, what did Congress do? Congress was like, "How does a little military government sound?"

[laughter]

08:07 Rhiannon: And Congress passed the Reconstruction Act, which literally imposed federal military government in place of state governments in the South, and it required that the Southern states ratify the 14th Amendment in order to lift that military control, and in order to fully re-enter the Union. That's how the 14th Amendment gets passed.

08:25 Michael: I gotta give them props.

08:27 Rhiannon: Yeah.

08:28 Michael: There's some constitutional amendments that I think could use that sort of political pressure these days.

08:32 Rhiannon: Right, yeah!

08:32 Peter: Yeah. Right, right.

08:33 Rhiannon: Like the 14th!

08:33 Michael: I can come up with four in my head that I could write tonight that would be worthy of that treatment.

08:39 Rhiannon: Yeah.

08:40 Peter: So the 14th Amendment is the first part of the Constitution to mention the right to vote, and what it does, is it says that states that deny or abridge the right to vote, with a couple of exceptions, will be penalized with a corresponding loss of Congressional representation. So this is the first part of the Constitution that seems to indicate that citizens have some sort of actual voting right. And the 14th Amendment also has the Equal Protection Clause, which we've covered a bunch on this podcast, which says that citizens must be given equal protection under the law, and is later used by courts to ensure that people's votes count equally.

09:18 Rhiannon: Yeah, but at the time the 14th Amendment is passed, not everyone thought, actually, that it was going to really adequately ensure the right to vote. The Radical Republicans in particular, they're worried that the 14th Amendment is, by itself, insufficient for forcing the South to recognize the political rights of freed slaves, so that's why we then follow up with the 15th Amendment. And the 15th Amendment, again, references a right to vote, saying that the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color or previous condition of servitude.

09:55 Peter: Right. So all of a sudden, you have these two Amendments that don't seem to be themselves creating an individual right to vote, but nonetheless are referencing and protecting the right to vote. And frankly, I think the only reasonable way to interpret these Amendments is as if they create a de facto right to vote for citizens in this country. The 14th Amendment says that states that deny or abridge the right to vote will lose Congressional representation, and that citizens must be guaranteed equal protection of the laws, the 15th Amendment says you can't discriminate on the basis of race in voting. If those don't functionally create a right to vote, then I don't really know what they do.

10:30 Rhiannon: Exactly, exactly. But despite what we think is pretty clear language there, the courts, over the following 100 years, never really seized on the 14th Amendment as the basis of a right to vote. So while courts did occasionally prevent states from discriminating in voting on the basis of race, other sorts of arbitrary denial of the right to vote are totally fair game, so Southern governments reacted to the 14th and 15th Amendments with new and creative laws designed purposely to disenfranchise black voters. Tons of examples, like complicated voter registration requirements, really burdensome residency requirements to qualify as a voter. Southern governments implemented, of course, literacy tests. These were always administered by white voter registration officials and they were administered subjectively. There were poll taxes, and a lot of Southern governments also did what are called white primaries, where the states would hold primary races, but only allow white people to vote in them.

11:38 Peter: Right. Which, by the way, is legal or was legal at the time, in large part because primaries are just governed under a different set of rules because they're run by the parties themselves.

11:48 Rhiannon: Exactly.

11:49 Peter: So there was this argument that this isn't actually discriminatory in a way that is covered by the Constitution.

11:54 Rhiannon: Right, right. Now, to remedy all of this, like in 1890, for example, President Benjamin Harrison endorsed the Lodge Bill, which was proposed by Republicans in Congress, and the bill would have allowed for federal regulation of Congressional elections, but it failed. So in the absence of strong federal legislation, in the absence of any sort of federal legislative remedy, lawsuits pop up, and the Supreme Court is asked to weigh in on the efforts of Southern governments to disenfranchise black voters in all of these ways. And so, the Supreme Court struck some of those efforts down in 1915. For example, the Court struck down certain grandfather clauses, those are laws that waived the requirement of a literacy test or a poll tax if your grandfather had been allowed to vote, meaning the descendants of slaves were required to fulfill those requirements, but they wouldn't be imposed on whites.

