Yale Law’s Owen Fiss talks about threats to democracy and ‘Why We Vote’

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m the ABA Journal’s Lee Rawles, and today I’m joined by Owen Fiss, author of the new book Why We Vote. Just a quick note, up at the top, I am recovering from a non covid respiratory infection, so if my voice sounds a little off, that is why. And Professor Fiss, fortunately you’re not in the same room. I can’t get you sick at all, and I have you on as a guest to talk about this book, which I’m thrilled about.

Owen Fiss:

Very pleased to be here.

Lee Rawles:

So right off the top, I would love to hear why you wanted to write, why we Vote.

Owen Fiss:

Well, in the spring semester of 2020, I was teaching a course called In the Tradition of the Yale Law School, A community of Equals, and the course was primarily to devoted to the laws and practices that we would roughly call civil rights, that laws and practices that we have adopted starting in the sixties to eliminate the subordination and oppressions of blacks. And the course contained a lot of material on education, police practices, housing, and near the end of the course we also considered voting practices and elections. When our attention turned to voting, I of course dealt with some of the basic fundamental decisions of the sixties and then addressed more contemporary decisions. One that was of special interest to me was a case called Richardson versus Ramirez, which dealt with the laws of California. Then in existence that disenfranchised ex felons. I also dealt with a case called Crawford versus the Indiana Board of Elections, which dealt with the estate law that required a photo id.

Lee Rawles:

And just to jump in really quickly, spring of 2020 was this, when the big Florida cases were going on about whether or not ex-felons would be able to vote in the 2020 election.

Owen Fiss:

It was the term those cases were proceeding, but to be frank, they weren’t the focus of my attention. I began to study them once I started to write this book. So I was focusing on the Crawford. I was focused, which dealt with the photo ID requirement of Indiana, and I was focusing on Richardson versus Ramirez, which dealt with the disenfranchisement of ex felons. And the sense grew in my mind and also in the classes of the discontinuity of those decisions with the tradition that emerged in the civil rights era. And I grew increasingly interested in that disjunction and we spoke about it in class. We spent a number of classes on it, and as you recall, in March, 2020, we began the COVID-19 pandemic lockdown.

Lee Rawles:

It’s familiar, yeah,

Owen Fiss:

Yeah. And so I ended the class in about April beginning it in person and ending it on Zoom and spent my period of the lockdown over the next two years continuing the conversation that began in the seminar and that led me to start digging deeper into these cases, deeper into the disjunction. And lo and behold, after two years this book emerged. I should report that in the course of writing this book, the election of November, 2020 occurred, and even more significantly, the developments on January 6th, 2021 occurred, and over this period, as I wrote, the issues analyzed and presented in this book became even more urgent.

Lee Rawles:

I did think about that as I was reading through the book and I was wondering what your actual experience that day was like. I know that I was in a staff meeting at the ABA Journal. We had our regular staff meeting. We were all in Zoom and someone had to break in and say, guys, I think we need to break this up. Congress has been stormed. And so we all immediately scattered to do our reporting duties. You’re in the middle of writing this treatise on why we vote on the importance of democracy and you are watching an insurgency. What was that day like for you?

Owen Fiss:

I would say it was pretty unremarkable. I mean, because of the lockdown, I was not allowed even on campus during the lockdown, I was home sitting at my improvised desk writing. My wife came in to tell me what was happening on television and I obviously I’m not that disciplined, so I stopped writing and went to the TV and saw what was happening and seeing it unfold before my eyes and it gave a certain urgency, but it only made me more determined to finish it and to finish it in due course. So I actually finished the book I would say in the spring of 2022, and it’s been in the process of being reviewed and edited and presented to Oxford University Press since then.

Lee Rawles:

Well, I would love to hear some of your writing and excerpt from it. Do you have a piece that you’d like to read for us?

