TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. Who will have the right to vote in the presidential election next year? Will you be required to have a government photo ID? Will there be early voting? Will you be able to vote if your job doesn't enable you to take time on Election Day and wait on a long line? Last week marked the 50th anniversary of the Voting Rights Act, which outlawed restrictions intended to prevent African-Americans from voting. But many states have recently added restrictions that critics say are more subtle ways of discriminating against people of color, as well as poor people and young people. My guest, Ari Berman, has written a book about the history of voting rights since the passage of the Voting Rights Act. It's called "Give Us The Ballot." Berman is a political correspondent for The Nation and a fellow at the Nation Institute.
Ari Berman, welcome to FRESH AIR. What did the Voting Rights Act mandate?
ARI BERMAN: Well, thank you for having me, Terry. The Voting Rights Act mandated a few very important things. The first thing it did is it knocked down the suppressive measures that had prevented African-Americans from voting in the South for decades. So it abolished literacy tests. It authorized the attorney general to file suits abolishing the poll tax. And then, it enforced those measures. First, it enforced those measures by sending federal registrars to the South to register voters in the South's most segregated areas, places like Selma, Ala., which was a revolutionary change. You had a situation where in Selma, for example, 2 percent of African-Americans were registered to vote at the time of the passage of the Voting Rights Act. And just days after the act was passed, hundreds and then thousands of African-Americans were able to register to vote because of the presence of the federal government. It also sent federal officials to the South to monitor elections, to make sure that once new voters were registered elections weren't stolen. And then over a longer term period, it forced those states with the longest histories of voting discrimination, the places where literacy tests and poll taxes had been used most often to disenfranchise voters, to have to approve their voting changes with the federal government to prevent discrimination from happening in the future.
GROSS: And that part of the law, where states had to get their new voting regulations and laws approved by the federal government, that part of the law, Section 5, was recently thrown out.
BERMAN: That part of the law was rendered inoperative by the Supreme Court in the 2013 decision Shelby County versus Holder. Now, what that decision did is it didn't strike down the requirement that states have to approve their voting changes. It struck down the formula that determined which states had to approve their voting changes. So basically it turned Section 5 of the law, which was the preclearance provision, into a zombie. It still theoretically exists, but there's no states covered under the act. So the states of the old Confederacy and some other states that were subject to that provision, they no longer have to approve their voting changes with the federal government as a result of the Shelby County decision.
GROSS: So the states that were covered by Section 5 had to get all new voting changes approved by the Department of Justice, and there were a lot of new voting changes that came up after the VRA was passed. And the Department of Justice, I think, was, like, overwhelmed by all these proposed voting changes that they had to approve or disapprove. Was part of that intentional? Were part of the new voting changes that were sent to the DOJ an attempt to kind of jam up the works?
BERMAN: Well, you have to remember, this was such a massive undertaking by the federal government. You had a situation where the 15th Amendment was passed in 1870 and then it was ignored for essentially almost 95 years until the Voting Rights Act was passed in 1965. And so the Justice Department had this incredible mandate, first to be able to register voters in the South, which they did through the help of other government agencies, but DOJ was still responsible for that effort. And sending federal officials into places like Selma, Ala., was a very daunting undertaking. Then after doing that, they had to make sure that elections weren't stolen. That was the second thing they had to watch out for. And then, as you mentioned, they had to have this remarkable undertaking to look at all these different voting changes that were passed. And I think states like Mississippi and other Southern states just thought that the DOJ wouldn't be able to keep up with them. But the Voting Rights Act was passed in such a way and the Section 5 was put in the act precisely so the federal government could catch up with the states so they wouldn't be able to discriminate after the act was passed.
GROSS: Yeah, well, when the Voting Rights Act was given a broad interpretation by the Supreme Court in 1969, what did it cover beyond the right to register to vote?
BERMAN: Well, what Earl Warren said - the Chief Justice - said in that decision was that the right to vote governs everything that relates to making a vote effective. So it wasn't just about access the ballot box. It was about the power of that vote. And what Congress realized after it passed the Voting Rights Act was that after all these voters had been registered, after literacy tests and poll tax had been done away with, that the next fight was going to be over representation. I'll just give you one example.
