Vital Interests: Guy, thanks for participating in Vital Interests. It is finally down to the last week before a pivotal election in the United States. Can we start by tapping into your studies on the history of voting in the United States where getting the right to vote has always been a struggle? Let's not go all the way back to the founding, when propertied White men were the only ones who could vote. Tell us about the movement that began after the Second World War to address civil rights? 

Guy Charles: You're exactly right that, in this country, there has been a very long struggle around what we call the right to vote, although in some respects, that's a misnomer. For the most part, the large operating framework of this country has generally been to restrict voting and political participation to a certain group of people. Now that group has changed historically over time.

As you said, early on in our history, it was largely, although not exclusively in every colony, and then later states, but it was largely propertied White men. Then, after the 15th Amendment, we expanded the franchise to Black men and then we had a period for about 15 or so years in which Black men exercised the franchise, but then towards the end of the 19th and the beginning of the 20th century, a lot of states in the South disenfranchised Black men.

The period that you're talking about from the 1950s is really addressing the problem of racial disenfranchisement using literacy tests, poll taxes, gerrymandering, sometimes violence, and other types of devices as a way of making it hard, if not impossible, for Black women and men, by the time we get to the 1950s, to vote and to exercise the franchise.

We have a long history of voting discrimination, sometimes on the basis of race, on the basis of gender, on the basis of property, on the basis of whether a person has committed a felony or a crime in the past or not, whether the person can read or not, whether the person has paid a certain amount at the polls. There are lots of basis upon which we have historically disenfranchised people in American history. The 1950’s through the 1960’s, the Civil Rights era, has dealt with a number of those devices, all centered around race.

VI: Can you elaborate a bit on the structure, the process, of voting in the United States? Most aspects of voting are not mandated by the federal government but rather left to individual states to set and enforce. What are the ramifications of state control?

Guy Charles: That's a great question. Many Americans take for granted, they assume, that they have a federal right to vote, meaning that they think the Constitution provides them explicitly with a right to vote. Unlike most modern constitutions, the American Constitution actually does not provide a specific right to vote. In the same way, for example, the First Amendment precludes the government from interfering with a person's speech rights, so the First Amendment provides us with a free speech right, or a free press right, or a right of assembly. That is not true with respect to voting. There's no constitutional provision that explicitly provides for the right to vote.

Now, the Constitution implicitly protects the right to vote for Senators and the House of Representatives. It assumes that voters will vote for their Senators and for their House of Representatives, but it makes the process, it makes who the electorate is in the rules for voting, turn on what the states do.

In the American context, we rely very much on the state to both provide the rules for voting as well as to implement voting processes. It's the states that determine who's eligible to vote, not the federal government.  It is the states that run elections, including state and federal elections. The two things are combined. We depend upon the states for articulating the rules and we depend upon the states for the practice. There are a number of different implications. A couple we should make very clear.

One implication is that the rules will differ from state to state. One might allow everybody to vote and other states might say, no, if you've been convicted of a felony, you can't vote. One state might say that you must register 20 days before the election and another state will say, you can register on the same day. They're going to be different rules, even with respect to federal elections.

The second point is that there will be different practices, and those practices might differ from one jurisdiction to another much less from one state to another. That means that if you live in this town, you might wait in a longer line than if you live in a town right next door. So the circumstances for voting can be very different. That's a function of the fact that our election system depends upon the states for both their rules and their implementation.

VI: Because of this reality, Supreme Court decisions began restricting state control over elections and other civil rights issues in the 1950’s under the Warren Court. One of the landmark civil rights cases of the Warren Court was Brown v. Board of Education that deemed state policies of school segregation unconstitutional. This case incentivized efforts to bring equality into all aspects of American life including voting. Can you go into how that came about?

Guy Charles: There are two things to think about here. There's the question of racial equality, and then there's the question of voting equality, and then there's the place in which they both intersect. Starting early in the 1950s, the Court started addressing the problem of racial discrimination in voting and started to lay out an argument that it was a problem that the constitution did address and that it made unconstitutional. Then, by the time you got to 1954, when the court basically announced the principle of racial equality, both of those areas started to come together. Voting, the issue of racial discrimination broadly, and then racial discrimination in voting.