Owen Fiss:

I would like to read a little bit from the introduction and then the conclusion. The book begins on this note. The American constitution is a constitution of freedom. It promises a democratic system of government and to the extent that promise is fulfilled, it endows the American people as a people with political freedom. Although individuals decide for whom they all vote, the constitution is not indifferent as to whether they vote. The constitution may be indifferent as to whether one of the enumerated rights such as the right to privacy, the right to speak or the right to be represented by Counsel or exercise. For this reason, such rights can be waived. This is not true of the right to vote. It belongs to all those who are governed and it should be exercised by them in order to preserve the democratic character of the government. Individuals pick or choose who they’re voting for, but are obliged to vote to affirm the importance of democracy and to nourish the democratic character of the government under which they live.

The exercise of the right to vote lends credence to the claim of the victor of an election that he or she represents The sentiment of the people voting is a civic duty, the offenses of the angry mob that invaded the capitol on January 6th, 2021, in an effort to prevent Congress from tallying the votes of the electoral college and thus certifying the election of Joseph Biden and Kamala Harris as president and vice president of the United States were manifold. These individuals invaded the legislative chamber. They destroyed government property and threatened violence and in some cases inflicted it. They interfered with the discharge of governmental duties and threatened to block the election of those persons who were selected by the American people to be their president and vice president. In all the action was a threat to our political freedom. Unlike the mob that stormed the capitol on January 6th, 2021, those who do not vote or refrain from voting do not threaten violence, nor do they obstruct the functioning of a governmental institution. Yet through their inaction, they too impair the political freedom of America that arises from the democratic character of its government and thus violate their electoral elemental duty of citizenship. We vote to preserve democracy and thus our own freedom.

Lee Rawles:

Well, thank you so much. That’s very moving. We’re going to take a quick break to hear from our advertisers when we return. I’ll still be speaking with Professor Owen Fiss, author of Why We Vote. Welcome back to the Modern Law Library. I’m your host, Lee Rawles, and I’m still here with Professor Owen Fiss of Yale Law, author of the book Why We Vote, professor Fiss. There was one sentence that kind of struck me as I was reading that I thought would be great to delve into, and it’s a paradox that you address and you phrase it as having the least democratic branch, the judiciary protect democracy, and that this paradox stems from the essential fact that the democracy we seek is a constitutional democracy. And I guess I had not really thought about it that way, that the defensive of elections, of voting, of voting rights falls on a branch that broadly is not voted for by people. Obviously some judges are elected, but our Supreme court is not. So I would love to hear a little bit more about that paradox, what you were thinking when you wrote about it and why it is the judiciary that ends up being that defender.

Owen Fiss:

I think the role of the judicial hearing in protecting democracy stems from the fact that democracy is not simply a political ideal. Democracy is, as I say, both an aspiration and a mandate of the Constitution and the court’s task and responsibility is to interpret and apply the constitution. So when they enter the electoral process and for example, prohibit the imposition of both poll tax for voting, they are doing it to not only to further democracy, but to further the rule of law by making certain that the commands of the constitution are respected. I think the essential character of our democracy is as a constitutional requirement, and that is why we turn to the courts. We turn to the courts to enforce the legal embodiment of the right to vote.

Lee Rawles:

One thing I thought was interesting too was when you talk about the people who don’t have the right to vote, in this case, people who are actively incarcerated or perhaps confined in a mental institution, often those people don’t have access to their voting rights or always, and you said that is because they’re currently under the authoritarian powers of the government rather than the democratic powers of the government, and I would love to hear a little bit more about that. They are currently living in a sector of authoritarianism. I just thought that was interesting. We’d love to hear a little bit more about that.

Owen Fiss:

Democracy is a system of government as embodied in the Constitution that allows the people who are ruled to choose their rulers. That’s why I speak of democracy as a source of political freedom. I think we need to view democracy as generative of what I call political freedom and political freedom is the capacity of those who are ruled to choose their rules. And I think that’s true and the reason why we put aside things like the poll tax, why I think the court should have struck down a California prohibition of denying ex felons the right to vote. It’s sort of this capacity of a people to choose their rulers and these people who are out of prison felons or people who don’t have the money to pay the poll tax are entitled to vote. And in the book I introduced the idea of coex extensity, the notion that we should view all restrictions on the capacity of people to vote as in a sense presumptively invalid.

