The NPR Politics Podcast - A Court Ruling Poses A New Threat To The Voting Rights Act's Protections

Episode Date: November 27, 2023

Last week, a federal appeals court ruled that private individuals and groups, like the ACLU or NAACP, can't sue under a key section of the Voting Rights Act. It's a decision that could reshape the political landscape, at a time when states across the country are already fighting over district lines. Plus, ballots themselves come under scrutiny in Mississippi and Pennsylvania, in two examples of how voting policy can affect election outcomes.This episode: White House correspondent Tamara Keith, voting correspondent Hansi Lo Wang, and political correspondent Ashley Lopez. This podcast was edited by Lexie Schapitl and Ben Swasey. It was produced by Lexie Schapitl and Jeongyoon Han. Our executive producer is Muthoni Muturi.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter. Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Dana from Severna Park, Maryland, and I am currently attaching my daughter's new badges to her daisy uniform. This podcast was recorded at 2.39 p.m. Eastern Time on Monday, November 27th. Things may have changed by the time you hear it, but I will still be grateful that I do not have to iron or sew these things on like my mom had to do for my uniform. Enjoy the show. Wait, is it just like a sticker now? Yeah, I think you just got an iron, right? And it like gets gluey. Yeah, but she said she didn't have to iron or sew. Oh, wow. Were either of you scouts? No, I was not.

Oh, well, then there's nothing to reminisce with you about. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Hansi LeLong. I cover voting. And I'm Ashley Lopez. I cover politics. And today we are talking about recent developments in the world of voting, how people vote, how hard or easy it is to vote, and how it's determined what districts they're voting in. And I want to start with a federal appeals court ruling that could further limit the reach of the Voting Rights Act. That's the landmark civil rights era law that prohibits race-based discrimination in voting practices.

Hansi, tell us about this ruling. What exactly did this decision say? So this is a decision by a three-judge panel of the 8th U.S. Circuit Court of Appeals, and it basically says private individuals and groups like civil rights organizations, for example, they do not have the right to file lawsuits to try to get Section 2 of the Voting Rights Act enforced. And this is a key remaining section of the Voting Rights Act after a decade of Supreme Court rulings that have really weakened the pillars of the Voting Rights Act. And what is Section 2? What is now being limited? Section 2 is a key section that has been used in a lot of redistricting cases to ensure that the voting power, the collective voting power of voters of color is not diluted when maps are redrawn. That communities of color have an opportunity, an equal opportunity, to elect candidates of their choice, for example. It's also used to ensure that voting and election laws and rules

also do not hinder the collective voting power of voters of color. And there's been two main ways of enforcing Section 2. Either the federal government, through the U.S. Attorney General, files a lawsuit and sues on behalf of the U.S. government or private individuals and groups sue. And the majority of cases that we've seen have been brought by private individuals and groups. But what this panel has done is agreed with this lower federal court judge and saying that because the actual words of Section 2 of the Voting Rights Act do not explicitly say that private individuals can bring lawsuits,

then therefore they cannot. But this is a really novel legal argument because no judges have used it before to dismiss voting rights cases in the past. Back in 1982, when Congress amended the Voting Rights Act, there were reports from House and Senate committees that said there was a right for individuals to sue under Section 2. And so this is really new legal territory we're heading towards. Certainly, this could be appealed to the full Eighth Circuit, eventually, potentially to the U.S. Supreme Court, though that hasn't happened yet. So what is the impact of this ruling now? And what would it be if it were to continue to stand? Well, we're already starting to see some potential ripple effects here because this ruling by the Eighth Circuit panel only affects the Eighth Circuit. So just the states in that Eighth Circuit and one of those states in North Dakota, the Secretary of State,

