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Gideon Resnick, Narrating: I'm Gideon Resnick, and this is a special episode of "Apple News Today" all about the 2022 Midterm Elections. On today's episode, the uncertain future of voting rights and its impact on democracy.
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Since 2013, the Supreme Court has struck down or softened major parts of the Voting Rights Act. And last month, the Court heard arguments in a case that could further erode the law, or as some observers have put it, "kill it altogether."
The case hinges on the latest congressional map in Alabama. More than a quarter of the population in the state is Black. But the map includes only one majority Black district out of seven total. The plaintiffs and advocates have argued that the map is racially discriminatory and dilutes the power of Black voters in the state. Three federal judges have agreed with them, saying Alabama should have and must create a second majority-Black congressional district or one close to that. Alabama appealed and the Supreme Court stepped in.
Outside of the courts, federal voting rights legislation has stalled out in Congress. And in a number of states, legislatures have passed bills stripping away some of the means of voting that helped make 2020 a massive turnout election. And false beliefs that the 2020 election was stolen have motivated some state legislators to crack down on perceived voter fraud.
My guest today is Janai Nelson. She is the president and director-counsel of the Legal Defense Fund. Their senior counsel argued on behalf of the plaintiffs in the Alabama case at the Supreme Court.
I started by asking about the difference between the phrase "voter fraud" and "voter suppression," how those phrases are used by politicians, and how they get conflated.
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Janai Nelson: One is fact, one is myth. I will go a little deeper than that, but I think that's the initial framing that everyone should come to this understanding and discussion with. Voter suppression is a reality that has existed in our country since its founding. It really refers to efforts to deny people who are lawfully eligible to vote the ability to vote. And that has happened for many groups in this country, in terms of their ability to register to vote, their ability to access a polling site, through threats of intimidation, even as far as violence. And voter suppression has largely been targeted against Black people in this country. We know that the right to vote has been highly fraught from the very beginning.
Nelson: Voter fraud, on the other hand, has never really been a big problem in this country at all. Certainly not in-person voter fraud when-- the idea that someone's going to walk up to a polling site and pretend to be someone else. It's a boogieman that many conservative voter suppressionists try to use to enact and justify the laws that suppress the vote. So you often hear that you're more likely to get struck by lightning than to encounter an in-person case of voter fraud. And that's based on analyzing millions and millions of ballots that they are just not subject to fraud. Our elections are actually quite secure. And the only part of it that is fraught is the effort to try to suppress the vote of so many people in our society.
Resnick: And how do you think it ends up impacting public perception if and when those two phrases get conflated?
Nelson: Well, it makes people think that there's a larger problem with our elections than there actually is. And it helps them ignore what is really the threat to our elections, and that is denying eligible citizens the ability to participate in our democracy. It makes our entire democracy less legitimate. It has a significant impact on the health of our democracy because we're not really responding to the ailments and issues of many people in our society and many people who are at the margins of our society. So we are in a form of denialism when we suppress the vote because we are taking away a very critical, non-violent mechanism of expression and representation.
Resnick: I think you were beginning to allude to this, but something that I was thinking about as we head into this midterm cycle is that belief that we have a strong democracy is sort of predicated on the notion that every eligible adult has the opportunity to vote. As you said, that has not been true for most of American history, but we're talking in 2022. And so today, how far off are we from that reality?
Nelson: We are pretty far off. We're far off in a few different ways. You know, we hear a lot about voter turnout, and it is true that more Black people are registered than ever before in history, that we have support for people who are language minorities, we translate our voting materials into more languages than we ever have in our history. There are many ways in which our democracy and our electoral process has evolved to serve our multiracial, multiethnic democracy. But that is largely because you have organizations like the Legal Defense Fund and our colleagues in the field who do tremendous work to make that a reality. And still we fall short of enabling every eligible voter to cast a ballot when they face numerous obstacles because of voter suppression. That's not the way a democracy should operate. It shouldn't take civil rights groups and non-governmental organizations and, you know, the wherewithal, the grit and might of marginalized communities to overcome obstacles to the ballot and participate in our democracy to make it work. That's not a healthy democracy.
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According to Census data from last year, the 2020 presidential election had the highest voter turnout of the 21st century. Almost 67% of eligible voters participated.