On the other hand, I do recognize in the book that some essential limitations on the right to vote exist. One, for example, is we readily agree that children should not be allowed to vote, and I think that’s because we believe in something called virtual representation whereby parents also whom to represent the children. I don’t think we should extend this idea of virtual representation beyond the narrow confines of allowing bars on children from voting Similarly, even though that ex felons people who are out of prison, people have served their sentences, people who have ended their probation or parole, I think they should be allowed to vote for the same reason that they are part of the people who ought to be free when it comes to choosing who the rulers are. But at the same time acknowledge in the book that this principle of coex extensity of matching the rule with those who are entitled to vote.

I believe that does not extend to people who are in prison or who are confined to mental institutions. And I would say these people who are in prison, these people who are in mental institutions don’t enjoy political freedom. They do not have the capacity to choose their rulers, and I expressed this by saying they confront the state not in its democratic guys, but in its authoritarian moment when we speak of the American people being a free people, we use that term because they have the capacity to choose the rulers. I don’t think we talk about people in prisons or in mental institutions as a free people. They’re not a free people and I think they’re not entitled to get the benefit of this rule of coex extensity. It doesn’t undermine the principle of co extensity. It simply recognizes a limit. Every principle has its limits and these are the limits on the principle of extensity.

Lee Rawles:

So I would love to talk to you about your life and the changes you’ve seen in the Voting Rights Act, civil rights access to polls. If you could give my listeners a little bit more information about yourself, your early career, you clerked for Thurgood Marshall when he was in the second circuit for justice William Brennan in the Supreme Court and in the late sixties. I believe you were working for the DOJI just would love for people to have a little bit more about your background and then hear from you about what you’ve observed over the course of your working life and all the changes you’ve seen in the way Americans vote.

Owen Fiss:

I’d be delighted to fill in some of the empty spaces. Hope I’m not too indulgent. I began law school in 1961 just at the dawn of the civil rights era. During my law school days, I became increasingly interested in civil rights. I spent my last year in law school, that’s 19 63, 64, working on school desegregation and whether the principals of Brown versus the Board of Education should be extended to northern schools. When I graduated law school, I clerked for Thurgood Marshall, who as you said was a judge of the Second Circuit at that time, and of course he was an extraordinary presence in my life. Following my clerkship with Thurgood Marshall, clerked with William Brennan on the Supreme Court, William Brennan did not write the brown decision that was written by the Chief Justice Earl Warren, but in the course of his period on the Supreme Court was responsible for most of the crucial civil rights decisions of the war on court, particularly Cooper v Aaron, and school desegregation cases that occurred in the 19 65, 19 66 period of my clerkship.

During that clerkship year, the Supreme Court decided extremely important cases involving voting. Brandon did not write the opinion in Harper versus Virginia Board of Elections. It was written by Justice Douglas, but it was a case that greatly interested me and greatly interested Justice Brennan and like Thurgood Marshall. Justice Brennan became an important presence in my life. In September, 1966, after I finished my clerkship with Justice Brennan, I went to work in the Civil rights Division of the Department of Justice and there worked on civil rights cases mostly in the south, but also they were beginning in the north and I was in charge of a case against the electrical workers in Cleveland, Ohio. I also was involved with the implementation of the Voting Rights Act of 1965 in the South. During this period I worked for John Doer, who was the assistant attorney general in charge of the Civil Rights Division.

I would say like Thurgood Marshall and William Brennan. He became an important presence in my life in many respects. I would say writing this book enabled me to return to the foundational cases of this period, Reynolds versus Sims in 64, Harper v Virginia Board of Elections in 1966. And then one other case which we didn’t talk about, which is Williams v Rhodes. That was decided in 1968 and to some extent I on these decisions, but the book is also critical of these decisions in one very important respect. I criticize the stated rationale and justification that these decisions rested upon. For the most part, the court in each of these cases relied on the equal protection clause of the 14th Amendment to strike down invalidate the state laws in question. And I think in this book, and that’s what I argue, I think that’s a mistake. I think what they should have done and what was really doing was relying on an eminent right to vote that is in the Constitution.

