Voting Rights & Gerrymandering

Episode Notes

Transcript

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Ruth Greenwood: In a democracy, we believe that everybody should have a voice. You know, the constitution says the right to vote cannot be diminished or abridge and the hope would be that we do have a democracy where everybody is able to vote. So voter suppression is a problem for the individuals that can’t vote and it’s a problem for the country if we don’t have a democracy that is really ensuring our government is elected by the people

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Intro: Welcome to the award-winning podcast Lawyer 2 lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome the Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams coming to you from Southern California, a write a blog named “May I Please the Court” and I have two books out titled How to Get Sued and The Sled. Well according to the League of Women Voters, voting is a fundamental principle and all Americans deserve the equal opportunity to make their voices heard in our democracy. And over the years, various states of suppressed voters from reaching the ballot box through various methods like strict ID laws, purging voter rolls, cutting early voting and changing dates on which you vote. Also gerrymandering which is defined as the way to manipulate boundaries of an electoral constituency so as to favor one party or class has taken center stage when it comes to voting in elections just recently the Supreme Court of the United States decided to take up the South Carolina racial gerrymandering case, a lower court decision that struck down a congressional district in South Carolina as an illegal racial gerrymander. Case will be heard by SCOTUS in the next term. So today on Lawyer 2 Lawyer, we’re going to spotlight voting, we’re going to take a look at voting rights, gerrymandering SCOTUS and the South Carolina racial gerrymandering case. And to help us better understand this issue, we are joined today by Ruth Greenwood, she is a professor at Harvard Law School and Director of the Election Clinic at Harvard. She engages in litigation and advocacy on a variety of election law cases while training the next generation of election lawyers. Ruth litigated two partisan gerrymandering cases from The trial level to the Supreme Court of the United States, Gill v. Whitford and Rucho v. Common Cause. She has also litigated minority vote dilution claims under state and federal Voting Rights Acts, racial gerrymandering claims and cases alleging a burden on the fundamental right to vote. In addition, Ruth has advised dozens of state advocates on drafting and implementing independent redistricting commission, state Voting Rights Acts and adopting ranked choice voting. Welcome to the show Ruth.

Ruth Greenwood: Thank you Craig. It’s great to be here.

J. Craig Williams: And what Ruth got you so interested in election, and probably by tell from your accent, you might not be a native.

Ruth Greenwood: Well picked up. Yes, indeed. I came to America from Australia in 2008 and I came just to do an LLM, which is a master’s in law. I went to Columbia in New York because I thought well New York is the center of the world. I wanted to study Constitutional law but because it was 2008 and I was starting in August, you know, the world knew that Obama’s election was coming and I was really interested in American politics and so I’ve sort of said can I volunteer and they put me down in Virginia, in Prince William County, which is a majority black county and they said well you’re going to do voter protection and I was like, what do they need protecting from? Lie I’m not like fighting bears or something am I, and when I got there, they had been signs put up that said you know, this is going to be it, they’ll be historic turnout for this election and so Republicans will vote on Tuesday and Democrats will vote on Wednesday. And I was just shocked you know? I thought I was coming to the world’s greatest democracy, you know, I had grown up with America exporting democracy around the world and it didn’t seem that it was even a democracy back then. So I became quite interested in election law which is especially within Constitutional law and I guess, at that time I didn’t realize, you know, when I graduated 2009, then in 2010 we see Citizens United, 2013, Shelby County you know, it’s just sort of, I thought of myself initially as being a sort of a good citizen of the world, you know, my friend in Australia went off to fight in Iraq and Afghanistan because, you know, we were part of the coalition of the willing and, you know, Bush was in power because of crazy election laws and in Bush v. Gore in 2000. And so I just sort of had this like, hey, you know, American democracy needs to be improved and then now, you know, I’ve got married, I have kids here, I’ve become a citizen and now it feels like home and I still think it needs to be improved, anyway, that’s how I got here.

