Cross-posted on The National Book Review
Brennan Center President Michael Waldman answered questions from The National Book Review about voting, the role of the courts in protecting democracy – and where things stand now with Antonin Scalia’s seat on the Supreme Court suddenly vacant.
1. You start your book with James Madison warning at the Constitutional Convention of the danger that the states would manipulate voting rules. What would the founders think about today’s battles over voter ID, gerrymandering, and other aspects of the mechanics of elections?
Madison and the other Founders thought a great deal about representation. But they didn’t think much about voting – about who should be able to vote, about voting rights – in the way we would today. When one delegate proposed putting the property requirement for voting in the Constitution, Madison opposed it on practical grounds. But he seemed to agree with the basic premise.
What got him fired up was his acute awareness of the other ways that representation could be hurt. He insisted that there be a provision giving Congress the power to override the states when it came to the “times, places and manner” of voting – the Elections Clause. It is one of the only times in the whole Constitution where the federal government is given clear authority to supersede the states. The delegates who opposed this provision were from South Carolina, which was wildly gerrymandered, even then.
According to his remarkable notes, Madison explained: “It was impossible to foresee all the abuses that might be made of the discretionary power.” He sketched out an array of ways to manipulate voting rules: “Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” Madison’s view carried the day.
The Elections Clause was actually quite controversial during ratification. Some people thought it would give the national government the power to manipulate elections. Others noted that it was necessary to avoid disenfranchising laws or malapportionment. Prescient!
Madison would be utterly unsurprised by the fact that state politicians tried to tilt the voting rules to benefit their own supporters. He might be puzzled by the manifestation of these shenanigans – “What’s a drivers’ license?” – and probably discomfited by the fact that these new rules often hit Black voters hardest. But he would understand the basic impulse.
The Elections Clause hasn’t been used all that much as the basis for strong voting laws. But with the Voting Rights Act gutted, and the Supreme Court unwilling so far to give the highest protection to voting rights, it is emerging as a newly potent tool against gerrymandering and other abuses.
2. One thing that is clear from the book is that as a nation we have always fought over voting – in every era in our history. Why has voting been such a persistently polarizing issue?
The fight over voting is about some of the most basic things that people fight over: power, identity, the role of wealth versus popular sovereignty in the country. In the very beginning, in the Declaration of Independence, we proclaim that government is legitimate only if it rests on the “consent of the governed.” How do we live up to that? There’s a lot to fight over!
Often groups fearful of change are most determined to change the rules – to make it harder for others to vote. The Federalists in 1800, afraid that new Jeffersonian states were entering the union, changed the rules to take away the right to vote for President in some states. In the North after the Civil War, Protestants were unnerved by the influx of Catholic immigrants. As John Adams’s great-grandson put it, “Universal suffrage can only mean in Plain English the government of ignorance and vice—it means a European, and especially Celtic, proletariat on the Atlantic coast; an African proletariat on the shores of the Gulf; and a Chinese proletariat on the Pacific.” Even the editor of The Nation was against voting rights! They imposed an array of new voting practices (including the first voter registration rules) that drove down turnout.
Today, of course, many older white Americans seem dismayed by the rising electorate of Black, Hispanic, and Asian voters. The new voting laws hit those groups hardest. And they were enacted in states that had the fastest rising minority vote. It’s an old story.
3. A major theme of your book is that most of the big battles for voting rights have not been won in the courts – they have themselves been political battles. Why have judges so rarely provided the answer?
We assume courts will be the ultimate protectors of our liberties. But throughout most of the country’s history, courts just stayed out of the struggle for democracy. The Founders thought there would be many amendments, but they made it too hard to change the Constitution. That’s why so much of the time, judges creatively interpret it – the “evolution” that drives originalists up the wall. But that did not happen with voting. There have been numerous amendments expanding the right to vote and the power of the vote. The 14th penalized states that suppressed Black votes; the 15th guaranteed the right to vote regardless of race (though it was barely enforced for a century); the 19th guaranteed the right to vote to women; the 24th barred the poll tax; and the 26th extended the right to vote to 18 year olds. On top of that, the 17th Amendment provided for direct election of U.S. Senators by voters, rather than legislators.
The Supreme Court early on established the “political question” doctrine, which identified subjects in which it would not get involved. As I describe, it comes out of a madcap mini-civil war in Rhode Island, of all places, over whether working class white men should have the vote. The justices did not want to choose who really was the governor of Rhode Island. Later, when Jim Crow laws and state constitutions were systematically stripping the vote from hundreds of thousands of African-Americans, the Supreme Court simply shrugged. Oliver Wendell Holmes, one of the great justices, wrote a really disturbing opinion. It was wrong, he said, but the Court simply had no power to do anything about it.
