The Fight For Voting Rights Reform

This podcast is part of the Democracy group. This is Larry Lessig.

This is another episode of the podcast, another way. This is a little different. This episode we're going to play an event which we Equal Citizens held with co sponsorship of a million other organizations, but a conversation between two incredibly important activists and scholars about voting rights and HR1 and HR4. Carol Anderson, who is an extraordinary author whose recent works have focused us very profoundly on the techniques, the tricks, some not so obvious, some completely obvious, that have been deployed across the country, but mainly in the south, to suppress the opportunity of African Americans to participate in the elections. And Guy Charles, who's a professor of law at Duke and who is moving, I'm so happy to report, to Harvard next year, and who has been involved in many contexts of constitutional law, but most recently in the question of voting rights. This conversation, which we held over a Facebook Live and Zoom events with hundreds of people participating and now listened to by more than 40,000 people, tries to bring out what's at stake and what's really important about the choice between HR1 and HR4. And just to give you a clue, both of these bills need to be passed urgently. But the argument that is clear in this discussion is that the threats from the Supreme Court are more pronounced with HR4 than with HR1. And that's a strategic reason to make sure that if we get anything, let's make sure we get the thing that the Supreme Court is not going to strike down. Okay, so there are two kinds of people in the world. There are people who think that what happened was the best of all possible things. And then there are people who are constantly doubting everything that they do. So Scalia, for whom I clerked, was of the former type.

He would.

Was bizarre in his celebration of every decision he ever made, including really minor decisions. Once I, after I clerked for him, I accompanied him on a trip to Russia to meet with Russian officials. And you know, every decision we made, like where we would have lunch or what time we would meet to go out to dinner, or whether we went to one museum or another museum, every decision was the best possible decision. And I remember thinking, it must be so wonderful to be Nino Scalia, because life is perfect. There's never any doubt because. And I find myself exactly the opposite. Everything I do, I think forever about how I could have done it better, including these podcasts. I think about this all the time. It just torments me. But in this conversation tonight, but in this conversation that you'll hear, there's one thing that after it was finished. I was really, really sad that we didn't get to talk more about. And I'm just going to give you two minutes about it now so that I can sleep a little bit better tonight. And that's this. There's no doubt, really no doubt, that many of the laws that are now being considered across the country to make it harder for people to vote are motivated by race. There's no doubt. We know that because we know people involved. We know what they talk about. We know what they talk about when nobody is supposed to be listening. But there's a really important question that we need to ask in the reform community about whether that is the exclusive focus of our concerns about voting rights or whether we should think about it more broadly. Because what we know about America is that discussion of race triggers automatic reactions on both sides. On what I think of as our side, the side that still believes we still have a fight to achieve racial equality in America, talks about race trigger an automatic affirmation, yes, of course, it must be race involved in the particular decision that's being discussed. But on the other side, there's an automatic defensive reaction. Raise the question of race, and immediately the other side says, no, no, no, no, it has nothing to do with race. It's X, Y and Z. It's not race. People are not racists. And that debate, that struggle, that feature bug of American psyche today is with us and is not movable right now, however much each side wishes it could move that debate. There's another way to understand what these laws that are being considered across the country to suppress the vote or make it harder to vote are really about. They may be about race, I believe they're about race, but they're certainly about politics. There's certainly a partisan effort to make it harder for Democrats to vote. And that partisan effort is explained openly, defended openly by Republicans in the Supreme Court. The lawyer for the Republican National Committee openly admitted that if it's easier for voters to vote, that puts Republicans at a competitive disadvantage, quote, unquote. And so, in understanding these laws as laws motivated by a partisan interest, we both recognize something nobody could deny, and we connect with something that I think both sides in this debate, Republican and Democrat, could agree upon. Because who is going to defend, really, who is going to defend the idea that state officials use their power to rig the system against their partisan opponents? Who's going to defend partisanship in the way we allocate the right to vote? I know that. The insiders. I know Mitch McConnell, I know all of the people in politics who actually are trying to maintain power, they'll defend it, if not openly, then at least to themselves. But I'm talking about ordinary voters. Ordinary voters, ordinary people who defends the idea that the incumbent party should be allowed to rig the system to make it harder for them to be defeated. Because that's what's happening right now in all of these states, considering these election bills with changes that are plainly going to make it harder for Democrats to participate. The motivation is a partisan motivation to make it harder for Democrats to vote. Okay? Now the fact is that doesn't make these laws unconstitutional. Turns out our Constitution doesn't ban partisan activity, even activity intentionally, making it harder for one side to vote. That's kind of striking and crazy, but that's the reality. So I'm not saying that that makes these laws unconstitutional, but what it does is give Congress a completely legitimate constitutional basis under the original Constitution, not the amendments, the 14th and 15th amendments, but under the original Constitution to step in and override these partisan laws under the power the Constitution expressly gives Congress. And the reason that's important is when we imagine HR1 or HR4 being enacted and we imagine the inevitable lawsuit that challenges them, and we recognize, as you'll hear Guy Charles describe, that the Supreme Court is gunning to strike down laws like HR4 which are directly grounded in race based discrimination, it's going to be harder for them to strike down laws that are justified as responding to partisan discrimination. It's going to be harder for them, given the decisions that they've issued across the course of American history, to say that Congress doesn't have the power to address partisan bias built into state election systems. I'm not saying the Court couldn't do it. It's the Supreme Court, they can do what they want. But the point is it would require changing an enormous amount of settled law to say that somehow Congress doesn't have the power under a clause which expressly gives them the power to override state laws for whatever reason, they want to override state laws targeted against the party that is not in power in that state. And so the question I think we need to ask when we think about these voter reform measures is not just are these measures responding to racism? Because I think they are. I think there is racism in these laws that are being enacted to make it harder to vote. But as well as that, are they being enacted for partisan purposes? And that's a kind of Homer Simpson duh moment. Of course they are. Of course they are. And if they are, Does Congress have an unfettered power to override them? At least with respect to congressional elections? And the answer to that question, at least on the basis of everything the Supreme Court has said so far, the answer to that question is plainly yes. Hell yes. And I think that if we can get people to recognize the basic fairness in a system that secures an equal freedom to vote to everybody, regardless of party or race or sex, then people will see the electoral system as a system that's actually producing representative democracy. Okay. That's the editorial leading into this conversation. It was an extraordinary night and extraordinary conversation. So please stay tuned for the event.

