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tv   Voting Rights Discussion with Law Professors  CSPAN  January 10, 2020 1:42am-3:07am EST

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next, day look at voting rights in the united states as law professors discuss the voting rights act, the electoral college, and state voter id laws. hosted by the american constitution society. >> good afternoon everyone. my name is kara stein, i'm the -- we are always pleased to be here, i would like to reflect every year that i was in law school we did not even exist. and now we are in almost every chapter, in every law school across the country, we have a chapter. i encourage you to
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talk to my colleagues who are here. if you are not already involved, please get engaged. we need you more than ever. i want to introduce our interim president. to tee up this panel discussion, this year as the nation heads into a presidential election season, we felt compelled to pick up on the theme of this whole conference, pillars of democracy, to ask questions about how our structures of government, and the components thereof and our values and commitments are working together, or not. so we asked the question, our democracy and federalism friends or foes? to lead us through this discussion, we could not be more pleased to have this panel with us. adam is a expert on the supreme court, he is a professor of law ucla. he is on the acs board of directors. he is the student chapter adviser at ucla. his 2018 book we the corporations, how american businesses won their civil rights, was a
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finalist for the national book award and receive describes award. he is also the author of gun, fight the battle over the right to bear arms in america, which is bio tells me received no awards, but was the subject of a question on the game show jeopardy. so you can decide which is more impressive. his other credentials are in the hand out you received. so please join me in welcoming adam. >> thank you so much. it is a pleasure to be here, and participating in this panel. i want to thank the american constitution society, which if you are not familiar with, it is an influential network of lawyers, law students, judges scholars, you believe the constitution was designed for we the people, to promote democracy, and the rule of law.
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i would like to thank kara stein for organizing everything, and the acs staff, and also the association of american law schools for hosting this panel here at the conference. i would also like to thank our three panelists who we have with us today. these are three panelists who are experts in the area of elections, democracy, and voting rights, in the constitution. i could not be more pleased with the expertise that we have here to address this topic of democracy and federalism, friends or foes. you have detailed descriptions of their bio's in the program, so i won't provide that. but i will introduce professor for needed tolls and from the university of southern california, gould school of law. joshua douglas of the university of kentucky college of law. and professor the
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period charles, of the duke law school. welcome to my panelists, and why don't we just jump right into this question of democracy and federalism, friends or foes. i will start with you, franita. why is this so important to how we understand democracy and voting rights in america today. >> what is the meaning of life, in other words. it is important because each state is essentially its own political entity, and state said voter qualifications for federal elections. they set a lot of the rules that govern state and federal elections. they have a lot of power, and they differ and how they do it, we have 50 different states. a lot of states do you think similarly, but a lot do things differently, that is the beauty of federalism. states can figure
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out what works for them and borrow from other states that, is the experimentation we tend to think about, with regards to the benefits of federalism. the federal government does have a say in how states run their system. so there are some uniform requirements that the federal government employees is and the constitution imposes when it comes to regulating state and federal elections. for example, under the federal constitution you can impose a poll tax. that applies regardless of what state you are living in. generally speaking, states have a lot of authority when it comes to setting the ground rules that govern state and federal elections, so for that reason federalism is important for understanding the right to vote and what the right to vote requires, because they take different approaches to actually defining the right to vote. >> joshua, if i can ask you. how does the text of the constitution, the structure of it reflects this relationship
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between democracy and federalism as a matter of background and principles? >> the u.s. constitution does have a structural, federalists component to running elections. article one section for, the time place and manner clause, says that time, place, and manner of regulating elections shall be dictated by the states. but then it says congress may alter or amend those. so the constitution puts the regulation of elections in the states themselves, unless congress has decided to override. it article one section two, the gold or qualifications provision, says the qualifications to vote for congress are the same to vote for state legislature. the constitution does not set out any qualification rules, other than in the subsequent amendments, that say states cannot deny the right to vote on the basis of certain
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characteristics. otherwise, the constitution dictates that these state rules determine voter qualifications. there is a lot of debate about what that means. what is a voter qualification? a voter identification law. is that a qualification to vote? you have to have it or you're not allowed. or is that more of a time, placed, man a regulation, that just demonstrates you were a qualified voter. there's a lot of murky and complex questions to deal with. the structure places both the time, place, and manner of regular elections, first with the qualifications and determination of who can vote, also with the states themselves. >> what about the electoral college? does that reflect federalism? >> it does. here is what's interesting about the american constitution. most modern constitutions have a right to vote, with respect to national citizenship. if you look at the
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south african constitution, citizenship and voting are tied together. that is not true with the american constitution, specifically, if we want to talk about the electoral college, there is no right to vote as a function of being a u.s. citizen. as we all know, our chief executive is elected, or could be appointed, indirectly by the voters, and all of that is a function of being part of his state or state citizenship. if you're a u.s. citizen living in puerto rico, you don't have a formal right to vote, a right to vote for the chief executive, even though you are an american citizen, because the exercise of the franchise representation, in that context is a function of the political entity that we call the state. to reiterate some of what my colleagues have said, the structure of the constitution itself builds in
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the political unit of the state has essentially the mechanism that mediates access of the franchise. you vote for years senator on the basis of state citizenship. two senators per state. voter qualifications are the same as for the same qualifications for the state legislature, with respect to the electoral, college the indirect mechanism of appointing, or electing the chief executive, through the political units of the state. the states of the political units that mediate access to the franchise. so federalism is built into the structure of the constitution itself, with respect to voting. >> can i ask, in addition to that, the supreme court has been active in states of democracy and federalism as well in recent years. in fact, in 2013, a well-known case and shelby county, the supreme
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court stepped into this issue of voting rights and democracy and federalism. can you tell us a bit about that decision, and how it reflect the concerns of federalism? >> the case is won about the power of congress to say insane or maintain provisions of the voting rights act. in particular, congress can create a formula because of their history of racial discrimination, and certain jurisdictions because of their history, must than, under that formula, be clear there voting rules. they must submit them to federal officials, whether it is congress or the federal district court, and the district of columbia. from the courts perspective, the active preclear-ing, or the qualifications asking certain types of jurisdictions that
