From Poll Taxes to Partisan Gerrymandering: Voter Disenfranchisement in the US

Eric Michael Rhodes
Welcome to History Talk, the podcast that brings together experts to discuss current
events in historical perspective. My name is Eric Michael Rhodes, and I’m here
with my co host, Lauren Henry. Lauren Henry
Hi Eric. Voting is perhaps the most fundamental act
of democratic citizenship. In a democracy, our political leaders receive
their mandate, and the system itself derives its legitimacy from the people who elect them. In the United States, however, the right to
vote has never been extended universally. Although the franchise has expanded to include
many more citizens, these gains have come haltingly and unevenly. Even as women gained suffrage, African Americans
were kept from the polls in many parts of the country for decades, and elected officials
have long meddled with district boundaries to choose their constituents rather than the
other way around. Eric Michael Rhodes
To help us better understand the history of voter disenfranchisement in the United States,
and how it continues to shape American elections today, we’re thrilled to be joined today by
two esteemed experts in electoral history and politics. With us, we have Professor Daniel Tokaji,
Associate Dean for Faculty and The Charles W. Ebersold and Florence Whitcomb Ebersold
Professor of Constitutional Law at The Ohio State University Moritz College of Law. A preeminent expert in the law of elections
and democracy, Professor Tokaji has published extensively on a variety of voting issues,
as well as successfully litigated a number of prominent election law cases. Thank you so much for joining us today, Dan. Professor Dan Tokaji
Well, thank you for having me. Lauren Henry
Also, joining us is Professor Pippa Holloway of the history department at Middle Tennessee
State University. A legal and political historian of 19th and
20th century America, Professor Holloway’s research examines race, law and gender in
the American South, particularly around disenfranchisement of people who have been convicted of felonies. In June, she published a feature article on
the subject in Origins entitled A History of Stolen Citizenship. And we’re so happy to have her on to discuss
the topic today. Professor Pippa Holloway
Thanks. I’m glad to be joining you. Eric Michael Rhodes
We’ve heard that suffrage has never really been universal in the United States. But where did the notion of the fundamental
right to vote come from? Professor Pippa Holloway
Really, the idea of voting and the idea of citizenship predates the United States or
even Western democracies, and then it goes back to the idea of citizenship. In ancient Rome in ancient Greece, the idea
that some people are part of a community, they’re citizens in a community, and that
entitles them to certain rights and privileges, among which are voting. And that eventually changes and passes through
time to the United States and the early days of our democracy, which, of course, initially,
suffrage was limited to white men who owned property for the most part. And then in the 1820s, that expands, states
begin to drop their property requirements for male suffrage. And by the 1820s and 30s. Most states, certainly by 1850, we have the
idea of universal male suffrage, universal white male suffrage in the United States,
which then, of course, the post Civil War era, there’s debates over the enfranchisement
of women, African Americans, Native Americans and other groups. So it moves forward through time and really
the 19th century has been identified as a critical period in the United States in which
we work out the legal questions around citizenship and the rights of citizens. Professor Dan Tokaji
From a legal perspective, the idea that the right to vote is fundamental dates back to
a case from 1886, called Yick Wo versus Hopkins. The case itself actually didn’t involve voting
at all. But in the course of its opinion, the court
said that the right to vote is fundamental, because it is preservative of all rights. And the basic idea or theory behind that is
that the main way that we protect our rights and interests is by voting, and by electing
people who in turn represent our interests in Congress and state legislative bodies and
local bodies across the country. And this is the main means through which we
as citizens, protect our interests by voting and having people who will stand up for us
elected in legislative bodies. The reality has often been quite different. And indeed, in 1886, at the very time that
the court wrote those words, African Americans throughout the states of the former confederacy
were being systematically denied their right to vote, despite the fact that about 16 years
earlier, the principle that the right to vote may not be denied on the basis of race had
actually been enshrined into our constitution through the 15th amendment. So the idea that the right to vote is fundamental
goes back a long way in our history. But for most of our history, that right had
not been fully honored. Lauren Henry
You’ve mentioned both the role that the federal government and states have had in determining
who is eligible to vote. And how does that process work typically,
or historically? Professor Pippa Holloway
So historically each state, since the origins of state constitutions and the origins of
states, have set their own requirements and qualifications for voting. That’s part of every state constitution. But then, of course, there’s times that the
federal government has intervened through federal constitutional amendments, which establish
some federal parameters for who gets to vote. Professor Dan Tokaji
