A Court Ruling Poses A New Threat To The Voting Rights Act's Protections
DANA: Hi. This is Dana (ph) from Severna Park, Md., and I am currently attaching my daughter's new badges to her Daisy uniform. This podcast was recorded at...
TAMARA KEITH, HOST:
2:39 p.m. Eastern time on Monday, November 27.
DANA: Things may have changed by the time you hear it, but I will still be grateful that I do not have to iron or sew these things on, like my mom had to do for my uniform. Enjoy the show.
(SOUNDBITE OF THE BIG TOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
KEITH: Wait. Is it just, like, a sticker now?
ASHLEY LOPEZ, BYLINE: Yeah. I think you just get an iron, right? And it, like, gets gluey.
KEITH: Yeah, but she said she didn't have to iron or sew.
LOPEZ: Oh.
KEITH: Wow. Were either of you scouts?
LOPEZ: No.
HANSI LO WANG, BYLINE: I was not.
KEITH: Oh. Well, then there's nothing to reminisce with you about.
LOPEZ: No.
KEITH: Hey there. It's the NPR POLITICS PODCAST. I'm Tamara Keith. I cover the White House.
WANG: I'm Hansi Lo Wang. I cover voting.
LOPEZ: And I'm Ashley Lopez. I cover politics.
KEITH: And today we are talking about recent developments in the world of voting - how people vote, how hard or easy it is to vote and how it's determined what districts they're voting in. And I want to start with a federal appeals court ruling that could further limit the reach of the Voting Rights Act. That's the landmark Civil Rights-era law that prohibits race-based discrimination in voting practices. Hansi, tell us about this ruling. What exactly did this decision say?
WANG: So this is a decision by a three-judge panel of the 8th U.S. Circuit Court of Appeals. And it basically says private individuals and groups - like civil rights organizations, for example - they do not have the right to file lawsuits to try to get Section 2 of the Voting Rights Act enforced. And this is a key remaining section of the Voting Rights Act after a decade of Supreme Court rulings that have really weakened the pillars of the Voting Rights Act. And...
KEITH: What is Section 2? What is now being limited?
WANG: Section 2 is a key section that has been used in a lot of redistricting cases to ensure that the voting power - the collective voting power of voters of color - is not diluted when maps are redrawn, that communities of color have an opportunity - an equal opportunity - to elect candidates of their choice, for example. And it's also used to ensure that state - voting - in election laws and rules also do not hinder the collective voting power of voters of color. And this - there's been two main ways of enforcing Section 2 - either the federal government, through the U.S. attorney general, files a lawsuit and sues on behalf of the U.S. government or private individuals and groups sue. And the majority of cases that we've seen have been brought by private individuals and groups.
But what this panel has done is agreed with this lower federal court judge and say that because the actual words of Section 2 of the Voting Rights Act do not explicitly say that private individuals can bring lawsuits, then therefore they cannot. But this is a really novel legal argument because no judges have used it before to dismiss voting rights cases in the past. Back in 1982, when Congress amended the Voting Rights Act, there were reports from House and Senate committees that said there was a right for individuals to sue under Section 2. And so this is really new legal territory we're heading towards.
KEITH: Certainly, this could be appealed to the full 8th Circuit eventually, potentially to the U.S. Supreme Court, though that hasn't happened yet. So what is the impact of this ruling now, and what would it be if it were to continue to stand?
WANG: Well, we're already starting to see some potential ripple effects here, because this ruling by the 8th Circuit panel only affects the 8th Circuit - so just the states in that 8th Circuit. And one of those states, North Dakota - the secretary of state, Michael Howe, a Republican, has signaled that the city is planning to appeal a Section 2 case that a federal judge recently ruled in favor of the groups - the private individuals and groups that brought it. There was two tribal nations - the Turtle Mountain Band of Chippewa Indians and the Spirit Lake tribe - and individual Native voters sued. They allege that the collective voting strength of Native American voters in North Dakota was diluted by the way the state legislative maps were drawn. And now maybe this case could get thrown out because it was brought by private individuals and groups. If the state of North Dakota tries to appeal this ruling - and that could just be the beginning of this unraveling.
