The Right to Vote
Air Date: April 30, 2016
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. The 2016 has borne witness to a new wave of legally sanctioned discrimination, in the form of intimidation at the polls. Look no further than to the primaries in North Carolina and Arizona to see voter ID laws suppress the franchise. The denial of the vote seems to hinge on a political calculation, to turn away historically marginalized constituencies of voters, namely African Americans, Latinos, and young people. A civil rights attorney and founder of the Southern Coalition for Social Justice, Anita Earls joins me today to discuss the vote. She served in the Clinton administration as Deputy Assistant Attorney General in the Civil Rights Division of the Department of Justice. Headquarted in Durham, North Carolina, Earls is in the trenches of this constitutional battle rippling across state legislatures and federal judiciaries. In question are increasingly separate and un-equal electoral practices on the basis of race. Considering the miniscule incidents of alleged fraud, my first question to Anita is about what motivates these officer holders, at their core, to enact these laws. Welcome.
EARLS: Well, thank you so much for having me.
HEFFNER: It’s a pleasure.
EARLS: I think it’s no mystery the motivation behind these laws; um, every once in a while you’ll hear… You will hear a legislator actually say, you know, this, this law had the effect we wanted it to. It kept these voters from the polls. There’s really no problem in election administration that they’re actually addressing. The problem is that more and more people have been participating in the elections and that’s actually what they’re trying to change.
HEFFNER: And they’re trying to change it by combing down the electorate?
EARLS: By increasing the hurdles that you have to take to get registered, to make it harder to vote and to make it harder for your vote to actually be counted. Um, and North Carolina’s monster law did a number of things, not only voter ID, but also shortened early voting, ended the ability to register and vote at early voting, stopped counting out-of-precinct provisionals—that means if you showed up at the wrong polling place on election day, um, in the past your ballot would count for all the officers you were qualified. Now, under the new law it would not count. All these different ways are putting hurdles and roadblocks in the way of people being able to express their preference.
HEFFNER: And you’re taking suit, to counter this legislation?
EARLS: Well, along with a number of other parties, including the US Department of Justice, um, a lawsuit was filed against those restrictions and there was a trial in federal court in July. Another trial in federal court this past January on the voter ID provision. We also have a state law, um, constitutional claim in state court in North Carolina, that has not gone to trial yet, and in that case, we’ll be presenting evidence about what has just happened in our March 15th primary.
HEFFNER: These laws, in your state—let’s speak to your state first—are they constitutionally grounded in any kind of logic, or is it simply a political act to deny people the vote?
EARLS: Well, I would say that they’re constitutionally prohibited that… On a number of grounds, both in terms of the way in which the constitution should provide for equal protection of the laws, so that when you can show that discrete populations, and in particular African American voters, but also students, elderly voters, people with disabilities, when there are groups in the population that are disproportionately harmed by these laws, then I would say our constitution should stop that. The North Carolina state constitution has a provision that says there’ll be no additional qualifications to vote, which was passed back when former slaves were trying to be re-enfranchised, and, um, that provision I would argue stops these kinds of restrictions from being put into place.
HEFFNER: You look to reverting back to a culture in which there was separate and equal. It, it is almost an enactment of the Plessy vs. Ferguson philosophy towards the world.
EARLS: Well, separate and unequal… Let me just give you a real example: um, one of our plaintiffs in the voter ID case, Alberta Currie, when she first voted in 1956, the rule in her county was that blacks go to the end of the line, and so she would go to the polls first thing in the morning, and it might take all day before she could actually cast her ballot. Um, now, in March… On March 15th, she went to vote again. She does not have an ID, she was born, um, in her home, she doesn’t have a birth certificate, and she was turned away. She went home, and it wasn’t until she called us up, we drove 100 miles down to her town, went to the polling place with her, that she was actually able to cast a ballot, so I think there’s very… Clear ties between the types of disenfranchisement that happened before we had the vote, voting rights act, and this wave of new laws that we’ve seen since the Supreme Court gutted the Voting Rights Act.
HEFFNER: Well, take us to that moment.