If we look back through history, the major advances in the right to vote have come during
periods when the federal government was playing a more assertive role in protecting the voting
rights of people who had been denied those rights. Going back to the period right after the Civil
War to the Reconstruction Era, when the federal troops were down in the south for a period
of time, a brief period of time, they succeeded not only in fulfilling the promise of the
15th amendment and allowing newly freed African Americans, at least African American men,
to exercise their constitutional right to vote but also in allowing African Americans
to get elected to office in significant numbers. During the early years after reconstruction,
there were as many as 300 or more African Americans serving as legislators from states
of the former Confederacy. But at the end of reconstruction and proceeding
through the, really through 1900s, those states often viciously and quite violently suppressed
African American voting and representation. The result of which was that by 1901, there
were no African Americans left serving in state legislatures or Congress from the south. And for the most part, African Americans were
denied the right to vote all together. That wasn’t repaired, or at least addressed,
in a major way until the Voting Rights Act of 1965. There were some gains between 1901 and 1965. But the major event was the Voting Rights
Act of 1965, which knocked down the barriers to African American voting that had been in
place, at least in some parts of the south, for almost a century. So it’s quite true that for the most part,
administration of elections is left to state and local authorities. But if we look back on the history of the
right to vote, the major advances have come when the federal government has stood up for
the right to vote, especially on behalf of people of color. Eric Michael Rhodes
So we’ve heard a little bit about how the African American vote has been suppressed. We’d like to know a little bit more details
about those barriers. What sort of de facto, or extra legal restrictions
affected the right to vote in the 19th and 20th centuries? Professor Dan Tokaji
Maybe I’ll just reframe the question a bit, you know, a lot of the barriers that were
created to prevent blacks from voting, and often I should say, quite explicitly to prevent
blacks from voting were in fact adopted through changes in the law. For example, a number of southern states such
as Louisiana and North Carolina actually amended their state constitutions in order to adopt
practices like literacy tests that were often quite expressly intended to keep blacks from
voting. Poll taxes are another example of a practice
that was again adopted through the law to make it more difficult for blacks to vote. But there were extra legal barriers as well–often,
violence and threats of violence for people who so much as tried to register to vote. And that persisted through the 1960s and the
enactment of the Voting Rights Act to some degree even after that point in time. So there have been a lot of barriers, both
legal and extra legal to many people, but especially people of color and African Americans
in the south, most particularly being able to exercise their constitutional right to
vote. Professor Pippa Holloway
And within those legal barriers to electoral participation are also issues of implementation
that make what appear to be neutral or possibly even benign rules or processes for voting
have racial implications, right. So literacy tests might be unfairly administered. They might be disregarded in certain ways. Another common requirement were residency
requirements. So something like that you had to have lived
at that address for a certain amount of time. And particularly in the reconstruction and
late 19th century south, which African Americans were rarely property owners, people moved
around a lot. So a residency requirement might actually
be a barrier to suffrage for people that were landless, and thus quite transitory. Even the secret ballot, which we associate
today with transparency and fairness in elections, in fact, had its origins in preventing people
who were illiterate from being able to participate in an election, because they weren’t able
to read the ballots. So a number of these laws had implications
that were not immediately clear on the surface but actually had intense, racial intent and
partisan intent. Professor Dan Tokaji
Yeah, and Pippa and I’ve been focusing, for the most part to this point on what in the
legal literature is referred to as vote denial, that is practices that are designed or have
the effect of preventing people from voting at all. But we should also remember that a lot of
the most serious impediments to equal voting involve what’s called vote dilution. And that is the weakening of the votes of
groups of people even after they have fought for and won their right to vote. And in the era after the enactment of the
Voting Rights Act in 1965, after African Americans had won their rights to vote, or so they thought,
in the south what happened in many state and local jurisdictions especially, though not
exclusively, in the south is that means of diluting their votes were developed like at-large
elections, where for example, instead of electing members of a city commission from districts,
we had a city wide election. And in a place that was two-thirds white and
one-third black, no blacks would get elected to that city commission. We subsequently have issues about the drawing
of district lines in a way that effectively prevented African Americans, Latinos and other
racial minorities from getting elected to office even though they had won their ability