J. Craig Williams: Well, you’re improving it at election law clinic. What kind of things happened at school?

Ruth Greenwood: Yeah, well the thing that’s really cool about doing it as a clinic is we have four lawyers who work on cases but each semester we had about 15 students that also work on our cases and when I came to the clinic, I didn’t want to compete with, you know, my organization, the campaign legal center or one of my lawyers, old organizations, the ACLU voting rights project. The idea was we would do something a bit different and I’m sort of using the fact that we are situated in the academic environment to try to bring academic ideas into the litigation and the work that we do.

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And then, you know, also sort of push the frontiers, you mentioned in the beginning that I have these two huge losses at the Supreme Court, Gill v. Whitford and Rucho v. Common Cause, that was partly doing the same thing. You know, sort of high-risk, high-reward litigation, if we had changed it, it would have just, you know, stock partisan gerrymandering countrywide but now, I’m just trying to think of better ways to go about what we do. So what are the ways to stay out of the US Supreme Court and still make change and build power for communities on the ground.

J. Craig Williams: Right. Well, let’s give our listeners a little bit of background on voter suppression. What is it? How has it become so systemic and why is it a problem?

Ruth Greenwood: Well, voter suppression is essentially anything that’s done to try to make it harder for eligible voters to vote. Even people who I would describe as the vote suppresses say that it should be easy to vote, but hard to cheat. I don’t know that I believe them, right, on the side of easy to vote, they often will put up barriers. So just some classic examples are, removing the polling place like back in Jim Crow, right, you put the polling place in the white platter part of town and be like, hey black voters, is just walk into the white neighborhood to vote, you know, that would suppress, you know, the ability of black voters to vote. Also these days, they do things like they change deadlines, they make it that you in some recent cases, you know, out on tribal areas you will often have one person go around and collect everybody’s ballots, and then return them themselves, instead of having everybody try to find the mailbox because that can be hard to find or you know drive into a county seat. Whereas, you can stop that and, you know, not allow a third-party ballot collection. You can get rid of things like early voting, Election Day registration, you know, they’re just really innumerable ways that you can suppress the vote and over the sort of 15 years that I’ve been doing this, I have seen the types of ways change, but the end result is always the same, they’re trying to make it harder for people, usually people of the opposing party to vote. Why is it a problem? Well, in a democracy we believe that everybody should have a voice, you know, the constitution says the right to vote cannot be, you know, diminished or abridge and the hope would be that we do have a democracy where everybody is able to vote. So voter suppression is a problem for the individuals that can’t vote and it’s a problem for the country if we don’t have a democracy that is really ensuring our government is elected by the people.

J. Craig Williams: Let’s talk about one person, one vote, in a three-fifths compromise.

Ruth Greenwood: In terms of one person, one vote that came out of the 1960s, I mean, three-fifths compromise presumably everybody knows is just a horrible stain on the history of America along with slavery and Jim Crow and so on. But you know, once we get past the Civil War and we have a 13th, 14th and 15th Amendment s ostensibly, every sort of man is over the age of 21 is supposed to be able to vote but in reality, black men are not able to, we then get in Enfranchisement of Women and by the 1960s, actually before the Voting Rights Act came in before we actually really enfranchise black men and women, the Supreme Court said that people in government, you know, represent people not treason acres. So the case that they were actually taking was a case where it was something like, you know, 10,000 people in one congressional district and like 700,000 in the other. And so, if you say that, obviously that sounds insane, right, why should 10,000 people have the same voting power to 700,000 people. And so the court said one person, one vote, right, or the district should be the same size. It was then later that through the Voting Rights Act, it meant that actual people could actually turn out and vote. And so you could actually, you could have, you know, white votes and black voters turnout at similar rates, I mean, it really came to fruition in 2008 where we finally saw a white and black turnout being similar. We still don’t see Latino, Asian turnout meeting black and white another.

J. Craig Williams: Why is there less turnout among minorities for voting?

Ruth Greenwood: I think it’s because people are trying to suppress their votes. So they can be intentional suppression. So things like in Texas, where they introduced a photo ID law, you know, we know that it is harder for people of color to get photo IDs, that can be because of the intersection of race and poverty, you know. So you have to go to, you know, a DMV, for example, without a driver’s license. So if you don’t have a driver’s license, you still need a photo ID to vote, where do you get the photo ID, at the DMV, how are you going to get to the DMV that’s 150 miles away if you don’t drive, that disproportionately affect people of color. But there are also more recent things that we have seen from political science like the timing of elections, right, having elections not in November, and not in even years disproportionately burdens people of color and leads to worse governance outcomes for them.