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they must preclear their qualifications, their voting rules before federal officials, undermines the sovereignty of the states. it creates a clash between federal power and state power. from its perspective, the constitution has delegated the authority for administering elections, creating voter qualifications to the state, and the sovereignty of the states are what is at stake. the court struck down section for a of the va are a on the grounds that it violated principles of federalism, and that congress overstepped its boundaries, and maintaining that division that was first an act of 1965, that congress overstepped its boundaries. there is no longer a significant justification for allowing congress to supervise the electoral mechanisms of the state. from the courts perspective, this was a federalism clash there was no
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longer justified, and therefore required and unconstitutional determination. >> franita, congress is enforcement power has been limited, but we have seen a lot of activity on the state level, identifying states is being an important site for democracy and election reform. a large number of laws have been passed in recent years restricting access to the vote. what kinds of laws are we seeing out there? one of the threats to democracy with these laws? >> since shelby county was decided in 2013, quite a few states have announce restrictions that make it more difficult to vote. cutting early voting days, more restrictive idealize, increases in racial gerrymandering, for example. i hate to call out states. they have been
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innovative in a bad way, as far as restricting the right to go. we have seen polling places close. the decision really did opened the door for states to push federalism in a negative direction. it is the type of experimentation that really does offend the democratic norms within the constitution. federalism can work both ways, because we also have states that have increased access. i moved to california a few years ago, and i can just mail in my ballot, so there are states that make it easier to vote. but there are states that make it bad actors, and shelby county was decided. >> these laws that have been passed in recent years, have the courts been active in trying to police them, or stop them from restricting the right to vote? >> we have seen some decisions. there was one out of the fourth circuit in which the court looked at some of the voting restrictions implemented in north carolina and said the
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state acted with discriminatory intent, passing the laws. that is pretty notable. it's hard to establish that. we have also seen the supreme court be pretty active on the front of racial gerrymandering. it is a cause of action that was developed about maybe 20 years ago, when states racially gerrymandered districts, the court basically said it violates the 14th amendment. initially, the call of action -- but in recent years we have seen people use the cause of action to pack in districts. the court has been somewhat proactive, but also courts of appeals have been active on this front. >> joshua, she mentions there
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are some states that are expanding access to the right to vote. you have a new book out, vote for us, how to take back our elections and change the future of voting. you are somewhat more optimistic about some of these reforms at the state level and expanding democracy, and access to the ballot. can you tell us about that? >> along with a lot of the voter restrictions, and we don't need to ignore them, they are important. there has been a lot of good movement on the ground in various localities and states throughout the country on a wide range of democracy reforms, what i call positive voting right reforms, ways to make it more inclusive, easier to participate, more convenient. things like expanding eligibility of who can vote, weather through felon
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re-enfranchisement in places like florida, whether it is slowing the voting age to 16 for local elections, which a handful of places have started to do, and it has a lot for engagement of young people. things like registration convenience, the move to automatically voter registration, where you don't have to opt in and fill out a form the, state automatically registers you given the information already has, more same day registration studies demonstrate that states with the highest turnout levels have either seen registration, and the state of the lowest turnout levels have a registration deadline of 14, or 30 days before the election. this makes sense. people often are not thinking about the election until the weekend before, if they haven't registered ahead of time, that is a barrier to them. election day convenience,
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she mentioned she males in her ballot, a number of states are increasingly offering vote by mail, or voted home. because here, the state without requesting, it automatically males you a ballot, so you have it at home a couple weeks before the election. you can sit at home, research the issues and the candidates so it leads to a more informed and engaged electorate, and then you mail that ballot in or drop it off in a secure drop talks. this started in some local elections, first in oregon, then moved statewide in oregon, now to about five states have this. and other states are moving towards it. you talk about breaking down barriers for people with disabilities, localities and states are doing that as well. it is interesting, both of these statewide level and the local level, campaign finance reform, the move
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towards innovative ways for public financing. there is a whole slew of ways in which we run our elections, you have localities, states adopting forms to make it more easy to vote. and easier to make our democracy a lot more inclusive. >> guy-uriel i'm curious if you agree. when some states make these moves it leaves voters in other states without these protections. what should we think about that problem? >> let's begin with first principles. we cannot get away from the fact that our elections, our election process, our constitutional structure, is decentralized. that is a given. we cannot get away from it. can we take advantage of
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decentralization? some states can be innovative. there are also the negative aspects of decentralization, which are that some states are also regressive. but if you plot it lane yearly, there is something to be said for the types of positive movements that we are seeing. josh talked a bit about the fact that fell and ryan franchise mint is something we have seen quite a bit in the last few years. it's quite remarkable. we want to celebrate those positive developments. there are a couple other questions. what do we do about states that our laggard's, and there are two ways of thinking about that problem. this could be about congressional regulations, the houses hr1, the attempt to create a congressional,
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nationwide regulation that either incentivizes, or forces the states to engage in certain types of good practices. the second part is less effective, and has been less effective, and it has been through the courts. there are some constitutional limitations against regional discrimination, but the types of constitutional restrictions we would like to see, limitations on voter ideas, for example, those have not been successful. we have two possibilities of centralizing, and recording national norms. and the best thing we can do is probably spreading the norm of the importance of voting and allowing using the mechanisms of the say to continue to ratchet up the process of voting. it is a decentralized process. it is not always going to be perfectly lay near. you
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see states, particularly now, voting in issues. it is the norm my colleague calls strategic disenfranchisement. we are using this is a way of gaining political power. and it is utilized in a partisan way. it is not going to be perfectly linear. however, we do see progress. >> if i can add something, a lot of these positive reforms are happening in so-called blue states, whether it's cities or blue states entirely, we have to americas into voting systems. one a lot more expansive in democratic areas, and one more restrictive where republicans control. that is what you are seeing from a descriptive perspective. but the answer is
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also no. there are some of these positive reforms that we are seeing adopted in both red and blue places, because they are good governance aspects. felony enfranchise mint, people from all political perspectives are seeing the moral imperative have not disenfranchising people after they see their time. you see that in places like alabama, and kentucky, where we just had an executive order. you also see the nuts and bolts of administration issues also being promoted, especially at the local level we talk about universal vote by mail. it is in five states, including utah. every voter in utah gets a mail in ballot. not a place you would think of as a particularly blue area. you also see vote centers, so instead of having to show up and vote at the precinct closest to your home, you can go to any vote center in your
