Congress Can Act Now To Protect The Right To Vote

This podcast is part of the Democracy Group. This is Larry Lessig. In this season, we're focused on HR1 and the chance, the fundamental, critical chance we have to get fundamental reform passed. Finally, a fight that I've been in now I just counted, I can't believe it. But 14 years and a fight that thousands, tens of thousands, hundreds of thousands have been engaged in over that same period and many for many, many years more. And this year, as I've said and we've said over and over, we have a real shot because we have a Speaker of the House committed to passing HR1. We expect that that will happen in March. We have a Senate led by Chuck Schumer who has committed to pass the sister bill in the Senate, S1, and we have a president who would sign the bill if Congress passes it. In the continuing conversation around this bill, there's a question that's been raised in the reform community and the academic community around election law about whether we ought to be pushing HR1 or we ought to be pushing an alternative bill addressing voting rights, which is HR4. Professor Rick Hazen, who is certainly among the most prominent and important election law law professors, in a long comprehensive piece about voting rights and democracy reform, said this next Congress needs to provide greater protection for voting rights. Although there will be great pressure to do so, Congress should not first try to pass HR1. The massive voting reform bill containing some proposals that are very controversial could well split the narrow coalition it would take to get things through the current Congress. Instead, focus should be pinpointed more directly on protecting the vote, the right to vote in the states. And then he points to what is HR for this podcast. This episode of this podcast is a respectful effort to disagree with Rick Hossen. As my witness to that argument of disagreement. I've invited another one of the most prominent significant legal academics addressing the question of voting rights and constitutional democracy issues in America, Guy Charles. Guy Charles is a professor of law at Duke University Law School. He will be. We've hired him and he's coming a professor of law at at Harvard Law School and at Harvard. I'm hopeful we'll be able to start with the other great resources here, a Law of Democracy Center. But Guy has been at Duke for many years. Before that he was at Michigan. He graduated from Michigan. He's been an important scholar in the context of civil rights, voting rights, campaign finance law, as well as the law affecting race at Harvard. He is going to become the faculty director of the Charles Hamilton Hughes Institute for Race and justice. And he will be the first Charles Ogletree professor of Law. Charles Tree, as he was referred to, was an extraordinary inspiration at Harvard, and he is a priority perfect first Charles Ogletree professor, we're going to talk about the contrast between HR1 and HR4 and why, strategically, what we ought to be doing right now is pushing for HR1 much more urgently than the push for HR4, although, as Guy believes, and I believe, too, both ought to be passed. Okay, Guy, thank you so much for joining us. So obviously you've done a lot in your career about voting rights and democracy, and I'm really eager when you come to Harvard for us to continue to do more about voting rights and democracy together. But you and I have been talking a lot about the proposals for reform Here, in particular, HR1, which, which listeners of this podcast have heard about endlessly, and also HR4, which many people have been pushing as perhaps the thing that Congress should try to take up first. So let's start in reverse order, help us understand exactly what HR4 is and why we need it in HR4.

Sure. So HR4 we could think of as the fixed for the legislative fix for the Supreme Court's decision in Shelby county, which, as I'm sure your listeners know, Shelby county struck down an important provision of the Voting Rights act of 1965. And that's section four of that provision. And the way, at least the modern understanding of the voting rights of 1965, the way that is organized, is that the act, one portion of it identified the jurisdictions with a history of discrimination.

The states are the particular states.

Yeah, particularly the states those were, and they were almost all of them in the South. So we knew that. We knew Mississippi was bad, we knew Alabama was bad, we knew North Carolina, Virginia, South Carolina. Right. So we knew those states were bad. And we also knew the devices that they used to discriminate, in particular the literacy test. So one of the things that the Voting Rights act did, so it said, look, you can't use literacy tests as a method of discriminating. But it also said if you had these two characteristics, the two characteristics were states and jurisdictions that had a history of low voter participation. And the original VRA used the presidential election of 1964. So if less than 50% of the voters in your state voted or were registered to vote in 1964 and you use a literacy test, then you would be what, what is called a cover jurisdiction. So that's what section four of the act did. And section five said if you are a covered jurisdiction, then any changes that you made related to voting, you had to clear those first with either the doj, the Department of Justice, or you do with the United States District Court for the District of Columbia. One or the other. We had to do it with those federal officials. So federal Fast forward almost 50 years later, the Supreme Court and Shelby county said, okay, that coverage formula and Section four is unconstitutional because the justifications that made the conditions that gave rise to those conditions no longer exist 50 years later. Therefore, Congress doesn't have the power. So this obviously upset the voting rights bar and voting rights activists. And so since 2013, they have asked Congress to enact a new formula so that then we can have a mechanism to bring in the jurisdictions and the states that are believed to engage in racial discrimination and voting and to prevent those. The idea is you prevent the changes from taking place, right? So you have a sieve that then that you pass these things through to remove the discriminatory changes, and then the good laws then can go on in those jurisdictions. So that's the framework. And then the. So HR4 is the fix to the court's decision in Shelby County. It is intended to provide for a new type of a coverage formula.

