Are the Democrats Blowing It on Voting Rights?

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S1: Rick Hasen is an election law expert, but for the past few weeks, he’s been watching these videos. Hi, babe, it’s me, Sarah Silverman. And now you’re thinking these are celebrity videos, videos endorsing the kind of election reforms Rick’s been advocating for years. Whatever your personal politics are, whatever side of the aisle you find yourself on, you need to know that your vote matters. And they all focus on one bill in particular, H.R. one the for the People Act called the for the People Act.

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S2: And it’s going to do a lot of amazing things like end gerrymandering and secure our elections. But even she said

S3: we have no voice.

S1: In one of the more dramatic clips, Katy Perry and Orlando Bloom travel back in time from a dystopian future and they warn Americans polling places closed. We lost our right to. Safe democracy. Well, you can call your senator now. Here’s the funny thing, Rick, who’s been warning legislators about the booby traps in American election law for decades.

S3: Oh, yeah. Yeah.

S1: And who has accurately predicted any number of meltdowns at the ballot box? He hates these videos.

S3: It’s all about messaging. And, you know, voter suppression sells, you know, and I’m not trying to minimize it is a real problem. It’s a real problem. But I don’t think that the strategies that Democrats are pursuing are ones that are likely to actually yield results in Congress, at least.

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S1: Back in January, after the riot at the Capitol, Rick wrote out this checklist of all the stuff Democrats should do once they assumed control of the White House and Congress, strategies that would shore up the Distrust that’s been seeping into American politics. But you know what wasn’t on his list? A massive voting rights bill. He just thought it was too unwieldy. You seem to often be encouraging lawmakers to be pragmatic and practical. How often do you actually see them doing that?

S3: Well, in the election space, it’s really tough because it’s seen as a zero sum game. This is about the legislators themselves and whether or not they’re going to get re-elected. And it’s not as though I philosophically disagree with a lot of say, what’s in H.R. one. It’s that in a 50 50 Senate, it seems that selling the world on H.R. one or we all die is a bad and and ultimately self-defeating message.

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S1: Yeah, I mean, I’m glad you put it that way, that the part of the reason why it’s hard to have these conversations across the aisle is because its voting is existential to the people who are making the decisions about how to change voting law. And so the stakes are very high for them.

S3: The stakes are high. And also the road to election reform is full of unintended consequences. When you try to make things better, you don’t always succeed. And so that’s that’s an argument for incrementalism, even if you think that ultimately we need radical change.

S1: I mean, you said in January things are going to get much worse if Democrats do not act quickly and decisively when it comes to voting rights

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S3: and they haven’t. We’re in a period where the potential for the worst nightmare is there and months have been wasted.

S1: Today on the show, have the Democrats squandered their chance at election reform by trying to shoot the moon, a Mary Harris you’re listening to, what next? Stick around. Right now, the battle the Democrats are waging over voting rights is mainly focused on the Senate. That’s where the for the People Act, sometimes called H.R. one or S1 is currently parked, saying this thing is a massive piece of legislation. That’s an understatement.

S3: Well, it’s I think over 800 pages as of now. It’s a Democratic wish list. Right. So it tackles everything from partisan gerrymandering to early voting to Supreme Court ethics rules, to public financing for congressional elections, to campaign disclosure.

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S1: So kind of it seems kind of like the clown car of legislation, like just lots in there.

S3: Well, it’s like a Democratic messaging bill. It’s meant to say, you know, here’s the package of things we would like.

S1: You’ve always said that H.R. one is just sort of too big. Like back in January, you were saying, listen, there’s going to be a lot of pressure for you to focus on H.R. one. Don’t do it. Can you just explain your thinking here?

S3: Well, Democrats have the thinnest of majorities, right? They have if they had one fewer seats, they wouldn’t have the majority in the Senate. So one defection is enough to get rid of it. And also in the House, a very narrow majority because Democrats majority narrowed after the twenty 20 elections.

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S1: And there’s some evidence that not all Democrats are on board with this legislation to. Right.

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S3: This is exactly what I was going to say, which is that, you know, when you put together this really big bill, I mean, there’s two ways to think about one. As you put together a Christmas tree kind of bill, they call it what you know, you give everybody an ornament and everybody’s happy. And sometimes that works, you know, if basically you’re giving away pork. But if but if what you’re doing is you’re trying to put in a lot of election reform, some of which are going to affect the members themselves who are going to vote on it, you you end up losing people. So to take an important example, some black Democrats in the House are worried that the provisions that would limit partisan gerrymandering are going to hurt the ability to draw black majority districts under the Voting Rights Act and that this could hurt their power because

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S1: that’s part of what happens where where areas are carved out. And it’s much more likely you’re going to have black representation in Congress because of how the district is made.