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county and they are all connected, so that if you check into one you can check into any others. this was started by republican county clerk in colorado, and now there are a lot of places, but the voting centers are located strategically so that they capture the right kinds, making sure everyone has easy access. if you are at school, or work, you don't have to rush home to the precinct closest to your home. that has been adopted in a lot of red and blue places. i think the other things you can do our try to find common ground for some of these positive voting rights reforms, where it just makes sense. it produces money, and reduces the cost, and increases the convenience factor. >> thinking about their comments, i think part of my frustration is that we have all of the pieces to create an affirmative vision for what the right to vote requires. the
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current supreme court makes it difficult. even in a decentralized system, everything is decentralized and we have to start from the baseline. but one good thing is that the warren court was willing to put in a vision of what voting requires. it is only in recent decades we have failed to see that vision. if we can come to some kind of consensus on what the right to vote actually means, that i think that would help us find the common ground josh references. the right to vote requires that we have same day voter registration, then why is that a bad thing? it is just that the current court is focus on decentralization more than talking about actual rights. i certainly don't disagree with that. you are clearly rights that part of the problem is the failure of the constitutional
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jurisprudence to take seriously the right to vote. we know from political science literature that when you impose barriers to voting, that it is going to reduce turnout. you can disenfranchised people without formal laws, by simply imposing certain sets of barriers. you can reverse the situation by making it easier, with things like same day registration, no excuse absentee ballots. that is an example of a bipartisan measure, vote centers, lowering the voting age. we know if they preregister, the likelihood that they voted 18 is high. we know the evidence that those are mechanisms for assuring that people have access to the franchise, are utilized a franchise. the problem is our
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constitutional jurisprudence is not caught up to that framework yet. notwithstanding that, there is still a norm that we are seeing across the country with people recognizing the importance. and some of that is actualize through a partisan framework. so we do have two ways of addressing the problem. the other is through norm building, and the political process, and to figure out, as we are continuing to increase access to the franchise by lowering the barriers to public participation. >> one of the things we have seen most activists voter ideologues. for many americans, they see a voter id law and hear about it and think it's
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okay to have to provide id. what is wrong with that? why is this problematic? >> a lot of people don't have ideas. and it is unclear the law does what people think it does, to the extended state legislators are imposing voter id laws to prevent electoral fraud, or election fraud, or people showing up pretending to be someone else. people don't really do that. if you look at the statistics, most fraud occurs with absentee ballots, and voter idealized do nothing to prevent that. it is a solution to a problem that does not exist, in that harkens back to the discussion about taking the right to vote seriously. if you take the right to vote seriously, in any rights framework, a state should not be able to impose a restriction that does not solve a problem if we are taking right seriously. i think even though
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many americans do you think voter id is not a big deal. i have an idea. many people do not have ideas. it disproportionately affects poor people, people of color, and for no good reason. to the extent that we value the right to vote as a right, they should not be able to implement solutions to problems that don't exist. >> does this disinfect people disproportionately? >> people of color, poor people. a demographic that is often overlooked is women. we change our names when we get married. i changed mine. a lot of women don't, but a lot of women do. so if your name doesn't match the name on your id, then you could be disenfranchised. voter ideologues have a lot of impact, even though most people don't think it's a big deal. it really is. >> another thing we are seeing as purging of voter lists. what
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is the justification of such efforts, and what is the impact of these purges? >> a lot of state legislatures, and election officials think there is a major problem with voter registration lists that are outdated. people who have moved away or, have died still being on the lists. this craziness that people panel about voter fraud in the system. one of the things we have to recognize is that there is not a lot of voter fraud in the system. that is a fact. a little does exist, and it often has to do with absentee balloting, but that is typically election fraud. that is someone trying to rig the election, like we saw in the north carolina 12 congressional district. that was done by basically one person as opposed to the voters themselves. we see it a bit through vote buying and getting complicit
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poll workers. there is an idea about voter fraud out there, and all of us talk to the media, you hear the general public saying, i heard these people, and there are hypothetical stories you dive down and say what is the evidence? and it is not there. i bring it up because people use this overarching, broad theme of voter fraud to justify these voter purges. bloated voter registration rolls does not mean that it leads to voter fraud. just because someone is still on the voter old doesn't mean they're showing up to vote. but you have states doing these purges. it is not a bad thing to clean up the roles if you are doing it in a careful way that takes off the people who really are not active voters any longer. the problem is when it is over broad and you take people off the voter rolls who are legitimate voters
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who just have not showed up recently. if you have missed two elections, you were automatically purged, and if you don't reply to the postcard you are sent, you are purged. the plaintiff in that case was someone who had gone off and served overseas, did not vote in the two elections, missed whatever postcard was sent, and then found out that he had been purged from the voter rolls. we need to be careful about the kinds of regulations that we're adopting to make sure that it doesn't have disproportionate effect on people who should be legitimate voters. the final thing i will say, is that automatic voter registration solves this problem. what a vr deposit dynamically change the voter rolls based on the information states receive. if they receive information through an organization called
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america, which is a coalition of about 30 states that share voter information. if you find out someone is registered in another state, that's good evidence that you can identify whether they have moved or not. automatic voter registration leads to a more dynamic process. it doesn't require these voter purges. it is about the frenzy of voter fraud that has no merit when you dive down. >> part of this process is layered onto a partisan administration of elections. when you recognize electoral rules have strategic advantages, because the parties are a symmetrically located, and the voters asymmetrical situated. for example, voter id will not affect voters who intend to vote in the same way. it will have a disproportionate effect
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on democrats, as opposed to republicans. a voter purge may not affect republicans and democrats the same way. given the fact that the voters of the parties are a symmetrically located, am this will have a disproportionate impact on voters, depending on their partisan affiliation, in the partisan administration of voting rules, there is a tendency then to use voting rules as a way of tilting the election framework. it is fairly easy to come up with the justification. and there is a very good justification for voter purging. you want to make sure that the voting rolls are accurate, or it is easy to come up with the justification for voter ideas. we want to ensure the integrity of the election, whether we are worried about voter fraud or we just want to be sure to make sure that people perceive that they have faith in the electoral process, when they show up to vote. that