12:49 Rhiannon: So the Supreme Court struck some of those down, but the Supreme Court also upheld all sorts of limitations on voting rights. In 1903, for example, in a majority opinion written by Oliver Wendell Holmes, the Supreme Court dismissed a case asking that black voters be automatically registered to vote in Alabama the same way white voters were, poll taxes were held to be constitutional. In a 1937 case called Breedlove versus Suttles, literacy tests were also held to be constitutional by the Supreme Court in 1959. So as a result, the most basic and fundamental methods of voter disenfranchisement, those remained intact because the Supreme Court said they were okay.

13:29 Michael: Right, and it's worth noting that we're very focused right now, and I think throughout this episode, on race, and there's a lot of obvious reasons why, but it's worth noting also that women didn't get the right to vote till 1920.

13:44 Rhiannon: Exactly.

13:44 Michael: And that wasn't as a result of a Supreme Court case, that was a popular social movement leading to amending the Constitution.

13:51 Rhiannon: That's right.

13:51 Peter: Right. So it was only in the 1960s, when both Congress and the Supreme Court under Chief Justice Earl Warren started more actively protecting voting rights, the 24th Amendment passes in 1964 and it bans literacy tests. In 1965, the Voting Rights Act is passed, further protecting the minority vote. At the same time, the Court is handing down seminal decisions protecting voting rights, using the 14th Amendment to apply a principle of one man one vote, saying that the Equal Protection Clause mandates that each vote be treated equally.

14:28 Rhiannon: Right.

14:28 Peter: So in 1966, the Court strikes down certain racist redistricting practices, they strike down poll taxes the same year, so in general, there appeared to be an appetite on the Court to use the Equal Protection Clause of the 14th Amendment to see the vote protected, with a focus on protecting minorities from the disenfranchisement that they'd been subject to since Reconstruction began, really.

14:51 Rhiannon: Yeah.

14:51 Michael: Right, but as we've noted many times in the course of doing this podcast, that the Court after the Warren era, the last 40 years or 50 years, really, was and is deeply reactionary, and that's not a fluke, it's deeply embedded in the conservative judicial bench. Just for a couple of examples, we've talked about what an all-time piece of shit Bill Rehnquist was, but something I don't think we've mentioned before, is that in the early '60s, he almost certainly personally engaged in a campaign of voter intimidation and harassment aimed at black people in Phoenix. Four witnesses testified, under oath, in front of Congress, about seeing him do this, and he denied it under oath, probably perjuring himself.

15:37 Rhiannon: Love that.

15:38 Michael: This was a guy who, as a reminder, was the Chief Justice of the Supreme Court just 15 years ago. Another all-time piece of shit we've mentioned before is Robert Bork, who was nominated to the Supreme Court in the late '80s, but ultimately didn't get 50 votes, and his loss is still like... Makes him a martyr for conservatives.

15:56 Peter: Right.

15:57 Rhiannon: Yeah.

15:57 Leon: Some things about him is he thought poll taxes and literacy tests were constitutional, but that the Voting Rights Act was not constitutional, so...

16:06 Rhiannon: Great.

16:07 Michael: These are the intellectual leaders in conservative legal circles, so it's not a surprise that the Court spent the last few decades punching holes in the right to vote. In 1980, for example, the Court upheld at-large elections in Mobile, Alabama, despite evidence that they disenfranchised black voters. Generally speaking, what the Court starts to do is focus a little less on the rights of voters and a little more on the rights of states to administer their own elections, which gives them a lot of leeway.

16:38 Rhiannon: Yeah, it's like it becomes a state's rights thing.

16:40 Peter: Yeah. And so you have that sort of change after the Warren Court, where the Court starts shifting the other direction, but what really changes the way that the law and voting rights intersect is Bush v. Gore, the subject of our first episode. What changed after Bush v. Gore was less about the law and more about how political institutions began to view the courts and the law as a weapon to help them win elections. So I think the lesson for the GOP was that the scale of what you can achieve through the courts is infinite. If you can use the Supreme Court to essentially steal a Presidential election while everyone is watching, then you can use it for anything.

17:22 Rhiannon: Exactly, and there's a really telling line from Bush v. Gore, which is the Court's pronouncement that, "The individual citizen has no federal constitutional right to vote for electors for President of the United States." So yeah, that's true in the most literal sense, but the reality is that just about everything you need to protect the right to vote is right there in the 14th Amendment, like we said.

17:46 Peter: I agree.