So, hello, welcome to this extraordinary event. I'm so honored to be able to to host. My name is Larry Lessig. We're grateful you are here. And we're even more grateful to the extraordinary organizations that made sure you were here. Those include Common Cause, Represent Us, End Citizens United, ACLU of Massachusetts, and Open Democracy. I personally am extremely grateful to my team at Equal Citizens, Adam Meyschen and Kate Travis and Kevin Rissmiller, who have produced an extraordinary substack you can sign up for on our website to keep you up to date on the progress of HR1 and its related HR4. So we're going to have an incredible conversation with two extraordinary scholars who I'm so happy to be able to introduce to you. But before we get going, we have a surprise from one of my newest heroes in Congress, Mondaire Jones from the 17th district in New York, just elected this year at the OR last year at the age of 33, wanted to be here and could be here virtually as we all are. So let's see a short video from Mondaire.

Thank you to Professor Lessig and Equal Citizens for bringing us together today and to Professors Anderson and Charles for your scholarship and your advocacy. It's not lost on me that multiple members of my staff have studied under at least one of you. It speaks to the impact you've made on the debate around our democracy. Most importantly, thanks to all of you joining us this evening for building the movement for HR1, the for the People Act. Thanks to you, the House has passed the most significant set of improvements to our democracy since the Voting Rights act of 1965. And this victory is yours. Tonight, I want to talk to you about why it's so important that we see this victory through in the Senate that we send the for the People act to President Biden's desk. Uncompromised. Our democracy faces a crossroads. Throughout the country, state officials are Staging a hostile takeover of our democracy. A massive assault on voting rights designed to make voting as hard as possible. These officials, the party to which they belong, and the donor class that writes them big checks, cannot win on the merits of their policy ideas. So they seek instead to disenfranchise large swaths of the American electorate. One major party in this country competes by seeking people's votes. The other party competes by suppressing peoples votes. One party competes by amplifying the voices of the American people, of working people. And the other party competes by drowning those voices out. Yet, as a member of the most diverse Congress in American history, I know that we are closer to creating an inclusive, equitable democracy than ever before. To do so, however, we have to build a political process that empowers working people, people of color, women, and everyone else our politics has long excluded. I'm talking about a true democracy. The for the People act helps build the true democracy we have never had, but have always deserved. This legislation would strip bad actors of the tools they need to keep the people from the polls. Through policies like automatic voter registration, a ban on voter purges, and expanded early voting and voting by mail, the for the People act helps to ensure that the right to vote is no longer up for debate. But to build a true democracy, we also need to make sure that our politicians listen to us, to we the people, not just their biggest donors or their primary voters. We need to reduce the power of of big money in our politics and end partisan gerrymandering. Let me start where our broken campaign finance system forces campaigns to start. The money. Our campaign finance system gives the wealthy a megaphone and silences the rest of us. In 2016, just 400 mega donors contributed a total of $1.5 billion, more than every small dollar combined. Congress isn't just funded by wealthy people. It's full of them. More than 50% of lawmakers in the 116th Congress had a net worth of over $1 million, compared to just 3% of the American population. Instead of a Congress, we have a country club. And this is no accident. It is our broken campaign finance system that has rigged our democracy such that it favors wealthy candidates. I experienced firsthand in my own run for Congress how important it is that we fix our broken campaign finance system. When I was running for office, the first question insiders asked me wasn't what I would be fighting for, whether my community was behind me, but rather how much money I could raise. My leading primary competitor never had to answer that question. As the son of a pharmaceutical Billionaire, he didn't have to raise any money at all. Instead, he spent $5.4 million of his inherited wealth to blanket the airwaves with TV commercials. Three months out from the primary election. In the general election, I faced yet another self funding candidate who outspent me by pumping $1.5 million into his campaign. Against these long odds, I was elected to the United States Congress as an openly gay black working class candidate whose community sent him to Congress. I am an exception, but I should not be. And with a small dollar matching system in HR1, candidates like me could become the norm. It is just as essential that HR1 ends the scourge of partisan gerrymandering once and for all. Partisan gerrymandering writes Republicans a blank check to pursue the unpopular policies their most powerful donors and their most radical supporters demand. Voters be damned. Only by ending partisan gerrymandering can we create a Congress that actually speaks for the American people. And only by ending partisan gerrymandering can we halt the radicalization of the Republican Party. Ending partisan gerrymandering is also essential to empowering communities of color. As long as partisan gerrymandering is possible, a declining white minority will wield it to deny communities of color the representation they deserve, packing them into safe districts to waste their votes or spreading them out to diffuse their power. By putting redistricting in the hands of independent commissions, we can ensure that the people choose the politicians, not the other way around. No longer would QANON conspiracy theorists be guaranteed victory in general election contests simply because they've won their primaries. Imagine that. Since the Supreme Court struck down the heart of the Voting Rights act in Shelby county, beholder in 2013, we have promised that when we had the chance, we would rebuild our democracy. I'm talking about Democrats now. It has been a long time coming, but today we are here. It's time. If the Senate fails to follow through, if we compromise with corruption, systemic racism and minority rule, we risk confirming many Americans belief that billionaires and corporations have captured both parties, that minority rule has captured our states, and that our elections offer no real choices. If we do not abolish the Jim Crow filibuster to save our democracy, the party of the new Jim Crow will abolish our democracy. So let's fight for all of HR1 now, Senate One, like our democracy, depends on it, because it does. Thank you.

Wow, I hadn't had a chance to see that. That was really great. So he's not here, but let's pretend he's here. Thank you, Mondaire. And thank you for your leadership. So the way this evening is going to flow, I'm going to invite Guy Charles, Professor Guy Charles, and Professor Carol Anderson to turn on their videos. I promise they're there. I've spoken to them and welcome them to this webinar. I'm going to introduce both of them extremely briefly, and then we're going to lay out a little bit of the context and what's at stake. And then if you want to post questions in the Q and A, our moderator of the moderator, Adam Eichen, is going to pull the questions together and I will see them. And we'll take as much time as we can to answer the questions as well. So I'm first extremely happy and honored to introduce Carol Anderson, who is the Charles Howard Chandler professor of African American Studies at Emory University. Her work focuses on public policy, particularly the ways that domestic and international policy intersect through the issues of race, justice and equality in the United States. She's the author of many books, and the 2 most recent, 1 person no vote and White Rage, perfectly frame the discussion of this evening. And I urge everyone, if you've not read these two books, well, after seeing Carol tonight, you will certainly want to get them and give them as presents, I'm sure, for birthdays and holidays as well. And then I'm so happy to welcome my friend Guy Charles, who right now is the Edward and Ellen Schwartzman professor of Law at Duke, although we're going to fix that because he's going to join the Harvard Law School as my colleague next year. His work covers constitutional law, election law, campaign finance, redistricting, politics and and race. He's the co author of two important case books, currently working on an extraordinary new book about the future of voting rights. So, Guy and Carol, thank you so much for being here. So we're gonna start with Guy. Guy, we don't know who's here. There are a lot of people here, and maybe most of them know this. But we wanna make sure we're all at the same place. Help us understand the context of this fight by talking first a little bit about what the Voting Rights act of 1965 tried to give us.