Then in 1965, we got the Voting Rights Act in which Congress passed a statute to make racial discrimination in voting harder for the states to do, which the court then enforced in 1966 in a landmark case called South Carolina v. Katzenbach. The decision made clear that both the legislature and the judiciary were behind the question of racial equality in voting.

Also around that time period, and a few years later, the Court began to establish the principle of voting equality itself - the idea that voting is a fundamental right, that voters ought to be treated equally. By the time you get through the 1960s, you really had these two sets of ideas that went along together. The idea of racial equality, that the states can't discriminate on the basis of race, the idea of voting equality, that the states have to treat voting as a fundamental right, and then, the combination of both sets of ideas that racial and voting discrimination is unconstitutional, and it is something that the political process will enforce or will guard against through the 1965 Voting Rights Act.

It is also something that the courts will protect against as the Supreme Court had started around 1915 through the 1960s. It was a long battle. Take the White Primary, as an example.There were some states, like Texas, that took the Democratic primary which, in the southern states before the 1960s, was really the only election that mattered because it was the one-party region and they precluded Black voters. They made it illegal at first for Black voters to participate in the vote in those primaries. That's why it was called the White Primary.

The Court fought against all of those things until they were eliminated and the remainder, the rest of the barriers, were addressed in the 1965 Voting Rights Act. We had the combination of racial equality, and voting equality come together to address the problem of racial discrimination in voting.

VI: Didn’t the Supreme Court’s efforts bring into the national consciousness the fact that Jim Crow Laws from the 19th century were still very much in effect in Southern states? That the Voting Rights Act was needed to finally end this institutionalized racial discrimination?

Guy Charles: That's correct.  You've articulated it perfectly - the Voting Rights Act was an attempt to address the Jim Crow laws of the first half of the 20th century, and the effects of the end of reconstruction when the state formally disenfranchised Black people. Once the Court establishes in Brown you can't do separate but equal law, one of the things that Southern states tried to do was to pass  laws and rules that appear neutral like requiring a literacy test.

At first, they tried to exempt people. If your grandfather voted in 1865, that would  exempt the White voters from these literacy tests or these requirements only for Black people. When those types of things were struck down, then the states would suddenly say, "Okay, that's fine, we'll just implement our literacy test." But everybody knew that the way that they were going to do it was not to apply it to White people, but only apply it to Black people and deny them the ability to vote.

There were lots of Jim Crow practices, rules and laws, that the 1965 Voting Rights Act dealt with and tried to take off of the landscape to enable Black voters to vote. Incidentally, the 1965 Voting Rights Act also had an important effect on White voters because there were lots of poor Whites who were illiterate, who also had their right to vote restricted, and so, it brought them to the table as well.

VI: Let's also look at the pushback the Warren Court caused among conservative factions in the United States with these decisions. We see the start of ultra-Right groups like the John Birch Society which expressed concern about the one person, one vote concept articulated by the Warren Court. They offered their notion that the United States is a Republic governed by proportional representation, not one man one vote. Can you go into the impact of this reaction?

Guy Charles: Yes, definitely. We saw a very strong reaction to the Warren Court's jurisprudence of the1960s. Part of the reason for that strong reaction is that our polity really depended upon two things. One, what some of us have called a racial order or racial hierarchy in which everybody understood that White people were going to be at the top and that Black people were going to be at the bottom. Two, it also depended upon what some of us called the political hierarchy in which only certain types of people were going to have the right to participate. That also crossed racial lines. It was a combination of race and class. The elites got to rule and then everybody else just got to listen.

What the Warren Court did is to attack both of those ideas. It attacked the idea that there was going to be a racial hierarchy. You saw that when we talked about Brown v. Board. That's a symbol of attacking the racial hierarchy, but it also attacks the political hierarchy. The best example of that is the 1964 Supreme Court case Reynolds v. Sims, in which the court explicitly talked about voting equality, one person, one vote. We are all equal citizens here and when we come to the table, we come to the table as equals.

There was a very strong reaction against both of those ideas, people believed that the court was going to promote things like miscegenation. That was one of the ways by which racial equality was attacked, that they're going to come after our White women.