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sounds really good to us. it is facially plausible, but of course to the extent these are being administered in any partisan way, in the justification is not quite there, then the impact is going to be greater upon some populations, as opposed to others. we have asymmetrical locations of political parties, or their voters that are going to be disproportionately impacted by the electoral rules that we enact. >> let me just add two points if i can. no one is showing up to the polls pretending to be someone they are not to throw an election, that would be a very down way to try and do that. you would need a lot of
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people to do it to make a difference, and you are more likely to get caught if you do. i would never try to throw an election, but if i did i would not use in person impersonations to do it. the other justification people here as well is that people want to feel more secure. there is a study down by nate per, slang and some others, asking states with strict voter id, law and no voter ideologues what they thought about the security and integrity of their elections. and everyone answered the same. it didn't matter if you were in a voter id state or not. although i am an idealist, i am somewhat of a realist. people don't like it. in terms of
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professors, and people who support a cbs, it is twofold. one is to fight for a mild form of voter id, as mild as possible. kentucky just elected and his number one promise was voter id. it is coming. and to the victor go the spoils. i think it is incumbent upon me and others in the state to try and push him, if he is going to have a voter identification, law to make it is mild as possible. if you show up to the polls, and you don't have an idea, you can sign an affidavit saying here is why, so it doesn't have a disenfranchising effect. the second thing we can do is get on the streets and get people ideas. there are a couple remobilization,'s one called vote riders, the other
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called spread the vote that are doing this. we need to support those efforts as well. unfortunately, there here and we need to make sure that it doesn't have a disenfranchising effect. >> i agree that voter ideas probably with us. but let me explain why. all voter id is not the same. it is -- litigation can push us towards less restrictive forms of voter id. i think an important thing in the context of this litigation is to require states to come forward, and that is not something the court really does at this point. if the voter ideas touted as a way to protect against voter fraud, and make them provide evidence of fraud. if it's about perceptions, make them provide survey evidence that people actually perceive this system is being broken and corrupt. something to signify that the right actually mean something.
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i think litigation will continue to be important, although i agree we have lost a battle against preventing voter id from taking hold in our system. >> another thing that is with us to stay is gerrymandering. we have seen a lot of gerrymandering in recent years, and the supreme court just recently decided not to step in and call into question extreme partisan gerrymandering. how is partisan gerrymandering to me in the right to vote? >> it basically eliminates any competition. it makes your opponents very vulnerable, because you draw districts that make it difficult for them to win, and easy for yourself to win, when it comes to running for election or reelection. if you are in a democratic state,
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and you put your republican colleagues at risk, and vice versa. gerrymandering is as old as the united states, it has always been around. but i do think, to the extent that in the last half century we have seen a push towards being more democratic, i think that comes with an affirmative obligation to do something about gerrymandering. for a, while the supreme court seemed open to that. even in the last ten, years the supreme court has not been active on gerrymandering. they hadn't established a standard to resolve partisan gerrymandering claims. they still use other ways to try and check gerrymandering. i don't think it's right to say they were completely hands off. they were using things like one person, one vote, section to the voting rights act, to indirectly police partisan gerrymandering. one of the shocking things about the
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decision is for the court to be so as to say they don't want any part of this. there was still some expectation of the court would intervene somehow, even if they had to use other tools to do it. it is not entirely clear that the current majority on the court would be willing to do that, in the same way as prior iterations of the court. i think in that, way we have to rely less on the court and more on state courts. more on state legislatures, more on independent commissions to try and police parts of gerrymandering, since the court has indicated they are not willing to do so. the focus has to shift to these other entities in terms of addressing this problem, because if anything, the decision from last term signifies that the court is no longer really an option. >> let me ask you about hr1,
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which has come up earlier. hr1 was the first law that was passed by the new congress last year. what did it happen it, and or they're promising reforms? >> it was a great congressional package that would adopt a slew of reforms. what is interesting about it is it is an omnibus election bell, and virtually everything and there is something that some states are already doing. we can point to successes. it would require a no excuse, absentee balloting for no states, automatic voter registration, reinforcement causing felons everywhere. i think it would require public financing of campaigns. it is a
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whole package of reforms, that would from the top down impose on the states, this falls under section one article four, time, place, and manner clause which says congress can make, or alter regulations for congressional elections. this is congress using that authority to impose a lot of things that some states are already doing. when i read the bell that was the thing that stuck out to me. congress wasn't really inventing the wheel. it was basically saying we have got the best practices from various states already. let's just make them nationwide. my best friend in the senate, mitch mcconnell, is unlikely to give this bill a chance at all. i don't think this necessarily is going to go anywhere anytime soon, and that is unfortunate. but i think with him, as long as he is in power, hr1 will not
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see the light of day in the senate. i think it helped to create that conversation that, you were both talking about, what do we mean when it comes to democratic participation? what kind of vision should be have? it sure one puts that all into one place and says, at least the majority of the house of representatives, the peoples house, agrees that this is what we mean when we talk about a robust right to vote, a robust electoral participation. >> i agree with that 100 percent. the value of hr one is its comprehensive framework. here, finally, if we were going to have a new voting rights act, hr1 is what it would look like. because it looks like a voting rights act. the theoretical proposition that also practically puts in place what political participation ought to be, in an advance democracy, in the second decade of the
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21st century. that's a significant advancement. even though it's true, legislatively, that given the current makeup of the senate, and obviously the presidency, that we are not going to see that reform, that in the short term. but it is a long term framework, thinking about what is on the shelf, and what can then be in a new congress, in a new white house, what can then become a new set of principles, a new voting rights framework. hr one is exemplary from that perspective, and very much keeps alive the norm of articulating what we mean when we think about the right to vote. it may not be fully a constitutional right, but from a statutory perspective, we can make that much more of a reality. and i think hr1 is a great example of what the possibilities can look
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like. >> one more point. this, historically, is how we have seen voter expansions. think about women suffrage, we are celebrating the centennial of the 19th amendment. women suffered started from local meetings, and then localities, then some states, in franchising, women either for certain elections like school board or for all election statewide. he had a handful of states allowing women to vote in some elections, and it reached a tipping point finally where we had the adoption of the 19th amendment. i think this is what hr1 is doing, in some ways, taking the best practices and trying to reach that tipping point. we have with at least one house of the congress, and hopefully in the somewhat near future we can have the second house. i think this is a good historical model, and exactly how we have seen many other voting rights.