You know, legal scholars and voting rights advocates I've talked to have seen this case - this - the original case where this panel ruling is coming from. It's kind of like pulling a piece of yarn, pulling a string, and really a potential unraveling of the remainder of the Voting Rights Act. Because without this private right of action - that's the legal term that's used in these cases - without that private right of action, this becomes, in a lot of ways, really a toothless law.
LOPEZ: You know, it's important to note that right now, the legal landscape for voting rights advocates has been tough. And it's been tough for years now. I mean, just to remind our listeners, during the Trump administration, the courts got way more conservative, especially in some of these already fairly conservative appeals courts. And I will say, in the places where voting rights groups have prevailed, it's made a big difference, especially when it comes to redistricting. A lot of people, a lot of experts, credited the very competitive nature of congressional elections this last year to the fact that in some places, voting rights groups did prevail in redistricting cases. And a lot of those lawsuits were brought by groups like the ACLU.
KEITH: And I want to get to some of those redistricting cases. We are seeing fights over minority representation in legislative maps play out in state after state, from Louisiana to Alabama to South Carolina. And, Hansi, in Georgia, lawmakers are holding a special session to redraw their districts this week. So can you tie all these things together for us?
WANG: Right. So in Georgia, state lawmakers are getting ready to start meeting this Wednesday for a special session. They're meeting to try to come up with new congressional and state legislative maps. And the reason for that is because a federal court ruled that the state's current maps dilute the collective voting power of Black voters in that state. And so now the lawmakers are under a court order to come up with maps that get in line with Section 2 of the Voting Rights Act. And what's interesting is that this case was brought by private individuals and groups, which, as we were just talking about - this has now come into question - whether or not private individuals and groups can bring lawsuits to try and enforce Section 2.
KEITH: Yeah. And I think there's a couple of important pieces of context to add to that. Right now this appeals court ruling is only in the Eighth Circuit. So the only states currently affected by that decision we were talking about earlier are states that are in the Eighth Circuit Court of Appeals. So it's not nationwide, though, of course, if the Supreme Court were to take it up and side against private lawsuits, then it would be a nationwide policy.
LOPEZ: I think it's important context also to remember that, you know, just 10 years ago, the Supreme Court got rid of another big piece of the Voting Rights Act. And justices - when they did that, they said, well, you have this other part of the law, Section 2. It was held up as being, like, the main way in which we're ensuring that voting rights remain intact for mostly communities of color. So the fact that this is even in question now - it's like the slow erosion of one of the main ways that communities of color have been able to protect their voting rights in the United States.
KEITH: All right. Well, we are going to take a quick break. When we get back, more on voting.
And we're back. And we were just talking about voting rights. Now we are going to talk about the actual ballots that people use to cast their votes. Ashley, you've been reporting on a county that ran out of ballots during its last election cycle, which is a crazy thing to think about.
LOPEZ: Yeah.
KEITH: But how did that happen, and how often does that happen?
LOPEZ: Yeah. So a couple weeks ago - well, I guess earlier this month, Hinds County in Mississippi, which is the most populous county in the state - where Jackson is, Hinds County - and also a predominantly Black county, ran out of ballots during a very competitive gubernatorial election. And I will say we don't know everything about what happened yet. There's obviously going to be a lot of investigations. But what the local election official said there to local media was that she admitted she did not follow state law and pre-print ballots for 75% of the county's registered voter population, which is what's required by state law. And she mostly chalked this up to budgetary things. Like, she said that if she would have followed the law, it would have cost the county thousands in unused ballots.
And, you know, I will say it's not like this never happens. But it is pretty rare for ballot shortages to happen in U.S. elections. We have a couple of notable examples of this. I think earlier this month as well, Ohio had this issue. And last year in November, Houston - you know, the Houston area, Harris County in Texas, had a pretty notable example of this. But overall, it's a pretty rare thing.
KEITH: Well, and those happen to be populous counties that...
LOPEZ: Yeah.
KEITH: ...Have large voting populations with people of color.
LOPEZ: Yep. Yeah. You know, a lot of this - the reason why, like, it doesn't happen often is because for the most part, this is, like, the nuts and bolts of elections. And election administrators do a lot to make sure that this doesn't happen. It's a lot of, like, art and science, right? Like, they will sort of, like, see how many calls they're getting in to make sure - like, to see if, like, people in their county know what's going on and know when elections coming. They'll look at yard signs. They'll just try to mostly get the vibes before an election. But then also just look at...