BERMAN: In 1966, Mississippi passed 13 voting changes that were aimed at diluting the influence of the African-American vote. And what Mississippi did is they did things, like, they would gerrymander political districts so that African-Americans couldn't be elected. They would consolidate smaller, black counties with larger, white counties so the white majority would have a say. They would elect candidates from multiple districts where there was a white majority, so even if you had, for example, 40 percent African-Americans in that area, the white majority would be able to control every seat if they just voted for white candidates. That was known as at-large or countywide elections. And so all these things were done to try to dilute the influence of the minority vote. And Mississippi really set a precedent for all these Southern states to start doing these kind of things, to changing their electoral laws to make it harder for African-Americans and other minority candidates to be elected after the passage of the Voting Rights Act.
GROSS: So after the Voting Rights Act passes, after it's upheld by the Supreme Court and even broadened by the Supreme Court and many more African-Americans are voting, more African-Americans are getting elected. Then you have this kind of backlash, and paradoxically, the Voting Rights Act and the new enfranchisement of African-Americans gets turned into part of a Republican strategy to gain more votes in the South for their party. How does that happen?
BERMAN: After the Voting Rights Act was passed, because Lyndon Johnson was so instrumental in passing it, black voters identified in greater numbers with the Democratic Party. And Republicans sensed an opportunity. They knew in the South, as more black voters flocked to the Democratic Party, more white voters would flock to the Republican Party. And so you saw, for example, in 1968 when Richard Nixon runs for president, he allies with white, Southern conservatives - people like Strom Thurmond of South Carolina - so that he can win this emerging white backlash vote. And one of his chief strategists, a young wunderkind by the name of Kevin Phillips, basically tells Nixon, hey, you should enforce the VRA because this is going to drive more black voters to the Democratic Party, which will be good for Republicans because we can win this larger and increasingly influential white backlash vote. So the VRA definitely has some unintended consequences. It does enfranchise a huge segment of African-Americans and new voters. But it also pushes conservative, white voters increasingly into the arms of the Republican Party.
GROSS: If you're just joining us, my guest is Ari Berman. And we're talking about his new book "Give Us The Ballot: The Modern Struggle For Voting Rights In America." And it's about voting changes that have happened after the 1965 Voting Rights Act.
So President Nixon kind of helps establish the Southern strategy to shift the white vote from Democrat to Republican in the South, and part of that is a backlash against the Voting Rights Act. When President Reagan is elected into office in 1980, you describe Reagan as remaking the Justice Department. How did that change the enforcement of the Voting Rights Act and the interpretation of the Voting Rights Act?
BERMAN: The Reagan administration was such a radical change in terms of its interpretation, not just of the Voting Rights Act, but of civil rights laws more broadly. Reagan was someone who was a Goldwater Republican when it came to civil rights. He did not believe that the federal government had a strong role to play in enforcing civil rights laws. He kicked off his campaign for president in Neshoba County, Miss., where three civil rights workers - Goodman, Cheney and Schwerner - had been murdered in 1964 at the beginning of the Mississippi Freedom Summer. Reagan talked very famously about states' rights in that speech. And he sent a signal that, after years of enforcement of the VRA and of the civil rights laws of the '60s, that his administration was going to be different.
And what the Reagan administration did was they embraced this notion of colorblindness. And Reagan's head of the Department of Justice Civil Rights Division, which enforced the VRA - a man by the name of William Bradford Reynolds - he came in with a very different view than the previous heads of the Civil Rights Division. Reynolds essentially argued that the remedies for discrimination - things like drawing districts so that minority candidates could be elected, affirmative action, bussing quotas - that these remedies for discrimination were as bad as the original problem of discrimination.
And so Reynolds came in and said that government-sponsored discrimination - what he called government-sponsored discrimination - had created a racial spoil system in America that was essentially prioritizing African-Americans and other minority groups over whites. This was a radical change from how the Civil Rights Division had worked previously. The Civil Rights Division's mandate was to enforce the civil rights laws of the 1960s. And here you had a new administration that was hostile to these laws and essentially arguing that the laws were doing more harm than good, that they had become part of the problem as opposed to the solution of the problem.
And so this was the beginning, really, of the counterrevolution against civil rights. As you mentioned earlier, Nixon had adopted a Southern strategy, but it was really under Reagan that the intellectual case against the Voting Rights Act was made in conservative legal circles.