EARLS: I’m alluding to the 2006 Shelby County decision, but there was actually a back and forth between the Supreme Court and Congress. Um, in the, uh, Bossier Parish series of decisions, the Supreme Court weakened the Section Five protection, and here we’re talking about part of the Voting Rights Act that only applied to 16 states that had… States where there had previously been literacy tests and explicit legal attempts to disenfranchise certain voters. So, that’s the provision we’re talking about. Um, the Supreme Court weakened it. Congress went back and reauthorized and said no, we’re gonna make it stronger. I’m sorry, in 2006, Congress reauthorized it and 2013 is the Shelby County decision, when the Supreme Court said that Congress’s reauthorization in 2006 was not based on current conditions, and so it wasn’t constitutional. So, there’s been a back and forth between Congress and the Supreme Court over whether or not these expanded protections for certain states can stay in place.
HEFFNER: Now, the anecdotes to which allude have you become a powerful acknowledgement of the problem. Um, the formerly disenfranchised, disenfranchised anew in this context of 2016, which is dumbfounding to a lot of people. Again, it’s, it’s reverting back to an earlier era. I want you to take me to Durham, and take me to the communities most impacted by this. Um, the public outcry, did it escape those communities? Did it transcend the people of color who were largely impacted in the larger awareness in North Carolina about this issue? Because generally, this was not considered taboo, it was, uh, promoted and ultimately legislated as innocuous. This is gonna, um, prevent us from, from having fraud in the, in the ballot box, and it turned into, like you said, a monster. So, how has public perception evolved, and has that outcry transcended communities that have been disadvantaged as a result of, of the new laws?
EARLS: So, I think there was an outcry. The Moral Mondays movement, um, when this monster voting law was passed, were, um, at the legislature, there were students sitting in the galleries with tape across their mouths trying to highlight and, and publicize the fact that they felt their voices were being silenced by this law, so there was active protest and civil disobedience. There were people being arrested at the legislature who said, among a whole host of issues, one of the issues that some people went down to the legislature and got arrested in an act of civil disobedience was about the fact that they felt their right to vote was being taken away from them. When we started the trial last July over this bill, in Winston-Salem, there were protests and marches and the streets filled with people saying we are against this attempt to restrict our democracy. I think what we have seen is that, so far at least, those protests haven’t translated into the political power to overturn the law, but there… It’s, you know, it will take time.
HEFFNER: I think about it analogous to the situation in Flint, to the extent that there was a public outcry and thus far it was isolated, then garnered some national attention, like you said, Moral Mondays, a social movement to generate awareness about it. In Flint, there are efforts underway to recall the governor.
HEFFNER: Rick Snyder. Was there any kind of parallel to that in trying to forge a consensus that was going to be a rebuke, outside of the judiciary, outside of the legal process?
EARLS: Not quite as much. I think that, um, in, in some ways it’s because the populations that are impacted aren’t…. So, it’s students, it’s voters of color, it’s first-time voters, it’s, um, people of low economic means who move a lot and so they end up needing some of these other methods to be able to register, so it’s very different groups of people who end up being disenfranchised. It’s not as easily identifiable as everyone who drinks city water. Right? I mean, it’s just… Um, so I think that’s part of the reason why you might see the movement…
EARLS: To overturn these laws has not been as great, and I think that the other thing to keep in mind is that the legislature in North Carolina, I feel, was able to achieve this law because they are… In 2011 put in place districts that were highly partisan and racially gerrymandered. So, when you have elected officials from districts that aren’t drawn in a fair way to begin with, you have a legislature that’s not fairly representing the views of this, of the state.
HEFFNER: You represent a coalition on behalf of other southern states too, and in terms of your own advocacy for voting rights, take us through the racialized gerrymandering that we’ve witnessed over the last several years. You were saying off camera, building towards this 2020 census.
HEFFNER: What, what’s at stake in not just North Carolina, but other states where the populations are vulnerable to this kind of miscarriage of justice through gerrymandering on the basis of, of race and the disproportionality that’s at stake, not one person one vote.