17:47 Rhiannon: The 14th Amendment, first of all, penalizes states that deny or abridge the right to vote, and secondly, it guarantees citizens the equal protection of the law, so yeah, states don't have to let their citizens vote, but in a world where every state does, the 14th Amendment is right there to be used to make sure that the states do that fairly.

18:06 Peter: Right.

18:06 Rhiannon: And conservatives don't want to recognize this obvious truth for the very simple reason that they won't hold political power if that truth is actualized in the world.

18:18 Rhiannon: Exactly, yeah.

18:19 Michael: Just 10 years ago, the big narrative was that Republicans would have to court non-white voters if they wanted to compete with Democrats politically. Hispanic and other non-white populations were growing, and the right would have to speak to their interests. I was re-reading this stuff in prep for this episode, and there were multiple political science papers in 2008 and 2009 discussing what they called the permanent Democratic majority, which is just fucking wild to think about it in retrospect.

18:48 Rhiannon: In 2020, that just... That seems so far away.

18:52 Michael: Good call, John Judis, you nailed it.

18:53 Peter: Yeah, yeah.

[laughter]

18:55 Michael: So what they said was like, the combination of minority populations growing as a share of the electorate, shifts in educated white voter behavior, and the migration of left-leaning voters into Sun Belt cities were all supposed to lock in decades of progressive dominance, and you can kind of see this dynamic now with Georgia and Arizona and Texas becoming sort of battlegrounds. It's like what they were talking about, but the idea that the only chance Republicans had to blunt this would be to make inroads with minorities just turned out to be totally false.

19:29 Peter: Right.

19:30 Michael: Because Republicans saw another path, which was just making sure that their white voter base, their votes counted for more.

19:36 Peter: Right.

19:36 Rhiannon: Yep.

19:36 Michael: And that's nothing new, like Irish immigration in the 1850s led to the xenophobic Know Nothing party. Chinese immigration in the 1880s led to, among other things, the Chinese Exclusion Act, which we've talked about on this pod before. The Civil War and Southern reconstruction led to the Southern redemption and Jim Crow, which included campaigns of racial violence and all the disenfranchisement stuff we've been talking about. And in the modern day, large scale demographic shifts in the last 40 years has led to the Republicans' current sustained project of voter suppression. It's precisely like those things in every possible jurisdiction, at every level of government.

20:19 Rhiannon: Exactly.

20:19 Michael: They're trying to prevent minorities from voting. Voter roll purges, gerrymandering, voter ID laws, attacks on the Voting Rights Act, the elimination of polling places, curtailing or eliminating early voting, delaying or even canceling elections, impediments to mail-in voting. These strategies are crucial to the continued power of the Republican party, and they are possible only because the Supreme Court has refused to recognize a strong right to vote in the Constitution.

20:50 Peter: Right.

20:51 Rhiannon: Exactly.

20:51 Michael: The Court isn't a passive observer here. John Roberts and Sam Alito and all them are not just watching history unfold, it's central to this strategy. And we've told you a lot about that in this podcast, in Bush v. Gore, when we talk about Citizens United, about campaign finance, Shelby County, which was about the Voting Rights Act, RNC v. DNC, which was about absentee voting deadlines in the primaries during COVID this year, our term wrap-up when we discussed how they've effectively disenfranchised 800,000 Floridians for this presidential election. And there are more cases to come. That's just the start.

21:29 Rhiannon: They're coming.

21:30 Michael: Yeah.

21:31 Rhiannon: They're coming down the pipeline.

21:32 Michael: We got more for you. Yeah.

21:34 Peter: Yeah, we're going to have some great episodes this fall, that's for sure. And you know, we should note that voter suppression isn't like a phenomenon that appears sporadically here and there. It is a centrally planned strategy that is developed by Republican operatives and disseminated throughout the ranks of the Republican party for execution. Trump's Justice Department has systematically targeted non-existent voter fraud in order to suppress the vote. A few years ago, they hired Hans von Spakovsky, some Heritage Foundation freak and long-time Republican operative who has been a proponent of election reform, which is a term that when used by Republicans, it usually means the elimination of elections.

22:20 Rhiannon: That's right. That's right.

22:23 Peter: Hans von Spakovsky... You know those villains in movies who have a facial deformity and it's central to their character?

22:30 Rhiannon: Yes, absolutely.

22:32 Peter: And, you know, halfway through the movie, he tells you how it happened and you're like, "Oh, man, this guy... "

22:37 Rhiannon: Right, right. "This guy has the motivation to be bad."

