Democracy and Voting Rights
Carol Anderson, Charles Howard Candler professor of African American studies at Emory University, and Michael Li, senior counsel at New York University’s Brennan Center for Justice, discuss race, equity, and legislative redistricting and their implications for voting rights and democracy in the United States.
FASKIANOS: Welcome to the Council on Foreign Relations State and Local Officials Webinar. I’m Irina Faskianos, vice president for the National Program and Outreach at CFR. We are delighted to have participants from forty U.S. states and territories with us for this on-the-record discussion.
CFR is an independent and nonpartisan membership organization, think tank, and publisher focusing on U.S. foreign policy. CFR is also the publisher of Foreign Affairs magazine. As always, CFR takes no institutional positions on matters of policy. Through our State and Officials Initiative we serve as a resource on international issues affecting the priorities and agendas of state and local governments by providing analysis on a wide range of policy topics.
This webinar is part of the Diamonstein-Spielvogel Foundation Project on the Future of Democracy, which is aiming to identify threats to the health of democracies around the globe and to recommend steps that policymakers, business leaders, and citizens can take to strengthen democratic norms and values, and this is an important topic.
We are delighted to have Dr. Carol Anderson and Mr. Michael Li with us today. We’ve shared their bios with you so I’m just going to give you a few highlights.
Carol Anderson is the Charles Howard Candler Professor and Chair of African American Studies at Emory University. She is an expert on voting rights, public policy, race, justice, and equality and has served on working groups at Stanford Center for Applied Science and Behavioral Studies, the Aspen Institute, and the United Nations. She is the author of four books, including One Person, No Vote: How Voter Suppression is Destroying Our Democracy, and has been featured in several documentaries on voting rights, including All In, The Fight for Democracy, Suppressed 2020, and After Selma.
Michael Li is senior counsel for the Brennan Center’s Democracy Program at NYU School of Law. Mr. Li is a redistricting and election law expert and a regular writer and commentator on these topics for several news outlets. He’s a native of Texas and previously served as the executive director of Be One Texas, which oversaw strategic and targeted investments in nonprofit organizations working to increase voter participation and engagement in historically disadvantaged African American and Hispanic communities in Texas.
So we’re really excited to have both of you with us today to talk about voting rights.
So I’m going to turn, first, to you, Carol, to really set the scene for us. Give us a historical overview of legislative redistricting at the state level and what this has meant and means for individual voting rights and democracy in the United States.
ANDERSON: Thank you so much, Irina, and thank you so much, all of you, for being here, and so what I’m going to do is to give that historical background to disfranchisement because that’s what we’re talking about here when we’re talking about the battles over redistricting, and that background is—we call it Jim Crow 2.0, and lots of folks flinch at that because they’re, like, this isn’t Jim Crow, because they think of it in terms of the physical violence.
But there’s the bureaucratic violence that was waged during the era of Jim Crow, that bureaucratic violence of the laws and the Supreme Court decisions that eviscerated millions of American citizens’ right to vote, and it took seven decades living under that Jim Crow regime before America got close to being a vibrant democracy with the passage of the Voting Rights Act of 1965.
I’m here to say we don’t have another seven decades to fight this battle again. What I mean by bureaucratic violence is I’m going to go back to the Mississippi Plan of 1890. In that Mississippi Plan, it emerged out of a growing threat of when you had African Americans and poor Whites coming together in an alliance, voting for politicians, voting for policymakers who resonated with the ideas of poor people, and so the leadership in Mississippi looked at that and said, oh, we’ve got to stop this. We’ve got to break this thing up, and how we’re going to do it we’re going to say we’re cleaning up elections. We’re going to try to re-instill Americans’ faith in our democracy by getting rid of all of this massive rampant voter fraud that is happening in our polls.
Now, they knew that that wasn’t happening. They had election fraud happening where you had politicians stuffing the ballot box but you didn’t have individual voter fraud. But aligning the case with voter fraud, voter fraud, voter fraud, gave it a cachet that made this effort seem legitimate. And what they also knew is that they had to move around the Fifteenth Amendment that said the state shall not abridge the right to vote on account of race, color, or previous condition of servitude.