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So, you know, one of the cases we’re doing at the clinic is to try to use that political science research. We are suing the City of Colorado Springs which has a non-November odd year election time and we think that that is suppressing the vote of Latino voters.

J. Craig Williams: How do you prove the votes are being suppressed?

Ruth Greenwood: Well, you have to rely on experts in political science data, right? Let’s have a look at even in a not specific case, you need a counterfactual. You need to be like, okay, this particular practice is causing this, if it wasn’t there, what would happen? And in the case of something like local elections being, you know, off-cycle, off-year, you can look at on-cycle, on-year elections and hey, look the turnout yes, it’s different, right, white voters turn out at slightly higher rates than Latino voters, but that difference is small. If you then go to off-year, off-cycle elections, the difference is huge like five times the amount of you know, white voters can vote compared to Latino voters. Now, could there be many other factors going on? Sure. But a predominant one here is we can look at the timing between these two different circumstances. Now, the Supreme Court has also developed, you know, through its understanding of the usually these claims, if you think that people of color are being denied the right to vote, you bring a claim to the Voting Rights Act, 3 Section 2, and there’s a whole test essentially called the totality of circumstances where you look to a history of discrimination. So you don’t have to show that the particular policy was enacted with discriminatory intent. You know, it might be that there were other reasons why they were like, hey, let’s put this election, you know, in March, but if there is a history of discrimination and they sort of did it despite the fact that they are was likely to be a negative impact on a community of color then that can be sufficient to make out a claim under the Voting Rights Act. If you were to make a claim under the constitution, you would need to show intentional discrimination.

J. Craig Williams: How is voter suppression rooted in history? Is it part of the argument that property owners did not want people that didn’t own property voting?

Ruth Greenwood: Yeah, I mean, when we became emotionally a democracy, you know, in you know, in 1791, we only let white male property owners over the age of 21 votes. You know, it was extremely limited, in fact, in that case, we allowed non-citizens because plenty of the founders had not been born in America yet you had this would be white and male own property. So it is not the case that there was some golden ideal that we are straying from. It is in fact the case that we originally started out with this very small group and everybody else was excluded but we have slowly seen, you know, ebbs and flows. So the flows include things like the 15th Amendment  that enfranchised people of color. We then see an ebb when Jim Crow comes in and despite the Constitutional protection suddenly, you know, everyone’s getting beaten up, if they’re trying to get to the polls or they have, you know, one of the worst examples is a grandfather clause where they said, if your grandfather could vote before the Civil War then you’re allowed to vote. I mean, that’s just you know, (00:13:06) trying to stop, people who were slaves or people were descended from slaves from voting. Anyway, so yeah, the country today though, notionally through the Constitution has said that that everybody right, everyone over the age of 18, who is a citizen should be able to vote. There are very small restrictions in some places for people who are currently incarcerated or formerly been incarcerated for a felony. There are some places with limitations for mental competence type restrictions but otherwise it should be that everybody can vote. You know, one of the striking things is that if actually everybody who is eligible and registered turned up to the polls, the election system would melt down. Nobody expects everyone to turn up, the election officials don’t prepare for everybody to turn up and there’s not enough materials ballots, you know, pens, machines, the whole deal, which I think is a shame, it would be much nicer if it was an assumption that everyone would turn out and then maybe some people couldn’t firm last minute reasons.

J. Craig Williams: That is a very interesting point. Ruth, at this time we’re going to take a quick break to hear a word from our sponsors, we’ll be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer I’m joined by Ruth Greenwood, she’s the Director of the Election Law Clinic and a Professor at Harvard Law School. We’ve been talking about election law. One of the things you raised before the break caused me to think a theoretical question, you know, you said that the founders were not citizens when they voted they were property owners and white and male and over 21. When is it determined in the Constitution that people became citizens? And who became citizens?