GROSS: Colorblindness - that sounds very nondiscriminatory. You don't want to discriminate on the grounds of color. So - but you're saying that the expression colorblindness as opposed to the Voting Rights Act during the Reagan administration meant you can't do any redistricting that makes it easier for African-Americans to get elected because that's kind of like - affirmative action, I think, is what they'd compare it to. It's kind of favoritism. But did that mean that you couldn't redistrict in such a way that would favor white people?
BERMAN: Well, it's interesting the rebranding of colorblindness because after the passage of the Voting Rights Act and similar civil rights laws, there was a critique that emerged in conservative circles that it basically said that laws that were meant to end racial distinctions like the Voting Rights Act created new racial distinction. And as you mentioned, what's interesting about it is that the Reagan administration has problems with drawing districts that allow African-Americans and other minorities to be elected. But they don't have any problem with Southern states preserving majority white districts that prevent African-Americans and Hispanics from being elected.
So in a lot of ways, it's a hypocritical argument because someone is always going to be the winner when you're drawing these districts. And the question is who is going to be the winner. And what the Civil Rights Division was trying to do prior to the Reagan administration and what civil rights were trying to do is they were trying to get some level of representation for African-Americans and other minority voters that had been totally shut out of the electoral process. They were trying to get, as one civil rights lawyer told me, from none to some. Just get some basic level of representation. What the Reagan administration was saying was that new ways of representation - new forms of representation - were going to lead to things like quotas, like affirmative action in the electoral sphere. And so they were very weary of drawing districts to benefit minority voters.
GROSS: If you're just joining us, my guest is Ari Berman. He's the author of the new book "Give Us The Ballot: The Modern Struggle For Voting Rights In America." And it's about all the voting changes that have happened since the passage of the 1965 Voting Rights Act. Let's take a short break here. Then we'll talk some more. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: This is FRESH AIR. And if you're just joining us, my guest is Ari Berman. He's a contributing writer for The Nation and a fellow at The Nation Institute. His new book is called "Give Us The Ballot: The Modern Struggle For Voting Rights In America," and it's about all the voting changes that have happened since passage of the 1965 Voting Rights Act. It's also about the Voting Rights Act and what led to that.
So we were talking about the Reagan White House. The Reagan White House helped lead a counter-revolution, as you describe it, against the Voting Rights Act by having a much more limited conservative reading of it. And working in the Reagan Department of Justice was John Roberts, who is now, of course, the chief justice of the Supreme Court. And what was his role in the Department of Justice regarding the Voting Rights Act?
BERMAN: He played a very influential role in trying to limit the power of the Voting Rights Act. And if I can just, for a second, give some context to the environment that Roberts entered into. Roberts, before he joined the Reagan Justice Department, clerked for Justice Rehnquist, who was appointed by Richard Nixon and really was the most conservative member of the Supreme Court at the time of his appointment, particularly on issues of civil rights. Rehnquist was an old-school states' rights conservative. He didn't believe that the federal government had a strong role to play when it came to civil rights laws. He, as a law clerk in the 1950s, believed that Brown v. Board of Education was unconstitutional.
He had repeatedly tried to weaken the VRA once he was appointed to the bench. And so Roberts arrives in Rehnquist's chambers in the early 1980s at the time when Rehnquist is really the Federalist Society before there is a Federalist Society. He is the center of an emerging conservative legal movement that is very skeptical of the Voting Rights Act and the civil rights laws of the 1960s. And after clerking for Rehnquist, John Roberts goes and works for the Reagan Justice Department in the early 1980s. And at the same time, the Supreme Court had ruled in a case from Mobile called Mobile v. Bolden that you had to prove intentional discrimination to challenge a voting change under another section of the Voting Rights Act, Section 2, which applied nationwide.
And, essentially, in Mobile, you had a situation where African-Americans had no representation even though they comprised a third of the city's population because elections were done on a countywide basis. So for the city council, for the school board, everything was elected citywide, which meant the white majority in Mobile could elect all the candidates. Civil rights activists challenged that electoral system. And what the Supreme Court said is basically that you have to show proof of intentional discrimination to strike down these kind of at-large elections even if they discriminate against minority voters, and that was very difficult to do. Intentional discrimination is very, very difficult to prove, as any civil rights lawyer will tell you.
GROSS: So John Roberts was actually brought into lead that effort on Section 2?
BERMAN: Roberts was really leading this effort. He was supplying the intellectual ammunition for the Reagan administration in its fight to weaken the Voting Rights Act.