KEITH: That does not sound like science. That sounds like art.
LOPEZ: That's the sort of art part, right? And the science part looks like what - like, let's look at the past like election, right? So what's the last, like, little municipal election, if that's what you're preparing for. So it's sort of a mix of things. But you really can't anticipate what an election is going to look like 100%. And yet that is sort of the task ahead for election officials, which - it's just, you know, one of the many things that we kind of, like, take for granted in the work of, like, how people administer elections.
WANG: So, Ashley, what happens if you show up to your polling place and there's no ballot?
LOPEZ: Well, I guess it mostly depends when you're showing up, right? So if you're voting during early voting, which a lot of states have - Mississippi does not - you have other opportunities to come by. Or you could just wait. You know, in the case of Mississippi, like, there were people waiting in line for hours for, you know, additional ballots to get sent to them because mostly it's just like sort of shifting of resources that are available to them. And that takes a lot of time. But if you're a voter who, one, gets there on Election Day because either you don't have early voting available to you or you just didn't make it until Election Day, you kind of either have to wait or just leave and not vote. There's really not much else you can do, and that's why it's a really serious situation that election administrators try to plan as closely and carefully as they can before the day comes.
KEITH: I feel like the you had one job...
LOPEZ: Yeah, yeah.
KEITH: ...Meme comes to mind here. Hansi, you've got some reporting about mail-in ballots in the very important swing state of Pennsylvania. What's up there?
WANG: So, Pennsylvania - the big question is what to do about these mail-in ballots that arrive on time but without handwritten dates on the envelopes that they come in. And last week a federal judge ruled that those types of ballots - they're often called, quote-unquote, "undated ballots" - that those ballots should be counted for last year's midterm elections and presumably for future elections as well. But this ruling is expected to be appealed and ultimately could come up before the Supreme Court. So we'll see. But this is the latest twist in a long, long running legal saga that could determine who wins next year's elections in Pennsylvania because state law requires mail-in ballots to be sent in envelopes that include a date handwritten by voters, but those dates are not used to verify whether a person is qualified to vote.
And this judge ruled that not counting those kinds of ballots violates the Civil Rights Act because that federal law says a person's right to vote cannot be denied for an error that is, quote, "not material" in determining if a person is eligible to vote. But if this heads to the Supreme Court, which it likely will, we have some indications that Supreme Court Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, they're not convinced that disqualifying ballots for missing handwritten dates violates the Civil Rights Act. So we'll see where this case ends up. And because registered Democrats have been outpacing Republicans in voting by mail in recent elections in Pennsylvania, and much of the rest of the country, this could have big implication on, is Pennsylvania going to be a red or blue state?
KEITH: At the risk of asking a question that doesn't have a good answer, given that this has been a fight - I - it was clearly a fight in 2020. It was a - it's a fight with the midterms. Like, this is an area of ambiguity and a challenge with the law. Why not just change the law to end the ambiguity?
WANG: That's a really good question, Tam, that has come up before. And the big question is, can the state legislature agree? Can a majority agree? And it's been a lot of Republican, Democratic back and forth and - in terms of figuring out how to pass election reforms. And this is one of the big questions. If indeed this is in violation of the Civil Rights Act, to disqualify mail-in ballots that just don't have this handwritten date, then why not change the law? That's - a lot of people have been asking that.
KEITH: Well, add me to the pile. Just as we close today, in some ways, it is easier to vote than ever before. There's mail voting. There are dropboxes. There's early voting. The COVID pandemic really expanded the way people think about voting, and some of those changes have stayed in place. But also, there continue to be huge fights about how easy it should be to vote and who it should be easy for. And it just seems like these fights are not going away or slowing down. They may even be speeding up. And we will certainly be watching how all of these questions play out and more. We're going to leave it there for today, though. I'm Tamara Keith. I cover the White House.
WANG: I'm Hansi Lo Wang. I cover voting.
LOPEZ: And I'm Ashley Lopez. I cover politics.
KEITH: And thank you for listening to the NPR POLITICS PODCAST.
(SOUNDBITE OF THE BIG TOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
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