Ruth Greenwood: Well, so there’s two things going on here. One of them is that the registration guide lines are actually governed by state law so that that is usually where it talks about you needing to be a citizen to be able to register to vote. You know I have to fill up my Constitution to pull out the amendments that gave vote right citizenship to everybody but after that it was clear that if you’re born in the country, you are a citizen. And also, by that time, you know, founders had been given citizenship.

J. Craig Williams: People were all naturalized when the Constitution became effective?

Ruth Greenwood: No, I don’t believe so. I actually haven’t done a close study into the history of citizenship at that time, but it just wasn’t a requirement that you be a citizen of America to vote because there were so few people who are considered citizens. It was over time with the amendments that you actually ended up with clear vote right citizenship in a way to naturalize.

J. Craig Williams: What really is the basis for the right to vote? Is it your presence here in the United States, the fact that you were born here? The fact that you’re a naturalized citizen? Who is it that can really vote?

Ruth Greenwood: Yeah. So that is governed by a plethora of state constitutions and territorial, trials and constitutions. In order to vote for president and congress, you need to be a resident of the state so that’s exclusive territories and once you’re in state — oh and then sort of the Constitution requires that citizens over the age of 18, you know, men, women, people of color, all could be eligible but states are allowed to restrict that eligibility. So I mentioned before you know, they can restrict for example people who have been formerly incarcerated for a felony, that’s because under the 14th Amendment  Section 2 of that amendment says that you can restrict people who have been convicted of another crime. Now, my argument and the argument of many civil rights community is that was at the time meant purely to allow them to disenfranchise literally treasonous from the Civil War, but has been interpreted by the Supreme Court to mean that yes, you can actually do disenfranchise people who’ve been convicted of a felony, but there’s a lot of work to try to reverse that because that doesn’t seem right you know? Who has a constant interaction with the arm of the state but a person who is incarcerated or a person you know, now out on parole and having to interact with the justice system.

J. Craig Williams: Right. Well, let’s dive into gerrymandering a little bit. Can you give us a little bit of its origin and its history?

Ruth Greenwood: Yeah, I’m sitting here in Massachusetts, very close to where the original district was drawn that gave the name to Gerrymandering. So Elbridge Gerry was a governor here in Massachusetts, and he wanted to make sure that the people he liked got elected into his Senate. And so he drew a district that curled around Boston, picking up various suburbs and the local newspaper said it looked like Elbridge Gerry had made a salamander which is some point became important to gerrymandering. At that time, you know, the idea was you draw a strange-looking district, you can tell that it’s being drawn for a nefarious reason. You know, today, you can really hide a gerrymander in plain sight. I think of gerrymandering really it’s just being the manipulation of the boundaries to achieve a particular desired end and so that could be you know, partisan gerrymandering is where you’re trying to get advantage for one party or it could be racial gerrymandering where you’re trying to place people into districts based on their race but that’s what gerrymandering is.

J. Craig Williams: We have a case right now at a South Carolina regarding racial gerrymandering, what’s happening and how do you predict this case is going to turn out?

Ruth Greenwood: Yeah, so racial gerrymandering is a really interesting cause of action because in the 1990s, it didn’t exist until then. And it was in that year that a white voter actually out of North Carolina brought a claim, it’s called Shaw claim. And she said “I feel that you have put me a white person into a district where you mostly put in black people because they are black. You are using race in the way that you draw these districts, and that is an expressive harm, sort of a dignity harm to me”. And the Supreme Court’s conservatives were like, yes this is a problem. And so there were these whole series of cases where they were striking down districts that were essentially overly packed with black voters. Now, in the 2010s, the Civil Rights Community sort of reclaimed racial gerrymandering and had black plaintiffs arguing, hey, you can’t pass all into this district. So there were cases out of Alabama and Virginia, and North Carolina and the Supreme Court, you know, agreed that yeah, you can’t just arbitrarily say, hey here’s a bunch of black people, or here’s bunch of Latino voters, let’s shove them all into a district because we think that they vote the same.