22:40 Michael: Yeah. The screenwriters wanted him to look as ugly on the outside as he is on the inside.

[laughter]

22:45 Rhiannon: Yeah, yeah, yeah, this is absolutely right. This guy Hans looks like a kindergartener drawing a villain monster, and then you just poke two holes for eyes and you draw one straight line for upper lip. That's it.

[laughter]

23:02 Peter: So this guy Spakovsky, he's a long-time Republican official who has been at the forefront of efforts by Republicans to perpetuate the myth of widespread voter fraud in order to implement voter suppression techniques. And he is, without question, an extremist. He is literally building a career out of a lie, the lie that there is widespread voter fraud, almost certainly knowingly, at least to some degree. And in a normal world would be relegated to some garbage think tank, right? But for several years, he has been working in the Trump administration on Trump's Advisory Commission on Election Integrity, which is the functional heart of the administration's voter suppression efforts. And again, these are people who have been around Republican circles, but have never had this level of power, have never been given this much responsibility, and this guy has a huge amount of influence flowing through him right now. And he's a fucking nut job.

24:04 Michael: Yep.

24:05 Rhiannon: Right. Kris Kobach is another one of those nut jobs.

24:09 Michael: Yep.

24:09 Peter: Cretins like this, they don't exist and they don't work without a cooperative Supreme Court. And we should clarify what their exact role is here.

24:18 Rhiannon: Yeah.

24:18 Peter: Almost all of these large-scale voter suppression efforts touch on the same issue, which we've hinted at a bit, weighing the right of citizens to vote against the rights of states to control their own elections. And what conservatives have done, and what the Roberts Court in particular has done, is shift the balance towards states' rights and away from individual voters' rights. In all of the cases that Michael mentioned, from the voter ID cases to Voting Rights Act cases, like Shelby County, to gerrymandering cases and COVID-related election cases, the Court has taken the general position that, under the Constitution, states have freedom to run their elections as they deem fit, even if that means that they do a little bit of disenfranchisement here and there.

25:04 Rhiannon: Right, right. Yeah.

25:05 Peter: And the GOP cannot do this without the Supreme Court. They've won the popular vote in presidential elections once in the last 30 years, their voter base consists increasingly of older, white, non-college educated males, that's a demographic that's shrinking. Meanwhile, Democratic-leaning voter bases like Hispanics are growing substantially. The GOP's electoral disadvantage is huge, and so it needs laws and procedures that disenfranchise people en masse. And those are likely to get challenged in court and make their way up to the Supreme Court. If the Supreme Court were not playing ball, there wouldn't be any realistic pathway to this sort of large-scale voter suppression.

25:48 Rhiannon: Yeah, I think that's right. And the Supreme Court, the nine Justices up there, they're not only sort of playing ball and the conservative Justices are helping with this voter suppression tactic politically, it's also, I think, we've talked about on the pod, how there is no objective administration of the law, so that comes into play when the Supreme Court Justices are interpreting disenfranchisement efforts today. The nine Justices are well-educated, rich, mostly white folks who, frankly, can't relate to the people who are being targeted by voter suppression efforts. It's hard for somebody like a Gorsuch to imagine the difficulty of getting, say, a valid ID when he's never had to do that, or the difficulty of planning a bus route during the work day to get to a polling location that's far away because there are only a few now left in your precinct. I think it's very easy for them to brush off these disenfranchisement efforts as something that probably only affects people who they don't think about much, and it's just a nominal effect on a small percentage.

27:03 Peter: When your fucking secretary handles your voter registration...

27:06 Rhiannon: Exactly!

27:07 Peter: How can you relate to someone who doesn't even have an ID?

27:10 Rhiannon: Right.

27:10 Peter: You're so far. You're so distant from them.

27:13 Rhiannon: Exactly.

27:13 Michael: They don't have a hyphenated last name, where the presence or absence of the hyphen could lead to a challenge for their provisional ballot that they have to cast because they've moved three times in the last four years and aren't at the same polling location as they used to be.

27:29 Peter: Yeah. And I do you want to make a quick point as we talk about this, we're not going to talk about the fact that fucking elections are on a Tuesday, and it's just one day... You can easily envision a world where voting is a week-long process or at least on a day when fewer people are working, and that's not like a function of the Supreme Court, really, but it is a function of reactionary institutions who have no interest in trying to figure out the best way to turn this country into something that looks like an actual democracy.

