Protecting the right to vote: A conversation with Ari Berman

Updated

In recent years, a barrage of restrictions on access to the ballot and a determined campaign to weaken the Voting Rights Act have put the right to vote more gravely at risk than it’s been in half a century. A new book by Ari Berman, “Give Us The Ballot: The Modern Struggle For Voting Rights,” exposes a remarkably successful, decades-long effort by the right to roll back voting protections.

Berman joined MSNBC’s Zachary Roth to talk about John Roberts’ key role in the campaign, how best to protect voting going forward, and why, with the 2016 election approaching, the worst could be yet to come. A lightly edited transcript of the conversation follows.

Zachary Roth: Welcome, Ari. 

Ari Berman: Good to see you.

ZR: If there was one overriding message I took from your fascinating book, it was about how the meaning of the Voting Rights Act (VRA), and the scope, even, of the Act, have shifted over time. How nobody knew when it was passed in 1965 exactly what it would cover, what it would do, what it wouldn’t. And one particular example of that being vote dilution: These cases where it’s not a question of being denied the vote, it’s a question of, will their vote count to be able to elect the representatives that they want to elect. What does that fact, that it has kind of shifted over time, what does that mean in the context of today, when the VRA is now being used in some relatively new ways to try to stop some of these new voting restrictions?

AB: Well, it’s really interesting, the evolution of the VRA. Initially, the VRA was aimed at ending the disenfranchisement of black voters in the south. All over the south, but particularly in places like Selma, Alabama, where it only had 2 percent of African-Americans who were registered to vote. And so the VRA tried to solve this problem first by outlawing literacy tests and poll taxes that had prevented African-Americans from voting, by sending federal officials to the south to register voters, in huge numbers, by keeping federal officials in the south to make sure elections weren’t stolen, by telling those states with the worst histories of discrimination that they had to approve their voting changes with the federal government.

What happened after the initial period of the passage of the VRA is that states like Mississippi began changing their election laws to make it harder for these newly registered black voters to actually have real political representation. And that’s where the whole new struggle that you mentioned, where states tried to dilute the black vote—they couldn’t just stop black voters from voting, so they said, we’re going to make it so that they can’t be elected, basically. And there was this very influential case, Allen v. State Board of Elections in 1969, from Mississippi, and the Supreme Court said in a 7-2 decision that the VRA was going to deal with everything related to making the vote effective. That it wasn’t just about the right to vote, it was the power of the vote. And so that interpretation of the VRA made it extremely important, and led it to have real impact, not just in striking down these barriers to the ballot box, but in making sure there was real representation. People like John Lewis, for example, who nearly died marching for voting rights in Selma, would be able to be elected to the Congress, that eventually we’d be able to have a President Obama, and the promise of the Act would be real.

And now it’s interesting because the same sort of tools that were used to challenge vote dilution—so, election systems that made it harder for African-Americans to be elected—are now challenging new voting restrictions that not only make it harder for people to be elected but that actually make it harder for you to cast a ballot as well.

ZR: John Roberts: You portray him as, from the start of his career as a young lawyer in the Reagan Justice Department, you say he had an obsession with sort of limiting the scope of the VRA and of other civil rights laws. You say he was obsessed with getting rid of the results test for the VRA, limiting it to intent. Put that in the context of his ruling in the Shelby County decision [which badly weakened the VRA in 2013] and future voting rights cases that he might hear.

AB: Well, John Roberts has a very long history with the VRA, and that’s something that I wanted to tell in great detail in the book because I think a lot of people have forgotten or didn’t know this story: That after John Roberts graduates from Harvard Law School, he goes and clerks for William Rehnquist. And I also wanted to talk about Rehnquist, because I don’t think people understand his role in history, how influential he was, and how radical he was. Rehnquist was known as the Lone Ranger when Nixon put him on the court because he was so conservative. He was someone who, for example, believed that Brown v. Board of Education was wrongly decided. He had personally administered literacy tests to black and Hispanic voters in Arizona. Nonetheless, he was put on the Supreme Court, and the fact that Roberts worked for Rehnquist was very instructive, because Rehnquist was kind of like this old-school states’-rights conservative after it was popular to be one. And then, Rehnquist becomes Roberts’s entrée into the Reagan Justice Department.

That’s really where the counter-revolution against voting rights that I talked about really gains steam. And not just with Reagan but with the foot-soldiers of the Reagan Revolution, people like John Roberts. And urging the Congress to take a very limited view of the VRA. The Supreme Court has said in 1980 that you can only strike down discriminatory election systems if you show proof of intentional discrimination, which is very, very, very, difficult to prove. Roberts is saying that you need to preserve that finding of [requiring] intentional discrimination, or else it will lead to things like quotas in electoral politics, affirmative action in the electoral sphere. This is an argument that the Reagan Administration is making all across the board when it comes to civil rights. But Roberts really becomes the chief person tasked with dealing with Congress on this voting rights issue, and he wrote memo after memo after memo arguing against a broad interpretation of the VRA. And then thirty years later, when he gets put on the Supreme Court, it’s not surprising that he would be the architect of gutting the VRA if you understand that he has a long history in opposition to this law.

