Voting rights are under attack nationwide - The Excerpt

On a special episode (first released on March 31, 2024) of The Excerpt podcast:

At the State of the Union, President Biden called on Congress to pass the John Lewis Voting Rights Advancement Act. This bill would update the Voting Rights Act of 1965, strengthening legal protections against discriminatory voting policies and practices. The act has since been hampered by Supreme Court cases that removed pre-clearance provisions and made it harder to sue to stop discriminatory practices. Marc Elias, an attorney with Elias Law Group and an outspoken advocate of voter protection and fair elections, joins The Excerpt to talk about the challenges voters across the country are facing and describe his efforts to guarantee equal access to the ballot.

Hit play on the player below to hear the podcast and follow along with the transcript beneath it. This transcript was automatically generated, and then edited for clarity in its current form. There may be some differences between the audio and the text.

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President Biden:

But 59 years later, the force has taken us back in time, voter suppression, election subversion, unlimited dark money, extreme gerrymandering. John Lewis was a great friend to many of us here, but if you truly want to honor him and all the heroes that marched with him, then it's time to do more than talk. Pass the Freedom to Vote Act, the John Lewis Voting Right Act.

Dana Taylor:

Hello and welcome to The Excerpt. I'm Dana Taylor. At the State of the Union, President Biden called on Congress to pass the John Lewis Voting Rights Advancement Act. This bill would update the Voting Rights Act of 1965, strengthening legal protections against discriminatory voting policies and practices. It's since been hampered by Supreme Court cases in 2013 and 2021 that removed preclearance provisions and made it harder to sue to stop discriminatory practices.

An outspoken advocate of voter protection and fair elections, Marc Elias joins The Excerpt to talk about the challenges voters across the country are facing and describe his efforts to guarantee equal access to the ballot. Thanks for joining us, Marc.

Marc Elias:

Thank you for having me.

Dana Taylor:

Why is the John Lewis Voting Rights Advancement Act so important and where does its passage stand?

Marc Elias:

It's a critical piece of legislation. There is a reason why in the last few Congresses, it has been among the most furiously anticipated and fought over provision. It would restore the Voting Rights Act to its place as the crown jewel of American democracy. For decades, Democratic and Republican administrations recognized the centrality of the Voting Rights Act to ensuring a more perfect union, a more inclusive and effective democracy. Unfortunately, that bipartisan consensus broke down sometime in the last 10 years or so, and the courts have whittled it away.

And what we are left with is a voting rights act now that neither has all of the protections that it should, nor has it been updated to meet the challenges of 2023 and 2024 and 2025 and 2026. So we desperately need this law. In the last Congress, it passed out of the House with unanimous democratic support and no Republican support in the House of Representatives. In the Senate, it wound up bogging down with unable to break the filibuster, but obviously President Biden said he would sign it.

So where it stands now is we will wait and see next year when Congress reconvenes in 2025 to see whether or not after the presidential election there is appetite in Congress to do what must be done, which is to restore the Voting Rights Act to its full place in our democracy.

Dana Taylor:

Preclearance provisions are a big part of the new act. What are they and what regulations are being proposed?

Marc Elias:

One of the geniuses of 1965 Voting Rights Act was this notion of preclearance, which was that if you wait until states have violated the civil rights and the voting rights of Black or other minority voters and only then bring litigation, you wind up in a circumstance that we too often see in which those minority communities suffer the indignities of those voter suppression or vote dilution efforts while those cases work through court. What the Congress did in 1965, which was like I said genius, was it said, look, if you are a jurisdiction, if you are a state or a county or a city with a history, a proven history of racial discrimination in voting before you can change your voting laws, before you can enact new restrictions on voting, those have to be reviewed what is called pre-cleared either by the Department of Justice in Washington, DC or by a federal court.

Either one can preclear them and if they don't retrogress the voting rights of minority voters, in other words, they don't make voting worse for them, then your change goes into effect. And most changes that were proposed got precleared. It was not a burdensome process. But if the changes you want to make are going to make voting harder, are going to retrogress the voting rights of the minority communities in your jurisdiction, then we're going to say no, and we're not going to preclear it.

Now, you could always still go to court and try to challenge the denial of preclearance, so the states were not powerless in this process. But what it meant was that we did not have the circumstance that we have seen in all too many states in recent years since those court decisions where the voting situation becomes much, much worse for Black voters in the South or Hispanic voters in the Southwest, and it takes years for the courts to catch up. And by then it's great that the courts have caught up, but the voters have been harmed.

Dana Taylor:

Redistricting has been an issue disenfranchising voters from representation in minority groups for decades. Some states and organizations are combating this while others won't touch it. How is this affecting inclusion and equity in voting?