28:00 Rhiannon: Exactly. I'm just looking at Wikipedia and this says that Sundays, internationally, is the most common day for elections.

28:07 Peter: I love that it's fucking Tuesday here. Is there a worse day? Is there a day where you more obviously have to be at work than a Tuesday?

28:14 Rhiannon: Right, exactly.

28:15 Michael: Yeah.

28:16 Peter: Every fucking normal country has a national holiday for voting, with us it's like, "Good luck, bro!"

28:22 Rhiannon: Right, exactly. Elections in India and the Czech Republic are held over multiple days.

28:27 Peter: That's what I'm fucking talking about, dude. It should be a year long.

28:30 Rhiannon: Sure.

28:30 Michael: Okay, guys, one sec. Let's go to an ad.

28:33 Peter: So before we move on, I want to make a quick point. Given that the Supreme Court has literally held that there is no constitutional right to vote for the President, is there anything more brazen than the propaganda this country feeds itself about our democracy? When you're a kid, you don't learn that we are a democracy, you learn that we are the democracy.

[chuckle]

28:55 Peter: The free-est, most democratic country on earth, eagles in the classroom... I had a bunch of classrooms that just had like, just had an eagle like in the corner.

29:07 Rhiannon: Did you guys grow up saying the Pledge of Allegiance every day?

29:09 Peter: Yeah, of course.

29:11 Rhiannon: Oh, yeah, Pledge of Allegiance, every day. We also have the Texas Pledge of Allegiance down here.

29:16 Peter: I would like to hear more about that. And what do you say?

29:19 Rhiannon: Honor the Texas flag. I pledge allegiance to thee, Texas one and indivisible. That's it.

29:24 Peter: That's barely a sentence. That's exactly what I expect out of the Texas Pledge.

[laughter]

29:30 Peter: All of this for a country where there's no fucking right to vote.

29:34 Rhiannon: Right, right, exactly.

29:35 Peter: And it goes deeper than just that sort of soft cultural propaganda. Citizenship tests for immigrants applying to be citizens used to include the question, what's the most important right for American citizens. And the answer was the right to vote. So on top of the fact that our citizenship test apparently includes opinion questions, answers are right that we don't even have. Literally just like ensuring that anyone who wants to become a citizen has to consume, and digest, and spit out the same brazen propaganda that all of our elementary school children do too.

30:13 Rhiannon: Right.

30:13 Michael: Right. And this is also reflected in our foreign policy. Following World War II, when we imposed a constitution on Japan that required universal suffrage for adults. We did the same thing in Germany. When we overthrew the governments of Afghanistan and Iraq, we insisted that they include a right to vote in their new constitutions. This country is so steeped in its own bullshit, so far up its own ass, that we're insisting that these countries give their citizens rights that our citizens don't even have. I just want to note as an aside, other things that we're told that are great about our country, all the veto points, and separations of power, and bicameralism and all that shit, we don't do that either.

30:58 Peter: So we should talk about the election crisis to come. We all know we're heading for one.

31:04 Rhiannon: The one that's on the calendar already.

31:06 Michael: Yes, yes.

31:06 Peter: It's clear that the Republican Party is gearing up for two-phase attack on the election this November. The first phase is what we mentioned, you have these active efforts to suppress the vote, suppress turnout, but the second phase is challenging election results. Very likely, by contesting the validity of ballots. It'll likely be done in multiple states or as many states is needed, and if the election looks like it will hinge on it, it'll end up before the Supreme Court. Trump v. Biden. God help us.

[laughter]

31:42 Rhiannon: Yeah, and like, "No, thank you."

31:46 Michael: The sound of that just put me on edge, man.

31:51 Rhiannon: And we're not going to speculate on what exactly a Trump v. Biden case will look like, but definitely we can already tell you what the considerations are likely to be, and it's going to likely be weighing the Constitution's protections of the right to vote against the rights of the states to control their own elections, just like they've been weighing since the 14th Amendment was passed. And one way or another, where the Court falls on that will be dictated more by politics than the law, just like it always has been.

32:20 Michael: Right. And this battle is like... It's already underway.

32:23 Peter: Yeah.

32:24 Michael: So obviously, there's a big difference between the parties right now, where substantial majorities of Democrats want to vote absentee, where substantial majorities of Republicans want to vote on Election Day in person, and this creates like a very clear avenue for the Republicans to engage in voter suppression that largely hits Democrats, without having to specifically target their approach, right?