And so the formula that it would adopt is there a significant insight in how it's better than what would have happened before.

So here. So here's the problem. And so I think in order to evaluate the new formula, we sort of have to understand the problem. So let's just go back a little bit to something I said earlier. In 1965 or prior to 1965, it was extremely clear who the bad actors were. And it was also very clear devices that they were using. As I said, the main device was the literacy test or some type of an understanding or reading test. And so the combination of that test then made it hard for the test, made it hard for black voters to register to vote, because once they went to register to vote, they would be administered the test. And whether they had a PhD or not, they would still fail the test because the registrars would use their discretion to discriminate against those voters. All right, so now the question is. So that was very clear. Now, as time wore on and as the literacy test was outlawed by the Voting Rights act, then states could use lots of different things. And some of the devices that states use could be legitimate, some are illegitimate. And the difficulty is trying to identify the thing that one believes is a device that is being used to discriminate. So what HR Ford tries to do is it tries to come up with a different mechanism for identifying the jurisdictions that voting rights activists believe are using as a proxy for discrimination. So what HR4 says is essentially if there's a jurisdiction that has two particular points that are just worth pointing out here. If a jurisdiction has 15 or more voting rights violations in the preceding 25 years, or if the or if a state has 10 voting rights violations in the state that was committed by the state itself. So it has those two triggering main triggering devices. And it defines a voting rights violation as a finding by a state, by a court that the state or the subdivision discriminated on the basis of race and violation of the 14th or 15th amendment, or in violation of section 2 of the Voting Rights act, or an objection by the Attorney General. So it uses state court rulings that the state or subdivision violated the Constitution or violated provisions of the Voting Rights act to serve as the new trigger. Then if you have a sufficient number of those, then you have to pre clear. Now, the problem is that the current court is not, to put it mildly, will not look upon this new framework very kindly. So it will have two questions. In Shelby county, the court basically says said the type of systemic racial discrimination that existed, that made our current adjudicatory framework filing a lawsuit and vindicating voting rights through the courts that made that framework ineffectual no longer exists. And because it no longer exists unless Congress could demonstrate conclusively otherwise, because it no longer exists and Congress does not have the power to enact a preclearance regime that singles out certain states, that leaves other leaves other states unmolested. And so the question then is whether 10 voting rights violations, meaning 10 findings by any court over 25 years. Right. So you're talking about less than one a year. Is that going to satisfy the current court understanding that what it takes are systematic violations such that adjudication can't vindicate voting rights. I think on its face, it seems to me. Now this is just my own read and interpretation, but it seems to me that the current court will look at this HR4 if it passes Congress and will likely strike it down on the grounds that what it said in Shelby county are directly applicable to HR4. So that's the. The problem is identifying a new type

of

triggering device and identifying one that will pass the muster of this current conservative court.

So that standard is obviously at the center here. How do we think about the standard that the Congress has to satisfy for the court to be willing to allow Congress this particular remedy?