And the large part of this book is to sort of establish a democratic ethos that I think informs the Constitution. The time when I started teaching was in 1968 and I started teaching at the University of Chicago, left Chicago in 1974 and began at Yale. So I’ve roughly been at Yale for 50 years and their question is how did the attitude of the students change at all? I can only speak to my students and I would say that they are remarkably idealistic still. They moan the loss of the idealism of the civil rights era. They responded tremendously to the interpretation of the Constitution that was manifold in the war on court era. And I think these three decisions, the bedrock of this book, winds v Rhodes, Harper v Virginia, board of Elections, Reynolds versus some still live in their hearts, but I see in them a commitment to democracy that is indeed inspiring.

Lee Rawles:

We’re going to take a quick break to hear from our advertisers when we return. I’ll still be speaking with Professor Owen Fiss, author of Why We Vote. Welcome back to the Modern Law Library and Professor Fiss. I would love to circle back a little bit to talk about the states. Now, you said that in the sixties you were working to try and make sure that the various states were upholding their responsibilities under the Voting Rights Act, civil Rights Act, and you talk in the book that the states have a duty of facilitation and certainly there are many cases being brought or have recently been brought by states to the Supreme Court arguing about various voting matters. I would love for you to talk a little bit about what you see is the duty of a state when it comes to holding elections and this duty of facilitation.

Owen Fiss:

In order to respond to this question, I’d like to make a distinction between two kinds of laws that the state might pass. One are laws in which they selectively distribute the franchise. They decide this group of people should vote and this group of people should not, and a second group are laws that have to do with the way the elections are administered or managed by the state. Now, turning my attention to the second group of laws, I say that the states have a duty to facilitate voting. They have a duty to facilitate voting because voting is a source of our political freedom and that they have to be mindful of the impact of their laws on our capacity to vote. For example, if the state has very, very few polling places and has those polling places geographically distant from urban centers, those laws are going to make it difficult, cumbersome, expensive for people to exercise the right to vote. And I would say that those laws that locate the polling places distance from the urban centers constitute a breach of their duty, which is a duty to facilitate voting, not to make it difficult and for people to vote.

Lee Rawles:

And when it comes to enfranchisement, deciding to try and open to more voters or close off against portions of voters, what would you say about the states doing that?

Owen Fiss:

I would say if the state imposes impediments that make it practically difficult, challenging for people to vote there, it had breached its duty of facilitation. The Constitution remarkably entrust to the states, the management and administration of elections. Our elections are more or less run by state officials, but that capacity to manage and administer election is bounded by the federal Constitution, and the federal Constitution imposes limits and duties upon the state. In 1993, Congress acknowledged that this was the duty of the states and passed a law, the National Registration Act, which linked registration for voting with obtaining a driving license as a measure to facilitate voting, and Congress built that law on the decisions such as Reynolds versus Sims or Harper versus Virginia, board of Taxational Williams vs. Road on the preciousness and the fundamentality of the right to vote. If the right to vote is precious, if the right to vote is fundamental, we should do everything possible to facilitate the exercise of that. Right.

Lee Rawles:

In the 2020 election, I thought we saw real heroism displayed by many state election officials who were under partisan pressure and said, no, I need to administer my state’s elections the way the law states, and eventually our system of democracy was tested and I believe survived. We are in a presidential election year. Primaries are being held right now. You and I are speaking on January 29th and come November there’ll be another presidential vote. What are your concerns in this year or what would you like people to be on the lookout for when it comes to making sure we maintain a healthy election system, a healthy democracy?