A number of states made voting more accessible during the pandemic. Some counties in Texas turned to drive-thru voting, some states began to send mail ballots or ballot request forms to all registered voters, and others used secure drop boxes and curbside voting.
This resulted in a record number of votes cast by mail. Nelson said the 2020 election proved a couple of things.
Nelson: One, it shows that it can be done, right? So all the resistance that we had to these forms of more expansive voting, it fell away out of necessity because of the pandemic. So that was critical that we were able to push back on the narrative that our election administration system could not become more inclusive and become more inventive. So it's clear that it can. And we have a great example out of unfortunate circumstances, but we now know that we can do it.
Nelson: The other thing that it shows is that when people have more options to vote, they will vote. If you can drop a ballot in a drop box, a very secure drop box, many of which were guarded by camera, guarded in airtight ways, that just makes voting much easier.
But after the 2020 election, many Republican-led state legislatures introduced bills that would do away with many of these pandemic-era options. According to the Brennan Center, in 2021, at least 19 states passed laws that restricted access to voting, and more than 440 bills were introduced. The extent of the impact on the 2022 election is uncertain at this point. Still, in Georgia, a state that passed some of these voting restrictions, there has been massive early turnout. It's almost on pace with 2020, a presidential election year.
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Nelson: So we have seen changes that range from limiting who can register people to vote, how they can be registered to vote, to ending early voting in some places, or limiting it so that there are fewer opportunities to cast a ballot. We know that Election Day is not a federal holiday, so if we don't have opportunities to vote early, that means it's even harder for working people, for families to get to the polls and participate. We've also seen really targeted voter suppression laws like the one in Georgia that ends the ability of people to supply basic sustenance to people who are waiting in line to vote. And we know that Black and Latino communities wait in line exponentially longer than the average voter, and they may want water, they may want a snack while they're trying to be good citizens and use their ballot as their voice. And unfortunately, there are now laws that say you can't do that within a certain space where voters are assembled. And you've gotta ask yourself "Why?" What's really the harm there? And why are they targeting that particular form of voter engagement? Well, it's because it has worked. It's because it has helped people stay in line, it's helped them stay engaged, it's helped them, you know, withstand the obstacles that are thrown in their way. And there are many other forms of voter suppression, but those are some that are, I think, you know, the most obvious ones and the most targeted ones.
Resnick: And just to talk about sort of the naked politics of all of this, a lot of restrictions in a lot of these states that we're talking about tend to come from Republican-dominated legislatures. But do you feel that Democrats have done enough to try and protect voting rights as all of this has happened? And if not, I guess why?
Nelson: So it's interesting. The Legal Defense Fund is a nonpartisan organization. And as such, we've, over time, had to sue Republicans and Democrats to protect and advance the right to vote for Black people and Black communities. What we are seeing today though, just based on fact, not any partisan lens, is that there is a vehement attack on the right to vote, particularly against communities of color, by Republicans. There has been legislation that's been introduced over and over again to expand the right to vote, to codify some of these wonderful expansions of voter accessibility that we've been talking about. You have the Voting Rights Advancement Act, you have the Freedom to Vote Act. Both of those together would create nationalized standards for the right to vote that everyone could enjoy, not just one party or another, not just one racial or ethnic group or another. All people would have a standard two weeks of early voting prior to each election. All voters would have the ability to register early if they're 16 years old. You know, we're bringing young people into our electorate. It helps to root out discrimination in jurisdictions that have a history of discrimination or that have employed particular practices that are known to suppress turnout. So there are so many improvements that these bills make to our electoral process, but unfortunately they haven't passed because we have a partisan lockup in our Congress. So I don't know that it's been any lack of will or effort or interest on the part of those who want to advance our democracy, I just know that the imbalance in our Senate has proved to be a significant obstacle to protecting everyone's right to vote.
Resnick: And so what is the message to voters, then? It feels sometimes like there is this sort of unending cycle where in order to make voting more accessible, Congress needs to pass bills. But they're locked up in disagreement, as you say. Yet the solution that leaders tend to offer to voters is to keep voting. And then if feels like that cycle starts again. So can all of that be broken?