Then, on political equality, one reaction was to call it communism and socialism. Especially the communism flag was waived quite high as a backlash in response to the Warren Court’s series of cases in the 1960s that tried to make the political process more equal, that tried to say voters are voters and they deserve representation, whether they live in cities or live in suburbs, whether they live in towns, whether they live in the North or in the South.

This is one of the reasons why people called it the Warren Court Revolution. It tried to create equality across a broad range of domains, both political as well as racial.

VI: Weren’t there also social and economic initiatives inspired by gains made against inequality by the Warren Court, like the Johnson administration’s War on Poverty and the Medicare program?

Guy Charles: That's correct, and it is good of you to point this out, how the politics interacted with the jurisprudence - how the Johnson administration's legislative initiatives and the concept of the Great Society, conflated with the Civil Rights Act and the Voting Rights Act. All of these broad legislative initiatives found support within the judiciary. Both sets were following parallel tracks and they reinforced each other.

VI: What has happened with Black voters since the Voting Rights Act and various court cases that have either reaffirmed or have tried to limit it’s restrictions on state’s election control?

Guy Charles: For about 50 years the Voting Rights Act was viewed by many people as the most important civil rights legislation that Congress had ever passed. It really did have a significant effect. You had places in the South, like Mississippi, where only 11 to 12 percent, small numbers of Black people were registered to vote. Within years after passage, those numbers rose and half a century later, many places in the South have Black registration and voting participation equal to Whites, and in some places, surpassing that of Whites.

The Voting Rights Act had a significant  impact on reducing, though not eliminating, the racial discrimination that Black voters face, especially in the South. The Voting Rights Act also, especially after 1982 when Congress amended Section 2 of the Voting Rights Act, had a significant effect on Black representation as well. You saw many more individuals running and attaining office. There were many more Black representatives following the1980s into the '90s, particularly in the 1990s and in the 2000s in which Black representatives now became a regular feature of the legislative process. Both at the state legislative level, as well as at the federal level.

The Voting Rights Act for 50 years had two important effects. One is that it increased voting participation, and not just Black voting participation, but White and Latinos - the Voting Rights Act also applied to Indian reservations. Really it opened up the electorate and made race less of a barrier than it was before.

Then, secondly, it had an impact on who the representatives were. In the last 10 years, particularly starting with a 2013 case Shelby County v. Holder, the court essentially said this voting rights model that we've had for about 50 years has basically run its course. The problem that it tried to address has now been solved, and  the Voting Rights Act is an extraordinary remedy, we don't need it any longer.

Since 2013, we have essentially been dealing with the aftermath of the court's decision in Shelby County. Though, to be fair, before Shelby County, it was clear that both the political consensus around the Voting Rights Act and the traditional consensus around the Voting Rights Act had started to crumble. Then the question was, “When will the edifice fall and what is going to replace it? But that was the moment that marked the end of the regime.

VI: There was the argument that the Voting Rights Act had run its course and the targeted states were no longer using restrictive and discriminating voting practices. But in fact, that was not the case in many jurisdictions. What was the political movement behind these Supreme Court cases directed at the Voting Rights Act?

Guy Charles: The political movement was a part of the conservative backlash, quite frankly, against the Voting Rights Act that had its expression in 2013, but the movement had always fought against the Voting Rights Act. For example, in 2009, the court came very close to striking down some important provisions of the Voting Rights Act. Even before that, there were a number of cases in which some members of the court had raised significant questions about the Voting Rights Act.

Part of it is that there has been a long-term conservative movement that has targeted the Voting Rights Act. In an oral argument in Shelby County, Justice Scalia said that the Voting Rights Act is a racial entitlement. I think that captures the sentiment of a lot of conservatives who look at the Voting Rights Act as a racial entitlement for ideological reasons, but also for partisan reasons.

Some people view the Voting Rights Act as the mechanism that enabled Democrats to hold on to power because voters of color, particularly Black voters, are more likely to vote for Democrats. If you minimize their ability to participate in the whole process, then you're going to undermine the ability of one party to gain legislative seats so that's one version and one reason for it.

There's been a long, concerted effort, either for ideological reasons, for racial reasons, or for partisan reasons to undermine the Voting Rights Act and what we have seen since 2013, is a major fight in the states, states like North Carolina, that had a very progressive, and not only progressive in the political sense, a progressive voting rights framework.