So what they did was to use the legacies of slavery and make the legacies of slavery the access point to the ballot box, and they made it all seem legitimate and that’s what we need to understand about the way that this works. And so you don’t write a law saying, we don’t want Black folks to vote. But what you do is you say, ah, we believe that if you’re going to have this democracy you should be willing to pay a small fee—a poll tax—in order to be able to vote.
Now, what that small fee built on was the legacy of slavery where you had centuries of unpaid labor, followed by the Black Codes after the Civil War, followed by sharecropping. So that small fee amounted to 2 (percent) to 6 percent of a Mississippi farm family’s annual income in order to be able to vote. That’s powerful.
Then you had the literacy test that also seemed legitimate but it wasn’t, and what you had there was building on the legacy of enforced illiteracy, the legacy of enforced uneducation, miseducation, for African Americans in order to make that literacy test seem viable and logical and reasonable and, of course, it wasn’t.
There were several other components in this Mississippi Plan. The result was that it was so effective that you had the U.S. Supreme Court saying that the poll tax and the literacy test did not violate the Fifteenth Amendment because everybody had to pay and everybody had to read, and the import of that was that the other states ran with it.
By the time the U.S. is fighting in World War II only 3 percent of age-eligible African Americans were registered to vote in the South. Only 3 percent. In the 1942 midterm, we had a voter turnout rate of 7 percent in the poll tax states in the South—a 7 percent voter turnout rate for a federal elections.
In the 1944 presidential election, we had a voter turnout rate in the poll tax states in the South of 14 percent, juxtaposed to a 62 percent nationwide average. This is an authoritarian regime. So when we say—when we’re baptized in the element of American exceptionalism that that kind of authoritarianism could not happen here, it already has. It already has and it did enormous damage. That is why you have the power of the civil rights movement to break open this authoritarianism and to provide real democracy on American soil.
Then we had the Shelby County v. Holder decision in 2013 that gutted the Voting Rights Act, and so now we have a new wave of laws that are about disenfranchising that use the legacy of slavery and of Jim Crow to do that work.
We have poll closures, which built on redlining and racial segregation so that where African Americans live—when you close the polls where they live it makes it much harder to get to the polling stations to vote.
And we have gerrymandering, and I’m going to leave us with Tom Hofeller’s words. Tom Hofeller was one of the key mapmakers for the Republicans and he said—as he used Texas as his baseline case, he said, if we add the citizenship question to the U.S. Census what that means is that we can draw the maps is such a way that we can ensure the dominance of the Republicans and of non-Hispanic Whites for the next decade.
And so you see the way that something as seemingly esoteric and as race neutral as citizenship in fact is very racially implicated in the ways that this democracy is being undermined.
FASKIANOS: Thank you, Carol.
So, Michael, over to you to talk about the most recent redistricting cycle and the 2020 Census data and what this all means, as well as the recent Supreme Court rulings challenging provisions in the Voting Rights Act.
LI: Yeah. Thank you. Thank you so much, Irina, and thank you, Carol. It’s an honor to be here with all of you.
I’m going to talk a little bit about what has been going on for the last year or so—it is continuing—which is the redrawing of maps at every level of government, which is something that we do every ten years after the Census, and the main purpose of redrawing maps is, of course, to make sure that districts are equally populated. That’s a requirement of the Constitution and it’s a good thing to do. It’s also an opportunity for states to make sure that they’re complying with all other requirements of laws, including the Voting Rights Act.
But, unfortunately, for much of our history it’s also been an opportunity for shenanigans, for people to put their thumb on the scale and to inflect how elections come out, and, of course, this being America there’s oftentimes a racial dimension to this, particularly in the South but not limited to the South. And the cycle, in a lot of ways, is a very unusual one. It’s a very hard one. The Census data, of course, came out later than expected. Then there was COVID, and so it’s really been a rush to get this done.
And, you know, the result has been a cycle that has been challenging but also is taking place, you know, in a very different—in a restrictive—a very different legal landscape, and we’re starting to see how that plays out. So there is good news and there’s bad news, and I’m going to give you the good, bad, and ugly, and, of course, to talk about redistricting you, ultimately, do need some visuals because it, ultimately, is about, you know—like, it’s hard to talk about maps in the abstract.