Right. So here's the interesting doctrinal questions. So for Lawyers, we care about this a lot. But here's the interesting doctrine question. When the Court first heard a challenge of the Voting Rights act in 1966 in a case called South Carolina vs Katzenbach, the court applied the standard that is the most deferential, the rational basis standard. And the Court said, look, Congress has reason to believe, and we will defer to Congress's judgment, will defer to the findings that Congress made. Now, actually, as it turned out, if you look at the record that Congress presented, which I have looked at the record that Congress presented, interestingly, even though everybody knew that a number of these states were engaged in racial discrimination, it was actually not an easy thing to prove. And in fact, this is the reason why Congress needed to enact this structural standard in order to prevent these discriminatory devices from going into place. So, for example, at all argument, the justices asked the Attorney General, Nicholas Katzenbach, and said to him, hey, look, what evidence did Congress have that Virginia used a literacy test to discriminate? And Nicholas Katzenbach admitted, well, we actually didn't have strong evidence that Virginia was using its literacy test to discriminate. So there's a way in which the coverage formula was over inclusive, and it was also under inclusive. So everybody knew that Texas was a notorious racial discriminator. The problem is that Texas did not use a literacy task to engage in racial discrimination. It used other devices. So the coverage formula was also under inclusive. But the Court said, look, Congress can use its best judgment. We're going to defer to Congress, not going to hold it to a strict determination. And the Court also recognized that racial discrimination in the south was rampant. And so it provided the Congress a lot of leeway. So in the parlance of the law professors, to apply to rational basis review. Interestingly, in Shelby county, the Court was fuzzy on the, on the deference, on the review standard. And so it did not say whether it was going to. Whether it was applying rational basis, which clearly it really wasn't. But it didn't say. It didn't say if it was applying something else, such as congruence and proportionality. So it was very fuzzy. But what was clear is that it was not going to defer to Congress's judgment in the same way that it did in 1960 and South Carolina versus Katzenbach. That certainly was fairly clear.

Yeah. Now, I mean, just to make sure everybody is on the same page here, you know, more than just the law geeks, ordinarily, when the Court reviews what Congress does, it applies what you described as the South Carolina versus Katzenbach standard.

Right.

It applies an ordinary rational basis which basically says, does the Congress have a good reason to think. And we're not going to penetrate the reasons to. In the context of race, though, the court has developed a much stricter standard. Whenever there's a rule which is triggered on race or is targeting race, the court is much more careful to make sure that there's a very strong justification behind the regulation. And the justification is obviously not harmful. It's in some sense progressive. But the puzzle, as you've described here, is that they weren't willing to acknowledge that they had moved away from the rational basis test. They clearly had, though there's no way to understand the rational basis test and understand it to strike down these laws.

That's right. They clearly had moved beyond these very deferential rational basis. And so they were asking for a much stronger, we would call fit between Congress's ends and the means that Congress was using and Shelby county, whereas in 1966, the court basically said to Congress, look, we know that you're doing this for really good reasons and we're not going to as long as there's a fit at all. A rational relationship in their claim clearly is right. You've targeted the places that everybody recognizes are engaged in racial discrimination. Maybe you haven't done so perfectly, but it doesn't really matter. That's up to your judgment and you can figure that out. So the goalpost had definitely moved by 2013, though the court was not going to be explicit about that, but there's no doubt that that had been the case. And that's, for example, that's something that Justice Ginsburg pointed out in her dissent in that case.

Yeah, I mean, it's not just that the goalposts were moved. It's almost like a cloud of fog has now settled down on the goalposts, and we can't really tell if they move them because we can't even see them anymore. Right. So if you're Congress now and you're thinking, okay, the court said we needed to do more in order to justify these triggers that forces a state to go through the Section 5 procedures. I mean, if you were advising Congress and telling them, here's what you should be bringing in as evidence before you pass HR4, what sort of evidence would you be presenting?

Well, here's the problem, and I think this is where, especially as an academic, I have to concede in if the standard is, and I think this was Roberts standard, if Roberts standard, who authored the majority opinion, if the standard is You Congress have to show me that there is pervasive, systematic racial discrimination in at least some part of the country such that black voters are functionally second class citizens. Right. So we're talking about, for example, a registration rate of 6 or 7% in Mississippi that is black. 6% of black voters prior to the Voting Rights act were able to register to vote in Mississippi. All right, if that is the standard, that is not a standard in 2021 that Congress can meet. So this is where Robert says things have changed. Things in fact have changed. That one has to concede it is not for good reason and we're very happy for it is not 1964. Now that doesn't mean, for example, that there is no racial discrimination. That doesn't mean that the question of voting rights is still not an important one, but it is still not 1964. And in fact, black voters are able to register and vote, vote and parts of the country and to do so grace to the Voting Rights act and the Constitution, but also our evolution in thinking about race and political participation. Right. So if that's the standard, then you. Then the advice that I have to give to Congress is this mechanism of addressing voting rights violation is one that we can no longer use because the factual circumstances are such that we can never meet that constitutional standard if that's the standard the court expects of us.

