Every Monday at 1 p.m., Slate is hosting In the Know, an Election Talk Show, on YouTube Live and Facebook Live. This week, Slate staff writer Mark Joseph Stern talked to Dale Ho, director of the ACLU Voting Rights Project. The two discussed Ruth Bader Ginsburg’s voting rights legacy and some of the most restrictive voter suppression laws. Part of their conversation, edited and condensed for clarity, has been excerpted below. Next week, Julia Craven will interview LaTosha Brown, co-founder of the Black Voters Matter Fund. We hope to see you there.
Mark Joseph Stern: This is a show about voting rights. We will be talking about voting rights, but I thought it would be fitting before we dive into the details to chat with you about what you consider to be Justice Ginsburg’s voting rights legacy.
Dale Ho: Justice Ginsburg was a champion for voting rights, as she was for so many other causes and civil rights issues. I think she will always be remembered for, among other things, her famous and prescient dissent in Shelby County v. Holder, where she famously wrote that throwing away this critical part of the Voting Rights Act—the federal pre-clearance requirement that required states and counties with the worst histories of discrimination to obtain federal approval before making changes to their voting laws—that throwing it away was like tossing your umbrella in a rainstorm because you aren’t getting wet.
And sure enough, after she wrote that, the deluge came. We have been fighting a wave of voter suppression laws ever since, including one that passed just a few days after the Shelby County decision in North Carolina, which was later struck down by a unanimous panel in the 4th Circuit as having targeted Black voters in North Carolina with “surgical precision.” Justice Ginsburg was right about a lot of things. The effect of that decision and the onslaught on voting rights that we would see in its wake (and are still seeing today) was one of them.
You mentioned North Carolina’s immediate action in the wake of that decision to restrict the right to vote. Could you talk about some of the other measures that states passed shortly after the Shelby County ruling that did suppress votes, particularly the votes of racial minorities and low-income people, that are still in effect today?
We have seen a wave of laws that make it harder for people to register to vote or to cast a ballot. That includes things like Texas’ voter ID law, the law that infamously permitted people to vote with a concealed weapons permit, but not a University of Texas student ID card. That was a law that had been blocked under the Voting Rights Act before the Shelby County decision and then was revived literally the day that the Supreme Court announced its decision in Shelby County. A law in Arizona which prohibited assistance with absentee ballots, something absolutely critical on American Indian reservations to help voters there who don’t get regular postal service, to make sure that those folks can vote by mail, a law that was later struck down by the 9th Circuit sitting en banc and which the Supreme Court is currently considering whether or not it will take. A similar law that we are litigating right now in Montana and took to trial just a week ago.
We saw a range of laws all around the country, both in states that were formerly covered by the Voting Rights Act and other states as well, because it seemed like once Shelby County was decided, the floodgates opened and what happened in those states with the worst histories of discrimination just spread around the country from there.
There was one success story a few years after Shelby County, in 2018, when Florida passed Amendment 4, which eradicated the constitutional prohibition on former felons casting a ballot. This was a Jim Crow–era law designed to prevent Black people from voting in Florida. It had succeeded. One in five Black men of voting age in Florida could not vote because of this law.
Sixty-five percent of Floridians said, “We’re getting rid of this,” and voted on a ballot initiative that restored the right to vote for these former felons. But Florida was still controlled by Republicans, and Republicans then turned around and said, “We don’t like this kind of progress. We’re going to institute a poll tax by forcing these formerly incarcerated people to pay off all of the fines and fees that they were saddled with when going through the criminal process, because that’s how Florida funds its criminal justice system.” I wonder if you could talk a little bit about the fallout from the Florida Legislature’s move there. What’s been happening in the courts recently, and what happened at the 11th Circuit?
Just to back up for a moment, there are 6 million people in this country who are disenfranchised because of a criminal conviction. That’s larger than the population of, I think, about half the states. It’s a huge number of people, and one-quarter of them reside in a single state, Florida, because Florida had one of the strictest rules in the country about voting with a criminal conviction. A single felony offense would bar you from voting for life. And because of the overcriminalization and mass incarceration that we have experienced as a country over the past few decades, that rule swept in a huge chunk of Florida’s electorate. One out of 10 adult citizens in the state—disenfranchised. As you pointed out, for Black men, it’s over 20 percent.
It’s really hard when you think about those numbers, which are staggering, to really think about Florida as a true, functioning democracy. … Our analysis when we litigated this was that about 80 percent of people who are no longer in custody in any way or under supervision still owed some money associated with their sentences. That’s hundreds of thousands of people, perhaps over a million people in the state of Florida, disproportionately people of color.
We sued the minute that the governor signed this into law. What we learned in litigation was not just that a huge number of Floridians are affected by this, and not just that many of them can’t afford to repay these debts, but that many of them can’t even figure out how much money they owe because Florida doesn’t have a single, centralized database that keeps track of this information. It’s kept on a county-by-county basis. It’s not updated to reflect the payments that people have already made, and then the records only go back so far. So we have clients who have convictions from the early 1990s or even earlier, and there simply are no records that exist anymore for many convictions that are that old.
So we have this Kafkaesque system where people have to pay an amount before they can be eligible to vote. They can’t figure out how much they owe, but if they want to register, they must swear an oath under penalty of perjury that they are in fact eligible to vote in Florida. It’s a crazy system. We got a great preliminary injunction ruling blocking it. It was affirmed by a panel of the 11th Circuit. We took it to trial earlier this year. Again, the court ruled in our favor, but then it went up to the 11th Circuit, which heard the case en banc, and we fell one vote short. It was decided 6–4 against us and overturned not just the trial judgment, but the preliminary injunction ruling in the case as well.
How can it possibly be that a state can condition your right to vote on paying off certain fines and fees and then refuse to tell you what those fines and fees are and how much you owe?
Well, the state’s position—and unfortunately there’s a Supreme Court decision that essentially says this from 1974, Richardson v. Ramirez—is that when you are convicted of a felony, you forfeit your fundamental right to vote. And any voting rights that people with criminal convictions have are not fundamental rights guaranteed by the Constitution, but just gratuities offered by the state. Which means that even though the Supreme Court has ruled that a poll tax, a financial cost to voting, is plainly unconstitutional, that is not, the state argues, the case for someone if they have a criminal conviction.
Obviously I disagree with the substance of that requirement. But even if the state’s right about that, I would think that everyone ought to agree that the state ought to provide people with the basic information they need to satisfy it. Even if it’s OK for a state to say you owe $500 or $1,000 or $5,000 before you can vote again, which I think is abhorrent, but let’s just say the state can do that. The state ought to tell you what that number is before you have to place yourself in criminal jeopardy by signing a voter registration form.
It almost seems in some ways worse than an outright traditional poll tax, because at least for those, you could pay the money. … It was abhorrent and unconstitutional, but this feels more to me like the old Jim Crow tactics of forcing voters to count how many jelly beans there are in a jar, to guess how many there are, and you’ll only get to cast a ballot if you guess correctly. That’s really easy for a state to manipulate and to use to try to choose its electorate and continue this sort of Jim Crow method of disenfranchising people through rather underhanded means.
I think the criminal sanctions that attach if you guess wrong here really do take this to a different level and mean that it’s quite possible that many people who are in fact eligible to vote, or can afford the amount that they owe and could become eligible, could be deterred. Their willingness to sign a voter registration form in these circumstances, where there isn’t certainty about the amount of money that they owe, and it’s difficult to get that information from the state—that’s likely to chill participation. It’s a really nefarious system.