The New Yorker Radio Hour - Will the Most Important Voting-Rights Bill Since 1965 Die in the Senate?

Episode Date: March 26, 2021

No sooner had Joe Biden won the Presidential election than Republican state legislatures began introducing measures to make voting more difficult in any number of ways, most of which will suppress Democratic turnout at the polls. Stacey Abrams, of Georgia, has called the measures “Jim Crow in a suit and tie.” Congress has introduced the For the People Act, known as H.R. 1. Jelani Cobb looks at how the bill goes beyond even the 1965 Voting Rights Act in its breadth, and how it will likely fare in the Senate. And Jeannie Suk Gersen speaks with David Remnick about the Supreme Court’s views on voting rights. The Court is currently weighing an Arizona case that will help decide what really counts as discrimination in a voting restriction. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. For millions of people in this country, the election of 2020 was stolen. That's a Trumpian article of faith. And faith is the right term because there's no empirical evidence at all to support such a claim. And yet electoral fraud, rigged votes, are central to the Republican Party's message. No sooner had Joe Biden won the election than Republican state legislatures began introducing measures to make voting much more difficult.

In Arizona, one proposed bill would require absentee ballots to be notarized. And other bills would prohibit drop boxes for ballots in Pennsylvania, Georgia, and Virginia. And Missouri would remove COVID-19 as any reason to vote by mail. And the list, well, it goes on. These measures, there's no doubt. are going to hit black voters and communities of color most directly. And Stacey Abrams of Georgia, perhaps the most visible voting rights activist in the country, calls this wave of state legislation Jim Crow in a suit and tie.

Now, Congress has introduced or reintroduced a bill called HR1, and the intent there is to make voting as easy as possible. Jelani Cobb is a staff writer at The New Yorker, and he's been writing about voting rights for many years. Jolani, I think it's fair to say that there is an enormous national battle going on about voting rights. On the one hand, you have many states like Georgia that are trying to enact what you and I might call anti-voting rights legislation. And in Congress, we have H.R. 1, which is a huge bill that would create national automatic voter registration. It would expand early voting. It would promote voting by mail, restore voting rights to felons,

many, many, many things. So in terms of size and scope, how does HR1 compare to the legislation of the civil rights here, the mid-60s? Sure. And you refer to this as a huge bill, and that applies in two ways. It is physically large. It's nearly 800 pages long. And it is huge in terms of its importance and its significance. And I think that people look at this as really, an update of the crucial legislation that came along of the 1960s. But even at the height of its powers, there are things that HR1 does that the Voting Rights Act did not cover. And just kind of scanning what's in those 800 pages, it has things like automatic voter registration, transparency and political ads.

there are provisions to prevent voter roll purges and the really kind of mechanisms that are meant to shore up people's access to the ballot, as well as creating standards for national voting machines. So it's kind of an omnibus approach to the issue of voting in the United States. Now, Mitch McConnell says this is basically an effort by the Democrats to dominate elections from here to kingdom come. and he's spoken about it as a power grab. Yeah, and it's kind of like a basketball game where they're saying they're trying to run up the score by shooting.

And, you know, it really, what it does is maximize access to the ballot. But nonetheless, you know, this would likely have a net benefit to Democratic voters. On the other side of it, the legislation that we're seeing making its way through statehouses around the country in many instances would likely have a net detriment of Democratic voters. Well, let's hone in on that. You focused in your piece in The New Yorker on the state of Georgia. What's going on in the state of Georgia? Well, Georgia is really a metaphor for the bigger movement that's come out of November 2020. And in Georgia, there are bills that are floating around, all of which have the intent of making it more difficult or placing more obstacles between voters and the ballot box.