32:47 Rhiannon: Yeah.

32:47 Michael: They just go after vote by mail. And so, an example of this currently being underway is in Iowa, where, if you want to request an absentee ballot, you need to have your voter ID number, which nobody knows, and it's a common problem, is that the forms get turned in without this. And so, a bunch of clerks were like, "Well, we're going to send people pre-filled-out forms, so all they have to do is sign it and return it." And so, of course, Republicans and the state legislators passed a law saying, "You can't do that." And then, a bunch of clerks were like, "Well, fuck that. We're doing it anyway." And they did, and then the Trump campaign challenged that in court, and this just happened, where 50,000 absentee ballot requests got thrown out because of this, and there are like another 20,000 in contention in other counties. So the war on absentee voting is underway, right now.

33:39 Rhiannon: Yeah.

33:39 Peter: Absolutely, yeah.

33:40 Michael: It's not just the postal service, it's in the courts, it's in the State Houses right now.

33:45 Rhiannon: Yeah, and can I just add an example in Texas, Harris County, massive, massive district, where Houston is, right? Tons of voters. The Secretary of State's office just threatened this week, threatened legal action against Harris County, if it goes ahead with its plan to send applications for mail-in ballots to more than 2 million registered voters. So this is already happening, Harris County, not only huge, urban, but very diverse...

34:12 Peter: Do it anyway.

[laughter]

34:14 Rhiannon: Yeah, do it!

[laughter]

34:16 Peter: The Trump administration has also sued both Nevada and Montana, because those states automatically sent voters mail-in ballots, and the administration is claiming that sending voters those ballots undermines election integrity.

[chuckle]

34:31 Peter: This is the federal government stepping in to interfere with states trying to increase their own turnout, which should dispose of any notion you might have that what conservatives are actually concerned with is the states' rights to run their own elections.

34:43 Rhiannon: Exactly.

34:44 Michael: Right. So one thing I'll say that's like a positive development is the NBA work stoppage, the Bucks' wildcat strike that turned into something a little broader very briefly. One policy change that came out of that was the use of arenas as polling locations, and maybe some of our listeners who are a little more skeptical of electoralism as a means of social change won't really care. But as we're talking about voting rights, it's worth noting, that's a big win, because all of these are in urban areas that have a lot of minority voters, who are often the targets of disenfranchising efforts. Poll closures, attacks on absentee voting and challenges to signatures and all that shit, and so having a large, easily accessed polling location is a big win.

35:37 Peter: Right.

35:37 Rhiannon: Yeah, and not just that, but my understanding is that the plan also includes using some of those facilities for voter registration and ballot receiving boards, especially if the deadline to establish a polling place has already passed. Again, that's really needed, and can have a really big impact.

35:53 Peter: Yeah.

35:54 Michael: Yeah.

35:54 Peter: So one final point I want to make about these elections, 2020, is that the Democrat strategy is to get as many votes as possible and get them counted, right?

36:05 Rhiannon: Yes.

36:05 Peter: The GOP will be trying to get as many of those votes tossed out after the fact as possible. But a lot of the things the GOP does to suppress the vote can't really be challenged after the fact. Let's say Trump engages in what I think is the nightmare scenario and creates a police presence at the polls that is designed to discourage votes. Biden can argue that it's illegal, but what could a court even do?

36:28 Rhiannon: Right.

36:29 Peter: You can try to get an emergency injunction to stop it at the time, which would take hours, hours in which people are being turned away from the polls. Biden can't prove it would have changed the outcome after the fact, and no one will be able to measure the exact number of votes lost. When a strategy is designed to prevent people from voting, it's almost impossible to challenge in the courts after the election actually occurs, because the damage is already done.

36:53 Rhiannon: Exactly.

36:53 Peter: All that to say, the Republicans' path here is easier. It's easier to suppress the vote than it is to fight against it. It's just a massive built-in advantage, and that should be something that's very disconcerting, because if the GOP decides to go all-out on November 3rd, I'm not entirely sure how much could actually be done to stop it.

37:15 Rhiannon: Yeah, yeah, there just isn't a legal framework for this kind of thing, and that's part of the reason why the Republicans have chosen that strategy, frankly.