North Carolina had same-day registration, a lot of early voting, and numerous voting sites. Some of those rules changed after the Supreme Court's decision in Shelby County, which made it less easy for voters to vote and we've been having a fight in many of the states that were previously covered by Sections 4 and 5 of the VRA over voting rules, some of which would not have been implemented had those sections then been operative. 

VI: I have seen figures that in the five years after Shelby County, North Carolina closed 1,000 polling places, curtailed early voting programs,  and purged voter rolls. Many states have now introduced new voter ID laws aimed at reducing Black and minority voting. Can you comment on that trend?

Guy Charles: That's right. Remember, we talked before about the legacy of the Warren Court. It had two prongs. One prong was to equalize voting, period, outside of race and political participation and equality, and the fight against the history and legacy of this country, which is that only certain types of people were allowed to vote and participate. Only certain types of political elites. If you own property, if you were a person of great standing. Only those types of people were allowed to determine how the government was going to be run.

In many respects, the Warren Court fought back against that. The Warren Court, the civil rights movement, and the Johnson administration also fought back against the other legacy, which is that of racial discrimination. What we're seeing now is both of those fights back on the table. Who is allowed to participate, and the idea that voting is a privilege as opposed to voting being a right. With this concept of voting being a privilege is the implementation of rules that make it harder for people to participate that will have an impact on everybody -  Black, White, Latino, Asian, North, South. It doesn't make any difference. It goes back to that old legacy that the Warren Court fought against.

Then, there's the racial fight that is also back on the table, which is then what the Voting Rights Act fought against, the Civil Rights Act fought against, the Warren Court fought against, and was the whole purpose of the civil rights movement. Both of those fights are back on the table and they' both have to do with, how do we feel about voting being a right as opposed to being a privilege? How do we feel about political participation by people irrespective of race? Not allowing racial barriers to get in the way of people exercising what ought to be a right, which is the right to vote.

VI:The Supreme Court is scheduled to hear two voting rights cases in the current session  - Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. Is this part of an effort to further limit and eventually gut the Voting Rights Act?

Guy Charles: That's right. In the modern era, the Voting Rights Act has three major provisions. In the early part in 1965, the most significant provision was the provision that outlawed literacy tests. In the last 30 years, especially after 1982, it has really had three major provisions.

Two important provisions were undermined in Shelby County, which determined which jurisdictions had a history of racial discrimination and precluded them from implementing any voting changes without first getting permission or pre-clearance from the Justice Department, or from the United District Court in the District of Columbia. Those two provisions were undermined and sidelined. They're no longer effective after the 2013 case of Shelby County.

Then what remained was Section 2 of the Voting Rights Act which forbade dilution on the basis of race - voting practices that dilute the voting rights or undermines the voting rights of people on the basis of race. Those cases that you're talking about, might have an impact on Section 2 and if the court undermined Section 2, and that's the last remaining provision, then, that will mean that there'll be nothing left to the 1965 Voting Rights Act as we know it.

VI: Let's go into the question of diluting representation. What about gerrymandering? That's another tool used to try to define who gets to vote and how much their vote counts in terms of representative districts.

Guy Charles: That's correct and so, remember there were two legacies of the Warren Court? One legacy was that of political equality. That means that your government, the state you’re living in as a voter, can't design districts as a way of undermining your right to vote simply because, for example, you're a Democrat as opposed to a Republican or a Republican as opposed to a Democrat or because you live in a city as opposed to living in the suburbs, or you live in an urban area as opposed to living in the country.

If you think about the reapportionment revolution - those were the set of cases in which the court said to the state, "Hey, you have to redraw district lines to make it, as nearly as practicable, that one person's vote in that district is the equal to the other.” You can't reapportion to make it easier for one faction to control the district and undermine the voting rights of another group. 

Now, if you're following along, you might say, okay, reapportionment and gerrymandering seems to be just different sides but of the same coin. That if the government has to redraw the lines to equalize population, shouldn't it also want to draw the lines and equalize population to make sure that it's not drawing the line as an intentional way of undermining your voting power, simply because you're a Republican, or simply because you're a Democrat? That is, the concept of equality should apply across the board.