And if you wanted to absentee vote, you would have to have a proven medical condition, but you will also likely have to have your ballot notarized and have a witness, in some provisions, have a witness who see, you sign the envelope and the witness will sign too. And so it makes it a much more contractual kind of proceeding. There are other concerns that with the legislation in Georgia, which go to things as abstract and seemingly weird, almost neurotic, making it illegal, for instance, to give food or water to people who are online voting. What's that all about? Well, on the face of it, you could say, well, this is, this might be a campaign strategy or you might prevent people from being swayed in the last minute, you know, if someone comes up with a branded bottle of water or some such. But in reality, there is a stark racial disparity between how long people are likely to have to

wait to vote in Georgia. And the places where people are dealing with really long lines, standing, sometimes standing in line for hours to get a chance to cast a ballot, overwhelmingly democratic, overwhelmingly communities of color. And the actual result of this would be, this would be one less comfort that those people could anticipate. And this kind of legislation that's being pushed in Georgia is typical of many states? Yeah, at 33 states, actually. The Brennan Center, which has done great work around tracking these things, has pointed out that there are are 165 voter restriction bills that have been introduced in 33 state legislatures around the country after November 2020.

Now let's get into what will pass and what will not. HR1 has to get through Congress, which is deeply divided. Now, clearly, this is yet another issue where the question of the filibuster comes up. Joe Biden, when he was campaigning, said he didn't want to get rid of the filibuster because the filibuster was there to prevent certain abuses historically. Now the shoe is on the other foot.

He wants to get rid of the filibuster because he wants to get through all kinds of progressive legislation, whether it's about voting rights or about all kinds of New Deal-like legislation. Who's right? Bullfar. And the reason I say that is not a dodge, but it's kind of the hypothetical and the practical. And so the minority rights provisions in the Constitution and in American democracy were meant to prevent that problem that Alexis de Tocqueville mentions, the tyranny of the majority, or as the old joke about it is that democracy is three foxes and two chickens voting on what to have for dinner.

But in fact, that would not be democracy. Democracy would be that the three foxes and two chickens say that we won't have anything unless we get four votes. And that's what the Constitution is meant to do. And in theory, that's great. But in practice, those mechanisms have been weaponized again and again specifically around the issues of civil rights. There's a great thing floating around on social media. which is from a group of historians who took minority leader Mitch McConnell to task about saying that there was no racial aspect of the filibuster. And it just listed all of the civil rights bills that have been filibustered.

Most famously, of course, the 1957 bill, which Strom Thurman filibustered by himself for 24 hours and I think 17 minutes. And so in practice, the filibuster has been used in this way again and again and again. we may have finally reached the crossroads where those two things are no longer reconcilable. Jelani Cobb, thanks so much. Thank you. Staff writer Jelani Cobb. This is the New Yorker Radio Hour. More to come. Now, even if Democrats end the filibuster and pass H.R. 1, the bill would certainly be challenged

at the level of the Supreme Court. And the Roberts Court has been quite skeptical toward federal voting legislation. The court invalidated part of the 1965 voting. Rights Act eight years ago. And with the current justices, this is a court that's much more conservative. So to understand where the court sits in this ongoing battle over voting rights, I called up Jeannie Sukk-Gerson. Jeannie writes for the New Yorker, and she teaches constitutional law at Harvard Law School. Jeannie, earlier this month, the Supreme Court heard of a voting rights case that involved a set of laws in the state of Arizona. What was that about?

Yeah, so in Arizona there was, there is a law that was passed and that's being challenged in the Supreme Court this term. It requires first that an in-person election day voter cast votes only in the assigned precinct. So if you vote in the wrong precinct, then your your vote will not be counted. And second, only certain people, namely family or caregivers or mail carriers or election officials, are people who are qualified to deliver another person's ballot to the polling place. So those are the two issues in the law that are at issue in the Supreme Court this term. The reason this is an important issue of race discrimination is that Arizona has a large Native American population that lives on reservations that have limited access to.