37:22 Michael: Another reason why having multiple election days, an election week would be beneficial.

37:28 Rhiannon: Exactly. So to speak a little normatively here, to talk about the future and what a legal framework that adequately protects voting rights might look like, the most obvious step the courts would take in a fair world, in a just world, is to return to the Warren Court-era framework of a 14th Amendment. That framework uses the Equal Protection Clause to protect voters, and that kind of court would be returning to using an analysis that weighs the rights of voters more heavily than the rights of states to control their elections.

38:01 Peter: Right.

38:01 Rhiannon: Another obvious step is to undo the gutting of the Voting Rights Act that took place in Shelby County v. Holder back in 2013. We didn't cover that case much here today, but that's because we have an entire episode on it.

38:14 Peter: Right.

38:14 Michael: Yeah. [chuckle]

38:16 Peter: And yeah, if I can talk my nerd shit for a second.

38:18 Rhiannon: Please do.

38:19 Peter: There's also a less obvious step to be taken. We mentioned earlier, that there's a clause in the 14th Amendment that penalizes states that deny or abridge their citizens right to vote, and it penalizes them by lowering their congressional representation proportionately. In other words, states are apportioned Congressmen based on their population, so if you deny ex-citizens their right to vote, your share of congressional representatives would decrease accordingly. And believe it or not, this clause has really never been enforced, for a bunch of reasons. It's logistically difficult to implement, and there's a lot of political pressure by Southern states, frankly, to not enforce it, and as a result, courts have more or less given up on it and impact litigation attorneys at the ACLU, for example, have also more or less given up on it as a reasonable path here.

39:12 Peter: So in other words, states are running wild with disenfranchisement, while there's a massive constitutional weapon for fighting against it that sits dormant and mostly unused, and if you want states to take voting rights seriously, that clause needs to be given teeth and liberal and left judges and academics should be working on doing that.

39:34 Rhiannon: Exactly.

39:35 Michael: So yeah, look, it's up to judges and academics to do that sort of groundwork, but what really drives change is popular pressure on political institutions, and I think history shows that. And so, yeah, the Warren Court had liberal-minded Justices, but that Court was more than anything, responsive to the social and political upheaval of the '60s. It's not a coincidence that the Court's greatest period of social change over the last century was also a period of great civil unrest, when people were out in the streets demanding justice.

40:08 Peter: Yeah, like we said, it wasn't long ago that many Republicans were eyeing a future where they were courting Hispanic voters, but in a post-Trump world, that's not a real option, they've fully embraced reactionary white nationalist politics, to a point where it doesn't really feel like they can turn back, at least not in the short term. They can no longer realistically think about expanding their coalition, all they can do is ensure that they weaken the political power of their opponents. So the preservation of the modern GOP relies on the idea of permanent minority rule, and you cannot have permanent minority rule in this country with a Constitution that actually protects against the denial or abridgment of voting rights.

40:57 Peter: The conservatives on the Court know and understand this deeply, they were groomed by conservative academia and the Federalist Society and appointed by Republican presidents with this specifically in mind. This isn't a one-off issue that the conservative Justices can be flexible on. If they back down on this, the conservative political project in this country will be teetering on collapse. So we can explain to you why the right to vote as it is written in the Constitution is a little flimsy, but that doesn't explain why voting rights in this country are weak. As we mentioned, everything you need to protect voting rights is right there in the 14th and 15th Amendments of the Constitution.

41:38 Peter: I think we've said this numerous times, rights are as strong or as weak as our political institutions allow them to be, and conservative institutions have a vested interest in keeping this one weak. You won't convince them using constitutional arguments to give up their own power. That has never worked in the past, and it won't work now. One way or another, it has to be taken from them. Because what the Constitution actually means is determined by powerful people, not by podcasters who read the Constitution.

42:12 Rhiannon: Yeah, Michael, you mentioned earlier, that some people on the left might sort of be just really skeptical of electoralism, of the power of the vote, of whether or not elections really matter. And I fully admit that I think about that stuff too. Especially in a state like Texas, where it's really easy to just be like, "My vote does not fucking matter in this state, in the current system."

42:35 Michael: Or right now, with the protests related to police violence. I'm tweeting how much I'm angry at Bill de Blasio all the time. It doesn't matter that it's all Democrats running New York City, it's still a massive uphill battle to get them to do basic democratically popular reforms.