S3: That’s right. And so, I mean, that’s just one example, you know, and then there are some Democrats who don’t like the particulars of the public financing provision that are in the bill that would, for the first time have public financing for congressional elections. So it doesn’t take a lot when you’ve got no margin. And if Democrats had a supermajority, that would be one thing. But to peel off, you know, one or two votes, you don’t have the margin there. And so really the focus should be on things that are more urgent rather than a wish list for another time. But, you know, the reform community has been around the campaign finance reform through the voting rights Mary. They’ve been pushing this message of H.R. one or nothing. And Democrats, as I said, use it as a form of campaigning, of messaging. And so they seem to be almost dissatisfied with having it as an election issue than actually getting something done,

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S1: even though there are probably multiple Democratic senators that aren’t 100 percent behind the for the people act. Predictably, everyone’s eyes have been drawn to just one West Virginia Senator Joe Manchin for a long time. He was the only Democratic senator who refused to publicly endorse the bill. But then last week, he released a counterproposal. It’s not as massive as H.R. one. It’s a three page memo, but it picks out a lot of the highlights from the bigger bill and combines them with a version of another piece of legislation that Rick thinks is equally as important, the John Lewis Voting Rights Act. That law would restore sections of the original Voting Rights Act that were struck down by the Supreme Court in 2013. When you saw this from Manchin, what did you think?

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S3: My first reaction was Democrats should grab it, even though it’s still not likely to pass. And it’s because it’s still going to come up against the filibuster. And Manchin and cinema, the senator from Arizona has said she’s not going to block the filibuster either. But if there’s a unified Democratic front and there’s a type bill and there’s. Repeated Republican intransigence. Maybe there’s a chance that Manchin would block the filibuster

S1: when Manchin sort of implied that maybe he could bring some Republicans along with him, right.

S3: He said that. And then as a show of force, the very next day, you had Mitch McConnell hold a press conference. And I think you have 13 other Republican senators, including some that you would expect, like Lisa Murkowski or or Romney or even blunt those who might be thought to be looking for common ground. And they all came out and said, no, no way. We’re we’re we’re sticking together. So Manchin is not going to get what he says he thinks he’s got to get.

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S1: Yeah. I mean, some would look at what took place and see it as evidence of the fallacy of letting Joe Manchin sort of control these decisions because the Republicans just are never going to compromise. But I wonder what you’d say to them. Like is is there something they’re missing?

S3: Right. Joe Manchin is all they’ve got. Right. So it’s sort of like, oh, let’s ignore Joe Manchin. We have another path. There is no other path. But as I’ve been saying since January, this is still a huge lift.

S1: We’re speaking on Tuesday and there’s a vote later today about H.R. one in the Senate. It’s just a procedural thing, a decision about whether to move it forward. Yeah, and everyone’s just saying it’s going to feel like it’s not even worth engaging with, I guess just going to fail. Well.

S3: Well, not really. I mean, so it depends on how you define failure. If you mean is it going to get 60 votes to proceed? Yeah, it’s going to fail. But, you know, politically, the question is, do you get all 50 Democrats behind it? And Manchin has been negotiating. We’re recording this before the vote. I assume that Chuck Schumer, who’s a pretty savvy strategist, is not going to bring this for a vote until he knows he’s got Joe Manchin is going to have the 50 Democratic votes if he gets the 50 Democratic votes, there’s your opening bid and then there’s at least room because Democrats are united to try to move forward. If they can’t even get 50 Democratic votes, then I don’t see where they go with this.

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S1: So you’re saying it’s a show of force to say to the Republicans, we’re all here, where you guys at?

S3: Or it’s a show of lack of weakness. I don’t want to accuse Democrats of of having being able to show force in this arena.

S1: Joe Manchin compromise legislation proposes limits on partisan gerrymandering, 15 days of early voting and automatic voter registration. But it also has some provisions that if you’re a liberal, you may think are problematic, like national voter ID. But Rick says when you look at the larger picture, that’s not such a bad trade off.

S3: I’ve been saying since my 2012 book, The Voting Wars, that you can imagine a compromise where you have a national voter I.D. combined with universal voter registration, but the government just goes out and registers everybody. I mean, that’s pretty much how it’s done in every other advanced democracy. They have a national identity card and registration is automatic. So voter I.D. itself is not necessarily bad if the state takes on all the burden of getting people the right ideas. So I’m looking at Mansions Memo and what it says that he does and it says that this is number four on his list, require voter ID with allowable alternatives, utility bill, etc. to prove identity, to vote. But you can imagine a soft ID if you could bring a utility bill or bring something, you know, from a wide list of of things. I don’t think that voter I.D. laws are necessary to prevent an appreciable amount of fraud. But voter I.D. is popular. It seems like a commonsense thing to to many Americans. And if this is the price to get reining in partisan gerrymandering, restoration of preclearance, a meaningful form of disclosure for online advertising and early voting throughout the country for 15 days, I would pay that price any day of the week.