Marc Elias:

So look, there's no better place to see why we need changes and strengthening of our federal voting rights laws, including the John Lewis Voting Rights Advancement Act, than in the area of redistricting. I mean, my legal team sued Alabama, Louisiana and Georgia for violating the remaining provisions of the Voting Rights Act. Okay, section two of the Voting Rights Act. And we brought that litigation shortly after the new maps were put in place or were passed into law by those states in 2021, and we won in each of those places, which means in plain English that Black voters suffered under illegal maps.

They were forced to vote in 2022 under maps that violated their federal voting rights. Okay? That is an indignity that no American should have to suffer. No American should have to participate in elections that federal courts have declared violate your civil and voting rights. But because we don't have preclearance anymore, each of those states would've been a preclearance state. The courts, we moved as quick as we could, the courts, the Alabama case went all the way to Supreme Court. The Louisiana case went to Supreme Court.

Finally, those states yielded and did the right thing. So in 2024, Black voters in each of those states will now have fair districts for them. In Alabama and Louisiana, that means an additional Black opportunity district that they were denied, that they were entitled to. In Georgia, similarly, also state legislative maps have been struck down under this. But I am proud of the work we've done. I'm proud of the fact that we are helping bring fair results and legal maps into place for 2024, but it shows how much more work there is to do.

That in 2021, you still had these states passing laws violating the voting rights of Black voters and that it took so long for the courts to catch up.

Dana Taylor:

In 2013, SCOTUS put down part of the Voting Rights Act saying the legal protections against discrimination were no longer necessary. However, studies on this say otherwise. Marc, what's the latest here?

Marc Elias:

The fact that the Supreme Court in 2013 said that it thought that times had changed, which was the phrase that he used, one need to only look at those cases I just mentioned in Alabama and Louisiana to realize times really haven't changed. The fact is those state legislatures had in front of them the census data and the other demographic data that clearly indicated that there needed to in each of those states be two rather than one Black Opportunity District. And in both of those states, white majorities denied Black citizens of their state their rights under the federal voting rights law.

So the fact is times hadn't changed. And then to make matters worse, we saw that even after the federal courts had struck down those maps, those states appealed to the US Supreme Court. Even after the US Supreme Court upheld the map in Alabama, the state of Alabama refused to comply with the court order and refused to draw a compliant map and forced the federal court to draw the map. The state of Alabama in 2013 still stood proverbially in front of the schoolhouse doors with its arms crossed saying, we are not going to comply unless the federal courts do it themselves.

So the fact is times haven't changed, and so the Shelby County decision in 2013 was a disaster for our democracy. It was a disaster for Black voters and other minority voters. But let's be clear, a democracy that does not include full voting rights for all of its citizens is not a democracy. So it is something that we all need to be committed to as we move forward.

Dana Taylor:

The Pew Charitable Trusts, an independent nonprofit, reports that Americans approve of pro-voting policies and are against most restrictions of voting rights. What are some recent examples and where are they being used?

Marc Elias:

I mean, I wish I could say that there are only a few examples. Unfortunately, since 2021, after the events of January 6th after the former President Trump's efforts to overturn the election in court that failed, Republican legislatures rather than looking at this and saying, you know what, we need to be more responsive to the people, instead they engaged in a systematic series of laws to make voting harder. So we saw in Georgia, for example, laws that ban providing food and water to voters waiting in line.

The evidence, the data and statistical evidence in Georgia shows that the people waiting in line are overwhelmingly Black voters. And so denying food and water to people waiting in line is a way of punishing Black voters for already being subject to fewer polling places and not enough equipment in many areas. We saw a war on drop boxes and mail-in voting generally. You have seen throughout this country legislatures repeal drop boxes and make it more difficult for people to apply for and receive vote by mail ballots.

We have seen an increase in laws allowing private citizens to challenge the eligibility of others to vote. These mass voter challenges in which spreadsheets are generated out of computer AI programs challenging the rights of people to participate who they have never met, but just are names on a list. We've seen all kinds of these challenges, and I wish I could say it's getting better, but it's not. It's getting worse.

Dana Taylor:

Political violence has been an issue since the last election and some election and poll workers have been targeted. There have recently even been calls for their protection. Is the election process still safe?

Marc Elias:

Look, my message to everyone is it is still safe. So everyone should feel confident that they should be able to vote and they'll vote safely. People who have time and have interest to be part of the machinery of elections, volunteering to be poll workers or even to volunteer on a part-time basis of your local county or municipal election office, you should feel safe about it. Not only should you feel safe, you should know you're doing a civic good. So yes, I think things will be safe.