EARLS: Right. So, some states have dealt with the issue of how do we draw lines by, by putting in place, um, independent commissions. California had a ballot measure that, that put in place an independent commission to draw their state legislative and con… Congressional districts. Um, other states that don’t have the initiative process, it’s very hard to get a legislature to itself decide that they’re not gonna draw their own districts. Florida had a constitutional amendment that changed the legal rules of government districting. That’s what’s at stake, I think, um, in this wave of litigation that’s going on right now around redistricting, and that is, for states that can’t have commissions or have independent bodies drawing their lines, will there be in place strong legal rules that constrain the discretion of the legislature and keep them from putting in place, um, highly gerrymandered districts? So, we’ve seen litigation in Alabama and Virginia. Um, in Alabama, it was the state legislative districts that a court… That the Supreme Court ultimately held were racial gerrymanders, because they used a mechanical racial criteria for how they drew the districts. In Virginia, the third congressional district, um, a three-judge court has ruled that that’s unconstitutional, and they’ve re-drawn that district, and that case was argued last week in the US Supreme Court, again a racial gerrymandering claim, but we’re also seeing partisan gerrymandering claims, um, bubbling up through the courts. There’s a case pending in Wisconsin, and in North Carolina, a three-judge court threw out, um, two congressional districts, the first and the twelfth, saying that they are racial gerrymanders, and it, I think…
HEFFNER: T… I don’t wanna interrupt.
HEFFNER: But tell, tell me, tell our viewers the importance of the lines.
HEFFNER: The lines that are being drawn to suit a race or a particular partisan agenda. Why is that important?
EARLS: Because it, it determines, um, who gets elected, basically. [LAUGHS] Um, so if you have a state like North Carolina, that’s pretty evenly divide between republicans and democrats, and in fact, and now I’m talking more about the partisan implications, but we can also talk about the racial, the impact of a racial gerrymander, but just sticking with a partisan gerrymander at the moment.
Um, in, in 2012, after the redistricting happened, more voters voted for democratic members of Congress, if you look statewide at everyone who went to vote, but the, the states, um, congressional delegation, thirteen, um, members turned out, turned out to be a ten-three, that is ten, um, ten republicans, three democrats. That’s not equal in a state where the voters are evenly divided, so that’s…. That, and that’s because of the way the districts were drawn, to pack democrats in just a few districts, and spread out republicans through the rest of the districts so they could control more seats.
HEFFNER: And how are people of color the victims of discrimination, insofar as this kind of racialized divvying up.
EARLS: So, so the difference between… So, a racial gerrymander’s a little different. Um, and that was actually defined by the Supreme Court in a case that came from North Carolina, Shaw vs. Reno back in the mid-1990s, but there the US Supreme Court said that if the government uses race and allows that to predominate, that is to say, they assign voters to districts based on their race above all other factors, then that’s unequal protection. It raises concerns. It raises equal protection concerns, and it has to be justified by strict scrutiny, so it doesn’t immediately say it’s unconstitutional. The jurisdictions, the government has to justify it, and the way that it harms black voters, I think we see through the testimony of average people, who say things like, you know, so what, so what happened in Alabama, what happened in Virginia, and what I, what we are arguing now happened in North Carolina is that black voters were packed into a few districts, so districts went from being 40 percent black to being 58 percent black, for example. Um, and the harm is that then those voters, those districts are seen as just for blacks. They’re seen… And there’s an assumption that only black candidates can represent African Americans, which isn’t what voters themselves believe.
HEFFNER: Is there also a reality on the ground that those are the districts where, like, Miami-Dade, long lines, malfunctioning software at the ballot box, is that too why the legislatures are, are trying to, uh, isolate these particular constituencies?
EARLS: I think there’s some overlap between, um, allocation of election resources.
EARLS: So, how many polling places and are the machines working, um, and pockets of low-income or minority voters, but I don’t think there’s a direct connection between packing voters into a certain district and then also having the polling places have long lines. There’s not always a direct correlation there. It’s kind of…
HEFFNER: That, that would seem to me…
EARLS: Two things going on. [LAUGHS]
HEFFNER: Right. But that’s, that would seem to me like the most per… Persuasive, um, equal justice under the law argument, um, in, in favor of undoing the racialized gerrymandering.