to cast ballots that were counted. And today the big boat dilution issue, unfortunately,
from my perspective, the Supreme Court has declined to address is the issue of partisan
gerrymandering, where districts are commonly drawn in a way that entrenches in power the
dominant party while effectively denying power to the other major party. So we should think about not only vote denial,
but also vote dilution when we consider what sometimes referred to vote supression or the
denial of the right to vote. Eric Michael Rhodes
Pippa in your piece for Origins, you wrote about the use of violence as a method for
disenfranchisement. Would you tell us a little bit about the history
there? Professor Pippa Holloway
The violence against African Americans who are seeking to vote dates back to basically
the earliest days of African American voting in the south after the Civil War. In the first elections in which African Americans
were able to participate, these would have been elections that were overseen by the reconstruction
government by the Freedmen’s Bureau. There were threats, intimidation and attacks
against these first-time African American voters. These are some of the elections to which the
Ku Klux Klan originates. The 1866 elections were really the time at
which the Klan was born. And it was born in that era as an organization
that was aimed at blocking and minimizing African American electoral participation. And that violence continues through the 1860s
and into the 1870s. So that really by the mid-1870s, a period
that we associate with the basically the end of reconstruction, violence carries the day. They were able to successfully limit the African
American vote to the extent that white Southern Democrats were able to retake power in the
south, a process that we refer to as the redeemers and the period of redemption, which is what
they would have called it. Not really a term that most historians would
see as, in fact, anything redemptive. But white Southern Democrats are able to use
violence as well as other tools, including as my work demonstrates, felon disenfranchisement,
as well as literacy tests, poll taxes, residency requirements, and so on. Violence goes hand in hand with these other
means of electoral intimidation and efforts to limit the franchise so that white Southern
Democrats are able to retake political power. Lauren Henry
We’ve alluded several times in passing to the Voting Rights Act of 1965 and its impact. For listeners who may not be familiar with
it, could you explain what the Voting Rights Act was and how it changed voting access? Professor Dan Tokaji
Sure. The Voting Rights Act of 1965 is one of, if
not the, most successful piece of civil rights legislation of all time. Signed by President Lyndon Johnson, it was
designed to knock down the barriers to voting, particularly those faced by African Americans
in the south, that had existed by that time for almost a century, at least in some places. There were several components of the Voting
Rights Act. It adopted a multi-tiered approach to address
the problem of African American disenfranchisement. One of the things that it did, and probably
the most important initially was to prohibit literacy and interpretation tests throughout
the so-called covered states, places that had very low rates of registration and voting
at that time, places in the south. So literacy tests were suspended initially,
later abolished, and that abolition of literacy tests was later made nationwide. In addition, the 1965 Voting Rights Act required
covered jurisdictions to pre-clear voting changes. What that meant is they effectively had to
get advanced permission either from the United States Department of Justice or from a federal
court to make new changes to their voting rules. And this turned out to be really important
in the years after 1965. What had happened before then, is that every
time the Justice Department went to court to stop one practice that was designed to
keep blacks from voting, a new one would emerge in its face, almost like a multi-headed hydra. After the Voting Rights Act of 1965, states
had to get permission to implement new voting changes, and that had a major effect in curtailing
the southern states and local jurisdictions ability to adopt changes that would keep blacks
from voting. So the practical effects of the Voting Rights
Act of 1965 were enormous, both in the immediate aftermath of the act in terms of substantially
increasing registration and participation by Southern blacks and in the long term in
terms of making it more difficult if not impossible for states and local jurisdictions throughout
the country to dilute the votes of African Americans and other racial minority groups. Professor Pippa Holloway
I’ll just add a couple of things to that. One of which is, historians will point out
the 1964 Civil Rights Act, which, you know, we associate with the integration of public
accommodations also had a provision in it which prohibited discrimination in voting. But after that’s passed, it was really clear
that that wasn’t insufficient, because many of the tools that have been used to prohibit
African Americans from voting or practically prevent them from voting were sort of racially
neutral, at least on the face of the literacy tests, poll taxes, and so on. So after the great victory with the 1964 Civil
Rights Act, there had to be another push. And that was the push that resulted in 1965
and the Voting Rights Act. Now, the other thing I’ll point out to add
to Dan’s answer is that although southern states were very much the motivation, Southern
elections were very much a key reason that the Voting Rights Act was passed. There were jurisdictions outside the South