Thank you, Larry. So we have to start with a puzzle. And the puzzle is in 1870, we ratified and passed the 15th Amendment. But from the end of Reconstruction until 1965, notwithstanding this fundamental constitutional change, we still had racial discrimination and voting, particularly in the south, that really entrenched itself in the politics and culture of many Southern states, although not just in the Southern States. So the question, the puzzle is how can it be that we have a constitutional amendment and yet have such entrenched racial discrimination? The answers to that puzzle, I think also set the stage not just for the Voting Rights act of 1965, but really for where we are today. Thinking about HR1 as well as HR4, there are three particular things and I'll run over them fairly quickly. The first thing to note is that our Constitution, unlike most modern constitutions, do not contain an affirmative right to vote. And I'll talk a little bit later about why that's significant. The second point is that our Constitution also delegates to the states the responsibility for voting administration as well as voter qualifications. The third point is that our Constitution takes an approach to voting that is a negative rights approach. So the Constitution says, look, you can't deny the right to vote on the basis of these limited characteristics such as race or gender. Race after the 15th amendment and 14th amendment, gender after the 19th poll tax, or if you're all over 18. And then finally there's an ideological divide as to whether voting is a right or whether it's a privilege. Notice that one of the terms that people use for voting, they call it the franchise, right? Sort of the idea that this is something the government gives to you that you're not entitled to, it's a franchise, it's not a right. And so what then that means is that as long as states after Reconstruction, they had the responsibility, they had the primary responsibility as long as they did not directly pass laws that said that, hey, we're discriminating on the basis of race, they can impose whatever qualifications that they want. And they did. So they said, look, you have to be literate. Even when the Supreme Court passed upon a literacy test, the court said, look, yeah, it makes sense for people to be literate. We don't want to be ruled by, by the ignorant. You have to be literate, you have to pay a tax, a poll tax. So you had a number of different ways that the states could use, especially in the south, to disenfranchise black voters by passing laws that they knew were going to have an impact, like literacy tests. So vote denial laws, the poll taxes, understanding tests, and then they could grandfather white voters into the process. They also engage in voter support. They also engage in vote dilution through racial gerrymandering mechanisms and voter suppression through violence and fraud. Right? So the Constitution impose few limitations on the discretions of the states in terms of what they can do. And many states in the South, Mississippi, North Carolina, Georgia, South Carolina, we can go on, use those discretion as a mechanism of discriminating against voters of color. And it wasn't until 1965, through the voting Rights act, that then we were able to stop some of those things. So that's the. That's the framework, that's the setup, that's the justification. And the mechanisms were the discretion of the states through literacy tests, poll taxes, gerrymandering, violence, fraud, all of these mechanisms that they could use at their discretion to discriminate against voters of color, specifically black voters.

Okay. So I'm sure there were some in 1965 who imagined they'd solve the problem of vote suppression, racial discrimination with voting, but it turns out they didn't. Or at least it turns out that there were a lot of clever techniques that. That got deployed in the period since. And Carol's work has been extraordinary in detailing, in really vivid and extraordinarily moving and depressing detail, the techniques. And we can think about them, really, in three periods. One is 1965 to Shelby county, the case that Mondaire talked about, or the Supreme Court gutted, an extremely important part of the voting rights fact. And then Shelby county to 2020. But, you know, 2020 has inspired all sorts of new games in your own state of Georgia, Carol. So I just wonder if you want to make sure that we all understand just what creativity there is out there for denying people the freedom to vote.

Absolutely. Thank you so much. Mississippi. Mississippi, right. Shortly after the Voting Rights act decided that it was going to tweak its laws in a way. One was to turn elected officials into appointed officials. So much of this is, how do we remove the power of the electorate from having any say in the way that government works, if we understand that that's the baseline there? And so to make. And one of these officials was a school superintendent. So this is Mississippi trying to fight brown. And they don't want black folks voting for a school superintendent. So they're going to make that person now an appointed position. Another one was to change districts so that voting used to be in districts and now to make them at large. And that was a way to dilute the black vote. Because now you had, instead of these nice, tightly bounded districts where you had lots of black folks who had previously been disenfranchised. Now that they could vote, being able to cast that ballot for the person who was going to be the commissioner in their district meant that you were going to get some black commissioners. So to dilute that, to make these at large, all of a sudden Just dissipated the power of that black vote among a sea of white voters. One of the other things that they did is that you had the use of the criminal justice system as a way to criminalize and terrify black folks from using absentee ballots. We saw this in the 1980s in Alabama, where Julia Wilder and Maggie Bozeman, who were SCLC at NAACP in Pickens county, use the absentee ballots to. To bring political power to black folks in that county. They were charged with voter fraud and thrown in prison. Then you had Jeff Sessions going after the Marion 3, also because they had used absentee ballots as a way to bring about black political power. In Perry County. You also had Brian Kemp, who was at the time Secretary of State in Georgia, who went after the Quitman 10/2 because they used absentee ballots. And you have pictures of them in their orange traveling jumpsuits as a way, again, to terrorize and terrify the black community. You use absentee ballots, the state is coming after you. Then you had, and I love extreme partisan gerrymandering. What extreme partisan gerrymandering does is it allows the politicians to choose their electorate instead of the electorate choosing their politicians. It helps dilute the power of those who live in the cities, and it provides disproportionate power and disproportionate representation to generally white counties and sparsely populated counties. And so you get these really weirdly drawn districts that you have the Snake on the Lake in Ohio, you have the Glock in Texas. You've got the wounded Donald Duck one in Ohio as well. So you've got these weirdly drawn districts that are designed to dissipate the power of black voters. Then you had, coming after Shelby, you've got the massive rise of voter ID. You had a couple of come through in the mid 2000s, but it was after Shelby where these things really took off. And the way voter ID works is that it allows these legislators to choose the kinds of IDs that you need in order to access the ballot box. The way that these IDs are chosen is to privilege those that whites have and to denigrate those that African Americans and Hispanics have. You have massive voter roll purges. And one violates the National Voter Registration act, the motor voter law that says you cannot purge folks simply because they don't vote regularly. But here you have states like Ohio and Georgia that have wiped millions off of the rolls simply because they haven't voted regularly. And you have poll closures, massive poll closures. We've got over 1600 polls that have closed since Shelby County v. Holder, the vast majority of those are in the pre clearance states from the Voting Rights Act. What we know from the research is that for every tenth of a mile that you move a polling place from the black community, black voter turnout goes down by 0.5% up to 4 miles. So if you can move that polling place, say four or five miles away, you can get a 20% drop in black voter turnout. You can turn an election by that. You've also got coming after 2020. After 2020. I mean, this is like relentless after 2020 here in Georgia, you've got SB 202, which has just been signed into law. It is a twin pincer move motion. What the legislatures did was they looked at the ways that black people access the ballot box and went to shut that down from absentee ballots to eliminating the number of drop boxes to early voting, to curtail the days of early voting. And the other part of that pincer motion was to go after the mechanisms that Georgia, the guardrails that Georgia had in place that would not allow Trump to overturn this election. And so they removed the power of the Secretary of state in certification and they gave this gerrymandered legislature the power to remove county election boards and appoint their own election czar who could certify the election. So this is where we are right now. It's not pretty.