Michael Howell, a Republican, has signaled that the state is planning to appeal a Section 2 case that a federal judge recently ruled in favor of the groups, the private individuals and groups that brought it. It was two tribal nations, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe and individual Native voters sued. They alleged that the collective voting strength of Native American voters in North Dakota was diluted by the way the state legislative maps were drawn. And now maybe this case could get thrown out because it was brought by private individuals and groups. If the state of North Dakota tries to appeal this ruling, and that could just be the beginning of this unraveling. You know,

legal scholars and voting rights advocates I've talked to, I've seen this case, the original case where this panel ruling is coming from. It's kind of like pulling a piece of yarn, pulling a string, and really a potential unraveling of the remainder of the Voting Rights Act. Because without this private right of action, that's a legal term that's used in these cases, without that private right of action, this becomes in a lot of ways, really a toothless law. You know, it's important to note that right now, the legal landscape for voting rights advocates has been tough, and it's been tough for years now. I mean, just to remind our listeners,

during the Trump administration, the courts got way more conservative, especially in some of these already fairly conservative appeals courts. And I the fact that in some places voting rights groups did prevail in redistricting cases. And a lot of those lawsuits were brought by groups like the ACLU. And I want to get to some of those redistricting cases. We are seeing fights over minority representation in legislative maps play out in state after state from Louisiana to Alabama to South Carolina. And Hansi, in Georgia, lawmakers are holding a special session to redraw their districts this week. So can you tie all these things together for us? Right. So in Georgia, state lawmakers are getting ready to start meeting this Wednesday for a special session. They're meeting to try to come up with new congressional and state

legislative maps. And the reason for that is because a federal court ruled that the state's current maps dilute the collective voting power of black voters in that state. And so now the lawmakers are under a court order to come up with maps that get in line with Section 2 of the Voting Rights Act. And what's interesting is that this case is brought by private individuals and groups, which, as we were just talking about, this has now come into question, whether or not private individuals and groups can bring lawsuits to try to enforce Section 2. Yeah, and I think there's a couple of important pieces of context to add to that. Right now, this appeals court ruling is only in the Eighth Circuit. So the only states currently affected by that decision we were talking about earlier are states that are in the Eighth Circuit Court of Appeals. So it's

not nationwide, though, of course, if the Supreme Court were to take it up and side against private lawsuits, then it would be a nationwide policy. I think it's important context also to remember that, you know, just 10 years ago, the Supreme Court got rid of another big piece of the Voting Rights Act. And justices, when they did that, they said, well, you have this other part of the law, Section 2. It was held up as being like the main way in which we're ensuring that voting rights remain intact for mostly communities of color. So the fact that this is even in question now, it's like the slow erosion

of one of the main ways that communities of color have been able to protect their voting rights in the United States. All right. Well, we are going to take a quick break. When we get back, more on voting. Hey, it's Sue Davis. Before we get back to the show, we know you depend on NPR's political coverage and appreciate the fact that we're working every day to make sure you're up to date on the biggest political news. Your support is what makes that possible. It also powers the news and podcasts you rely on across the NPR network. So a big shout out to our NPR Politics Plus supporters and anyone listening who currently donates to public media. You are making a real difference. If you're listening and have never been a supporter, well, Giving Tuesday is almost here.

And an international day of giving is the perfect reason to finally join NPR Politics Plus. Hear our regular show sponsor-free and get the bonus episodes our supporters enjoy. Or make a tax-deductible donation to your local NPR station, the NPR network, or all of the above. You have choices.

What really matters is that you are part of the community of listeners who help keep NPR going. You can give today at donate.npr.org slash politics or explore NPR Plus at plus.npr.org. And thank you. And we're back. And we were just talking about voting rights. Now we are going to talk about the actual ballots that people use to cast their vote. Ashley, you've been reporting on a county that ran out of ballots during its last election cycle, which is a crazy thing to think about. But how did that happen and how often does that happen? And how often does that happen? Yeah. So a couple of weeks ago, well, I guess earlier this month, Hines County in Mississippi, which is the most populous county in the states

where Jackson is, Hines County, and also a predominantly Black county, ran out of ballots during a very competitive gubernatorial election. And I will say we don't know everything about what happened yet. There's obviously going to be a lot of investigations. But the reason why like it doesn't happen often is because for the most part, this is like the nuts and bolts of elections and election administrators do a lot to make sure that this doesn't happen. It's a lot of like art and science, right? Like they will sort of like see how many calls they're getting in to make sure, like to see if like people in their county know what's going on and know an election's coming. They'll look at yard signs. They'll just try to mostly get the vibes before an election. But then also just look at.