That said, there's no question that we have seen an uptick in the threats and harassment targeting the people who are in charge of running our elections. We saw recently some pretty outrageous behavior in Maricopa County that was widely reported upon, but not just in Maricopa County, Arizona. Around the country, we have seen an increase in the intimidation aimed at these poll workers, and it's important that we all speak clearly and with one voice denouncing it because there is no place in threatening or harassing the people who are simply trying to do the job of democracy.

They are simply trying to make our local elections work for the citizens in their communities. We have elections that are run at the local level, and these are neighbors making sure their neighbors could vote. And so I would hope that with all of the partisan divide in this country, we should all be able to say, let's let the election officials do their job. Let's let the secretaries of state issue their guidance. Let's let county election officials make sure ballots are counted.

But it's also important that we remain vigilant that those processes do go forward and can remain safe.

Dana Taylor:

Marc, in addition to the rights of voters, there have been concerns over government leaders powers with regards to elections. What are some cases and concerns over what they should and shouldn't be allowed to do?

Marc Elias:

We have seen a number of cases that have come up in what I call the election subversion bucket. This is the after the voter has voted. This is the counting and certification process. And we used to agree that whoever got the most votes, they got certified the winner. Unfortunately, in 2022, my team and others had to sue counties like Cochise County, Arizona, like some counties in Pennsylvania because those counties were simply refusing to certify the accurate results of elections. We saw the former president encouraged that in 2020 in Michigan.

You may remember that there was an effort by the president and his team at that time to encourage the Wayne County Board of Canvassers, which is composed of four people, two Democrats, two Republicans. Normally, they're just adding stamps and ribbons to calligraphy certificates saying who won by tabulating up the votes. Well, President Trump asked the two Republicans there not to certify the election results coming out of Detroit. Well, we know if you don't certify the election results coming out of Detroit, you've disenfranchised the biggest city in the state and also a large number of Black voters.

So ultimately that failed, and then they tried to get the state canvassing board, again a bipartisan body, tried to get the Republicans not to certify the election results. We have seen an uptick in litigation around this certification process. It shouldn't be necessary, but it is. And the message should be clear to all election officials, you have to do your job. We need to give you the safe place to do it. But if you're not going to do your job, you're going to get sued and you're going to lose.

Dana Taylor:

Marc, you touched on this earlier, but I want to circle back. Part of the issue of voters' rights is oversight of roles and maintenance of electorate records. Why is that a concern and what's being done to try and maintain consistency?

Marc Elias:

Oh boy. I mean you've really put your finger on what one of the big hot button issues going on right now. Just in the last few weeks, we have seen a wave of lawsuits brought by conservative outfits and also by the Republican National Committee to force states to engage in voter purges. There's no other way to put it. They want them to purge the rolls, and you have to look at this against both a historical backdrop in which the Republican Party had a history of illegal purges aimed at Black voters. That was a tactic that they used to disenfranchise Black voters.

Now, they got themselves in a whole lot of trouble around it, and they were forced out of that business by a court order for many, many decades, and Congress toughened the laws to make it harder to conduct these purges. But here we are, we're back with the Republican Party and others, again, pushing these purges at the same time, I might add, that they have tried to pull states that they can out of a interstate compact. This is quite wonky, but it's important. An interstate compact between states called ERC, which your newspaper has reported on and others, is a confederation of states that basically share information about when voters have moved between states so that they can remove voters who have moved out of their states from the rolls.

There's been an effort by conservatives to pull states out of that at the same time that they're pushing these voter purges. So I don't think that the Republicans and these conservatives are going to succeed, but it's a shame that in 2024, we are again seeing the ugliness of efforts to force states to remove lawful voters from the rolls.

Dana Taylor:

Colorado was recently in the news because the Supreme Court ruled that Trump could stay on the ballot there. There is also a controversy in the state surrounding signature matching with ballots. Can you help explain the rights and abilities states have to affect voting versus the federal government?

Marc Elias:

I was very critical of the Supreme Court's decision in Colorado. The Constitution with respect to federal elections. Let's just talk about since we're in a federal election year. The constitution gives states the primary job of setting the time, place, and manner of elections, which is the reason why in Colorado they can have vote by mail, and in New Hampshire they have in-person polling places at a very local level. States are allowed in the first instance to set the time, place and manner of elections subject only to congressional override.

So Congress is overridden in some areas. For example, Congress set a uniform election day. It's the Tuesday following the first Monday in November. So notwithstanding the fact that the Constitution says states can set the time of elections, Congress has overridden that and set it. So that's the balance of power, though. The question is how should that balance operate in reality, and I think that the 14th Amendment section three, which says that people who have taken an oath of office who engage in conduct overturn or insurrection against the United States are not eligible for federal office.