So the most striking feature of this, of course, the one that I think has just gotten everybody to say, what the hell is going on, is the water provision. You see pictures, and your book describes this, but the pictures of people standing for hours to vote is so moving. I mean, when we see it in third world countries, we're so impressed. Look at them fighting to vote. Have it in the United States. And it's astonishing. Like, some people look at that and they think, well, maybe we should have more polling places or make it easier people to vote. Other people look at that and say, oh, the problem here is it's too easy to stand in line because people are giving people water. So we have to make it so you can't give them water. And then that'll solve the problem because they can't stand in line that long. Now I just wonder, when you, you know, you're from Georgia, how do people even explain it? What do they think they're doing? What do they think the real principle is? That's explaining why Georgia would do something like that.

So over 70% of the population is against SB202. I mean, we see it for what it is. And so when you're looking at the whole thing about the provision of water and aid, 75% of the polling places closed in Georgia and over 200 have been closed were in minority and poor communities. And the data are also clear in precincts where African Americans are 90% of the population, they have to wait over 50 minutes on average to vote for whites. In predominantly white communities, the wait is slightly six minutes. And so those long lines, we saw 11 hour lines in Cobb county, those are designed to make it much more difficult to want to vote. People cannot stand in line that long. This is a way to create these hurdles and these obstacles to the ballot box. I dare you to stand in line for 11 hours without any sustenance. I dare you. I mean, that's what's going on here. There's no rationale for it. The rationale that they're using is election integrity. But the language of election integrity was the same language that Mississippi used in 1890 to develop the Mississippi plan with the massive disfranchisement policies of poll tax that we're here to support, secure the integrity of our elections and to rid our elections of corruption at the ballot box. So this is the same language. A lot of it's the same playbook. And we know that election Integrity Georgia had three recounts in 2020. They didn't find anything. I think the scholarly term is Jack diddly. They didn't find anything. But by churning the waters, by trying to create this aura of malfeasance, that's what they're hanging this on. And it's a lie. It's just a lie.

Okay, so the great hope here is we've got real reform on the table. HR1 and HR4. Now some people say, well, they want the John Lewis bill guy, why don't you help us understand why there isn't a John Lewis bill. There's two John Lewis Lewis bills here. Right. So help us understand what the architectural or the maybe philosophical difference between HR1 and HR4 is.

Sure. So way to think about this is that you have two different types of mechanisms of trying to deal with what Professor Anderson has just characterized. One is to try to reinstate the framework that the Supreme Court gutted in Shelby county vs. Holder, in which the court said two things. One, it said that the formula that was used, so what the Voting Rights act did, particularly the sections that we're talking about, is it identified the worst offenders. It didn't identify all the bad offenders, especially in 1965, identified the worst of them. And it said, okay, given your history of discrimination, you can't pass, we're going to freeze into place your current voting laws and you can't pass any new ones without pre clearing it first with federal officials, either the Attorney General or the United States Court for the District of Columbia, one of those two or both. And what the court said is that covered the coverage formula, the formula that identified the jurisdictions with the history of discrimination was outdated and that the nature of racial discrimination in 2013 was different from 1965 and that the era, what my co author Luis and I called the era of big discrimination is over. And so the normal constitutional mechanism can handle the problem of racial discrimination. So what HR4 tries to do is to reinstate that process by saying if you are a jurisdiction that has discriminated, that has had a set amount, 10 or more violations over 25 years, you have to pre clear your voting laws and practices. And it identifies what sets of practices and laws that they have to pre clear. So that's Mecca. That's one, that's one version of trying to address and that's hr4. The other one is hr1, which is a very omnibus, comprehensive, really Voting Rights act statute that on the voting rights portion of that essentially does addresses a number of different things. So it provides for example, that voting is a fundamental and constitutional right. It makes, it says that the right needs to be accessible and it has a number of a plethora of important features. So it shifts the burden of voting from individuals to the government, automatic voter registration, same day registration. It centralizes aspects of election administration and practice and standardizes those aspects, provides for early voting, vote by mail. It limits states, the state discretion. So it identifies a number of best practices and it says okay, for federal elections, you the states have to implement those best practices like same day registration or automatic registration or vote by mail, limiting the types of things that as Professor Anderson just described, that Georgia is trying to do right now, or that Iowa might be trying to do. So we have two different ways of getting at the problem. You really could think of them both as the John Lewis act, because what they're trying to do, especially HR1 is to make sure that voting is regarded as a fundamental right that belongs to the citizen and then shifts the burden away from the individual to the government and then limits the state, the state's discretion so that you're not trying to figure out which states are going to misbehave and then retroactively try to address the problems of misbehavior. What HR4 tries to do is it tries to identify those states and where they're engaged in racial discrimination and then reinstate the preclearance process. There are benefits and drawbacks to both approaches. The theory is to try to get them both through Congress. They face different constitutional hurdles, but that's the legislative package that we're facing currently.