GROSS: And so one of the cases that he was making - correct me if I'm wrong here - is that to overrule a law, the Department of Justice would have to prove that there was intentional discrimination, not just that it resulted in discrimination.
BERMAN: That's what Roberts was arguing. And he was basically saying that proving the effects of discrimination would be too easy and that would lead to a quota system for minority-elected officials, that it would be another form of affirmative action in the electoral sphere. That was the main argument he was making and one that he made repeatedly and relentlessly.
GROSS: How successful was he?
BERMAN: He wasn't successful then. The Congress overruled the Supreme Court, and they overruled the Reagan administration. There was a very strong bipartisan consensus in Congress for the Voting Rights Act. That's why the Voting Rights Act was reauthorized four times by the Congress. And what happened is liberal Democrats, like Ted Kennedy, joined forces with moderate Republicans, like Bob Dole, the senator from Kansas, to say that the Voting Rights Act was, number one, going to be reauthorized for 25 years, which was the longest reauthorization to date for the law, and that Section 2 of the VRA was going to be amended so that you had to just prove the effects of discrimination, not the intent of discrimination.
They added a disclaimer that a lack of minority representation should not equal proportional representation. So they addressed as some of the Reagan administration's fears of the Voting Rights Act leading to racial quotas, for example. But the civil rights activists won a huge victory in 1982 when the Congress defeated the Reagan administration's efforts to try to weaken the Voting Rights Act.
GROSS: It's interesting that as chief justice, John Roberts wrote the majority opinion that functionally ended Section 5 of the Voting Rights Act. Can you talk a little bit about his opinion on that?
BERMAN: Yes, so the fight that John Roberts lost in 1982 when Congress reauthorized the Voting Rights Act, he won in 2013 when he was able to write the majority decision, striking down or rendering inoperative Section 5 of the Voting Rights Act. And, essentially, what he said in his majority decision in Shelby County v. Holder, which rendered Section 5 of the VRA inoperative, was that the country had changed dramatically since 1965, but the Voting Rights Act had not. That history had changed since 1965, but that the Voting Rights Act continued to treat the country as if there were the same source of problems with discrimination in 1965 that there were in 2013. And so, in his view, the VRA was outdated and antiquated and Congress had to draw a new formula if it wanted states to approve their voting changes with the federal government.
GROSS: My guest is Ari Berman, author of "Give Us The Ballot: The Modern Struggle For Voting Rights In America." We'll talk about challenges to current voting restrictions after we take a short break. I'm Terry Gross, and this is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: This is FRESH AIR. I'm Terry Gross back with Ari Berman, author of the new book "Give Us The Ballot." It's about the struggle for voting rights in the years since the passage of the 1965 Voting Rights Act. Berman is a political correspondent for The Nation and a fellow at The Nation Institute.
So let's talk for a minute about Bush v. Gore, the contested election in 2000 and the Supreme Court decision that basically ended the recount in Florida, giving the election to George W. Bush. Was the Voting Rights Act cited in that decision or used in the arguments?
BERMAN: No, it wasn't. Perhaps there was a footnote somewhere in the decision about the Voting Rights Act, but the Voting Rights Act was not the subject of Bush v. Gore. It's very interesting that the U.S. Civil Rights Commission did a major investigation into the Florida 2000 election and found that the election there did violate the Voting Rights Act because African-Americans were disproportionately prevented from voting. But that was not what came before the Supreme Court in Bush v. Gore, and that was not a topic that the Bush administration was eager to embrace after being elected to office. And this is a real low point for voting rights and a real turning point for voting rights, and if I could just give a little bit of context to what led to Bush v. Gore.
There was massive voter purge in Florida in the late '90s and early 2000s. There had been a disputed mayoral election in Miami. There had been evidence of absentee ballot fraud and dead voters casting ballots. And what happened was that the state mandated a purge of the voting rolls to make sure that no felons were voting. Florida's one of those states that didn't allow felons to vote after they had served their time. So there was this massive voting purge, and it actually had, number one, a lot of errors. The second problem with the list was that it was discriminatory against African-Americans because African-Americans comprised only 11 percent of Florida's electorate, but they were 44 percent of the purge list. So on Election Day, when voters in Florida in 2000 started showing up at the polls and were told that they weren't on the voting rolls or they were felons and were ineligible to vote, this disproportionately affected African-Americans. We knew after the election, as a result of a lawsuit, that 12,000 voters were wrongly labeled as felons - that was 22 times Bush's margin of victory - and that the people that were labeled felons were disproportionately African-American and they were disproportionately going to vote for Al Gore. So that was the larger context of Florida.