So I’m going to use a few visuals and, hopefully, that you can see all that. Irina will let me know if, somehow, you don’t. But let me just start with the lay of the land and a little bit about the Census.
You know, the U.S. grew last decade but it actually grew really slowly—in fact, the slowest it’s grown since the Great Depression. Only in the 1930s did the country grow slower than it did last decade, and that’s a trend that’s actually expected to continue over the next few decades.
You know, the country’s growth is slowing and many parts of the country, actually, are aging quite rapidly. But, of course, the country’s growth is not even. A handful of states accounted for almost all of the country’s population growth and, as you can see, Texas and a number of Southern states, particularly Florida, are really powering much of the growth in huge ways and so the country is shifting now to becoming a more Southern country.
You know, about 40 percent of the population of the country now lives in the South. It started the civil rights movement. It was only about 30 percent, and that’s only going to grow as the demographic curve continues over the next few years.
The country also, of course, has gotten more diverse and this got a lot of attention at the time the Census data came out. Now, some of that increased diversity is because more people are identifying as multiracial but it’s also because, you know, the White population is aging and it’s, really, the people of color who are powering the country’s growth and, particularly, Latinos but also very strong growth in the Asian and also the Black population.
And so, you know, this is a trend that is playing out, and it’s especially playing out in the states of the South that are the fastest growing. Texas, you saw, was the fastest-growing state in the country. Ninety-five percent of Texas’ population growth was non-White last decade.
So this cycle who drew the maps? In our country it’s still—largely, it is a political thing that happens. And so in most places, Republicans and Democrats drew maps. The result—well, let’s talk about the results. So four trends, very quickly. Maps are still widely skewed—wildly skewed. The states in yellow we analyzed those had fair maps. The states in light pink and light blue the maps are slightly skewed. They probably could be fixed with relatively small changes. The states in darker red or dark blue, in both Democratic and Republican states, you know, had very skewed maps, and you can see, again, a lot of the states are in the South.
Another—but, you know, sometimes people think about gerrymandering and redistricting as being grabbing seats of the other party, right, you know, like, you know, taking out Democratic incumbents if you’re a Republican, you know, vice versa if you’re a Democrat. That, certainly, occurred.
But one of the big changes in this decade is that people are drawing fortress districts and so there will be a lot fewer competitive seats, and this is the example of Texas. You can see the orange bar is the number—on the left the number of super Trump districts in Texas. Eleven before redistricting. Afterwards, it became twenty-one. So and Republicans only have twenty-four seats in Texas. So twenty-one out of the twenty-four seats in Texas are really super, super, super Trump districts.
Democrats did it a little bit differently. Like, in New York, they didn’t create super Biden districts. They kind of did take out Republican incumbents. But, you know, as a result, there are a bunch of districts that Democrats drew that are more than a little bit good Biden districts but not super Biden districts and that could, perhaps, result in a little bit more vulnerability for Democrats in the near term nationwide. That’s a look at nationwide.
But, you know, a big part of the story is that communities of color are in the sights of map drawers and what we’ve seen around the country is an aggressive dismantling of minority opportunity districts, both traditional districts—you know, majority minority districts—but also these emerging very diverse suburban districts in places like Fort Bend County, Texas, which, you know, there’s—it’s a district that no longer has a racial majority or even a racial plurality.
But that gets dismantled in redistricting because communities of color were just about on the verge of electing—coming together in a coalition and electing a candidate and that gets dismantled in redistricting by taking some people of color out of the district and putting them in districts in Houston next door and backfilling them with rural White voters. And, you know, you see that around the country so there really is a wholesale attack on communities of color.
And in part, you know, I think you’re seeing that because the Supreme Court has said that partisan gerrymandering claims can’t be brought in federal court. That’s opened up a huge loophole in a place like the South where party and race oftentimes align, where people can now just simply say, oh, well, we’re discriminating against Democrats and they happen to be Black, Latino, and Asian, but we weren’t discriminating against them on their basis of their race.
Another trend is the battle for the suburbs and, you know, this cycle Republicans have really shown that they’re very afraid of the suburbs because the suburbs, in part, have gotten really more diverse, but there also have been political shifts in the suburbs. Interesting fact is that most people of color in the country’s metro areas now live in the suburbs, not in the cities. That’s something that’s new.