Okay, so at a minimum, we'd say it's not certain Congress could meet the standard. So it's not clear that the law will be upheld. Especially when you think of six conservative votes on the court, not clear the law would be upheld. But let's think about the payoff. What is the payoff we get if the law is held upheld? Like what is the remedy that we now have that we don't have right this minute?

This is the other part that's very tricky, right, because. So let me go back to a couple of assumptions. Remember I said earlier that in 1965 we knew who the bad actors were and they were some of the worst, with the exception of, say, Texas. That wasn't captured initially, although it became a covered jurisdiction later. That wasn't captured initially. We really identified some of the worst racial discriminators. Now in 2021, it's actually one hard to predict where voting rights violations are going to come from. So for example, in this past presidential election, some people would have said Wisconsin was the place in which that did not care about voting rights. People talk about the black voters, for example, in Milwaukee prior to that, some people would have Said Ohio. Right. So one, it is hard to identify who the the violators are going to be. But secondly, that mechanism of trying to identify or this preclearance type mechanism of trying to identify who these violators are going to be shrinks the available space within which that we are playing. So instead of capturing 8, 9, 10, or maybe even a very different framework that, that goes after the whole country, we're now looking at maybe three, maybe four. It really depends. Right. And so the payoff is both uncertain. That is, we may say that, well, we think we've got two or the three, but that it may turn out to be a completely different state that was not anticipated. And second, it's the definitely going to be much smaller than alternative frameworks, alternative thinkings that one can use to address the problem of voting rights in the 21st century.

Okay, so this is the concern then with HR4. It's not clear the court would uphold it. And even if it did, it's not clear what the payoff is for assuring equal access to the right to vote. All right, so now that provision is often associated with Congressman Lewis, but there's another provision in HR1 that is also associated with Congressman Lewis. Congressman Lewis pushed Title 1 of HR1 for the last I don't know how many years of his life. How is Title 1 of HR1, which addresses voting rights, different from HR4's approach to the problem of voting rights?

Okay, so first, a fairly very quick background. The way that we address voting in the United States, unlike other places that have a positive rights framework that says voting is a fundamental right, that then puts the burden on the government that makes affirmative steps to assure that all people can participate, that standardizes rules. Basically, in the United States, we have a decentralized framework. It's a negative rights approach for all intents and purposes. And what we basically say is, look, whatever the government does with respect to voting, it just can't engage in racial discrimination. Now, we said this after passing the 15th amendment, 1870, or we could make an argument also the 14th amendment, but that's essentially the framework that we have. So for example, a government can pass a law saying you have to be able to read. We had legitimate the Supreme Court upheld literacy tests in the 20th century and said, look, those are perfectly fine. It's up to the states. That's the framework that we have. As long as the government does not pass a literacy test because of it wants to engage in racial discrimination, want people to pay a poll tax. Well, for a while that was Also constitutional and legal. You want a voter ID that's perfectly fine and legitimate, but there are lots of requirements that the government can impose. Now, why is that framework problematic? Particularly this is part that's really interesting, particularly from perspective of race and racial discrimination. Well, for two reasons. One, it's very easy for the government to engage in racial discrimination and negative rights framework. So the first thing the government can say when it passes a voter ID law is what it said with respect to the literacy test, which the court upheld in North Carolina of all places. What it says is, is, hey, we don't care about race. We just think it's a good idea that people are illiterate. And the court said, of course, who wants to be ruled by illiterates, right? Or today we say we don't care about race. We just think it's a good idea if we have a vote, if there's a photo voter id, because we want our elections to be secured. And everybody says, well, of course that's commonsensical. Okay, the first problem is that it's actually, actually easy to subsume a racial discriminatory intent and a neutral rule because there is not a positive rights framework. It's just sort of like, look, if you can't prove and demonstrate that it was racial, then the state can impose a whole series of limitations on voting. That's completely up to the state. The second thing, the second problem, leaving aside discriminatory, and because of the socioeconomic locations of people of color in this country, almost any voting rule that imposes any burden is likely to have a disproportionate burden on folks of color. So if what you want to do is, if you want to do two things, if you want to, one, address problems of racial discrimination, both intent as well as effect, and if you want to make voting considered voting, political participation, sort of something that we all take seriously, well, one way of doing that is to declare voting as a positive right and to impose limits on the state's ability to place a burden on then what now has what will have become the right to vote. And guess what? HR1 does. It says voting is a fundamental right. And then throughout the remainder part of the bill, it tries to limit the state's discretion and tries to limit the types of burdens that the states can impose. It shifts the burden from the individual to the state. And so now not only do we increase political participation for all, but in particular and specifically, we also make it harder for the state to engage in racial discrimination. We achieve both goals with essentially one structural move that's HR1, say, as compared to, for example, HR4.