EARLS: Well, I think that what, what I would say about North Carolina is that, that… Over 25 years since I’ve been working on voting rights issues, in that state, I’ve really seen a change in terms of the willingness of white voters to vote for a black candidate, whether you’re talking county commission, city council, school board, state legislature, congress, there’s been a lessening of the role of, of racial animosity and racial stereotypes in our politics, and when you pack black voters into districts, you, you’re going against that trend and you’re breaking up cross-racial alliances, so that…
EARLS: So, it’s a little more abstract than the “I went to vote and you denied me the right to vote,” but it’s equally pernicious, I would say.
HEFFNER: Let’s talk about recourse. Um, in attempting to overcome some of these pernicious activities. So, presumably, if you’re one of these voters denied access, you don’t have an ID, you don’t have a smartphone or an iPhone.
HEFFNER: You, you can’t capture it on video in a way that would make it perfectly transparent to the electorate or to your neighbors.
HEFFNER: That your, your rights are in jeopardy. What do you do?
EARLS: So, there are non-partisan, non-profit groups that run election protection hotlines. So, some voters call those hotlines. Some voters go home and call the hotline, but apart from that, there, there really isn’t a lot you can do on election day. Um, there’s a… We have many examples of, of people who would, would call a hotline, and they… And we would urge them to go back to the polling place.
EARLS: Um, and we would explain why they either had a right to a provisional ballot or why, why the poll worker was misinterpreting the law, but at… And there’s some advocacy that you can do during the canvas, when they’re just trying to decide which votes to count, but for the most part, voters don’t… It, it’s not easy to enforce the right to vote. We…
HEFFNER: I mean, you read in some of these stories that the folks who were hired to operate the polling station are demanding answers to questions that, frankly, parallel literacy tests in some ways.
HEFFNER: They’re almost militant.
HEFFNER: Kim Davis and, and…
HEFFNER: The, the militant, uh, stance she took, uh, with respect to same-sex marriage.
HEFFNER: And saying that her will is gonna trump that of the US Supreme Court. Do you run into that?
EARLS: Well, we certainly… As I… The example I gave of our client, who we had to go with her to the polling place, it wasn’t until we sent someone there saying, I’m a lawyer, I have printed out her voting history, I can prove she’s registered, ‘cause the election officials were saying, you’re not registered, you can’t vote here.
So, you have to realize, we have 10,000 volunteers on election day across the state, a hundred counties, um, wide range of people with varying, um, abilities and capacities to actually interact with the public in a way that, that is fair, and, and so that’s part of the reason why, you know, we feel so strongly that you need to take discretion out of the system, in order to make sure that everyone can vote.
HEFFNER: And what about that question of recourse, more broadly, looking at the general election in 2016…you had, in 2008 and 2012, a historic victory, an African American, uh, who in, in the second half of this second term, um, in many ways has been undermined and delegitimized in his inability to, uh, govern, um, and so you’re looking potentially at the first woman president, and I think from our first conversation, I asked you, and you were somewhat skeptical of this idea, that because the first black president had been artful in winning and then winning re-election, that there was gonna be a renewed movement to try to deny the first woman an opportunity to be president.
HEFFNER: Uh, in the same kind of, uh, race-baiting attitude, but in this case, it’s a gendered, um, a gendered approach. What are you most concerned about, more broadly, looking at 2016 and the potential denial of, of voters?
EARLS: Well, I think that there’s actually a lot of factors that go into where we see the biggest problems on election day. Um, so sometimes it’s a local race that… a local contest that has motivated people to try to discourage voters. Um, and I’m, I’m not saying that there won’t be ill… Um, illegitimate attempts to keep people from voting in a wide range of ways in 2016, but what, what I do see is that the backlash, the attempts to keep people from voting that we’re seeing right now, is a direct response to the increase of participation over the past decade, in the south of voters of color and the, and the electorate is increasingly, you know, the, the, the new American electorate… Rising American electorate of, of youth and people and color, um, is, is what… It needs to be. You know, the response has been to keep those folks out of, out of the political process, rather than a response that would say, let’s figure out what they care about and try to attract them to vote for us.