that were covered by the heart of the Voting Rights Act that requires preclearance. There’s parts of California, Maine and other
places in the northeast, where small counties and small areas had variance with disenfranchisement
based on race, ethnicity, Native Americans, Hispanic groups, and so on. So although we tend to think of the Voting
Rights Act as about the south, and for the south, there’s actually a number of parts
of the country that were also covered by it. Professor Dan Tokaji
Yeah. And just to add to Pippa’s response, the original
Voting Rights Act as enacted in 1965, its covered formula was limited to places in South,
states like Georgia, Alabama, Mississippi. But it was later expanded to include places
with substantial populations of other racial minorities, especially and not exclusively
Latino. So places like Texas, parts of California
and New York were also covered by the Voting Rights Act as it was subsequently amended
in the ’70s. And those changes to the coverage formula
remained in effect until the decision in Shelby County versus Holder just a few years ago,
which effectively abolished the preclearance requirement by getting rid of the coverage
formula declaring that coverage formula unconstitutional because it hadn’t been updated since the 1970s. Eric Michael Rhodes
Speaking of how the Voting Rights Act faired, can you tell us a little bit about how it’s
been undermined since 1965? Professor Dan Tokaji
I think the most crushing blow to the Voting Rights Act was the Shelby County decision,
which effectively put an end to the preclearance requirement under sections four and five of
the Voting Rights Act by declaring the coverage formula to be unconstitutional. That decision by the Roberts Court has had
a significant impact in that it eliminated the requirement that state and local jurisdictions
in covered states get advanced permission for their voting changes. And the major impact of that, I think it’s
probably different from what most people think. Its major impact is most likely, in smaller
local jurisdictions where there may be some change that effectively dilutes the votes
of racial minorities and say, a city commission or a school board. A lot of these things don’t wind up getting
litigated otherwise, but changes that diluted the votes of African Americans or other racial
minorities before Shelby County could be stopped, or at least taken a closer look at through
the preclearance process. That really doesn’t happen anymore. So that’s been a major change. And I do think that the Supreme Court over
the years has issued decisions that have in some ways at least weakened the Voting Rights
Act. And we may see more of those decisions in
years to come. Professor Pippa Holloway
Dan’s exactly right. The Shelby v Holder is really the most important
blow to the 1965 Voting Rights Act that’s ever happened. And we will we have and will continue to see
the implications of that. Just in the aftermath of the Shelby decision,
we see an uptick, particularly although not only in southern states, in voter ID laws,
we saw the effort in North Carolina to limit early voting hours, we’ve seen other issues
or states are reducing the number of opportunities and locations where you can register to vote. So it’s empowered certain states and certain
jurisdictions to try things that they wouldn’t have been able to try before due to preclearance
element of the Voting Rights Act. The other thing I’ll add, is I guess since
my article was about felon disenfranchisement a slightly less important, but I think still
quite significant a blow to the 1965 Voting Rights Act would have been the US Supreme
Court case, Richardson versus Ramirez. And that case, interpreted section two of
the 14th amendment to exclude people with former convictions so it allowed states to
disenfranchise felons and ex felons, because it found that felons don’t have a constitutional
right to vote under this interpretation of section two of the 14th amendment. And so while I would never argue that that
had the kind of potential for really shattering the impact that Shelby beholder did, which
is a vs. Ramirez has had an impact in expanding the reach of felon disenfranchisement laws. Lauren Henry
Professor Holloway, I wanted to ask if you could talk to us a little bit about how felon
disenfranchisement and the restriction of the vote from people who’ve been convicted
of crimes came about in the United States and how it has been implemented. Professor Pippa Holloway
Briefly, these laws date back to ancient Greece and Rome, just as the idea of voting citizenship
participation date back to the very early periods, so too, does the idea that certain
people might commit crimes that would exclude them from the privileges of citizenship, which
would include voting. Those traditions also existed in the medieval
era, and then in early modern Europe. So there’s a long history here. But I think your question gets at the key
point, which is at what point did these start being used in the United States for racial
and partisan ends? And that’s what my work demonstrates. That begins right after the Civil War. That in the first elections of 1866, and which
African Americans are given the opportunity to participate in elections, African American
men, laws denying them the right to vote due to prior convictions, prior accusations of
criminality, prior punishments for criminal behavior are rolled out in that 1866 election. And perhaps one of the most chilling examples
of that comes in North Carolina. In North Carolina in 1866 in advance of the
election there, a group of white male democrats embark on a campaign to whip African American
men. And their argument is that whipping is punishment