Now, the recount was a little different. The recount was essentially a situation where the Bush campaign wanted as few disputed ballots counted as possible. The Gore campaign wanted as many disputed ballots counted as possible. There was a whole series of election problems in Florida that led to there being many disputed ballots. And when this came before the Supreme Court, the Bush campaign essentially said that you shouldn't count these disputed ballots. And so the Bush v. Gore decision did not mention the Voting Rights Act, and it also did not mention the disenfranchisement of black voters that I think really marred the 2000 Florida election.
GROSS: In the wake of Bush v. Gore, the Supreme Court decision on the contested election of 2000, there was a law passed called the Help America Vote Act, and this was passed in 2002. This was supposed to help prevent the kind of confusion in the 2000 election and the kind of questions around some people being wrongfully prevented from voting at the polls. Ironically, there's a part of the Help America Vote Act that opened the door to new voting restrictions, as you describe it in your book.
BERMAN: Well, the Help America Vote Act was supposed to prevent another Florida 2000 from happening, but instead the problems that we saw in Florida, particularly the fact that African-Americans were disproportionately likely to be prevented from voting, in fact got worse. And I think there was a segment of the Republican base after Florida 2000 that realized that small manipulations of the electoral process could make a very big difference in close elections. So what you saw, for example, in the next presidential election after Florida, in 2004, there were incredibly long lines in Ohio and that precincts where Democrats and African-Americans were more likely to vote had far fewer voting machines than Republican precincts in places like Cleveland and Columbus.
And so you saw incredibly long lines in urban areas, much shorter lines in the suburbs and rural areas. One estimate found after the election that 3 percent of Ohioans were prevented from voting. These were disproportionately African-American voters. According to one study, African-Americans waited, I believe, it was 52 minutes to vote during the 2004 election in Ohio compared to 18 minutes for white voters. And so the problems that we saw in Florida in 2000 - not only were they not fixed, but they actually got worse after that.
GROSS: The Help America Vote Act increased penalties for voter fraud, and that, I think, helped open the door to some of the voting restrictions we've been seeing in the past few years.
BERMAN: Absolutely. What happens after the 2000 election and the Help America Vote Act is that there's a new movement within the Bush administration to prosecute voter fraud. They make the argument that voter fraud is rampant, that it's an escalating problem in American society and that new voting restrictions, such as strict voter ID laws and purging of the voting rolls, have to be done to combat this problem of voter fraud. And what happens is the Civil Rights Division of the Justice Department, and the Justice Department more broadly, becomes the prime vehicle for going after voter fraud, and so you see this on a number of different fronts.
You see, for example, support within the Justice Department for new measures to restrict voting rights, like strict voter ID laws, in places like Georgia. You see U.S. attorneys who are fired, in states like Missouri and Washington and New Mexico, for not aggressively prosecuting voter fraud. You see people in the Bush administration publishing articles, launching major investigations to try to find new cases of voter fraud, and this becomes an absolute obsession. Now, they find very little actual evidence of voter fraud, but, nonetheless, the argument that voter fraud is rampant, that it's a huge problem in American elections, really begins in the second Bush administration.
GROSS: So what do you think is behind the wave of new voting restrictions that we've seen in the past few years?
BERMAN: I think it's an attempt by elements in the Republican Party to make the electorate older, whiter and more conservative, as opposed to how the electorate was in 2008 when Barack Obama was elected. If you look at the methods that Republicans are using to try to make it harder to vote, they disproportionately affect minority voters, younger voters who were the core of Obama's coalition. But they also disproportionately target the methods that the Obama administration used so successfully to win election, then re-election. The Obama campaign brought a lot of new voters into the political process by doing things like intensive voter registration drives, expanded early voting hours and days, things like same-day registration where you can show up, register and vote at the same time.
These reforms boosted political participation broadly and particularly helped Democratic candidates because the Democratic base is less likely to turn out than the Republican base in the usual course of things. And so I think the country saw the huge turnout of new voters as a good thing in 2008. The 2008 electorate was the most diverse in American history. But some elements of the Republican base were very concerned by this new American electorate, which was dubbed the coalition of the ascendant. And instead of deciding to reach out to the changing demographics in the country, they started to think of new ways to make it harder for these people to participate in the political process.