Nelson: That's a great question. And you can break the cycle. I think that we have an increasingly smaller window in some ways in that if you pair this with the process of redistricting, where there's bias in how districts are drawn, lines are drawn, and who's in what district, it really can, at some point, become so anti-democratic, so counter-majoritarian, that it's going to be more difficult to break that cycle. But right now, we have a window. I think these midterm elections are critical for people to turn out and elect those representatives who want to have a more inclusive electorate, who want to vote in favor of expanding the right to vote and protecting the right to vote. And so I know that it feels in many ways like these barriers are insurmountable, but they aren't. I do think that there is a way to put enough people in our Senate who are pro-democracy, who recognize the failures of our system right now, and are willing to do the right thing.
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The Alabama case we talked about at the beginning of the episode is Merrill v. Milligan. Evan Milligan grew up in Montgomery and says that he is six generations removed from slavery. He runs a civic engagement organization called Alabama Forward, which filed a lawsuit against the redrawing of the congressional districts. Milligan spoke to NPR last month.
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Evan Milligan: The Voting Rights Act really requires that where you have patterns of discrimination against non-white voters, that there should be an opportunity for voters in that area to be able to elect a candidate of their choice.
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A three-judge panel, including two appointees of former President Trump, ruled unanimously in January that the state legislature likely violated the Voting Rights Act with this new map. They agreed with the plaintiffs.
The judges ordered the state to create an additional district where Black voters made up a near-majority or majority of voters. But the Supreme Court sided with Alabama to allow this year's congressional elections to take place with the map as is, as the litigation goes forward.
When the Court heard the case at the beginning of October, a senior counsel for the Legal Defense Fund made oral arguments on behalf of the plaintiffs.
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Nelson: And you would imagine if you comprise over a quarter of the population, you might be able to elect a candidate of your choice or have the opportunity to elect a candidate of your choice in something, you know, that at least mirrors that amount to some extent. But as you point out, only one of the seven districts enables Black voters an opportunity to elect a candidate of their choice. And while there's no guarantee, absolutely no right, to have proportionate ability to elect your preferred candidates, there is a guaranteed right to have an equal opportunity to do so. So when you see Black voters continually crammed into a single district, and the remaining Black population spread out among the other districts, you realize that there is an effort to deny Black political power in that process. And even if it's not intentional, that's the result. And that's a result that is anti-democratic and that violates the Voting Rights Act.
Nelson: This could have significant, significant ramifications for what tools we have to combat voter suppression, to combat racial discrimination in voting going forward. My hope is that the justices recognize what's at stake and recognize that our democracy is on the line in this case, and that they do the right thing and they continue to uphold the expansive view of the Voting Rights Act that they've had.
Resnick: So I think if you told somebody the numbers that we talked about in Alabama, in terms of the amount of congressional districts and in terms of the amount of Black voters who are in the state, they would probably naturally draw some conclusions that we are drawing as we're talking right now. But I'm sort of curious to take a step back and say, how do instances of gerrymandering like this actually occur, and how have they historically diluted the ability for voters of color to have their say in many states across the country?
Nelson: What we're describing in Alabama is not limited to Alabama. There are cases in Louisiana, in Georgia, in North Carolina, in Florida. I mean, there are many places, and not just limited to the South, I should say, where this happens often based on race, but also often based on party. And unfortunately the Supreme Court has said that partisan gerrymandering claims are not ones that they can adjudicate. That's beyond their jurisdiction. So it has left those cases to the states. Over time, we have seen our elected officials be sent to Congress, if we're talking about federal congressional districts, based on lines that are deeply unfair. For example, in the case that we're talking about in Alabama, we have a decision that is over 225 pages long, very detailed and thorough, by a panel of three federal judges, two of whom are Trump appointees, one who is a Reagan appointee. And they all found unanimously that the district lines in Alabama were discriminatory. The Supreme Court has said "Okay, we're going to consider this case." But in the meantime, Alabama voters still need to use those same district lines in the upcoming election. What that does to our democracy is it really calls its legitimacy into question. Because if you are electing congressional representatives from district lines that are racially discriminatory, you are not only disenfranchising and discriminating against Alabama voters, you are now bringing that discrimination into a body and organism like Congress that is going to be determining legislation for the entire nation. So these are not small issues, they are issues of great consequence to the legitimacy of our government as a whole. And that is why we fight so hard to make those changes, not only on behalf of Alabama's Black voters who are disenfranchised, but on behalf of our entire democracy.