In some sense it's bigger because it's creating this fundamental shift of a right being a negative right to a positive right. But in another sense it's easier because it's not specifically targeted on race. It's targeted on any restriction that's going to make it harder for people to vote. Obviously that might have greater benefit for some than for others, but it's a general objective to make it easier for everybody to participate, to increase the level of participation.

That's correct. But even when we think about it might make it easier for others, you can flip that the other way. Meaning that the folks who are going to benefit, for example, from disproportionately from say automatic voter registration are the ones who would be burdened most by its absence. Right. And those are marginalized groups. So you want to do. If you want to increase. There are two things you could do actually to make it easier to increase the ability of folks of color to participate in the process. Automatic registering, the same day registration. And guess what? HR1 does both of those things. But, but that's also illustrative that by taking, by removing barriers that would have a disproportionate impact and shifting, then you're also shifting disproportionate benefit. And I think that's the genius and logic of this different way of thinking about voting and saying, well, voting is a fundamental right, there should not be racial discrimination. Voting. The question simply is how do we go about the mechanism? What's the mechanism that we use to make sure that we limit the instances and possibilities of racial discrimination in voting and at the same time then shifting the culture, the legal framework, the culture, the political framework around voting and political participation.

Okay, but even that characterization, I wonder whether it goes further than it needs to go. I mean, obviously in a state like Georgia, the motivation for making it harder for African Americans to vote was either racial or it was political. Because there's a high correlation between African Americans and Democratic votes. And the people who were imposing the burdens, like current Governor Kemp when he was Secretary of state and running for governor, were imposed, obviously did so for political reasons. So when you say we want to eliminate racial discrimination, why can't we just frame it as we're trying to make it equally easy for everyone to vote? That's the fundamental right. And that might have a disparate effect. It means different people might be better benefited from that. Like my polling place is two blocks away from me. I have no burden to vote. It's completely easy for me. But the point is, maybe we should be aspiring so it's equally easy for everyone, so that everyone can equally participate, regardless of race or anything else.

I completely agree. But one of the things that you've actually been really good at in your work is developing language and talking to the different sides on these types of political questions to help people understand where there actually is real common ground. So that first frame is speaking to the civil rights community and saying to the civil rights community, hey, we understand that you worry about this idea that, look, let's make it easier for everybody because you think it's. The worry is, well, no, that's just going to leave voters of color and other marginalized voters behind. And so that frame then helps that the solar community to understand that, no, no, no, we're not leaving voters of color behind. In fact, if you really care about improving, if you care about improving the political participation rates of voters of color, if you care about racial discrimination in voting, this actually is the mechanism by which you can best achieve your goal. At the same time, then we could say to other parts of our society in the political spectrum, by the way, if what you actually care about is political participation for all, if what you're worried about are legislation that is designed for particular groups of particular people, this actually gets you exactly what you want. So, interestingly, I was rereading today for something that I'm working on, Lyndon Johnson's speech when he was signing the Voting Rights Act. And what I found really interesting about it is his attempt to try to say, what I want is universal political participation. Participation. I want to make it possible for everybody, everyone to participate in our society, because everyone has a stake in the society. And one of the things that I hope both sides of this question realized in the last election, when we made it easier for people to vote, everybody benefited. It didn't just benefit Republicans, it benefited Democrats. It didn't just benefit Democrats, it benefited Republicans, Republicans. The assumption that this universal frame will only benefit one part of the political spectrum or one part of our ideological spectrum actually is not true. It's belied by, contradicted, really, by the empirical facts as we're developing them. And so, yes, I completely agree with you. But understanding how to pitch that to the different parts of the spectrum and to use the language that will resonate with them, I think is also important, not just as rhetoric, but as an expression of reality.