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>> that is a good way of thinking about it. i think it also emphasizes the importance of being vigilant. we may not see hr1 and acted this year, or next year maybe, or the year after that. but i do think there is value and laying out the best practices. but progress can be lost. if, anything the changes we have seen since 2013 have shown us that progress can not only be lost, it can be lost quite quickly. one of the important things about hr1 is we have to keep putting things out there about what we want it to mean, even in times were it's unlikely to be voted into law. it's part of a long term conversation about where we want to be as a country. as josh pointed, out with the 19th amendment, it started with local women. there was a convention in 1840, eight but it didn't become the 19th amendment until 1920. it took a really long time, but it took a
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long time to have a conversation about who should have the right to vote. i think we have to continue that. it is unlikely the things we hear about, will become law, we have to start the conversation and continue it. >> a question for anyone who wants to jump in, how do you create that conversation? you had the conversation around the 19th amendment because you had a group of people who were really disenfranchised and they make compelling claims and, they protested and reidentify a bull, in how they could complain and be disenfranchised, and what the promise of voting rights could mean for them. the voting rights act comes in the wake of the civil rights movement. you had people demanding the right to vote. it is hard to imagine that happening today, given who is being disenfranchised, or how they're being disenfranchised. how do we start creating a bigger conversation that teaches americans how important
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the right to vote is, and why these new laws that are being adopted to threaten the right to vote or really a problem? >> this is one of the benefits of partisanship. that's the mechanism we are seeing right now. the framework is articulated for a broad conception of what the franchise means, it is being demonstrated. think of it is a side benefit of decentralization, the media through bipartisanship. that's worth keeping the vision alive, that is why we have hr1, that's what we have some of the innovations we have at the state level. that serves as the focal point for the conversation. eventually, the hope is that these laws will become sticky, and they now gained common ground with norms that are trans partisan. once that happens, we can have a common understanding of what voting means, and change and
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fully changed our conversation. in this context, i think partisanship is the mechanism that sustains the type of engagement that we are seeing. even at a litigation level. marginalize his job is to bring these lawsuits. the results are actually good governance. and that enables the vision of what a robust conception of voting means. >> i have a slightly different -- i think that's all correct that there is a another direction we can go, which i think is more nonpartisan in two ways. the biggest is we need to change the conversation about civics education, we are not talking about that enough with the respect to the right to vote. they are linked and they must be. what we need to do is not make highschoolers
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memorize things about our government. there is a big push in high schools to say that you can't graduate high school unless you pass the same citizenship new citizens pass. i don't mind people knowing there are three branches of government and checks and balances. but i think most 11th graders aren't that excited about those concepts. we love them, but i think most 11th graders probably aren't that interested. we need to engage young people in a real world problem solving about real world issues. there are some great examples of high school classes but ask their students, what is a problem you have in your school, or in your local community, and how can we solve that. they come up with plans to petition city council, to change local rules. getting young people to understand the importance in the power of engaging a democracy, i think
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it helped to change that conversation. it's a long term solution that won't happen overnight, but i think it could make a big difference. the second thing i see linked that is, it is underserved and perhaps young people. i focused a lot on lowering the voting age for local elections to 16. we can talk about the reasons why that makes sense, in the benefits for improving democratic engagement in the long track. but low turnout rates, and you have school shootings, and parkland students so vocal about gun rights and changing that conversation. i think young people could also be a focal point of that conversation about what it really means to be a democratic participants, and what it means to have the right to vote. >> it's also important to emphasize these synergy between communities. a lot of our work plays an important role in litigation and shaping the
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narrative around voting, so i think that's an important way to continue the conversation. even if we don't always see eye to eye, we still do a lot of important things together and have conversations amongst ourselves that influence the litigation. >> franita, if we build this kind of energy, you have argued in your scholarship that congress has the power under the elections clause to do much more than it has done. especially as the court becomes less likely to be an option, that is going to support a broad consumption of voting rights. how does the elections clause in the constitution work, and how might it work to be a basis for significant reform? >> josh has talked about the elections clause quite a bit in terms of giving states control over time, places, and matter
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of federal elections, but it allows congress to make those regulations it well. it's an important source of authority, although voter qualifications are still primarily set by the states. i think congress can do a, lot and hr1 is an example of trying to introduce best practices, to use josh his term, in the regulation of federal elections. i think in underappreciated aspect of congress is power is sometimes they can't reach voter qualifications under the elections. for example, the provision of hr1 that we enfranchise felons, that is viewed as a voter qualification standard. congress, through the elections clause, has the power to ensure the health and vitality of federal elections. the extent to which
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disenfranchising affects portions of the population, -- congress is power under the elections clauses much broader than congress itself has realized, in part because congress has not passed a ton of legislation. it remains under utilized, so it is a powerful repository that congress can rely on in passing federal voting rights legislation. >> could you imagine the supreme court reading the elections clause narrowly, in a way that limits congress has power? >> i don't know. a few years, ago there was a decision in arizona, an opinion written by justice scalia, where he read the elections clause quite broadly. one of the key takeaways was that there is no presumption in the clause.