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S1: The really glaring issue Rick sees with Mansion’s bill is that it tries to correct some amount of voter suppression, but it doesn’t do a lot to prevent voter subversion.

S3: So one of the things that bothers me the most about Joe Manchin is proposal. And it’s something that hasn’t really gotten a lot of attention. Is that. In H.R. one, there’s a provision that requires everyone vote using a voting machine that produces a paper ballot and that is so crucial to prevent election subversion because then there’s a paper record. And if somebody says the votes are this and you can have an independent court or someone count the votes, we can find out if it’s actually true. And Joe mentions a list of what he’d like in H.R. one was missing the paper trail provision. Now, maybe that’s just because it’s not a priority of his. Maybe he hasn’t thought about it, but I am concerned. Well, the

S1: other senator from West Virginia has talked about how there are experimenting with, for instance, having people in the armed services vote digitally. And you could see how maybe that’s why you would not have that in there.

S3: Exactly. And that’s that’s what I mentioned in Slate last week, that I’m concerned that that mansion actually might like Internet voting, which I think is a disaster from the point of view of election confidence. Right now, you’ve got a third of the country or more that believes without evidence that the 20 20 election was stolen. We need to shore up our confidence in elections. Just imagine if we had the same situation that led to January 6th and the fight over the vote in Georgia. But there was no paper to be recounted and all the election results were, as they were a few years ago in Georgia from many counties on electronic voting machines with no piece of paper. So you push a button that says, here’s the totals and that’s all you can do. You can imagine the conspiracy theories that would fly around there when there was no piece of paper. Brad Raffensperger had a hand recount of every ballot in Georgia. It’s essential that we have pieces of paper so that we can conduct recounts. And that, to me, is the most important provision of H.R. one that needs to pass. I mean,

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S1: but what’s interesting to me is you’re saying there’s something that’s very important to me that is missing from what Joe Manchin has offered as a compromise. Take the deal anyway.

S3: Yeah, take the deal anyway. And because it’s Manchin or nothing. Right. So why not take the deal? But that doesn’t mean you can’t still push for all kinds of measures to prevent election subversion. And I hope that there’s going to be a moment. Maybe it’ll come if Republicans take back one House and Democrats have the other House and Biden is still present. And there there’s there are some adults in the room that want to, for example, change the electoral count act. And if you remember, we spent lots of time talking about this. These are the crazy rules for how Congress counts the Electoral College votes. Remember, we had the hundred and sixty or so Republicans who objected to the votes in Pennsylvania, Arizona for no good reason. We need to change those rules before twenty twenty five, because we’re going to have, you know, lawless legislators who are not going to follow what the actual election results are. And so we need to make those changes. That’s got to be at the top of the agenda. I love Joe Manchin compromise. I’d be very happy to see it go through. But it’s not the most important thing that we need to do right now.

S1: And it’s not the end of No. When we come back, the fight over voting rights. It’s not just happening in Congress in a few days, a whole other branch of government

S4: is going to weigh in.

S1: So at the same time, everyone is going through this process in Congress, we’re waiting on a couple of decisions from the Supreme Court and there’s a lot of concern that these decisions will further erode voting rights. Can you explain these cases and what what you’re waiting to hear about?

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S3: There are two cases pending that I’m watching really closely. One is called Bernick versus Democratic National Committee. And what’s at issue there is a different part of the Voting Rights Act and the preclearance part that we talked about earlier, a part of the Voting Rights Act called Section two, which says that minority voters should have the same opportunities, others to participate in the political process and to elect representatives of their choice. That language was crafted in nineteen eighty two and we learned in nineteen eighty six in a case called Thornburg versus Gingles what it means in the context of redistricting. And that’s what requires the creation of some of these majority minority districts. We don’t know from the Supreme Court what it means in the context of what has been called vote denial laws that make it harder for people to register or to vote and lower courts.

S1: So like getting rid of sun voting or only having voting during business hours.