EARLS: Um, so I don’t know, um, that the animosity toward… And I do think there’s animosity towards women in politics, female candidates, um, and you see that in redistricting. You see them more often paired, um, when districts are redrawn, so I don’t wanna deny that, but I, I just think that the biggest hostility we’re seeing is to the increasing participation of youth people of color in our electorate.
HEFFNER: I think it was fascinating to read in Wisconsin that the Voter ID law mandated the education of voters, and they ultimately did not fund this program that was designed to teach what documentation is mandated on election day, and of course, the recall happened when all the college kids were out of town in Wisconsin, so they couldn’t vote. Uh, looking at, beyond what’s on the ground in the election results of 2016, what do you anticipate will be the, um, tipping point for, uh, new law, uh, a modern day Voting Rights Act, or something that will stimulate the, the, the governing bodies to protect the country as a whole, because right now you’re responding, um, it seems to an onslaught of legislation across the country.
EARLS: That’s an interesting question. I think, actually, a close election, like Florida in 2000, is the kind of thing that ultimately motivates, um, efforts to change, because as, as wrong as I would say it is, it seems like we don’t really care unless the numbers that are impacted say the number of people who are turned away and not allowed to vote are enough to actually impact the outcome of the election. Um, so if we have a very close election in 2016, or in some, at some point in the future, I think that will, um, give greater impetus to efforts to, to change the, these restrictive rules.
HEFFNER: And what, in your mind was, was produced as an outcome of the 2000 recall?
EARLS: Well, certainly we don’t see punch-card machines used anywhere in the country. [LAUGHS]
HEFFNER: Yes. Of course.
EARLS: Right? Um…
EARLS: But there was also a, um, a Presidential Commission on election machines.
EARLS: And a lot more attention paid to, um, making sure that the system, uniform systems of voting in, in states that hadn’t… That kind of attention hadn’t been paid before.
HEFFNER: Mm-hmm. And I guess to, to think about this more specifically, do you think that paper trail or computing is more susceptible to this kind of, uh, discouragement, or do you really think it’s the personnel on the ground who are, in the way that they’re implementing the law, uh, disenfranchising, more so than the, the actual, um, law itself?
EARLS: So, what we’ve seen, um, at least in North Carolina, that the, that the machines and the type of machines you have don’t make that much difference. We’ve had a couple of elections that we’ve had to have again, because machines malfunction, but for the most part, it’s giving these 10,000 volunteers I talked about, um, so much discretion to implement really complicated laws. I mean, if I tried to actually explain to you what the Voter ID rules are, it would take me 15 minutes, and your head would be spinning. These are… Because of the way they’ve put restrictions on top of restrictions and changed the law at the last minute, it’s really complex, and it’s the… It’s that human element of having people at the polling place responsible for interpreting what that means and carrying it out, that, um, is what’s barring people from being able to vote.
HEFFNER: Do you anticipate that the Supreme Court, in the next session, will rule, um, in, in any way that further, um, informs your movement and, and how you wage the political battle?
EARLS: I think it’s a little early to tell, um, because the case that is dealing with these restrictions on voting and whether or not it’s constitutional to impose them, um, the trial court hasn’t ruled yet. Um, and there’ll be an, an appeal to, uh, an intermediate court, because it was a single judge, so by the time it gets to the Supreme Court, we may have a different Supreme Court. We may have a, a, another justice appointed. On the redistricting issues, which are currently pending in front of the Supreme Court, I think that they’re, even with our current Supreme Court, there are at least five votes that say we shouldn’t allow race to be the kind of, um, determinant of how divide up our politics, our, our political geography shouldn’t be based on race. I think there’s five votes for that, even today, and I think we’ll continue to see rulings like the one we saw in Alabama, which said, it’s, it’s not legitimate to, to allow race to be the only factor.
HEFFNER: Anita Earls, thank you for joining me today on the show.
EARLS: You’re welcome. Thank you for having me.
HEFFNER: And thanks to you in the audience. I hope you join us again next time, for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at thirteen.org/openmind to view this program online or to access over 1,500 other interviews, and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.