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They said no, no, if you’re going to use race, or you’re going to let what they say race predominate, when you draw a district, you need to have a compelling government reason to do that, right? It needs to be narrowly tailored, which is a pretty standard Constitutional test and the defense in those cases was actually Section 5 of the Voting Rights Act which was subsequently I don’t know, disemboweled by the Supreme Court in Shelby County but these days like the South Carolina case, the argument can be like yes we used to race but we were trying to comply with Section 2 of the Voting Rights Act and the court is very clear that you have to do a functional analysis, you know, you need to make sure that that district is performing for the particular minority community. That’s generally how racial gerrymandering claims go. The South Carolina one is a little bit different because it’s going back down this old trope of an argument that got raised in those early cases was, oh no, we were placing all these people into this district because they’re black, we put them in this district because they’re Democrats and we the Republicans don’t want to give any more districts to Democrats. And at one point the Supreme Court had said yeah, good point, yeah it’s okay to do partisan gerrymandering, the racial gerrymandering is not okay. They’re sort of really great thing about this decision out of South Carolina is that they said, hey sure, you might be trying to gain advantage for Republicans, but we didn’t see you moving white Democrats around, you just said, here are a bunch of black people, let’s move you around because then we know that we can gain advantage for republicans and they said that’s just as bad. The expressive harm, the dignitary harm is still there for moving people around just because they’re black. And so, I think it’s a pretty strong case, like it sort of follows all of the traditional doctrine of racial gerrymandering, you know, with that said, the actual effect on the ground will be that there would be two districts that may elect Democrats out of South Carolina to Congress. And you know, with my extremely cynical view, the current Supreme Court doesn’t like that happening, right? They didn’t want to stop partisan gerrymandering and so Republicans went crazy with gerrymandering, I think in this case, they maybe don’t like the idea that Republicans aren’t allowed to draw their own little gerrymander down in South Carolina and maybe they’ve taken this case to try to, you know, stop the fact that actually being new two democratic districts but we’ll see.

J. Craig Williams: Well, it’s time for us to take another break, Ruth will be right back.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer, I’m joined by Ruth Greenwood, she is the Director of the Election Law Clinic at Harvard Law School. You know, it occurs to me after listening to you that regular people really can’t have much of an effect on these gerrymandering cases and these voting rights cases unless there’s a group like the Election Law Clinic and the others around the country doing the work that’s needed.

Ruth Greenwood: Yeah I think so you know, I actually ended up working on a case that had been bought pro se by one individual down in Virginia Beach. She was like, I think my voting rights are being violated on, I’m filing a suit. But these cases are so complex and involved that we then sort of came on board to help her out and eventually won that case. But you’re right, we do need groups, you know, representing communities that are historically disenfranchised. This slogan came out of well, originally it was from Lani Guinier but it was used in Michigan for an effort to try to get rid of partisan gerrymandering, it was called Voters Not Politicians. You know, I feel like when I do election law, people can think that it gets very partisan, but as far as I’m concerned, it is about making sure that voters have their say and it’s not about politicians picking out who they want their voters to be or deciding that, you know, they need a particular campaign contributor in their district or something else like that or even just deciding like hey, if we have less people turn out, you know, then we’re going to do better. I lived in Chicago for many years and there was this feeling that the reason there’s a February election, it’s snowing like crazy usually in February is the machine in Chicago is very happy having low turnout because then they can control who their voters are.

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You know, it is up to people on the ground need to be out there and identifying and telling us what’s going on and so there are groups like the NAACP, the League of Women Voters, Common Cause, who are sort of the eyes and ears on the ground but then groups like mine need to be there, ready to jump in and litigate to be able to try to make change.

J. Craig Williams: Is it really possible to come up with a neutral district where people that live in particular area can vote and how does even work with people that live in disproportionate areas like Wyoming where there’s you know, so few people per acre and New York where it’s just completely consolidated.