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which would state the law -- and articulate its intent. this is like federalism protecting. but he said there is no presumption against preemption in the elections clause, because anytime congress acts pursuant to the clause, it preempt state law. that is a really broad view of congressional power. justice call it was a very conservative justice, but the text of the clauses clear. there is no limitation on congress is power to make or alter. so he viewed it as a straightforward reading of the elections clause. he also did it in the context in which it dealt with voter registration, but also citizenship requirements, which is voter qualifications. it was a context in which it was both a matter of regulation that touch on voter qualifications, and he's still read the power
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quite broadly. so it's entirely possible that you can have conservative justices who had here to the text and spirit of the clause, and recognize congress has broad authority. is there a guarantee that will happen? now. but it is definitely possible. it has happened. >> we mentioned earlier, a bit about the electoral college, and we have to presidential elections in this century since 2000 that were awarded, the winner was someone who did not get the popular vote majority, but won a majority of the electoral college. states have been undertaking efforts to possibly respond to this problem, to make the electoral college more democratic. i don't believe we are likely to see that i. believe we saw that there have been over 700 constitutional amendments proposed in the past to reform the electoral college, none of which have really been
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successful. well sir states, doing to try to butter stakes killing to try to find the crowd large numbers of the electoral college? i know there is a national popular vote compact happening in that space. what is happening with jose? song to the anti and happenstance responded to the anti democratic elements crisis of this part of federal in the next democratic system? >> topology yes, also as you, said the electoral college is part of the posh, right and so we need a constitutional amendment to abolish it out right. the the legislations but state legislatures is out of the water in fact the fact can you elect your college go top they want. look, at the founding, simply should have the legislature to decide who would receive electoral college votes from their state sales several states have an active, what is known as the national popular vote it's up to compact. i think it is up to about 14 states prescribed the state, passed and as the state
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passes, when it says that to the steep, why our electoral college votes to the statewide winner, and you're going to award our show you know electrocution the national winner, so a state like virginia, let's say, it's a democrat wins for genius but the republican was the national popular vote, then stimulate award it's going to look like close to that republican state nationwide the other, as opposed to statewide, the other provisions of the contract says these debt it will nasties this will not affect any state until enough states have passed college certainly took 70 a truck olive exercise after needed to win that i thought how. like i can totally are so escaped, at equaling about mr. 90 or snow of electoral college votes so they are pretty far along expect they have, a lot of this it's a california new york that had passed it so i think it is mostly a democratic meeting states on a pass the compact so far. i think to get
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more states on board, you would have to have a republican win the popular vote and not be electoral college, which actually almost happened in 2004. so, we almost had to elections in a row in which that occurred, if, was, it mitt romney who is running that year? if he had been ohio, excuse, me if john kerry had one ohio, and he lost it by 20 or 30, 000, 50, thousand some like, that if he had one and it had been reversed, john kerry had one ohio, he would have won the electoral college but not the popular vote. and so, you know, i think the likelihood of it passing is pretty small. and the other problem is that if it does eventually get it back to buy enough states, such that the state start using it, and award electoral college votes to the popular winner and not the statewide winner, it will be challenged in the courts and i think the road for being upheld is a pretty steep. do you made arguments against this
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constitutionality, the, first is clearly an end run around the constitution and article two, and what article two has set out and i can see the court saying yes, you cannot under the constitution without a constitutional amendment. the second problem is the compact clause which says that states cannot enter into contact with each other without congressional approval. this is called the national interstate compact, maybe not the greatest name for this issue. now, the states are arguing, you are not entering into a trade agreement with each, other you are just deciding how the electoral college votes, and, again i think it is a tough constitutional argument. >> there is also a third problem. so, states have control over how they wore their electors. so if a state decides to uphold a presidential election, in which people vote for electors, and 50 more percent of the state votes for the eventual electoral college loser, you've just disenfranchised 51% of
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your voters even though you have decided to let them vote. that is a problem. >> although, the states would say, look, the constitution tells us we can decide how to order our electoral college. >> and they decide to hold election, right? >> yes, and of course part of what is interesting about that is, the court has held, once the state decides to allow people to vote, then the equal protection clause kicks in, and right? so, then voting becomes a fundamental right so that does represent an interesting question, and the electoral college is probably the most unnerving framework, right, of our -- with respect to our constitutional structure because it is the area in which we have seen the most democratic change but it is the sticky assist. you, know other areas where we have seen democratic change, they're mechanisms for addressing it, but here, is extremely sticky.
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our conception of popular sovereignty is very different from the founders conception of state representation, so, you have very different ideas about who really is sovereign in these types of contacts, and we are not -- we have moved away in a lot of respects, this is the reason why people complain about the fact that you may have different outcomes under either of those approaches, notwithstanding the fact that from a legal perspective, really all that matters is the electoral college, not the popular vote, but our conception of sovereignty and legitimacy are extremely different, yet, it is the sticky asked, very hard to do an end run around, where as the other mechanisms that we have had, whether it's the ability to amend the constitution with the 17th amendment or be able to amend the constitution at the 14th 19th or to use constitutional jurisprudence as
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a way of doing and run around, this is fundamentally sticky and it is not clear if it ever gets resolved so it is not surprising that there have been thousands of proposed amendments to deal with the electoral college. it causes consternation and in part, in large part, it causes consternation because there is not that much that can be done about it. >> no, net foley has a new book out that argues for states to adopt rank choice voting for the presidential elections in the state, which could solve a lot of majoritarian problems because you have in many states, you have the winner of that state has not received 50% of the vote because of third party candidates and whatnot, so, his argument is, if all 50 states moved to rank choice voting for the presidential elections, then you could solve a lot of these problems, that is another proposal. i'm not sure has gained traction anywhere but i think it is one of his interesting to think about. >> i would like to open up the floor for questions. if you have questions, we have a
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microphone over here on the stage. i guess the left side the stage, from my perspective so, if you have questions, please come and speaker question into the microphone so it can be captured by the cameras. >> excuse me. hi, i am erin kaplan from loyola law school in los angeles. thanks for a great panel. i had two quick questions. one is, does the guarantee clause give congress in a power in this area to say, hey, it is not a republican former government unless you do essex? that give us anything the elections clause would not? and then, my other question was about, what is the point of having photo registration?