Okay. So one really important point to be clear about is that HR1 is going to address federal elections and HR4 would change the law for all elections.

Right.

So it's a broader change. But is that. Do you think that's an important difference? Do you think changing the federal elections will, in effect, change the rules for the state elections as well?

Yeah. So HR4 focuses on racial discrimination. Right. So racial discrimination with respect to all elections. HR1 focuses on federal elections. So whatever. So it's broader in that sense. And so the theory. And we haven't even talked about the campaign finance provisions. Right. Sort of like all of the other stuff. But leave just focusing on just the voting rights aspects of it. You could think of HR1 as encompassing all the worries that we also have for HR4 because the mechanisms that the states would use for engaging in racial discrimination are the ones that are limited and horrible. So using registration as a mechanism of racial discrimination, using polling places as a mechanism of racial discrimination, using absentee balloting, as all of those things would also be Limited by HR1.

And so from the constitutional perspective, we've talked about this before, but it's a different standard that would measure HR1 from HR4. Right. Or at least it could be. I mean, they're both justified under the 14th and 15th Amendments, but HR1 has a clearer additional justification. Right. So is there a reason to be more optimistic or at least be optimistic? This is why a number of questions in the chat have pressed this. Is there a reason to be optimistic that the Supreme Court just won't gut whatever would happen from HR1?

Right. So here's the problem. Here's the way to think about HR4. The worry with HR4 is that a number of justices on the Court are already leery. They've expressed their views on whenever either the states or Congress tries to address the problem of racial discrimination. And so if you take Roberts opinion in Shelby county very seriously, that really what we're looking for, what the Court would be looking for, is a type of systematic racial discrimination that is akin to 1965. Right. Or 1964. So if Roberts is serious about that, then HR4's constitutionality, it will be severely undermined that is that the court that the probability the Court will find HR4 Constitutional is extremely low. All right. Now, we know that Congress has power under the elections clause, under the guarantee clause, under the 14th Amendment, to address problems and issues with federal elections. So the probability then that HR1 will survive constitutional scrutiny is much higher than the probability that HR4 will survive constitutional scrutiny. Now, it might be the case that the court will do whatever it wants to do, and so all bets are off. But if we're simply going by past precedents, then HR1 has a higher likelihood of passing constitutional muster under the current court than HR4.

Okay. So both are incredibly important, but it's easier for the court to do damage with HR4, given the jurisprudence, than with HR1. Okay, so I want to bring in some of the questions. We've got a lot of really great questions coming in. And I want to the first one's really for you, Carol. And I kind of got from you two very different reads about how you are thinking about this. One very optimistic and one just very angry. So I want to emphasize women can't get angry.

You know that.

I want to see whether you're optimistic or if you are optimistic. Why should we be optimistic? Like, what is the reason why there's a shot now when, you know, obviously this is something people have been fighting, John Lewis had been fighting for for so many years and couldn't get it achieved before.

So why be optimistic now that we can get this through? I think part of it is that we have an incredible array of organizations that have been mobilizing here in Georgia for at least for over a decade. I mean, this is why you saw that massive voter turnout in 2020. And this is why you saw a 92% Black voter turnout rate from the general election to the runoff election in 2021, 92%. That kind of engagement cannot be denied. And they're incredible litigators behind this, too, and a strategy that is putting pressure on multiple points on this government to adhere to the basic right to vote. And so that's where my optimism comes from, is that we have always fought. We have always fought, and we will continue to fight. And we are strong, we are tough, we are smart, and we are relentless because we know that our lives are on the line. There's something about fighting when you know your life is on the line. And that's what this is. That's why folks were standing in line for 11 hours to vote, because they're like, I know that if I don't cast this ballot, this might be the difference maker in whether I get to be here next year or not. People are very cognizant of what the power to vote means.

Okay. So this reform obviously would make it easier for majoritarian democracy to work because you wouldn't have states given or allowed the power to suppress the majority vote, which is what's happening with these laws and with gerrymandering. The irony, of course, with our system is that to get this law passed Congress, you need a super majority. Basically, the minority has the power to block the majority from assuring that the majority actually matters in America. So this is filibuster reform. So it seems pretty unlikely if we need 60 votes, that we're going to get 60 votes to pass either HR1 or HR4. Guy, why don't you help us think about what might be done in the filibuster space to allow this to pass through the Senate even without imagining the filibuster abolished.

Sure. So a couple things. One, so you're right. So a couple. Two things are really interesting about American democracy is sort of the historical balance between majoritarian and anti majoritarian. When you look at the Senate, you have to think about that structurally as anti majoritarian. Then you also look at some of the Senate rules and you have to think about that structurally also as anti majoritarian. So we have this divide in the same way that we have this divide between the right to vote and voting as a privilege. We have this divide also between a system that is majoritarian and and a system that also mixes anti majoritarian frames. And so now fundamentally, the question that we're going to have to think about are to what extent. This is something that you're seeing, and this goes back to a point that Professor Anderson made. You are seeing that the provisions of HR1 and the provisions of HR4, but here the provisions of HR1 are also broadly popular. And the question that our democracy has to think about is to what extent then can we put pressure on our senators to stand and defend these strongly egalitarian, democratizing provisions? So even some. This is the story from the Koch brothers that came out from the New Yorker today that broadly speaking, even among conservatives, this conception of political equality of the right of citizens to participate, that resonates within American democracy. And the question then becomes using democratic politics to assure that our political leaders are not aggregating and holding power for themselves, but are listening to the people and. Right. So the types of political pressure that we are now starting to put on our political leaders and the political process that make US Optimistic is a place that we need to continue to go.

So the Senate has the power to respond to that pressure. Right. It can change its filibuster rule. It can exempt certain subjects, like it exempts budget matters from the filibuster rule. It could change the filibuster rule so people actually have to get up and speak. I mean, the most outrageous thing is it's justified because it's to facilitate deliberation, but you don't actually have to say anything to invoke it. You can just invoke it and that's it, it's over. So you could require them to stand up and speech.

The talking filibuster.