That's the logic and the theory essentially behind the Warren Court revolution that you think would apply in this context as well. But the United States Supreme Court has demonstrated that it has a different idea. As I said, the problem with the current United States Court is that it doesn't seem to believe in the political equality idea of the Warren Court.

In a 2019 case called Rucho v. Common Cause the Supreme Court said that political gerrymandering cases were not cases that courts can decide. In the technical term, they said, they were nonjusticiable, which means simply that these are not cases that courts are supposed to decide. They were supposed to be decided by the political process. 

One worry that people have for an increasingly conservattive court is that the court may also walk back, if it gets the opportunity, the one person, one vote cases. Justice Thomas has said that the one person, one vote cases are not constitutional and that they are also cases that courts should not decide. There is concern about the fact that the court's commitment to political equality is not a very strong one and in fact, is much more interested in having those issues being decided in the political process than enforcing the norm and the rule of political equality, as the Warren Court did in the 1960s.

VI: What is the constitutional argument that Justice Thomas put forth? Where in the Constitution is the expression of opposition to the concept of one person, one vote? 

Guy Charles: His argument is that there is no text clause principle in the Constitution that supports one person, one vote or this idea of vote dilution. As long as you're allowed to vote, when I go and cast my vote, the government can't stop me from casting my vote. However, once I am able to vote, then wherever the government wants to draw the district, it can do so without any Constitutional limitations because there are no clauses in the Constitution that apply to how the government draws districts, when it must draw them, how it must draw them. That is not a matter of constitutional concern. That's his argument.

VI: Let’s move on to voting for president and vice president and how the Electoral College enters the picture in determining the result. In simplified terms the Electoral College, as currently constituted, gives a disproportionate amount of power to states with small populations, like Wyoming with a population of about 600,000 compared to a state like California with more than 40 million. Can you discuss the Electoral College and how, constitutionally, it guards against the dominance of states with large populations?

Guy Charles: Remember we started at the beginning by saying that the Constitution does not provide an explicit right to vote. This foundational idea has its most impact when it comes to voting for president and vice president. Not only does the Constitution not provide an affirmative right to vote, but actually, there is no right at all to vote for president and vice president. The way that our president and vice president is elected, which I think most voters are really now just starting to come to terms with, is through the Electoral College. Which means that the states get to decide, and particularly the state legislatures. States are allocated a certain number of electors, based upon primarily their representation in Congress and their two senators.

Population matters, but it's not proportional which is exactly what you're saying, that Wyoming gets a disproportionate say, compared to California. The states award electors and then they get to decide how to select those electors. Now, every state currently in the union does it by allowing voters to vote for a slate of electors, but the mechanism that the Constitution has come up with is a mechanism that disproportionately allocates electors to states for their selection.

Now we can talk about the history of the Electoral College. There are some historians who view the origins of the Electoral College as tainted by slavery and by race. We could also talk about the current impact of the Electoral College and how the Electoral College only enables certain types of states to be in play, so there's a lot of focus right now on the swing states.

If you are in a non-swing state, you really are not part of the election. If you are a Republican voter in New York, your vote really doesn't count for very much in the presidential election, or if you are a Democratic voter in say Wyoming, your vote doesn't really matter that much. There are significant flaws with the Electoral College and how voting power is allocated through the Electoral College.

VI: Any reform of the Electoral College would require a constitutional amendment, or can it be done through a congressional act?

Guy Charles: There's one reform that many believe does not require a constitutional amendment, and that is an agreement among the states to allocate their electoral vote to the winner of the popular vote. That is a way of creating a popular vote without amending the constitution to change or eliminate the Electoral College. It gets around that problem, and many believe that such a compact would be constitutional.

VI: We have discussed voter suppression in the United States. What about voter expansion? What about the creation of new states? Puerto Rico with a population of 3.2 million is certainly a candidate, and the residents of the District of Columbia equal the populations in states like Vermont, Wyoming, and the Dakotas and they have yet to achieve statehood.

Guy Charles: That's right. You can think about this in the same way that we've thought about the 1965 Voting Rights Act, although 1965 was more of a bipartisan statute. For the most part it required the consolidation of power in the Democratic Party and the Democrats to get their acts together because the southerners at the time, Southern Democrats, were quite frankly racist. That had to be overcome. It's easy to get DC statehood and it's easier to get Puerto Rico statehood through a legislative process if you have a party that is dedicated to doing it, and if that party gains political power, and controls both houses of Congress, as well as the presidency.