to mail or non-traditional mailing addresses. So they would disproportionately rely on ballot collection from community and party members. And this case with the challenge to the Arizona law, went to a federal appeals court, and it overturned the Arizona law last year because of the state's history of race-based discrimination against Native Americans, Hispanics,

and black people. When asked why the Arizona Republican National Committee would want to keep the out-of-precinct ballot disqualification on the books, one of the lawyers defending the restriction said this, that politics is a zero-sum game and every extra vote they get through unlawful interpretation of a particular section, in this case Section 2,

hurts us, meeting the Republicans. Is it common for Supreme Court arguments to be made in such stark partisan? partisan terms, it's rare that happens. Yeah, I was quite surprised to hear that, but I think that one of the things that led to that comment was for the Republican Party to explain what its stake in the case was. Why was it in court and why exactly it mattered to the Arizona Republican Party? And so that was the explanation that this was why they're suing and why they're, why they're, why. they're in court or why they're defending this law.

It seems like a standard, what used to be called a Washington Gaff, which is the mistake of telling the truth, as opposed to fudging the question and coming up with some high-flown principle. It does. But in this area of voting rights, I think that's where we are now. We're no longer engaging in kind of fig leaves anymore. It truly is overtly accepted by everyone. just like in the cases leading up to the 2020 presidential election, it is extremely overt and assumed and accepted by all sides that if you allow more voting, more access to voting and easier voting, Democrats will have a better chance of winning and Republicans will have a lesser chance of winning. Everyone accepts that. And so that's how we proceed. But shouldn't it be easier? Let me speak up for the Democratic argument in terms of a question. shouldn't it be as maximally democratic and easy to vote as possible? Well, I certainly think so. If you are a qualified voter eligible to vote, you should be able to vote. And it should be extremely easy to do so.

And I think that that's why the Republicans and conservatives are hanging their hat on fraud. The election fraud claims that we saw heavily highlighted. in 2020 leading up to the election and afterwards and amplified by Trump. And that led to January 6th. Those arguments are not only alive and well, but they're going to have a next life going on and on for years. A few weeks ago, we saw exactly those voter fraud arguments being made in the Supreme Court. And several of the Supreme Court justices specifically talked about voter fraud as an important

imperative for governments to make sure that voting fraud is curbed. And so that's being taken very seriously in the legal arguments, even as people say that voting fraud is very rare. It's not actually as big of a problem as the Republicans will make it out to be. Nevertheless, this is an argument that we're going to see being made in the next and next iterations of these voting rights cases to counter access to voting. And given the current makeup of the Supreme Court, given the makeup of so many other courts that have been filled with so many appointments during the Trump administration, what do you expect the outcome of so much of these voting rights activity to be, whether it's in the Supreme Court or how the provisions of HR1 would fare in the lower courts?

Whatever happens with the Arizona law, and I think we know what's going to happen, it's going to be upheld, the standard that the Supreme Court articulates in the course of upholding it is all important because that standard is about what proves a violation of Section 2 of the Voting Rights Act of 1965. What proves that voting practice or procedure discriminates on the basis of race? So it looks like a majority of the court is going to vote to uphold the Arizona law. And the open question is really, what are they going to say about how to prove a voting rights discrimination? Are they going to pare it back? So essentially, many, many things that have a discriminatory impact will not be held, will not be deemed to, in fact, constitute race discrimination.

That is the fear and that is the danger, that in the process of this case, the court will cut back on what is going to be counted as race discrimination in voting going forward. Jeannie Sukk-Gerson, thanks so much. Thank you. Jeannie Sukkerson is a professor at Harvard Law School. I'm David Remnick, and thanks for listening this week. I hope you'll join us next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Arts,

with additional music by Alexis Quadrado. This episode was produced by Alex Barron, Emily Boutin, Avae Carrillo, Rianan and Corby, Calalia, David Krasnow, Gauphin and Putubuele, Louis Mitchell, Michelle Moses, Annabelle Bacon, and Stephen Valentino, with help from Alison McAdam, Meng Faye Chen, and Emily Mann. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.