That's a great, great point. Okay, so then just pulling it together, let's Start with the payoff on this one first. Comparing the payoff from HR1, Title 1 of HR1 to the payoff of HR4, it sounds like you're saying we get a much higher payoff from HR1.

We do. We get a much higher payoff from HR1. And the reason why we get a much higher payoff from HR1, we actually have a pretty good sense of some of the things that work. We know that automatic voter registration works. We, we know that same day registration works. We know that there are certain types of practices, the purging practices that the states use and some of them use that are either inefficient or insidious. So we can provide a mechanism by which we impose some limits on some of the things that they do. We know that some of the caging practices where the states will send out mailers to someone and they don't return it after a certain number of days or number of elections and they take them off the rolls. We know that those things have disproportionate impact on voters of color. So we can put in place federal regulation and federal rules that addresses those sets of practices that will make it easier for everybody to participate in our society. And so now we will no longer fight about turnout.

Right.

How many people are going to show up? But we can fight about. We could fight on policies. Let me try to convince you that my policies are better as opposed to trying to convince some people to show up and use rules to get other people to stay home. So the payoff is much significant because we can actually now begin to play the game instead of fighting about the world fighting over the rules of the game. And so I think that's the promise and the payoff for this different way. I mean, this is part of the reason why this is a fundamental shift. To have a statute that begins by saying voting is a positive fundamental, is a fundamental right. And to have a statute that says it is the responsibility of the government to make it easier for people to vote.

Vote.

Right. That then if we can shift our politics, our culture, our law, just along those lines, then the payoff is very significant for our whole polity.

Okay, so then the payoff is greater. Then let's go back to the question of whether it's likely to survive. So what kind of standard should the court use to evaluate. Evaluate title one of HR1?

Well, so we have to think about this both from a comparative perspective and then we have to think of it on its own terms. So the comparative perspective is comparing the Congress's powers under HR4 versus Congress's powers under HR1. Now if Congress could demonstrate under HR4 then that there is widespread racial discrimination, then at least theoretically, one could argue that Congress has. We've always believed that Congress has direct and significant power, section 5 of the 14th amendment, section 2 of the 15th amendment to address racial discrimination. The problem then becomes, well, what counts as racial discrimination. Right. And that's the hurdle that is really difficult to overcome. By contrast, under HR1, we believe that Congress has powers under the elections clause. So if you look at HR1, it lists a whole series of places where it believes that Congress has powers under the elections clause under the Republican form of government clause, under the 14th Amendment, not for race, but for the idea that voting is a fundamental right, which sometimes the Court. So it's fundamental rights analysis. Sometimes the Court has said that voting is a fundamental right. So it lists four or five bases for Congress's powers. Now I happen to think that at the very least the elections clause argument is a very strong argument, right. That there are certain things that Congress can do. Okay? Now in addition, there's actually one thing that Congress does not do here that HR1 does not do, but it could very easily do, which is to say, all right, states, we're going to provide some funding for you, but as a condition, here are some of the things that we want right now. There are some limits on that, as you very well know. There's some limits upon this carrot and stick approach, but it also is in a state established basis of Congress's power and provides Congress with some added flexibility if that's the route that Congress wanted to go. So I. So unlike HR4, which I think is really, I mean under this current court is dead on arrival. I just, I don't know how else to think about it. Not because I want it to be dead on arrival, but I just think that's a. It's pretty clear when you reach Shelby county what the court is asking for and that is not what they're getting NHR for contrasting HR1, Congress has multiple bases for passing the statute. At very least one of them will survive even the strictest judicial review. And it's possible that different justices might actually be able to say, well Republican Congress, you can do whatever you want. A Republican clause of government clauses. We said that's non justiciable though we wouldn't uphold that under the election. No, we'll uphold most of this under the election clause. We won't uphold it as you know, as under the spending Clause, for example, maybe we'll uphold some of it under the Commerce Clause. Right. So there are lots of possibilities that Congress could use to think about HR1 in contrast to HR4.