Unlike say, dealing with undoing the Voting Rights Act, there are actually some things that can be done if you get a consolidation of political power across the board. I completely agree that we have a constitutional system in which some voters, some people who are recognizable as citizens, are denied a full franchise. If you live in DC or if you live in Puerto Rico, you are a U.S. citizen, but you don't have representation in Congress. In  DC, residents can vote for president only by virtue of a constitutional amendment. These are fundamental problems in a modern democracy, where you have citizens of the polity without any voting rights.

VI: If there is a new administration with progressive attitudes about expanding voting do you think there is a need for a Voting Rights Act? 

Guy Charles: The House has two bills that it has passed, and one is called HR 1, and the other one's called HR 4. HR 1 is an omnibus voting bill, voting rights bill, and HR 4 essentially tries to overturn the court's decision in Shelby County. In my view, if you get HR 1 passed, that is if the Democrats passed it, and if they win the Senate, and if they win the presidency, then I think they're going to try to get both of those bills passed through Congress.

If you get HR 1 passed, you don't really need HR 4, because HR 1 truly is a Voting Rights Act. It doesn't have the same racial focus. It doesn't have the same structure as the 1965 Voting Rights Act, but it goes well beyond the 1965 Voting Rights Act that will make it easier for everybody to vote. It implements the best practices that we currently have on voting. Automatic registration, early voting, no-excuse absentee balloting, all of the best practices that we currently have that will make it easier for people to vote and that will expand the current electorate.

VI: I would like to end our discussion with some ideas about how to make our democratic process more fully participatory. In this country, even in major consequential elections, voter participation is perhaps 60% - maybe 65% if there is an unusually large voter turnout.

In other democracies around the world, they have provisions that make it far easier to vote - you can vote online, voting is held on weekends and so forth.  In Australia, voting in major elections is a requirement and there's a fine if you do not cast a vote. If we want to be a truly representative, participatory democracy, do you think those kinds of initiatives should also be considered?

Guy Charles: I've actually come around to thinking about compulsory voting. I think we have to consider two things. The first thing is, you are right as a point of departure that in the United States, if a state gets to about 60 or 65 percent, we think that that is just an amazing level of participation, right? Which is really quite pitiful.

This is a reflection of where you and I started off in this conversation. Which is that we have to recognize the history and the legacy of restricting political participation to a small number of people. Such that if you get to 60 or 65 percent you think that you're actually doing well. When compared to the advanced democracies like Australia, you are not.

That's fundamental for an important point of departure. The second question is, what are the types of things that can be done?” One of the things that can be done is compulsory. The other thing that can be done is to make the voting rules as easy as possible. In a way that may essentially be a soft version of compulsory. When voting rules are easy and people care, when they think politics matter, they do participate.  When they don't participate it is because the combination of voting rules make it harder for them and they don't see what they're going to gain out of the process.

I think we should start with collectively lowering the barriers significantly. The places that have high voter turnouts also have lower barriers of political participation. The second thing that we should do is to make sure that people work to actualize. To make it the case that political participation produces impact, so that when a voter votes for somebody, when they vote for a political party, then their lives actually change. If they think that voting simply means it's a warrant for the rich to get richer, then they're not going to continue to engage for rational and reasonable reasons.

We have to produce better policies for the average American in order for them to see that they too have a stake, an important stake in the process. At least I'd like to see us think about both of those things along with compulsory voting.

VI: Guy, we had a really good conversation. I think we've covered the breadth and depth of voting in America, so thanks very much for your insights. Let's hope that this coming election is a positive one and that we can look forward to progressive changes in how everyone gets access to voting and participates in our government.

Guy Charles: From your mouth to God's ear, John.

Guy-Uriel Charles is currently the Edward and Ellen Schwarzman Professor of Law at Duke Law School. He is the co-director of the Duke Law Center on Law, Race and Politics. He teaches and writes about constitutional law, election law, campaign finance, redistricting, politics, and race.  In 2016, he received the Law School’s Distinguished Teaching Award.  He has published over 30 articles and is the co-author of two leading casebooks and two edited volumes.