GROSS: What are the kinds of restrictions that we're seeing now that are being contested?
BERMAN: So there's a whole range of voting restrictions. According to the Brennan Center for Justice, 468 new voting restrictions have been introduced in 49 states from 2011 to 2015, and half the states in the country have passed new laws making it harder to vote. And 15 of those laws are going to be in effect for the first presidential cycle in 2016, so we're seeing this all over the country. The things that we're seeing, for example, are making it harder to register to vote, shutting down voter registration drives, eliminating same-day voter registration, cutting early voting, cutting back the hours and days for early voting, purging the voting rolls, requiring government-issued ID to cast a ballot - this was not something that was needed, strict forms of government-issued ID, until very recently, and it was something that was not proliferating all around the country - preventing ex-felons from being able to vote. These are all the type of new voting changes we're seeing, and they're different from the literacy tests or poll taxes of years past. They're not so explicit. They're more sophisticated. But I think it's a similar effort to try to shape an electoral system in one party's favor and to decide or try to determine who can and cannot participate in the political process.
GROSS: Having written this new book about voting rights, what are your concerns about the 2016 presidential election?
BERMAN: I'm very concerned about it because the 2016 presidential election's going to be the first presidential election in 50 years without the full protections of the Voting Rights Act. I think, in many ways, we've come to take the VRA and what it did for granted. But the fact that states can pass new voting restrictions, those states with the worst histories of voting discrimination no longer have to clear their election changes with the federal government, means that, number one, those states can pass new restrictions very close to the election that are very hard to challenge. And it also means, number two, that other states are going to feel emboldened to try to pass these efforts. So we're already facing a situation where, in key swing states, like North Carolina, Wisconsin, Ohio, Virginia, new voting restrictions are in effect and could have a very big impact on the outcome of the 2016 election if they're not blocked in court.
GROSS: My guest is Ari Berman, author of the new book "Give Us The Ballot" about the struggle for voting rights in the years since the passage of the 1965 Voting Rights Act. We'll talk more after a break. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: So if you're just joining us, my guest is Ari Berman, and we're talking about his new book "Give Us The Ballot: The Modern Struggle For Voting Rights In America." And it focuses on voting rights after the Voting Rights Act of 1965.
There's a case in North Carolina that a federal judge just heard and hasn't ruled on yet pertaining to voting rights. Would you explain that case and its importance?
BERMAN: Absolutely. So a month after the Supreme Court gutted the Voting Rights Act, North Carolina - which was one of those states that had to approve their voting changes with the federal government - North Carolina passed a sweeping restructuring of its election system that essentially repealed or curtailed nearly every voting reform in the state that encouraged people to vote. North Carolina had some of the most progressive election laws in the country. Since 2000, they had expanded early voting. They had allowed same-day voter registration during the early voting period. They had passed pre-registration for 16 and 17-year-olds, so young people could get a jump on participating in the political process. They allowed you to vote anywhere in a county. All of these reforms had a huge impact on voter turnout.
North Carolina moved from 37th in voter turnout in 2000 to 11th in voter turnout by 2012. And what Republicans did is they essentially targeted all of those reforms. They cut early voting. They eliminated same-day registration. They eliminated pre-registration for 16 and 17-year-olds. They mandated strict voter ID. And all of this was in one bill. And what we had seen in other states, like Texas and Florida and Wisconsin, is that they had done some things to try to restrict voting rights. They had passed a voter ID law, or they had shut down voter registration drives, or they had purged the voting rules. But no state did it all at once. And that's what was so shocking about the North Carolina case, was that they did it all at once, and they did it so soon after the Shelby County decision that rendered Section 5 of the VRA inoperative.
GROSS: So on what grounds is that law being challenged?
BERMAN: That law is being challenged under Section 2 of the Voting Rights Act. So Section 5 of the Voting Rights Act - which is the provision that requires federal approval for voting changes - Section 5 was targeted at select states, primarily in the South, and it was temporary. It had to get approval for the federal government. And it put the burden of proof on the states themselves to prove that discrimination was not happening as opposed to on the people challenging these voting changes. Section 2 of VRA, which is being used in North Carolina, is different. It's nationwide. It's permanent. And the burden of proof is now on the plaintiffs, in civil rights case, to show that voting discrimination exists. So it's much tougher to win Section 2 cases than it is to win Section 5 cases because there's a different standard and the burden of proof is on those impacted by discrimination itself.