Yeah. Which it's been not very pretty over our history, the things that have been said under that talking filibuster. But at least they'd have to work for it. My colleague Matt Stevenson and two of his colleagues have just published this really interesting reform that says change the filibuster. The filibuster can be ended if you get a majority of senators representing a majority of the country so that it's majoritarian on Both sides, like 51 senators who happen to represent more voters than the other side. And then you know that a majority has spoken and we're going to move least get onto a vote. So these are all changes that could happen short of saying there is no filibuster anymore. Although my own view is there should just be no filibuster anymore. But Carol, I know there are a lot of people who are saying, look, the most pressing problem is voting rights. That's the thing we gotta worry about. Let's just focus on that. Why should we also be focusing on money in politics or gerrymandering? Why don't we just get the John Lewis, both John Lewis bills passed and say that's pretty good for government work, at least in one session.

I think we need both one, because we see right now that we are in an era where we don't have preclearance, which is what the Voting Rights act provided, where you had to get the okay. And so we see what happens without pre clearance, where these states have gone hog wild, but we also need to have the standards about what clean, clear, free and fair elections look like. We need to remove dark money out of these elections. Congressman Mondaire Jones said it beautifully. Where money is driving this, where you have a handful of millionaires and billionaires who are determining what our policies look like. And this is why you have these massive disparities between what the public wants and the policies that get implemented. If we're going to have a truly vibrant, multiracial, multi ethnic, multi religious democracy, we have to get dark money out of it. And we have to have the standards about what federal elections must have and we have to have because we know folks are going to act a fool. Again, another scholarly term. But we have a history of seeing this. The history of you got the 15th amendment that says thou shalt not discriminate and you get Mississippi and Alabama and Georgia going. Yeah, we will. We're just not going to say race. We're going to use the proxies for race and make those proxies the access to the ballot box. So we have to have pre clearance in order to stop this stuff before it does damage to an election by cauterizing and shearing off key elements of the electorate.

Yeah, and I think that building on something Guy just said and endorsing what you've just said, you said we need both. But I think what you we're really saying is we need HR1 in its entirety and HR4. And the reason we need all of that on the HR1 side is that different representatives are going to have different issues that their constituents will really care about. And the one thing that's striking when you see the Koch brothers worrying about the fact that conservatives at the same level as non conservatives or progressives look at this system and say it's a corrupted system and we've got to end the influence of billionaires inside that system when they look at it and they say oh my gosh, we're screwed. Because if our base believes this too, then they've got a really important fight that's really important because there are many members of Congress in a principled way they should say voting rights is the thing I really care about. But their own constituents are not going to be as animated by voting rights because maybe they don't have an issue with voting rights and there's state, but they do have an issue with money in politics. I mean think of Iowa, which just had the second most expensive contested race for Senate and 75% of that money came from out of state. People in Iowa might not be so worried. They should be, but might not be so worried about voting rights. But they are extremely frustrated with this corrupted system for funding elections. And, and they could be brought along to the idea that we gotta pass HR1 to address the problem we think is really critical and then everybody could get the problem they think is really critical and have the majority necessary to pass It. What if they don't? I mean, Guy and Carol both, I'd love to see your sense of this. I mean, my brand is to be deeply pessimistic and dark. That's why it's a black background here. So I don't want to jinx it. But what happens if we fail here? What happens if we don't get these things passed?

So I think I'm relatively an optimist here because first you have to look at the progression of voting rights

and

how seriously we started taking political participation, including the question of money and politics, which you've done. Your work has done a great job of putting on the table. Professor Anderson's work has done a great job of putting the voting rights questions on the table. When you look at where we were at the dawn of this republic, the way that we thought about political participation and the way that we thought about racial equality, you look at where we were in 1965, and you look at where we were when we were talking and dealing with Watergate, you look at now the debate that we're having today. So maybe we fail today with getting these bills through and getting them enacted as law, but that also sets the stage for four years, five years down the road. So the Civil Rights act of 1957 set the stage for the Civil Rights act of 1964 and the Voting Rights act of 1965. Right. So even though the priority legislation were either watered down or some of them were filibustered, but they set the stage. And so it's not linear progression, Right? It's not sort of this whiggish history. However we are, by putting these questions on the table, by pushing for them hard now, by making the arguments about voting equality, by making the arguments about political participation, about the relationship between money and policy, and speaking to the American people who, whether they're in the north or in the south, whether they're white or black, whether the Republicans or Democrats, but who understand at the core that these questions are about them. We are moving the ball forward, even if it doesn't result in immediate legislative victory. Though I think we are as close as we have ever been. So I'm still optimistic on the short term goal, but even more optimistic on the long term goal.

Carol, what happens if we fail?

I foresee a really dark period for us because of the incredible fear of the increasing diversity of the United States. These states are responding to a massively diversifying electorate. And how do we maintain power in the hands of a few and keep that electorate away from the resources of this incredible nation of our states. I would see them doubling down on that again here in Georgia, where you would remove the power of the Secretary of State, who is a Republican, because he would not find 11,000, 590 votes that Trump needed to flip the Electoral College here in the state. But I think that, as Professor Charles has laid out, one of the things that happens in these dark moments is that the narratives are shifting and changing in this society about the power of the vote, about how precious American democracy is, the issue of American exceptionalism, and that, oh, it can't happen here. That has been deeply eroded over the past four years. And so folks are really thinking through the insurrection at the Capitol on January 6th that had people really thinking through, oh, this can happen here. And this means this is a democracy we have to fight for. And so I think that the narratives are changing enough and the mobilization is there that if, God forbid, this Congress cannot do what must be done, I see incredible, intensified mobilization to see to it that it will happen. That's what I see happening.

Yeah. I mean, I agree with the mobilization. I guess what I'm fearful of is what are the means if we fail this time to making that energy matter? Because if the 253 bills that are being considered in the states to effectively suppress the votes are not overridden by HR1, when. If the states have the power to partisan gerrymander after the 2020 census to increase the Republican presence in Congress, the New York Times says that they could win Congress simply by the changes through gerrymandering that will be affected by this redistricting. If states begin to adopt this, what we could call faithless legislature law, laws which basically say if we don't like what the voters do, then we can just overturn it, then we're going to face in 2023, a democracy where it's clear the minority is in power, even though the majority has gotten fewer votes, then what do we do? How do we fight back against that? Now, in other democracies, they'd go to courts, but our court has given up. It does not resist minoritarianism. In fact, it entrenches minoritarianism with money. And politics like the Citizens United and Buckley vs. Vallejo is all about powerful minorities get to exert their power through money, and there's nothing the Constitution says you allows you to do about that. So I really feel we're going to be in this position where this energy that you've described and you've helped motivate and we've all been in this fight for a long time is going to be present. But the opportunity to actually see a democracy that represents us will have been taken away. And where is the insurrection then?