42:55 Rhiannon: Right, right. But what I'm... In prepping for this episode, what I've been thinking a lot about, is how it's easy for us on the left to just throw up our hands and say, "You know, elections just don't fucking matter, we will have power through other methods," that kind of thing. And I actually think that that thinking is a result of exactly these voter suppression tactics. And in preparing for this episode, I ran across a quote from a Senator, a US Senator, he was the former Governor of South Carolina, actually, and this was when Southern disenfranchisement efforts were being debated and were being discussed in Congress, around the turn of the century.

43:38 Rhiannon: And so in the year 1900, former South Carolina Governor Benjamin Tillman said this about voter disenfranchisement in South Carolina, he said, "In my state, there were 135,000 Negro voters or Negroes of voting age, and some 90,000 or 95,000 white voters. Now, I want to ask you, with a free vote and a fair count, how are you going to beat 135,000 by 95,000? How are you going to do it? You had set us an impossible task. We did not disenfranchise the Negroes until 1895, then we had a constitutional convention, which took the matter up calmly, deliberately and avowedly, with the purpose of disenfranchising as many of them as we could, underneath the 14th and 15th Amendments. We adopted the educational qualification as the only means left to us and the Negro is as contented and as prosperous and as well-protected in South Carolina today, as in any state of the Union south of the Potomac, he is not meddling with politics, for he found...

44:38 Peter: High bar there.

[chuckle]

44:41 Rhiannon: He is not meddling with politics for he found that the more he meddled with them, the worst off he got. As to his rights, I will not discuss them now. We of the South have never recognized the right of the Negro to govern white men, and we never will. I would to God, the last one of them was in Africa, and that none of them had ever been brought to our shores." This is 1900.

45:00 Peter: Yeah, but Tom Cotton said the same thing at the 2020 RNC.

[chuckle]

45:04 Rhiannon: That's right. That's exactly the point I want to make. Beautifully put, Peter, is like 1900, people's parents alive today were alive at this time. History is now, and just because Republicans and the GOP don't talk quite so explicitly as this, that's the same exact thing that's happening.

45:23 Michael: Right. And it's important to note that bullshitty elections where conservatives are suppressing or outright disenfranchising their opposition is how they keep up this faux legitimacy, but the way minoritarian rule actually consistently maintains power is through violence, and so the longer conservatives are committed to this minoritarian path, they're going to be invested in using political violence, and the longer it goes the more invested they'll be. That's not five or 10 years down the road, it's here. There are endless examples of right-wing paramilitary types getting a pass from cops for the violence they're enacting on protesters. A kid who murdered two people in Kenosha was able to leave the scene and leave the state without being arrested. He had to turn himself in in Illinois to get arrested.

46:17 Peter: That's a great point. And it's important to recognize it. Whatever you think about voter suppression, if it's not something that resonates with you, it's step one. This isn't like the end game here. It's the first step in a process of subjugating the majority of people in the country.

46:33 Michael: I mean, we just spent an hour telling you about a decades-long project to suppress the vote. Republicans, they're not doing this 'cause they're idiots. They know what they're doing and they're doing it because it's important. It's politically important.

46:49 Peter: It's necessary.

46:50 Michael: It's necessary, and I think people on the left need to see that as well, how important it is to expand and protect voting rights.

46:58 Peter: Yeah, like I lean heavily left. I've never been a big fan of Joe Biden, to say the least. And the one thing I'll say is this, this is an interesting election, in large part because if Joe Biden wins and the Supreme Court flips, which isn't a guarantee if Biden wins, but if the Supreme Court flips on voting rights, the conservative project in this country will be relegated to the margins to a degree that you have never seen in your lifetime. I'm not going to vote for him, 'cause I'm in New York and it doesn't fucking matter.

47:31 Rhiannon: Peter!

47:33 Peter: Oh, yeah, I'm sorry. I'll just take three hours on my Tuesday morning that I was otherwise going to be sleeping and go vote.

47:41 Rhiannon: Goddamn it, Peter.

47:42 Peter: Yeah.

[laughter]

47:44 Michael: It took me 15 minutes last time I voted.

[music]

47:55 Peter: Okay. Next week is City of Los Angeles v. Lyons, a case about whether the Court can or will stop the LAPD from using chokeholds. You can guess where they ended up on that one.

48:15 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

[music]

48:48 Leon: From the Westwood One Podcast Network.