But in the Election Clause context, this is in Article 1 of the Constitution. It gives Congress the power, though the states by default regulate elections. Congress has an express power to regulate elections if they don't like what the states are doing. Has the Court ever applied what we typically think of as heightened scrutiny in evaluating a regulation under the Elections Clause?

That's a good question. I am not aware of. Maybe you are, but I'm not aware of heightened scrutiny being applied to Congress's elections laws powers. So it would seem to me that that provides a fresh basis. Now, some might argue that, look, the 14th Amendment, Section 5 expressly delegates to Congress. Of course, the distinction there is. There's now an established jurisprudence as to what that looks like. Right. By contrast to the Elections Clause, in which there's not an established jurisprudence that limits the Congress's powers under the Elections Clause.

Right. I think, no doubt the 14th amendment as intended originally would have been, and the 15th amendment for sure, a much stronger basis on which to worry about these kinds of problems. But the Court has hobbled that source of authority, and it's not yet hobbled the Elections Clause source of authority. I'm not sure I understand what the Republican guarantee Clause would do here, but I agree you should put everything in you can. But let's imagine this type of issue outside of the context of race. Let's say you had a jurisdiction that's just white people. Let's say no Latino, no African American, just white people. But there are Republicans and there are Democrats. It turns out the Republicans are on average much older than the Democrats, and the Democrats are in charge. And the Democrats adopt certain rules that make it physically difficult to vote with the plain intent to exclude Republicans. If the Congress passed a law that says you can't adopt rules, rules that have this politically targeted effect, is there any reason to think the Court would apply any strict scrutiny to that kind of question?

I have no reason to believe that the Court would limit Congress's powers to address what seems to be fairly clear instances of disenfranchisement. And if you follow the Court's decision and the partisan gerrymandering lines of cases, one could make the argument this is sort of the. Also the equivalent of the Republican form of government type of set of inquiries, you know, which are, look, if Congress is engaged, is involved here, and we're to address partisan Concerns, you know, that is not something that we, the court are going to get involved here. That's up to Congress to make that determination. That is not us for us to say that Congress system doesn't have the power to do so. And from a normative perspective, I think clearly Congress ought to have the power to be able to say, look, you should, you can't disenfranchise someone simply because you don't like their political identity. And this is something I've argued in my scholarship. You shouldn't be able to disenfranchise someone because you don't like their political identity, because you don't like their geography, you don't like their race, you don't like sort of like all of these bases. Right. So if you take voting as a, from a positive rights perspective, disenfranchisement ought to be per se illegal and Congress ought to have the power to be able to say under say the election squads as an example that voting rules that are intended to disenfranchise someone because of their partisan identity are illegal per the statute, whether it's for the People act or some other type of statute. And I think, quite frankly, I think this is where our of polity. That's where we're moving. We're just, we may not be there yet, but I think that's where we're going.

Yeah. I mean if the court has said, which they said in the Ruccio case, that it's just too hard for the court, it's too dangerous for the court to get into the middle of policing partisan gerrymandering. And the consequence of that is that a state legislature has the power on the basis of politics to make it easier or make some views more powerful than others. It would be very perverse to imagine that a legislature doesn't have the power to make sure that there is no such discrimination in their system, like discrimination can't be required as opposed to addressable. So I think this is clearly the right strategy. And I can't see how this Court. Well, that's a dangerous statement, but I can't see how this court precisely, no,

but I definitely agree that it can't be the case of the court. Court can say in the partisan gerrymandering context, this is not for us to engage in. This is for the political process, for the legislatures to decide whether they, how much partisanship they want, whether they want partisanship or not. But then for the courts to step back in and to say, no, no, no, you can't do that.

That would be crazy.

Then would create a world in which. Okay, then what is affirmatively required is some level of partisanship. And that can be the case.

Okay, so last question, and I hadn't thought about this until you said it, so obviously right now what we're facing in the challenge to pass HR1 is a Senate filibuster. And the challenge is whether you can see a bill as, as subject to the reconciliation process. And any spending is subject to the reconciliation process, but any regulation that's not related to spending isn't. But your idea here to say that the state, you could say, here's a pile of money you get if you do X, Y and Z, or here's a pile of money you'll get and we'll take away some if you do X, Y and Z. Could be a really clever hack to, to bring Title 1 of HR1 into the reconciliation process. Right. I mean, if they just substituted, they just put a whole bunch of spending inside of this bill and then made all of these rules, basically conditions on spending, shouldn't that make it subject to reconciliation as opposed to vulnerable to the filibuster?