I think that that is a power enjoyed by the states. Obviously, the nine justices Supreme Court disagreed with that, but I think it was a real mistake. I think it was a mistake. I think that the court bowed to what they thought was a way out of a conflict with the Trump forces. I think Justice Comey Barrett actually said in a concurrence what I think most of them were thinking, which is let's take the temperature down. Well, sometimes the role of the court is not to take the temperature down, it's to apply the Constitution in the way it's been written.

So I think that was a mistake with respect to signature matching. Again, it's a very detailed thing about how states validate mail-in ballots. I'll just say this, we have seen a lot of states reject a whole lot of ballots for mismatched signatures when it turns out those voters signatures were not mismatched. Both blue states like Colorado and Washington and red States have to take a real hard look at whether they have struck the right balance of voter access versus security in a world in which more people are voting by mail and people's signatures vary more than they used to.

Let's be honest, when I was 20-years-old, you signed credit card slips and the credit card companies match them against the one on file. They match checks. Nowadays, a 20-year-old registering to vote register signs on a tablet. That doesn't necessarily match the signature that they would use with an ink pen. So I think signature matching is probably something that has to be revisited more broadly, but certainly in the near term states needs to do more to disenfranchise fewer voters by using it.

Dana Taylor:

You created the Democracy Docket in 2020 to focus on voting rights and election litigation in the US. Why was this necessary then and how is the organization continuing its mission today?

Marc Elias:

Yeah. So I began Democracy Docket really for two reasons. One was I thought that there ought to be a place in a very crowded media landscape where there were always a lot of things going on around democracy and around elections. I thought there ought to be a place where people could go to get just the news of what's happening about elections in court. Just that one slice of it, just what's happening in the back and forth with all of the lawsuits being filed, a place where you would go and just understand that.

And I think it's actually been very successful at that. The second thing I thought we would achieve, I think we've been less successful at candidly, which is I wanted to create a place that ordinary citizens could go and read court cases for themselves. There was so much misinformation about what was happening in these cases. Was Donald Trump given a fair shake? Did the court, did a judge really say this? That I thought we could organize these pleadings and put them in an accessible way online so that people wouldn't have to take my word for it or your word for it about what happened in a case.

They could go read the cases themselves. That part, I think the media spends a lot of time looking at the cases. I do. Lawyers do. I'm not sure it has solved the disinformation campaign problem. I think people who want to lie about what the courts have been doing are still lying, but Democracy Docket is going strong. There's more than 180,000 daily subscribers. We send out newsletters every day. We launched a premium service, and I think it's still meeting its fundamental mission of giving people good access to information about every day, what's happening to democracy in courts.

Dana Taylor:

Speaking of law cases, your law firm is in the midst of 52 legal cases across 19 states in an effort for free and fair elections. What are the most pivotal cases that we should know about?

Marc Elias:

First of all, the fact that we have to be involved in 52 cases across 19 states. Even hearing it makes me sigh. I hope to get to a place where in our democracy, we come to a place where we have the John R. Lewis Voting Rights Advancement Act enacted. We have Freedom to Vote Act, and we're able to all agree that the rules of voting should promote accessibility over everything else. That said, there are a couple of hotspots that I would point people to. The first is, we talked earlier about redistricting.

The fact is Black voters in too many parts in this country are still being denied the voting rights that they were promised in 1965. I'm not talking about something they were promised last week. This was a promise America made to Black voters in 1965. It is something that Ronald Reagan in 1982 reauthorized, calling it the crown jewel of American democracy. It is a law that was reauthorized in 2006, 98 to zero in the US Senate signed by George Bush, a conservative president. Walmart and the business round table lobbied for passage of this.

And yet here we are and we are finding ourselves in court more and more enforcing the portions of the Voting Rights Act that are left. And so there are a handful of those cases that are still going on that are critically important for people to be paying attention to. The other cases I think that I would follow are the ones that are going on in some of the swing states. There are big fights in Arizona right now, for example, about whether or not the election denier crazies, frankly, in that state are going to be able to undermine the ability to vote by mail in what will be a critical state in the 2024 election.

There are a cluster of important cases in Wisconsin also about vote by mail that I would encourage everyone to pay attention to. I wish I could say that those were it, but there's a reason why there are 50 plus of them going on in 19 states.

Dana Taylor:

Marc, thank you so much for being on The Excerpt.

Marc Elias:

Thank you very much.

Dana Taylor:

Thanks for our senior producers Shannon Ray Green and Bradley Glantzrock for their production assistance. Our executive producer is Laura Beatty. Let us know what you think of this episode by sending a note to podcasts@usatoday.com. Thanks for listening. I'm Dana Taylor. Taylor Wilson will be back tomorrow morning with another episode of The Excerpt.

This article originally appeared on USA TODAY: Voting rights are under attack nationwide - The Excerpt