This is why I think that it is absolutely essential that right now we put enormous pressure on the Senate to implement this because this is a dance we really don't want to have to do. This Senate has the ability to pass HR1. And to begin to think about, I'll just say it. If Joe Manchin really likes his power, Joe Manchin must not want the filibuster. Because if HR1 doesn't go through, Joe Manchin is not going to be in the majority in the Senate. So to even think about it in terms of vested self interest, HR1 is in this Senate's vested self interest. They must move on this. Our democracy requires it.

Yeah.

In fact, just one point though. I mean, I hear you, Professor Lessig, and I worry in the way that you're articulating, but there are also a couple things to think about. While we're seeing many states undermine and limit democracy, we're also seeing other states. If you look at what's happened in New York, if you look at what's happening in Virginia, so we're also seeing some of the things that HR1 does. It borrows from what many states have already done. Right. So we have, we have countervailing forces. Right. And it's also good to also point out some of the positives that are happening at the state level. The other thing that I found really interesting and Professor Anderson's state of Georgia, is that when you tell people, when one party tells people that the election is rigged and not to believe in democracy, people tend then to just stay home. And when your side stays home, you lose elections. Now you're gonna have to engage in even greater gerrymandering and vote rigging. But that also comes at a cost. And so I also think that part of there's a way in which a democracy fights back. Social scientists have had a hard time finding the effects of voter IDs in part because when you try to take we're trying to make it harder, especially for black communities to vote, people then redouble their efforts. They fight back. And so what we need to urge voters to do is not to be discouraged with the attempts to gerrymander the democracy, but to continue to fight back and to exact a political cost when folks are trying to undermine the right to vote and equal political participation with respect to money and politics. Because that political cost then may be the only way of making sure that people do the right thing. Instead of fighting on turnout, let's fight on policy. Happy to fight there, but let's not fight on turnout.

I completely agree with that. And we're going to fight no matter what. And if we don't get this passed, is that clear that HR1 on its own would take care of the money, the water issue in Georgia? I think they can still ban water, but if that is still in law, I'm going to be down there with you, Carol, handing out water to every single voter I can. I think we've got to get a million person march to Georgia to hand out water. Water just to show the ridiculousness of this kind of regulation. Let's unpack a little bit and I want to go a little bit over if we can just to 7, 10 and if there are more questions, please put them in. Adam is culling them. They've got a bunch of people pushing on understanding a little bit more the way the money in politics part works. And so HR1 has two interesting changes, both for presidential campaigns and also for congressional campaigns. For the first time in American history, congressional candidates could fund their campaigns using small dollar contributions because those contributions are matched 6 to 1. So if you get $100, the government gives you $600. It gets that money from fines and penalties imposed against lobbyists and corporations who violated the law. So it's not tax money, it's the fine money that's being used to do this. But that money then allows the $100 to turn into $700. And so as long as you agree to take no more than $1,000 from any individual, this gives you the ability to fund your campaigns with small contributions. That's going to make it easier for people who don't have large Rolodexes to fund their campaigns. Which means typically the people with large Rolodexes are people like me, lawyers, white lawyers at law firms who have lived. Lots of people we can call. But if you're blue collar or if you're a woman who's not worked in the professional fields, this is not easy for you. A person of color, this is not easy for you. This would change that fundamentally. There's another part of it though that's been more controversial. I've been beaten up because I've tried to defend this, and that's the presidential public funding system. So this is changing the presidential public funding system and it's basically replacing the existing system which gives candidates a run for president if they opt into it matching funds during the primary and then in the general election they get a certain amount of money, depending on whether it's a majority party or a minority party. And then allocation is a function of what happened in the last election. This system replaces that and it increases the amount of money you're going to have to raise. Instead of raising $5,000 in 20 states, you're going to have to raise $25,000 in 20 states to qualify. So people from the Green Party have been very frustrated that this would make it harder for them to compete. And people in the Green Party are frustrated with the whole idea of matching funds because they think matching funds might exacerbate the difference in funding for any particular candidate. So I wonder when you hear that, whether you think that's a reason to resist what we're doing in HR1 or whether you think these concerns on balance are overcome by what you think is the good in HR1. I didn't pick somebody to answer that question because I didn't tee it up to you before. But is there Carol or Guy? Do you have a sense of that?

Well, it just. It's what I hear, what I'm. It seems to me that being able to raise $25,000 in the state is an adequate threshold. And I know we've got to get the dark money out of presidential elections, out of our elections, period. Because of the damage that this dark money has done. That Citizens United decision saying that this was violating big donor corporations right to free speech. Just angry.

Okay, I got it.

Yeah, this is me. Not angry. Is just. It has done damage. It is why we don't have policies, good policies on climate change. It's why we don't have really good policies on semi automatic weapons. It's why we don't have really good policies, period. It's because of this dark money driving it. And the whole of HR1 is so solid and so good that to start trying to move it around like a Jenga and to have the doggone thing collapse is I find untenable given what we're up against, given what the stakes are.

So I agree. What I would say to my sisters and brothers who are concerned about third party rights are that we are at a stage, state and American. The closer that we get to thinking about political equality, the closer that we get to thinking about the rights of individuals and the role of money in politics, the closer we also get to thinking about addressing the party's duopoly and that if we don't make progress on the questions that are raised on HR1. We're also not going to make progress on these other questions. So we're finally talking about ranked choice for just think about where we are in American politics today that we're actually taking seriously and talking about things like ranked choice voting. Part of it is the function of the fact that we're taking very seriously rights of political participation. We're trying to represent more broadly the full political spectrum instead of the middle of the political spectrum. Right. We're taking very seriously majoritarianism as well as rights of minorities. And so if we don't make progress on those, then we're also not going to make progress on that other front. And so we have to think much more holistically about where it is that we're going and how to advance the ball, sometimes incrementally, but advancing the ball because that will take. I will also take care of making sure that the full political spectrum is represented. Because the way that our American society are addressed, there are other types of fundamental changes that we will need to make. Right. Sort of think about single member districting as an example. Right. If we want to fully represent the full political spectrum and not just the duopoly and particularly the middle of the political spectrum.