ZR: And then, again, what might that also mean for any future cases he might hear?

AB: Well, it’s very worrisome, because what Roberts did was he struck down Section 4 of the VRA, which was the formula that covered those states with the worst histories of voting discrimination, and said that they have to approve their voting changes with the federal government to prevent discrimination in the future. But if you look at the cases that are coming up before the Supreme Court, potentially, either from Texas or North Carolina or some other place, they’re dealing with Section 2 of the VRA, which was not struck down by the court. That was the very provision that Roberts was challenging in the 1980s, and so there’s a lot of concern that Roberts hasn’t forgotten this battle, that Section 2 is what he was initially concerned with, and that if a new voting rights case comes up he is going to once again try to take a very limited interpretation of the VRA, which would basically—the VRA is already kind of on life support here, and if Roberts was to gut it further, I think everyone really believes that it would largely be dead.

ZR: As you’ve said, the history of the VRA and protecting voting rights has been kind of inseparably tied to race in America, and your book makes clear why we came up with an approach to protecting voting that puts race at the center. The restrictions that we’re seeing on voting today, most of them, do have a disproportionate effect on a racial basis, but they also operate on other levels, singling out poor people, students, the disabled sometimes. As a result, there are some people arguing that going forward to protect voting rights we need a different approach that’s not a race-based approach but a sort of more affirmative approach that protects the right to vote for everybody. What do you think about that?

AB: Well I’m totally for that. I don’t think it’s an either/or discussion, I think its unfortunate its been framed as such. I think we need to recognize that racial discrimination in voting still exists, and that certain types of voters are continually singled out, unfortunately. But I also think we need broader protections—things like expanded early voting or same-day voter registration or online voter registration or automatic voter registration that will increase the electorate more broadly and protect all voters. And it’s sad that we cant really reach a consensus on either. I mean, people are making it seem like, oh well if we can’t get these protections against racial discrimination we should just get these broader protections. Unfortunately the Congress isn’t doing either right now, Republican officials aren’t doing either, and so it’s tough for us to make any progress unless you’re in these very blue states.

ZR: Right, and we are seeing some progress in those states, Oregon passing a universal voter registration law. I learned from your book that Jimmy Carter was an early advocate of universal voter registration, Hillary Clinton came out for it earlier this summer. Is this a terrain that’s harder for Republicans and conservatives to contest, because it is just about expanding access to the ballot, and who can be against that?

AB: When Jimmy Carter proposed automatic voter registration in 1976, at an event with John Lewis, where he said, everyone who turns 18 should be automatically registered to vote, this is how we can honor people like John Lewis and Dr. King and what they fought for, after he introduced that proposal, Ronald Reagan said that it would invite wholesale election fraud. So to some extent, the same debates that we saw back in the 1970s are playing out today. We’ve already heard for example from some conservatives that automatic voter registration will lead to higher fraud. There’s a lot of hysteria that illegal immigrants, undocumented immigrants, are going to be registered to vote. So I expect the same kind of push-back to automatic voter registration that we’re seeing to all these other reforms, because I think there are just certain people out there that oppose any sort of expansion of the franchise, any sort of effort to bring more people into the political process, particularly people who might not be conservative-leaning voters. And so they’ve manufactured this crisis to try to make it harder to expand access to the ballot, and then to build support for new restrictions that make it harder to vote.

ZR: Last question: We’re approaching the 2016 election, which will be the first presidential election since 1964 without the full protections of the VRA in force. What can we expect to see as a result of that?

AB: Well I think we’re already seeing that new restrictions are in place in swing states like Wisconsin and North Carolina, and that 15 states have new restrictions in place for the first time in the 2016 presidential cycle. But I think we’re going to see more movement. A bunch of state legislatures are coming back in 2016, they could pass new restrictions closer to the election. At the same time, there could be changes on the local level, that are going to be harder to spot—closing a polling place right before the election, all sorts of things like that, that aren’t going to be done with a lot of advance notice and are going to be difficult to spot. And then I think there’s also going to be organizing efforts to try to overcome this as well. This is what we saw in 2012, that there was a backlash to the backlash, as I call it. And I think we’re going to see similar efforts in 2016, where there will be new efforts to make it harder to vote, but hopefully there will also be efforts to try to overcome that as well.

ZR: Ari Berman, thanks so much for joining us.

AB: Thanks so much, Zack.

John Roberts and Voting Rights Act

Protecting the right to vote: A conversation with Ari Berman

Updated