So let's just say Section 5 was still in effect. North Carolina would have to get approval for its voting changes before it became law, and they would have to show that African-Americans and other minorities were not worse off. And that would've been a very difficult case for them to prove. In North Carolina, it's the opposite. The civil rights groups themselves and the Justice Department, which is also intervening in the case, they have to show that there is discrimination occurring and the burden of proof is on them instead of the state. And it's also a very lengthy process because instead of a voting change being blocked ahead of time, now there is a long trial. And what we're seeing in states like North Carolina, where there's a challenge to all sorts of election changes, this is taking a long time to work its way through the courts. This was the very thing the Voting Rights Act was meant to prevent, that there would be a tortuous legal process and in the meantime, that voters would be impacted by discrimination. The Voting Rights Act was meant to shift that burden of inertia from those facing discrimination to those that were doing the discrimination. And now the burden of proof is back on those who are facing the discrimination. And so it's very difficult to challenge these voting changes now.
GROSS: Do you think the federal judge's opinion is likely to be appealed to the Supreme Court no matter what side he comes down on?
BERMAN: I think it's very possible. His decision is going to be appealed to the Court of Appeals. And then what happens then, there's a very good chance that it could come before the Supreme Court. And then what the Supreme Court's going to look at is Section 2 of the Voting Rights Act - the same provision that John Roberts challenged as a young lawyer in the Reagan administration. And the question is, how expansive of a reading of Section 2 should there be? Do you have to prove intentional discrimination under the VRA? So the fight that John Roberts lost in the Reagan administration over Section 2 could actually come back before his court in the very near future, and Roberts could have a chance potentially to weaken yet another part of the Voting Rights Act. He already gutted one very important part of the Voting Rights Act. And if he was able to weaken Section 2 of the Voting Rights Act, it would almost completely eviscerate the law.
GROSS: So this North Carolina case is a very important case?
BERMAN: The North Carolina case is extremely important. It's going to have ramifications for voting rights all across the country. Both in terms of the political dimensions because North Carolina was so brazen in trying to restrict voting rights after the Supreme Court struck down Section 4 of the Voting Rights Act. That sent a signal to other states that they could pass similar restrictions and get away with it. But also for the legal dimensions because as you mentioned that the future of the Voting Rights Act could very well come before the Supreme Court, and it's very possible that North Carolina will be the case that gets there.
GROSS: My guest is Ari Berman, author of the new book "Give Us The Ballot" about the struggle for voting rights in the years since the passage of the 1965 Voting Rights Act. We'll talk more after a break. This is FRESH AIR.
(SOUNDBITE OF MUSIC)
GROSS: This is FRESH AIR, and if you're just joining us, my guest is journalist Ari Berman. His new book is called "Give Us The Ballot: The Modern Struggle For Voting Rights In America."
So, Ari, last week there was a big decision about a Texas voting rights case, and this had to do with Texas's strict voting rights ID law. In other words, you had to have a government photo ID in order to be able to vote. Do you want to explain what the decision was on this appealed case?
BERMAN: Yeah, it was a very significant decision because Texas has the strictest voter ID law in the country. And this was a unanimous decision from a very conservative appeals court written by a George W. Bush-appointed judge. So the fact that the decision was unanimous, the fact that it was written by a conservative justice and the fact that it struck down the country's strictest voter ID law, I think, were all significant points going forward.
GROSS: But this decision did not completely strike down the law. Basically, it sent it down to the lower court and said this law is too strict. We need to have other forms of ID that are acceptable.
BERMAN: Yeah, so it wasn't a total victory for voting rights advocates. You're absolutely right. What it found is that the law did have a discriminatory affect in violation of the Voting Rights Act against black and Hispanic voters. However, it disagreed with the lower court's ruling that the law also had a discriminatory purpose - that it was passed precisely to discriminate against blacks and Hispanic voters, which is what a district court found, and this appeals court disagreed. And so they sent back the case and basically said you are striking this law down, but you have to figure out what the remedy is. Do you, for example, instead of saying you need a government-issued ID, do you use voter registration cards? Or do you use an affidavit if you don't have an ID? So there still is some question about what the remedy will be and what the ultimate solution will be, but it is true that the strict voter ID law, as we know it, has been effectively struck down.