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because i heard josh say, well, it is good to have an accurate list in the nails and you say well, we don't really need to listed all, so what is the point? and i think you -- i really need to sort of get into nuts and bolts of why do we do this? >> so, the supreme court has held that the guarantee causes not admissible but it does not prevent congress from determining that states have governments that are inconsistent with the republican guarantee. one interesting thing about a book project that i am working on is one question of the book focuses on a section of the 14th amendment which allows congress to reduce his delegation in the house if the state -- the denies the right vote. and a lot of the framers of the 14th amendment section view this is a penalty for non republican government. they do not think the guarantee clause had a penalty, and so, they
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thought the penalty of reduced representation was the penalty for having a republican government as defined by disenfranchised individuals who are otherwise entitled to vote, so it is entirely possible that congress could impose the penalty of reduced representation on states, a people who should be entitled to vote within their borders. >> your question is a good one in terms of registration, and to answer it, we need to go to the history of voter registration in general which generally speaking, states started adopting registration rules after world war one in an influx of immigration into the country and so, it is really anti immigrant, in many, ways it was an anti immigrant, let's make sure that these non citizens cannot vote, so we have a list of who is eligible to vote. i said that you know, it is a good idea to have accurate registration lists because we still have registration lists, and it is sort of a legacy in which we operate, in a state where we do
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have registration that last 30 days before the election, then it only makes sense, at least forgot to have those deadlines, to have an accurate list, so, people feel that there is not fraud, or people feel better, but i also, i'm not trying to talk to both, sides but ultimately if i was creating a system now, i would, say we don't need a registration list in our current environment. you do not need 30 days to check the accuracy of the list, and in fact north dakota does not have registration at all. it does not have any voter registration. you can show up on election day, show that you live in where you live, show that you are in north dakota resident, and you can vote and many other states have seemed a registration which is essentially the same thing. you show up to the polls and you register at that time and vote which is, i mean, you don't really need registration lists and i don't think there is major fraud in those areas so, registration lists are a legacy of anti immigrant sentiment
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initially, as well as of the time we did not have the technical innovations that we had now. in this day and age i, don't think we necessarily need them. >> just to go back a little bit with registration, lists and in the 19th, early 20th century, disenfranchised revolutions, it is also another area to take a look at registration laws and the importance of their function. >> hi, folks. i have two questions. the first, is as a response to gerrymandering, is there a way in which something like, i don't know if you named, it but any kind of voting scheme that does not require sticking to any kind of geographical restriction, might be viable both in terms of us being to be able to persuade stays to take it on in a large number and, what you think the pros and cons of that kind of system are? what was the name
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of the system that you mentioned? >> right choice. >> right choice, voting whether ranked choice voting or some other kind of voting that allows us to disregard where a person lives with the, state they have to be a state resident but allows us otherwise to determine -- disregard where they live in the vote. i think i ever had something about the english parliament is deciding on, i do not know if it is ranked choice voting or something like that where even the parties with fairly small representation and support are able to get at least a few seats, or percentage of the parliamentary representation. is that it all viable either political or otherwise it what do you think the cost and benefits would be? second, question is there any concern that with hr1 being, or any kind of centralized response to voting that whether each one or something else, but because the process works both, ways you could have something like what are viewed as the wrong ideas being implemented nationally especially since the broader laws seem to be so popular and i guess, what is
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your take on the pros and cons associated with that risk? >> so, on the first, question there is proposed congressional act called the fair representation act which would adopt multi member districts enlarge congressional seats with multi member districts so, a state like massachusetts might have only two districts of four members each. i'm making this up. and then the people in those large districts would ranked choice voting to decide who gets those seats. i am not sure that that has gotten a lot of traction in congress, which leaves one possible solution and congress certainly has the authority in the elections cause to do that in future elections. >> we have become a lot more comfortable as apology with alternative voting systems and proportional systems. in large part through experimentation, but two of us rate may recall that one person was vilified
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for her writings, thinking about alternative vote systems and proportional systems and so, when you think about how far we have come in the local adoptions and even to the extent of potential congressional proposals, those ideas have begun to cease -- seep into the national consciousness and maybe ten, 15, 20 years down the road will probably become much more viable. >> i did entirely possible for congress to pass uniform voter law little, bad right? i mean, there is nothing preventing that from happening and i think it is just a product of our system, so, i think one thing you just have to do is, when we think about -- i think there are still some restrictions on congress, like for example, you know, that is such a generic term but generally let's say congress passed a law that makes it harder for people to
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vote. one of the animated principles behind the elections clause is that you know, congress can make or alter state regulations, and have the power to destroy federal elections. congress handed over to them, in part, in order to give states somebody into the federal constitution, right? so they would adopt, it because they now have some say in the composition of the federal government. so, i think it will be hard for congress to justify some of the laws we consider to be bad but a lot of these ideas are contested. there are some things that i don't like that are not necessarily laws and i'm willing to accept that as part of congressional power, the type of system that we live, in you take the good with the bad. it does not mean it is unconstitutional. >> and quite honestly, i cannot think of an election law at the federal level that i would view as comparatively bad as they
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want to be part of the state level. >> i have. it actually is a response to something of argued, that the downside of what i'm arguing. >> what is your best example? >> my best example, is so, i mentioned earlier how congress could not, hr once not to franchise, felons what if congress passes a national law? >> yes, but what are the loss of congress have passed? so if you look at the united 65 voting rights, act you look at the lodge, bill you look at and vr a, i, mean we could go on, and we look at the history of what congress has done, i cannot think of anything remotely as bad as what the states have done. >> the large bill field by one vote and i think that is the outer boundary of what congress has attempted. they were trying to put in congressional oversight, a federal oversight. >> but again, the point is are all of those things are -- it