S3: And so lower courts have had to deal with this. So the 5th Circuit, the U.S. Court of Appeals for the 5th Circuit, which is the most conservative appeals court in the country, ruled that Texas’s very strict voter I.D. law violated Section two and then Texas tweaked it, made it a little bit less strict, and then the 5th Circuit upheld it under Section two. So Section two has been a tool that’s been used in the last few years in the lower courts as a way of trying to rein in some of the most egregious forms of voter suppression. But the Supreme Court hasn’t told us what Section two means and how tough it is. And so I’m going to be watching very closely because we’re going to know whether or not federal Voting Rights Act protection is going to be meaningful or not over the next few years based on what the court does is the most important voting rights case. The Supreme Court’s going to decide since that Shelby County case in twenty thirteen. So that’s one of the two big cases. That’s the bigger one. And I’m really nervous about that. We’ll see what what the court does. And, you know, I think Democrats never should have brought this case. The last place you want to be to try to get expanded voting rights is in the Supreme Court. But Democrats were very aggressive about bringing this case, and I’ve been quite critical of them for doing so. The other rule that was challenged is one that prevents so-called ballot harvesting, which is the idea that you can have third party collection of absentee ballots. And this is controversial. It’s allowed in some states. It’s not allowed in other states. And, you know, really the question is, is something that actually can prevent fraud. And we do have cases of fraud that occurred with ballot harvesting. We had a case in North Carolina. Twenty eighteen congressional election had to be redone. Is that a voting rights violation when there actually is a risk of fraud? So I think that the Supreme Court maybe unanimously is going to reject the Democrats arguments. But the real important thing is not whether Democrats win or lose this particular case, but what the standard is going to be going forward.

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S1: Hmm, OK, so just to sum up, we’ve got this big voting rights bill in the Senate, but it seems kind of stuck and possibly too big. The Supreme Court may be about to hobble the Voting Rights Act. We don’t we’re not sure how. And then the possible corrective to whatever that ruling might be, the John Lewis Act, it’s still in the House, still sort of chugging along. And we also have these state legislatures passing bills to restrict when and how people can vote. You’re frantically warning we need to do something, but it doesn’t feel like we’ve gotten very far, even though it feels like all of the motion is in the direction of restricting access to the ballot, not opening it up.

S3: Well, I mean, I think there are some states, even Kentucky, which is a Republican state, that are working in a bipartisan way to make it easier for people to vote. I think there are a lot of election officials who are working on ways of improving the competence of the system. But I think the way you need to think about it is, you know, there there are different levers that can be used to try to deal with both the question of voter suppression and election subversion. And we’ve got to use all of them. So one of them is Department of Justice. And Merrick Garland has come out now the attorney general, and said they’re going to double the staff in the civil rights division. They’re going to go after voting cases. So let’s see them go after this crazy audit in Arizona and some of these other things. Let’s see them bring lawsuits under Section two, assuming that that’s still preserved after Bernanke and go after some of the states. So there’s DOJ. There’s fighting state by state over these rules. As I said, states are passing some bad rules, but there’s pushback. The business community pushing back. Democrats are pushing back. Democrats walked out early, stalled things in Texas. So this kind of hand-to-hand combat in each state and then the state courts where you can fight, ideally, Congress needs to step in.

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S1: Yeah, I mean, you say the Texas folks walking out is a good signal, but the Texas legislators who walked out specifically said we need Congress to act now because we’ve we’ve laid all our cards on the table like we’ve done what we can. And it’s not much. Yeah, but let’s talk.

S3: There were two provisions in the Texas bill that didn’t pass that got attention. Number one, one, that would make it much easier to overturn election results by changing the burden of proof and changing the standard there, taking that out. Now, the Republicans are not going to include that in their bill from our reporting. Number two, no voting on Sundays in the mornings when African-American voters would often do souls to the polls, go to church, then go vote early voting drives. That provision was an accident. They said, sorry, we’re taking that out, too. So pressure I’m not saying these bills are good, but I’m saying is it’s not it’s not an all or nothing and that you can fight state by state. So ideally, we need congressional action. But without that, there are other ways to try to fight this. And, of course, political organizing matters, agitating for transparency. And, you know, it might mean that, you know, people are going to have to be vigilant over the next few years over trying to change who runs election boards and how these things happen. And that’s not the ideal way to do it. But that’s all we’ve got. We’ve got a fight with the tools that we have.

S1: Rick Hasen, thanks for joining me.

S3: I’d say it’s been a pleasure, but it’s been an important discussion. Thanks for having me on.

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S1: On Tuesday afternoon, the Democrats got that show of force that Rick was talking about. All 50 Democratic senators, including West Virginia’s Joe Manchin, voted to open up debate over voting rights legislation. But without 10 Republicans, the motion failed.

S3: The Senate Republican minority has launched a partisan blockade of a pressing issue here in the United States Senate and issue no less fundamental than the right to vote.

S1: And that’s the show. What Next is produced by Danielle Hewitt Mary Wilson Carmel Delshad Davis, Landolina Schwartz. We are led by Alison Benedict and Alicia Montgomery. And I’m Mary Harris. You can go find me on Twitter. I’m at Mary desk. In the meantime, I’ll meet you back here tomorrow.