I'm not a Senate parliamentarian, so I won't be able to answer these, this conclusively. However, the thinking that occurred to me as I was thinking about HR1 was twofold. How do we address potential constitutional challenges and what are the mechanisms by which one can get this through the legislative process? And the legislative process aspect is twofold. One is, are there ways of constructing this legislation that makes it easier for some Republicans to come on board? Right. Will that be, will that, will that work? And two, does it permit certain types of parliamentary moves that wouldn't otherwise be possible? So for those of us who are used to thinking about, and I know that you are a great deal thinking about civil rights legislation. The hurdles. The filibuster has always been the major hurdle. One of the major hurdles, and in thinking about what are the types of parliamentary moves that are necessary to get these bills through the legislative process is something that all good civil rights lawyers have to have to give some thought to. Now, whether this will work as reconciliation, I can't conclusively say, but I think it does provide an alternative way of thinking about some constitutional questions and some political process questions that might perhaps enable this bill or something like it to both get through the political process by garnering coalitions or to enable some maneuvering and then hopefully get through judicial review.

Okay, Guy Charles, it's wonderful to talk to you. I can't Wait till you come here. Although in the world of virtual it doesn't really matter where you are, we still get to talk in the same way. I'm grateful for your work and tell us a little bit about this new book that you're in the middle of or you should be towards the end of.

Towards the end. So the book really could have been called why HR1 is the way to Go. But really the book is about to understand what made the Voting Rights act work as well as well as long as it did. And it was an amazing statute, transformed American democracy. But also to think about the Voting Rights act as a way station that's pointing us toward universal political participation, that in order to have a true and long lasting democracy, we have to take voting rights for all very seriously. And that part of our the goal should not be to try to make it harder for people, whether whatever their categories are, but to fight on policy and not to fight on rules and turnout. And HR1 is a fairly good example of what's possible. So in some senses the goal the book provides, it's being co written with my longtime friend and colleague Luis Rente at Indiana Bloomington. It provides a framework for thinking about what's possible and how to think through the 21st century voting rights questions and the arc.

Just a final comment. I'm sure you agree with this, but it's so important to emphasize, as I said, both of these bills, HR4 and HR1, have John Lewis's name attached to them. But you can actually see the arc of progress in John Lewis's own career from HR4 to HR1. He began obviously fighting for the very fundamental right that was targeted against racial discrimination, but ended his career recognizing that the way forward is to enable all to be participate, to take away the ability of anybody to block somebody because they don't like anything about them, like a universal right to participate in democracy. And I really look forward, I've read part of the book, it's wonderful and I really look forward to it coming out. But I more importantly look forward to this fight that you and I are part of to push this idea into our democracy. Because it's kind of odd. 250 years into this experiment, we're still fighting about this, but we are right.

Does everybody get to participate?

All right, thank you, Guy Charles. Be well.

Thank you, Larry.

Okay, that was our conversation with Guy Charles. This is Larry Lessig. These podcasts are produced by citizens us and you can find us on the web at Equal Citizens. Next week we will continue the conversation about HR1 and its potential with a conversation with Ro Kahana, one of the most important progressive leaders in the House of Representatives and a reformer on many issues, including issues very close to the work I've spoken about here many times, democracy, vouchers and as well, we will continue the I don't know how to think about this. It's a parallel in some ways more like counterpoint conversation with perspectives on America's views on politics. And that conversation will continue with one of my favorite Iowa leaders, a person I first read his piece about election campaign finance reform almost 20 years ago, not quite, and he has become a leader in Iowa and Iowa politics and I imagine will become a leading politician in Iowa. But his the objective of this conversation with Rob sand is not so much his political career, but to understand exactly where Iowa voters are and how Iowa voters view the questions that we've been talking about here and whether there's opportunity for common ground. You can find a place on our website to give feedback, ideas, suggestions for other people we ought to be talking to at Equal Citizens Us anotherway. And there's a place there to share this podcast so that we get more people who recognize the extraordinary opportunity of HR1 and the chance that we have now to get Congress to do something big. This is Larry Lessig. Thanks again for listening, SA.