GROSS: So one of the things you've talked about in terms of the Voting Rights Act - and you've talked about this during the course of our interview - is the difference between intent and effect...
GROSS: ...And which the Voting Rights Act deals with. Do you have to prove that the legislators had discriminatory intent or is it enough to prove that this, you know, this law or regulation in question has a discriminatory effect? Does this appeal take us any further in our understanding of how the voting rights law is being interpreted now?
BERMAN: Well, in this case, it's being interpreted as saying that under Section 2 of the Voting Rights Act you just need to prove discriminatory effect, which is good for voting rights advocates 'cause that's a lot easier to prove than discriminatory intent. Remember, back in the 1980s when John Roberts was a young lawyer in the Reagan Justice Department, he was trying to say that you needed to prove discriminatory intent for a violation of the Voting Rights Act, which is what the Supreme Court had said in 1980 before they were largely overruled by the Congress. And this case shows you that if it was just about discriminatory intent, if that was the tough burden that you had to prove, this Texas voter ID law would now be in effect because the appeals court said that it had a discriminatory effect but not a discriminatory intent.
GROSS: So do you think this is a precedent-making case?
BERMAN: I think it will be a precedent-making case because there's a very high likelihood that Texas will appeal to the Supreme Court. And if Texas appeals to the Supreme Court, that court, which includes John Roberts - who I earlier mentioned - they are going to decide how the Voting Rights Act should be interpreted. And as of now, it's being interpreted as under Section 2 you just have to prove discriminatory effect. But they could say that you need to prove intent or they could just narrow how you define discriminatory effect. So they could make voting rights violations harder to prove without actually saying that you need to prove intent just making it harder to prove the effect. So it's very possible this Texas case could set a very major precedent if it goes before the Supreme Court.
GROSS: Yeah, but both sides are describing the decision in this appeal as a victory. Why are they both claiming it as a victory?
BERMAN: I guess it's one of those things where everyone wants to always claim a victory, but I think Texas is being a little disingenuous here. I mean, the fact is the voter ID law, as we know it, has been effectively struck down. Even if some sort of voter ID law is allowed to stand based on the lower court's ultimate decision, it's still going to be a much less strict version of that voter ID law. You're still going to be able to vote with the voter registration card or you're going to be able to vote with an affidavit if you don't have an ID. You're not going to be able to - to need to show just these few forms of strict government-issued ID. So it's not a victory for the state of Texas. Maybe it's not the resounding victory that the Justice Department and civil rights groups were hoping for, but it's certainly far more of a victory for them than it is for the state.
GROSS: Texas has an important place in the history of voting rights. What is its place?
BERMAN: Well, it's critically important because Texas was covered under the Voting Rights Act in 1975 when the VRA was expanded to protect Latinos and other language minority groups. And since that time, Texas has been the most consistent and repeated violator of the Voting Rights Act. So Texas has way more violations of the VRA than any other state. And so the fact that Texas was covered when the VRA was expanded in 1975, and the fact that the VRA has consistently stopped abuses in Texas all through the last few decades, shows how important the VRA has been in Texas.
GROSS: So the story that you were telling in your book, "Give Us The Ballot: The Modern Struggle For Voting Rights In America," this is a story that is not nearly over yet.
BERMAN: It's not over, and we always want, as authors, to be able to tell a story that has a neat and tidy ending. But one of the reasons why I wanted to write this book is because I knew the fight for voting rights was not over. I knew that the history of the Voting Rights Act was unsettled. And I knew that we're going to be entering a period when the right to vote is contested, probably for many years going forward. And so I wanted to talk about the history and emphasize the importance of the history at a time when there is a new debate over voting rights. And so I don't predict to know how that debate is going to end, but I know that it's an important debate and one that I wanted my book to be part of.
GROSS: Ari Berman, thank you so much for talking with us.
BERMAN: Thank you so much, Terry.
GROSS: Ari Berman is the author of the new book "Give Us The Ballot: The Modern Struggle For Voting Rights In America."
(SOUNDBITE OF MUSIC)
GROSS: Tomorrow on FRESH AIR, the past 100 years of laws regulating sex regarding marriage, homosexuality, adultery, rape, sex workers, pornography. We talk with Eric Berkowitz, the author of "The Boundaries Of Desire." He says the past century has produced an immense amount of sex law, but the law has had trouble keeping up with changing social and moral standards. I hope you'll join us.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.