Owen Fiss:

I think there are a lot of threats to democracy that might be actualized. I would say one thing we should look at is how the elections are going to be managed or administered. Do we have enough polling places? Are these polling places located in convenient places? What other hours? We’re not in the middle of a pandemic at the moment, but it may begin. And then we have to be very mindful of whether we should be more tolerant of absentee voting, whether voting might be done on a weak basis so that people don’t have to congregate and that would impede them. I think we’re also going to be faced with the possibility of independent candidates that is candidates that are not tied to a traditional Democratic or Republican party, and a number of people have already indicated their interest in running as independent. We have to make certain that the laws governing access to the ballot provide a reasonable, feasible opportunity for independence to be.

They may not win, but in order to make voting a meaningful exercise of freedom, they should have feasible access to the poll. I would say we are now at this very moment dealing with an issue which I do not specifically address in the book, and that is where section three of the 14th Amendment bars Donald Trump for running in the primaries for president. You’ll note that section three of the 14th Amendment precludes someone from holding office who has been involved in insurrection or rebellion. Now, the question that the courts are now facing at this very moment is the question, did Donald Trump engage in an insurgency or rebellion inciting or acquiescing or tolerating the assault on the capitol on January 6th, 2021? I do not address this issue in the book, but if we understand that elections and the capacity of voters to choose who their rulers are is a source of political, what I call political freedom, we should be very, very mindful of any laws being construed in such a way to keep someone from running either in the primary or general election when the court is called upon to decide whether January 6th was in the meaning of section three of the 14th Amendment, an insurrection, was it an insurrection?

We should be mindful of the capacity of having unlimited access to the ballot, unconstrained access to the ballot as a source of political freedom and perhaps grudgingly interpret that provision to limit its capacity to bar people from the ballot.

Lee Rawles:

Lastly, I would love to just ask you, when you were writing the book, why We Vote and you were working with Oxford University Press, who were you thinking of as your audience? Who do you think this book would be a meaningful read for? And obviously this might not just be one demographic, but in your mind, who’s the audience and why would they be picking this book up? Is this for class discussions? Is this someone who wants to learn more about civics? Who is this book intended for?

Owen Fiss:

Of course, I would love to tell you that it was intended for anyone with a sixth grade education and easily accessible for all those people. But to be frank, I wrote this book indeed. I wrote all my books and all my articles for one audience, and that is my students or the future students. This is a book about law, and this is a book about the Supreme Court, but I speak to my students in a direct and immediate way so that they understand the challenge and promises that lie before them,

Lee Rawles:

And obviously this started in 2020. The book is being released in 2024. These are projects that take a lot of time for you, a lot of your time, but do you have your eyes on the next thing? Is there a new research project or area that you think that you’ll focus on next?

Owen Fiss:

I’m not sure. I do have one other project in mind, but when I’m going to start it, it’s not entirely clear and it’s somewhat different in nature. It’s about the laws that have been established in the United States also starting in this very same period, the end of the war on court, and that has to do with the laws governing the capacity of the police to arrest people. I would say starting in the late sixties, 1969 and continuing to the present day, I think the Supreme Court has increasingly liberated the police when they could intervene and arrest people. And I would say that a lot of the incidents of explosive incidents that occurred in contemporary America have to do with the fact of when the police arrest people without adequate cause as contemplated by the Fourth Amendment of the Constitution. I could list the details of that, but I’d have to await the writing of the book.

Lee Rawles:

Well, maybe in 2028 you’ll come back on the show and we’ll be talking about that book.

Owen Fiss:

We’d love to.

Lee Rawles:

Well, thank you so much to Professor Fiss for appearing on this episode of the Modern Law Library. This book is released by Oxford University Press. Presumably it can be purchased wherever books are sold, but do you have any sort of website to send people to if they’re interested in finding out more about your research or classes?

Owen Fiss:

I don’t have a website, but I’m easily reachable by email Owen [email protected] and be happy to hear from any of the listeners on this program.

Lee Rawles:

Well, thank you to Professor Fiss. Thank you to my Modern Law Library listeners. You can always reach out to me at books at ABA Journal dot com, and I would love for you to rate, review and subscribe in your favorite podcast listening service. If you enjoyed this episode, that’s always a big help for us. Thank you for listening.