for this franchising crime. And so if people are whips, they become infamous,
and therefore they can’t vote because they’re legally infamous and disfranchised. So that gives you a sense of both the power
of these laws and these traditions, the way they were implemented and utilized in that
very first election in 1866. And also, I think it underscores the role
of violence. We talked earlier about violence and how that
was used to intimidate voters. But violence can take that form as well. These people were subjected to a violent punishment
for crimes they didn’t commit, and then were barred from voting as a result of that. This moves forward throughout the 1860s and
70s, throughout the reconstruction period, or the period in which people were trying
to push back against reconstruction. And so then in the 1870s, my work demonstrates
that a number, almost every southern state, passes laws or implements Attorney General’s
opinions, court decisions and so on that lower the bar for disenfranchisement for larceny. Generally, a larceny offense, that is franchising,
would have been grand larceny, would have been a felony grade larceny. But many, if not most southern states lower
the bar to make misdemeanor larceny or larceny of very low value objects, also a disenfranchising
offense, and that is explicitly a racial and partisan move. It’s celebrated at the time by people that
are seeking to reduce African American voting, and its bemoaned at the time by African American
voters and their allies who see this very much as a racist and partisan ploy. So 1860s and 70s are really the key periods
in the south in which felon disenfranchisement laws get expanded, so they affect more people
so that they have racial and partisan implications. Eric Michael Rhodes
To what extent do these laws exist and how have they been challenged recently? Professor Dan Tokaji
Felony disenfranchisement laws do still exist and have a significant impact on who can vote
and who can’t. The sentencing project estimates that today
approximately 6.1 million Americans can’t vote as the result of a felony conviction. And there’s a stark racial disparity as well. While about one in 56 nonblack voters are
prevented from voting due to felony disenfranchisement laws according to the sentencing project,
one in 13 African Americans can’t vote because of a felony conviction. So there’s a really significant racial disparity
in the effect of these laws even today. There have been challenges to felony disenfranchisement
in addition to the constitutional cases that Pippa mentioned a few moments ago, some challenges
under section two of the Voting Rights Act. That section of the Voting Rights Act, as
it was amended in 1982 prohibits practices that result in the denial or abridgment of
the vote on account of race. The significance of that results in language
is that section two by its terms, prohibits not only practices that are intended to discriminate
on the basis of race, but also practices that result in or have the effect of discriminating. Now, there’s been some disagreements in the
courts on what exactly that legal standard requires. In some cases in recent years, plaintiffs
have been successful in challenging some practices, like, you know, voter ID laws, for example,
under Section two. But the challenges to felony disenfranchisement
laws or disfranchisement laws based on section two have not succeeded. Courts have actually relied on at least in
part on the case that Pippa mentioned earlier, the Richardson vs. Ramirez case, to say that
there’s a constitutional authorization for felony disenfranchisement laws, at least where
those laws don’t have the intent of discriminating against a particular racial group. Of course, many of us might argue that these
laws and Pippa’s scholarship supports this point that if you actually dig deep enough,
a lot of these laws actually were intended to discriminate, even if people aren’t so
aware of that today. But it’s proven difficult to mount successful
legal challenges to felony disenfranchisement laws. However, you know, there has been at least
some degree of success in moving forward with reform at the state level through the legislative
process. Professor Pippa Holloway
Which gets us back to kind of a key point, which is your question about kind of the landscape
of these laws today is that it continues to vary tremendously by state. There’s two states in the United States that
allow everybody to vote even if you’re incarcerated. And there’s a number of states that will have
lifelong bars on voting by people with prior felony conviction. So we have a tremendous spectrum. Within the United States, your ability to
vote depends very much on where you live if you have a prior conviction. And within that there are states that allow
immediate registration as soon as you are released from prison. And there’s many states that continue that
through probation and parole. A number of states also require you to have
paid all your courts fines, fees and restitutions, which can cause significant barriers to people
who are unable to pay those, pay the fines, which can amount to thousands of dollars. So there’s really where you stand depends
or shapes very much how these laws affect you. Lauren Henry
Dan, you mentioned here today the difference between vote denial and vote dilution. In your recent work, you’ve also written about
something you’ve called vote dissociation. I wonder if you could explain this concept
to our audience and how it affects voting in America? Professor Dan Tokaji
The best way of understanding what I call the dissociation is with reference to the
more commonly recognized types of violations of the right to vote, namely vote denial and