Critical point. I mean, you know, HR1 is incredibly important. It's got to be passed. But it's not like we're all going to be out of a job. I mean, there's a whole bunch of other things we're going to have to start talking about after we get this one. And I deeply support the importance of third parties or more parties. I think that's one really important balance to the kind of duopoly, the polarized political party we've got right now. So I think we've got to solve that problem. But we got to solve it. We've got to solve it after we've solved this really fundamental problem. Sometimes people talk about this issue. We saw this question really nicely put. Sometimes people talk about this issue, HR1, as involving civil rights, but then also involving money in politics and involving gerrymandering reform. Do you think money in politics and gerrymandering reform are civil rights too? Or do you think that there's some better rights here to worry about and some lesser rights to worry about?

Carol, I think that this is about the rights of American democracy to actually thrive. That's what HR1 is really about. That's the right that we're fighting for here. And the ways then looking at the ways that a thriving democracy has been systematically undermined is what HR1 is going after. So the power of having independent redistricting commissions so that you don't get these crazy maps that provide outsized power to those where you don't get one person, one vote. That landmark decision in 1962, I believe it was in the Baker decision, where you don't have. States trying to figure out how do we limit access to the ballot box by cutting early voting when you know, you've got a working class population that can't get off on that Tuesday and get there from where they work to where they have to live by 5 o'. Clock. So by having this bill that is going after all of the ways that American democracy has been undermined and the ways that we can strengthen it, that's the right that we're talking about here.

Is it all a civil right?

Yeah. I mean, I can undermine your right to vote by denying it, by diluting it, by suppressing it and by overpowering it. That is, I can say you don't get to vote. Well, you do get to vote, but I'm going to gerrymander and make sure that you don't get much of a voice. Well, all right, fine, I'm not going to gerrymander it, but I'm going to send bad information. So that way you don't really are not motivated to come. Oh, sure you get to come, but you know who's going to write the laws? All of those rich people are going to write the laws. And when they write the laws, guess whose interests they're going to take into account? Not the things that you want. Right. So yeah, you have a right to vote. Right. You can vote, but you don't get any of the, of your public policy preferences or you get very little of them. Right. So the things that you actually really care about, the civil rights questions or the issues that you care about, none of those will be represented in the political process. So if that's the system that we have, then making distinctions among them. Right. Making distinctions among vote denial. Right. Those are academic distinctions. But for the voter, what that person actually cares about, the reason why they show up at the polls is they want the types of public policy that they support. And if they don't get that, then really what's the point? Right. So as academics, we care about vote denial, we care about vote suppression, we care about vote dilution, we care about all of those things. But for the democracy, what matters is who gets what.

Really well put, really well put.

In the 2017 senatorial runoff election in Alabama. Alabama had deployed every method of voter suppression against that black population. And what the grassroots organizers did was to work through every one of those hurdles and talking with the people about what they wanted for their lives and the way that public policy would affect what they wanted was for their lives. That's what is the lifeblood of American democracy. And when we have stuff out there messing up that lifeblood, then we've got

to fix it and fight for it. I mean, that's really the inspirational message here, right? That people see it, even Republicans see it, at least voters. And if we can find a way to inspire them to force the Senate to do something about it, will actually have achieved it. Something that when I got into this fight 15 years ago, I never would have imagined we would have something like HR1 on the table that we were within shot of achieving. It's an extraordinary moment. So as a closing, I'd love you to give like one or two minutes that says, what should people be doing now? What could they do to make sure that we succeed in this? The most important next step that democracy

should take, Carol, I believe it is talking with our friends and our families about the importance of HR1 and then calling and writing our senators, writing op eds, getting the word out about how essential this is, changing the power of the narrative to compel this to be passed, this incredible legislation to be passed.

I can't improve upon that. I can only ditto what Professor Anderson has said.

I'm sure you could. But I appreciate that you have a sense of our time. But I am so grateful to both of you for joining us and grateful again to the co sponsors that made this possible, that brought so many people here again. You can Sign up at EqualCitizens US to get the substack that will keep you up to date on everything that's happening to get this passed. And I'm really, really hopeful that we will have a chance to celebrate in person when this does pass. And we've solved the Corona, the COVID crisis as well. But thank you so much, Guy and Carol, for joining us tonight. Thank you everybody for your questions and participating and. And let's move to passing S1 and getting Joe Biden to sign. Thank you and good night, everybody.

Thank you.

This is Larry Lessig. Thank you so much for tuning in

in the podcast way 1, 2, 10 to this episode of Another Way. We'll continue next week with more, more depth, I want on the question of how we make this democracy work better. The issue I want to talk about with a friend and someone who is a hero to many, and certainly to me, Jimmy Wales, the founder of Wikipedia. The issue I want to talk about is how can a media organization position itself to be able to provide information that all of us can rely on and trust? Now, you might ask, why does the founder of Wikipedia have anything to say about that? And the reason is, as you'll understand as we unpack the story of Wikipedia, that Wikipedia itself at its birth, needed to struggle with this question directly. How could it craft an information source that people would come to view as not partisan or biased, but as doing the best it can to report information in a way that makes it accessible and universally available? And what I think we haven't had this conversation yet, but what I think is that at the end of that conversation, we'll begin to have a sense of what's wrong with our media right now, and if not, a clear way to get to a media we could trust again, at least a clear sense of just what's at stake. So that's a lot to promise, especially since I haven't had this conversation with Jimmy yet. But stay tuned for the next episode of this podcast. Another way. These podcasts are produced, as you've heard, by Equal Citizens. You can find us on the web at EqualCitizens US and this podcast at Equal Citizens US. Anotherway, you can find a box there, a form there to give us your feedback and your ideas. This idea of talking about the media has been pushed to me in my email inbox, not directly from that form, by a number of people. And so that's why I want to take take this turn. These podcasts are also available everywhere podcasts are available. We're not yet great enough to be exclusive with anyone, though. If you got an idea for, you know, tons of money for the reform movement, we'd be happy to hear it. Not really. Okay. But that's just, you know, sad effort at a joke.

I'm sorry.

Okay. This is Larry Lessig. Thanks for listening. Stay tuned for the next episode.