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is hard for me to think of something historically the congress has done that has gone backwards in a way that the states have gone backwards. of, course congress should be regulating more, in that department, they have not. >> when it comes to the states, yes, but it does not mean that everything that congress can do, and it is hard to question. >> right. it is possible for congress to do that. there's no doubt about it. >> right. >> so, historically, congress has been, good even though they generally have not regulate that much. we cannot seven but the states. >> yes, and i don't think the constitution lends itself to power being used and abused in the same ways it is in the states. >> yes. >> alan morrison, there has been too much agreement on this panel, and so i would like to start off by disagreeing about hr1, and my disagreement is not as much with the substance of what is in the bill although, at 1000 pages it is hard to
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know what is in the bill. my disagreement is because of another thing, other things. first is, it was introduced and passed the same week what was introduced. that is not the way democracy ought to work. it is a terrible example of it because nobody, people voted for it because they were told to vote for it and don't ask any questions about it. the second thing is you pass up an opportunity to have public education about why hr1 is important and that number of, pages with that number of different provisions, third is, knowing the way congress works, i am sure that there is lots of flaws in hr1, both in terms of how effective it is and second, constitutional flaws. i mean, part of the reason that the voting rights act was struck down in section four because nobody wanted to touch anything, and it was a political statement you had to vote for
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without thinking about the constitution and so i am very troubled by that as being a paragon of democracy and trying to advance the cause, it seems to be that there are provisions in their which might actually i mean really actually get passed so, for example, one of the things i found out, this is an area, i have to do this because i was looking at something else, is, there are no limits on the amount of money that can be given to presidential inaugural committees, and no supervision requirements of who can give and how much, even, it is not even that foreign nationals cannot give to presidential inaugurations committee, and it is no disclosure and no financial accounting. it is hard to imagine that even mitch mcconnell, well, maybe not much mcconnell, but on his own, that is a pretty important piece of legislation that could have path at a time when nobody knew the next president is going to be and so forth and so on but you lose all those opportunities by passing a law
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that is because we have to do something symbolic, and i know jimmy raskin is a supporter of this and he is your friend and so forth, but sometimes, we have to say to them, let's slow down a little bit and let's take a look, what's take democracy as it ought to be. thank you. >> i do disagree with alan so i am not going to because he is too good and too smart. so, i will just make one point. part of the difference for me with the vr a, and i agree, and we talked about this with regard to the i.r.a. and say, hr1, which is that everybody knew that hr1 was, the point was to sort of make a statement about the importance of voting a participation in democracy and so, given that that was a large part of its point, then flying the symbolism flag seemed to be the thing to do, whereas with section five in section four,
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the point was not to be symbolic and a hard part was, once you opened up the box and i have destabilize the, system it is clear there will not be any consensus and it is going to be really hard to put it back together so nobody really had an incentive to do so, so, i certainly agree with you that in some respects it is a lost opportunity, but given the fact, that part of the whole point was to send the signal that we really care about this, that we really care about voting that, well,. >> all the democrats, it was a strict party line vote, and maybe have to sit by somebody beside your own team. >> what is interesting to hear is that the partisan coalescence around voting i think is relatively new, that is, if you look across the states, you could not say well, we can now say today, roughly
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blue state memes and red state means so, i think that partisan signal was important to rally the troops in the team though, fair point, i am not going to push back too hard, i just want to point out the different possibilities. >> past the symbolism and had some hearings. >> fair point. >> i have one more question for the panelists which is, with regards to section two of the voting rights act, it is a provision that still remains vibrant or potentially vibrant. does section to have a future and what are we seeing in terms of litigation to make section to a more vibrant way of protecting the right to vote, another section four of the voting rights act was struck down in shelby county?
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>> well, i am nervous reception to his long term viability with the current court in general. it is a nationwide prescription against discrimination in the voting process. we are seeing it used in redistricting claims. we have seen challenges to felon disenfranchisement and voter id and other things. we saw so much success with the voter id claim in north carolina, and it was mentioned in fact in district court just this week, another preliminary injunction was issued about the voter id law in north carolina, section two, so, i think we are seeing some successes although it would not surprise me if in the next five to ten years, we see a court either declaring it unconstitutional, or history it so narrowly there was death by 1000 cuts. >> three to five. >> so i don't think that section two is the place to look. one thing we alluded to
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but did not talk about a lot so i will shift the answer a little bit to where i think we can actually see some successes is back to this principle of state constitution, something i've written a lot about, as you know, 49 and 50 state constitutions have an explicit provision that grant the right to vote to state citizens, and many, though not, all have construed those divisions to be much more protected -- protective than the u.s. constitution with respect to the right to vote, so i think we are looking for areas that were actually going to see longer than practitioner one to two years, like section two, but i think you will see a lot more litigation being pushed. >> again, north korea the perfect example of, this the partisan composition of the state courts matters. so does not matter quite as, much quite, frankly what the constitution says as much as it matters the fact, that you get us as an, example but the states court,
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the supreme court is with a broader sense of what participation means and so they have used that, and the political courts have to be gerrymandering game and they've stepped in so i think you are right that the state courts are certainly an inborn avenue but more often than not, they are going to be in competition with partisanship. >> yes, there are some examples of voter id cases, in states with an explicit president judges, or i'm trying to remember, the oklahoma supreme court issued a good decision about it stick constitution so i think you are right in the large part not entirely, but there are examples of some other state court,, really texture listen alice is up the state constitution. >> i believe we're nearing the
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very end of our time so i want to thank our panelists, franita tolson, gabriel -- guy-uriel charles, mr. douglas.
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