The Supreme Court made big moves in only two periods. One was during the Warren Court, when the justices made the great “one person, one vote” rulings of Baker v. Carr and Reynolds v. Sims. In Reynolds, Chief Justice Earl Warren wrote, “Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.” That “equally effective voice” is a profound concept. Judges have played a somewhat bigger role policing elections since then, serving as umpires.
The other major moment of intervention has been … right now. The Supreme Court under John Roberts has been remarkably activist when it comes to democracy law, almost always in a way that benefits those with wealth or power. I write about Citizens United v. FEC (which struck down decades of campaign finance law) and Shelby County v. Holder (which gutted the Voting Rights Act) in a chapter called “Five to Four.” Now that Justice Antonin Scalia has died, of course, those cases will be at the heart of the great debate over the future of the Court and the Constitution.
4. Your book has a lot of great heroes and heroines, but as is often the case, some of the most interesting characters are the villains. One of these is John Wilkes Booth – you explain that Abraham Lincoln’s assassination was really about voting rights. Can you tell that story?
Abraham Lincoln had long opposed giving the vote to African-American men. His first stab at Reconstruction, the Louisiana Plan, was derided because it did not enfranchise the former slaves. But as we all know, he evolved over the years. And by the end of the Civil War, hundreds of thousands of Black men had served in the Union Army. A few days after the surrender of Richmond, Lincoln spoke from a second-floor window of the White House – his first big speech on postwar aims. He said, in effect, that he had changed his mind about the franchise. “I would myself prefer that it were now conferred on the very intelligent, and on those who serve our cause as soldiers.” Booth was in the audience, and exclaimed, “That means nigger citizenship. That is the last speech he will ever make.” He tried to persuade a friend to shoot Lincoln on the spot, but the man refused. Booth swore, “By God, I’ll put him through.” Two days later, at a Cabinet meeting, Lincoln indicated to his aides that he might be ready to go even further. That night, he went to Ford’s Theater.
5. As president of the Brennan Center for Justice at NYU Law School, you are directly involved in the fight for voting rights. If you had the power to change three things to fix our democracy, what would they be?
As you note, we are deeply engaged in the fight to reform and revitalize our democracy today. I wrote the book as a participant in those debates, in part to understand a usable history to put today’s controversies in context.
Three things: First, the way we register voters is antiquated and something of a shambles. If the government automatically registered all eligible citizens, it would add up to 50 million people to the rolls, permanently. Happily, that is starting to happen – California and Oregon last year enacted automatic registration for anyone who uses a Department of Motor Vehicles. It’s moving across the country to other states as well.
Second, I think the power of big money in politics poses a great threat to the power of the vote by ordinary people. So I would very much like to see a system of small-donor public financing enacted for congressional and presidential elections. There’s a system like that in New York City, and it works remarkably well – among other things, in broadening who runs for office.
Finally, I would move to nonpartisan redistricting commissions to end the practice of partisan gerrymandering. California and Arizona have strong commissions; Ohio just enacted a version; Florida has a different approach but with the same goal.
6. In your last book, The Second Amendment: A Biography, you told a similar story about our nation’s long-standing battles over gun rights. Which of these issues are you more optimistic about our eventually getting right?
We’ve been fighting about American democracy from the beginning – but over the long run, we’ve been moving in the right direction. I think we will continue to do that.
On guns and the Second Amendment, we have recently lurched in the wrong direction. As I explain in my earlier book, for two centuries strong gun laws have been seen as constitutional. The District of Columbia v. Heller decision used a misread version of history to recognize an individual right to gun ownership. At the same time, when you strip away the pretensions of Justice Scalia’s originalism, it said that strong gun laws still could be constitutional as well. So far courts have upheld the laws. But I don’t pretend to have an answer for that issue!
7. With the death of Antonin Scalia, we now have a Supreme Court that is divided ideologically 4-4, and a vacancy to be filled. How important is it for the nation’s voting rights who the next member of the Court is?
Given how active, and destructive the Court has been on this topic, this nomination is critically important. In a sense, earlier nomination fights revolved around a key controversy (e.g., the right to privacy – and reproductive rights – in the Robert Bork nomination). This vacancy really forces attention to the Court’s destructive role in democracy law. Since Citizens United, for example, the funding of campaigns has dramatically tilted toward a handful of wealthy donors, often giving and spending in secret. Yes, Jeb Bush’s Super PAC blew through a lot of money …. and yes, Bernie Sanders is raising a lot from small donors … but the overall flood of mega-donor funds into the political system remains very disturbing. Nearly all the key recent cases on voting rights and campaign finance have been five to four. So this vacancy matters greatly – as will the upcoming vacancies that are likely over the next decade.