vote dilution. We’ve touched on these in this conversation
already. But vote denial generally is used to refer
to practices that keep people from voting all together. In the old, the bad old days, practices like
literacy tests, poll taxes or out and out violence. More recently, strict voter ID laws that have
a disproportionate impact on people of color, and of course, poor people generally. So that’s vote denial. Vote dilution refers to practices that make
it more difficult for people to elect their representatives of choice. So at large elections, which I discussed earlier,
gerrymandered districts either on the basis of race or party that make it more difficult
for some groups of people to elect their representatives of choice, those are examples of vote dilution. What I refer to as vote dissociation is the
idea that the way our political system works today is quite often to dissociate or separate
the vote from any meaningful political influence. In other words, even if we’re able to vote
on equal terms, and even if we’re able to elect our representatives of choice, that
doesn’t mean that we all are going to enjoy equal political influence. And the biggest barrier I see to that equal
political influence is the effect that money has in our political system, not only in terms
of the money that’s spent to finance elections, but really even more importantly, in terms
of back end impact that money has on our political system. There’s now a lot of research showing that
wealthier individuals and entities like big corporations exert vastly disproportionate
influence in our political system. That they’re able to get their way or at least
stop bills that are harmful to their interests. And so I really do think that this is the
next front in the battle to protect the constitutional right to vote to deal with this problem of
vote dissociation, of people’s votes being separated from any real political influence
primarily through the effect that money has in our electoral and political system. And this is, of course, something that not
only has a disproportionate negative impact on poor people, but on racial minorities as
well, by virtue of the persistent disparities in income and wealth on a racial basis that
exists in our society. Eric Michael Rhodes
Pippa, what would you say is the most significant recent change in our voting process, and in
our elections, more generally? We’ve heard a little bit about monies influence
from Dan. Professor Pippa Holloway
Let me put it this way. When I began my research project on the history
of felon disenfranchisement in the mid 2000s, a prior felony conviction was the most likely
reason why you would lose the right to vote if you would have otherwise enjoyed it. So it was a primary means of denying the vote
to people who would be otherwise eligible to vote. And today, as important as I want to argue
that my work is that’s no longer true. If you can’t vote today, it’s likely because
you don’t have an ID, or you don’t have a birth certificate that enables you to get
an ID. My sense is that over the past decade or two
of American history, at every level, from the local to the national, there have been
efforts, successful efforts to make voting harder. And that that distinguishes United States
from really any other modern democracy, which have explosive efforts to make voting easier,
to increase electrical participation, and to get voting to reach and to be extended
to all elements of society, specifically citizens, but even not always just citizens. So I see that as a sort of big picture trend
that’s incredibly worrying. Electoral participation is dropping. It’s not dropping necessarily through apathy,
but through intent. There’s fewer limitations, the number one
exhibit being the weakening of the Voting Rights Act under Shelby. And so that, for me, is the most significant
trending downward pressure on electoral participation. Lauren Henry
In the long view, is it getting easier or harder to vote in America? Professor Dan Tokaji
I think it really depends on where you live. If you live in some states, and this has been
in recent years, especially states, with Republican legislators, it’s probably getting harder
because those legislators are adopting rules that make it more difficult to vote. And at one period in time decades ago, we
might have counted on the Supreme Court to serve as a bulwark against those efforts to
make voting more difficult. But that’s not where the courts are these
days, the Robert court especially. On the other hand, there have been changes
for the better in a number of states. Some states have actually relaxed their disenfranchisement
laws or made it easier for people to get a restoration of their voting rights. Colorado is one very recent example of that
other states have adopted reforms, like same day registration or automatic registration
that make it easier to participate in elections. So I wouldn’t give a straight thumbs up or
thumbs down answer. I think, like everything else in our politics,
it’s very much polarized along party lines. And in general, in blue states, it’s getting
a bit easier to vote. In red states getting more difficult. But I do want to really come back to this
point that we’ve got to think about vote suppression beyond simply being able to cast a ballot
that will count. So when we think about the weight that our
vote actually has, we have to think about the influences on lawmaking and policymaking. And the reality is that wealthy individuals
and groups exert a lot more influence. And we have to start seeing this as a form
of vote suppression that in my view, is actually much more significant than the barriers to