Resnick: And some people listening might be sort of confused as to why you had this lower court, as you described it, reach the conclusion that they reached, and yet once more, it sort of feels like an unsettled issue because it is back at the Supreme Court. Do you have a sense as to why?
Nelson: You're asking a really, really good question, because the Supreme Court did not have to take the case. So, you know, how this works is a three-judge panel hears our argument as to why we think the state of Alabama should be stopped from using these discriminatory maps and be forced to redraw the maps in a way that's more equal and fair. And the state of Alabama appealed to the Supreme Court and asked the Supreme Court to take the case. The Supreme Court could have said no. They say no to the large majority of cases that ask to be heard. But somehow, the Supreme Court took up this case. And it's a very curious decision because the law is so very settled in this area. This is such a clear, as Justice Kagan said, slam dunk in favor of the plaintiffs in this case that we're so honored to represent. So it does make one wonder why the Court wanted to revisit this issue and take up this case. And obviously, we're deeply concerned. But we have the law on our side, we have the facts on our side. And I hope that the justices use this as an opportunity to reaffirm their principles concerning the Voting Rights Act.
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As voting restrictions around the country were implemented, there was an effort in Congress to pass federal voting rights legislation. That effort met resistance in the Senate in early 2022.
Republicans were against the legislation being considered, which combined the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. These bills would have established a minimum of 15 consecutive days of early voting, a requirement that voters be able to request to vote by mail, and it would make Election Day a national holiday, among other things.
Democratic Senators Joe Manchin and Kyrsten Sinema sided with Republicans, so there were not enough votes to override a filibuster.
Now, these pieces of legislation face an uncertain future after the midterm elections. But I wanted to ask Nelson if it was accurate to say these bills would make the voting process better for everyone.
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Nelson: Oh, absolutely. Absolutely. When we advance claims under the Voting Rights Act and we take away voting barriers and, you know, we get election officials in different states to open up the ballot process, it enters to everyone's benefit. It's never just for a particular group, it's to make voting easier across the board. And by easier, I don't mean any less secure, I don't mean any less prone to manipulation, but just easier in terms of access. And it would be unconstitutional, it would be illegal, to make it easier for one group and not the other, right? So that is what the aim is. I think what it does, and what everyone needs to realize, is that when we narrow the number of people who can participate in our democracy, we are cementing a minority viewpoint, right? And democracy is premised on the idea that majority wins, majority rules, that we hear from everybody and we follow the whims and the interests of the majority of people who express themselves at the ballot box. But if we aren't bringing everyone to the ballot box, we have already sort of rigged the outcome. We've already made it so that it doesn't accurately reflect who the American electorate is.
Resnick: I want to close by sort of talking about all of the structural things here. It's difficult to chart all of it, but you mentioned state legislatures as an example. You know, there's Congress, there's courts, there's the Supreme Court. So many things have sort of contributed to this moment that we're in. So when you look at that picture, what kind of change do you think needs to happen, and where do you predict that will actually come from?
Nelson: So there are a few significant changes that we need. One-- You know, I've already mentioned the Voting Rights Advancement Act and the Freedom to Vote Act.
Nelson: What that needs to be paired with eventually though is a way of thinking about how we rebalance our electoral system and some of our bodies in Congress as well. If we think about the Senate, the Senate is a very, very unrepresentative and unequal reflection of our country. Every state gets two senators. Every state is not the same population. So maybe that arcane way of allocating political power should be revisited. We also know that that was a compromise based out of our ignominious past of enslavement of Africans and our unwillingness to have a more representative government. So those types of arcane processes, the filibuster in Congress, all of those have racist origins and are no longer serving our multiracial, multiethnic democracy. So if I had my wish and my whim and could correct all of those, I'd start with the right to vote because that is the gateway to rethinking many of these other systems that are anti-democratic and no longer fit for the America we are today.
Resnick: Janai Nelson, thank you so much for your time. Really appreciate it.
Nelson: Thank you.
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You can find voting resources in the Apple News app. There are state-by-state guides for casting your ballot and a lot, lot more. We're gonna have another episode in our special "Apple News Today" series on the 2022 Midterm Elections next week. I will talk to you then.
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