Ruth Greenwood: Yeah, you need a principle of what neutrality is. So in terms of political neutrality, just like history of single-member district systems is that you tend to get if you get above, if you get 50% of the vote, you should get 50% of the seats, that feels sort of majoritarian and everybody kind of understands that. We tend not to end up with straight up proportional or representation, you know, in places as you mentioned like Wyoming if it’s 70% of the vote for Republicans, you actually tend to get more like 90% of the seats just because each seat that’s one is a complete, you know, seat to one side rather than a 50-50 ones. Anyway, so there are ways to measure that, there’s a thing called the efficiency gap which measures partisan symmetry and there are a couple of other measures. So you can say, hey, what we want to do is, you know, have partisan symmetry close to zero and you can draw a plan so that yeah, there are more Republicans in Wyoming and you know, there are more Democrats in Massachusetts, so we’re probably going to see both of those sides have power, but they may not necessarily get you know, veto-proof majorities in the state legislature unless they manipulate the lines to gain advantage. But then when you talk about neutrality that can be a long other sort of cleavages, right? We probably don’t generally think of like, I don’t know people with long hair or short hair as being a cleavage or like men and women or you know, something like that. But we do think of race and citizenship and political affiliation as being relevant, cleavages in our society. And so you can say, hey, is this being fair to people of color, you know? And the Voting Rights Act basically says that nothing entitled to people of color to get above proportionality but anything up to proportionality is sort of fair game. So I do think if you started a point of values, you can then work out a way to draw a district plan or write a system of election administration that enfranchises people fairly.

J. Craig Williams: It almost sounds like it’s going to be impossible to achieve.

Ruth Greenwood: I’ve been trying for 15 years and never got there yet. So it’s certainly hard, I can tell you that, yeah, but at the same time, you know, we recently had the 4th(ph) People Act and that was all of the civil rights groups were able to you know give their input and work with members of congress to say hey, here are a whole lot of ways that we can vastly improve our elections. You know, I wouldn’t be doing this if I didn’t think it was possible to be better you know, there are other areas of law where I just think wow, this is so overwhelming and confusing I don’t know how I would deal with this, but in election law, you know, if you put me in charge, I would just grab together, you know, all of the smart folk and practitioners and people on the ground that I know that care about this and I give us, you know, a couple of weeks we’ll come up with a better system. I could guarantee it.

J. Craig Williams: Any thoughts about creating a model act.

Ruth Greenwood: I mean, I have written a couple for specific acting. So, for example, State Voting Rights Act, there are ways you can do that. So, independent redistricting commissions, it depends a lot on how the state does things, and so I work with a lot of different groups often with Common Cause and the Brennan Center to go in and talk with people in states that are trying to make change. The issue here isn’t the sort of model act or the model law, the issue is that the current people who hold power are very happy with their power. They got in through the current system and they don’t want to change it and because the only other way you can go is the courts and the courts at least federally are a little difficult at the moment, you know, we’re a little stuck.

J. Craig Williams: Right. Ruth, looks like we’ve just about reached the end of our program, as interesting as this conversation has been, it’s time for you to wrap up and show your final thoughts as well as a way for our listeners to reach out to your clinic and get involved.

Ruth Greenwood: Thank you. Yeah, I really appreciate talking about this. I think it’s important to understand that voting rights spends what you’ve talked about first like voter suppression, right? Participation is important but then aggregation of votes, redistricting is really important and then governance, governance is really important, that’s actually how you translate all of this voting power into outcomes for people on the ground. You know, that works for litigation, that work through legislative advocacy at the state local and federal levels. If people want to reach out, I would love to hear from you, the email address for our clinic is ELC as in Election Law Clinic, [email protected].

J. Craig Williams: Ruth, it’s been great having you on our program, thank you very much.

Ruth Greenwood: Thank you Craig.

J. Craig Williams: Well here are few thoughts about today’s topic. This is an extremely complicated area of law, definitions matter and as you can tell, lines matter.

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So, if you’re really interested in a topic like this, dive into same of the clinic programs at Harvard or other law schools around the country, attend a class, get interested in this because it affects your rights and it affects everyone’s rights. If you don’t vote, you lose. Well that’s it for Craig’s rant today on this topic. Let me know what you think. If you like what you’ve heard today, please rate us on Apple podcast, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening, please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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