actually voting and being able to cast the vote that counts that exists today. Professor Pippa Holloway
You know, Dan, your answer is very judicious and probably right. But I have to say from where I sit in Tennessee,
the glass is much more half empty than half full. You’re totally right, that there are states
where voting is getting easier, out West states that have vote by mail. But I’m looking at places like Florida, where
what we thought was a huge victory with the passage of the amendment allowing reinfranchisement
of ex offenders now being just killed by acts of the legislature, which will require you
to have fulfilled all legal financial obligations in order to register. And unless those get struck down by the courts,
that’s going to render that largely ineffective. Where I’m here in Tennessee the legislature
passed a law that criminalized voter registration mistakes basically made organizations that
do registered voter registration civilly liable, and also potentially, I think criminally liable
for mistaken forms. So if people fill out the form wrong and make
mistakes on registration, the organization that ran that are liable in some form. And then just more generally, we’re seeing
across the country, more and more criminalization of mistaken registration. Or the woman in Texas who has become something
of a poster child for this, who mistakenly registered and wound up in prison for that. That’s again, a potential in Florida if you
are able to register despite outstanding financial obligations, that’s a felony. So you’re right, that there’s definitely stay
that are making voting a little easier. But there’s also a lot of states that are
making voting a lot harder, and also potentially fraught with criminal penalties if you do
it wrong. Professor Dan Tokaji
Well, I appreciate those comments. And you’re certainly right that there are
many places in the country where there’s been a deliberate effort to make voting more difficult. And indeed, I spent probably the first decade
of my academic career focused on laws and practices that make it more difficult to vote
like voter id, felony disenfranchisement, strict voter registration rules, limitations
on early and absentee voting. Here’s the thing, and I’m going to be brutally
honest about this. What I’ve come to believe over time, is that
while these laws and practices have some effect, they’re not as great as some of their opponents
fear and some of their proponents probably hope. They do have some impact on turnout, especially
a really strict voter ID law, like the one that Texas adopted a few years ago. But we’re talking about a few percentage points,
maybe two five percentage points at most. When we think about the big problems in our
democracy today, I really think that while there’s some connection to what I’ve called
in my scholarship, vote denial, the big issues have to do with the separation of voting from
meaningful political influence. And if we don’t look at the man behind the
curtain, at the way in which our campaign finance system and our lobbying system, which
are now largely unregulated, distort political power and give way more to those with a lot
of money and way less to those without significant resources, we’re missing the biggest voting
rights problem that exists today. Professor Pippa Holloway
I’ll agree with you to the extent that brings it back to felon disenfranchisement, which
is again when I began this research, I felt and I think a lot of people felt that felon
disenfranchisement was kind of like the next frontier. Getting people their voting rights back, particularly
in the states were the numbers of people and the racial imbalance of the impact of these
laws was so stark was really just a critical issue for our democracy. And I don’t disagree with that, for sure. I still think it is a critical issue for our
democracy. But I’ve also heard people say in the last
few years, it’s kind of an easier issue. We’ve certainly seen over the past decade
or so pretty solid progress on felon voting. Many states are making it easier. Many states are having automatic restoration
as soon as you’re done with prison. Just in the last month, two states eliminated
the requirement that you be completed with probation and parole. So probably in the larger trend, you can look
at felon disenfranchisement and and say, yeah, this is getting better, more and more ex-offenders
are now getting the right to vote. And I think you could possibly argue, and
I think you’re making a great point that this might be because there’s less of a fear of
the impact and the power of voters due to exactly what you’re describing, that voting
is sort of the gateway to electoral office. But once you’re there, you are very likely
to be serving moneyed interests more so than the people who actually elected you. Lauren Henry
All right. Well, I guess we will wrap it up on that note. Thank you to our two guests, Professor Dan
Tokaji and Professor Pippa Holloway. Professor Dan Tokaji
Thanks so much. Professor Pippa Holloway
Thank you for the great conversation. I really appreciate it. Eric Michael Rhodes
Thanks, everyone. This episode of History Talk was brought to
you by Origins, Current Events in Historical Perspective, an online publication of the
public history initiative, the Goldberg Center and the history departments at The Ohio State
University in Columbus and Miami University in Oxford, Ohio. Our main editors are David Steigerwald, Steven
Conn and Nicholas Breyfogle. Our audio and technical advisor is Paul Kotheimer. Audio producers hosts are Lauren Henry and
Eric Michael Rhodes. Song and band information can be found on
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