That does not sound like science. That sounds like art. That's the sort of art part, right? And the science part looks like what, like let's look at the past like election, right? So what's the last like little municipal election, if that's what you're you're preparing for? So it's sort of a mix of things. But you really can't anticipate what an election is going to look like 100 percent. And yet that is sort of the task ahead for election officials, which is just, you know, one of the many things that we kind of like take for granted in the work of like how people administer elections. So, Ashley, what happens if you show up to your polling place and there's no ballot? Well, I guess it mostly depends when you're showing up, right? So if you're voting during early voting, which a lot of states have, Mississippi does not, you have other opportunities

to come by. Or you could just wait. You know, in the case of Mississippi, like there were people waiting in line for hours for, you know, additional ballots to get sent to them because mostly it's just like sort of shifting of resources that are available to them. And that takes a lot of time. But if you're a voter who, one, gets there on Election Day because either you don't have early voting available to you or you just didn't make it until Election Day, you kind of either have to wait or just leave and not vote. There's really not much else you can do. And that's why it's a really serious situation that election administrators try to plan as closely and carefully as they can before the day comes. I feel like the you had one job. Yeah. Yeah. Meme comes to comes to mind here. Hansi, you've got some reporting about mail inin ballots in the very important swing state of Pennsylvania.

What's up there? So Pennsylvania, the big question is what to do about these mail-in ballots that arrive on time, but without handwritten dates on the envelopes that they come in. And last week, a federal judge ruled that those types of ballots, they're often called, quote unquote, undated ballots, that those ballots should be counted for last year's midterm elections and presumably for future elections as well. But this ruling is expected to be appealed and ultimately could come up before the Supreme Court. So we'll see. But this is the latest twist in a long, long running legal saga that could determine who wins next year's elections in Pennsylvania, because state law requires mail-in ballots to be sent in envelopes that include a date handwritten by voters, but those dates are not used to verify whether a person is qualified

to vote. And this judge ruled that not counting those kinds of ballots violates the Civil Rights Act because that federal law says a person's right to vote cannot be denied for an error that is, quote, not material in determining if a person is eligible to vote. But if this heads to the Supreme Court, which it likely will, we have some indications that Supreme Court Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, they're not convinced that disqualifying ballots from missing hammer and dates violates the Civil Rights Act. So we'll see where this case ends up. And because registered Democrats have been outpacing Republicans in voting by mail in recent elections in Pennsylvania and much of the rest of the

country, this could have big implications. Is Pennsylvania going to be a red or blue state? At the risk of asking a question that doesn't have a good answer, given that this has been a fight, it was clearly a fight in 2020. It's a fight with the midterms, this is an area of ambiguity and a challenge with the law. Why not just change the law to end the ambiguity? That's a really good question, Tam, that has come up before. And the big question is, can the state legislature agree? Can a majority agree? And it's been a lot of Republican, Democratic back and forth in terms of figuring out how to pass election reforms. And this is one of the big questions. If indeed this is in violation of the Civil Rights

Act to disqualify mail-in ballots that just don't have this handwritten date, then why not change the law? A lot of people have been asking that. Well, add me to the pile. Just as we close today, in some ways, it is easier to vote than ever before. There's mail voting. There are drop boxes. There's early voting. The COVID pandemic really expanded the way people think about voting. And some of those changes have stayed in place. But also, there continue to be huge fights about how easy it should be to vote and who it should be easy for. And it just seems like these fights are not going away or slowing down. They may even be speeding up. And we will certainly be watching how all of these questions play out and more. We're going to leave it there for today, though.

I'm Tamara Keith. I cover the White House. I'm Hansi Luang. I cover voting. And I'm Ashley Lopez. I cover politics. And thank you for listening to the NPR Politics Podcast.