So this is Denton County, just north of Dallas—the suburban county of Dallas. Historically, it’s been in the green district, which stretches a little bit down south into Tarrant County close to Fort Worth. But you can see in redistricting what the Republicans did is they took parts of suburban—that county and put it in a district—a blue district that stretches all the way to the Texas Panhandle, which, again, sort of, like, you know, many of the key battles that I mentioned in Fort Bend County where a diverse multiracial district was dismantled the suburbs, really, have been the battleground this cycle.
Let’s talk briefly about litigation. You know, I think that Republicans a lot are banking on the fact the courts are more conservative and that they may dismantle what remains of the Voting Rights Act. There is a key case that will be heard in October at the Supreme Court regarding whether Alabama has an obligation to create a second Black-majority district. Right now it only has one, the light blue district on the left.
But the plaintiffs in the case have said that you could easily create a second one, the yellow district in each of these four maps. But the Supreme Court has taken that case to see whether—because Alabama has appealed it and the real question that Alabama is raising is, like, whether if you’re considering race at all. The simple fact of considering race is unconstitutional and there’s a lot of signs that the Supreme Court may be in a mode that we should be a colorblind society. You know, at the same time—the same month the Supreme Court will hear the Alabama redistricting case it’ll hear the affirmative action cases.
So I think this is—next term it’s going to be a big term about when you can use race in American society.
And, lastly, I think, you know, the good news—I said there was good news—is that you are seeing state courts step in more to police redistricting abuses. But that’s only act two of the play. You know, there are, increasingly, battles over state supreme courts. You know, I think state supreme court elections in 2022 are going to be hotly contested.
There also are efforts or rumors of efforts to impeach justices who rule badly in redistricting cases or voting rights cases—quote/unquote, “badly.” And so, really, I think the next battle in a lot of ways will be over the state courts, which have been a savior in a lot of ways, in key ways, because the federal courts and federal law has gotten so much worse.
But now, I think, people are increasingly coming after state courts. And with that, I will stop and stop sharing my screen. Be happy to turn to the Q&A.
FASKIANOS: Wonderful. Thank you very much for that overview.
Let’s go now to all of you for your questions and comments. You can either click on the raised hand icon and I will recognize you. If you unmute yourself and then tell us who you are that would be great. Or you can also write your question in the Q&A box, and if you do that please do include your affiliation. Again, it will be a help with the questions. And don’t be shy because we have—they were very thorough presentations but I’m sure that there are questions that can be asked.
So as we wait, I just want to make sure—let’s see here. So in terms of—I will ask the first question while we wait for more. What are the alternatives to state legislators drawing their own maps? What processes ensure more equitable representations across racial and partisan lines? And I don’t know who wants to start.
LI: I think that that’s a great question. You know, a number of states have adopted reforms and, you know, the good news is that, you know, American democracy is the lab—you know, to use Justice Brandeis’ term, you know, laboratories of democracy, and we’ve gotten to see some things that work and some things that don’t work as well.
And one thing that has worked really well is a truly independent commission, and states like California and Michigan, Arizona, and Colorado have what we consider very independent commissions. There’s an independent selection process. There are lots of strong conflict of interest rules about who gets to serve as a commissioner, and commissions—you know, in multiple decades now have drawn maps that, you know, well, maybe you could quibble about them not being perfect and you can quibble whether they get, like, a, you know, a B, a B+, an A. You know, they don’t produce F maps, and they do much better both in terms of racial and partisan fairness. Michigan is a great example. Michigan—in 2011, Republicans drew the map. You know, both the legislative maps and the congressional map were considered really aggressive gerrymanders.
The commission undid those gerrymanders and produced maps that are very fair from a partisan perspective by every objective metric, and then also, you know, do very good in terms of representing, you know, Michigan’s very diverse communities and, you know, that’s—and likewise in California. You know, California became much more diverse over the course of the last decade.
The commission drew maps that increased the number of Latino and Asian opportunities in line with the increase in population. That’s in stark contrast to Texas, which also grew very diverse but, you know, in Texas, there were not only no new minority opportunities created, the state actually goes backwards and makes some districts much harder for minority-preferred candidates to win.
And so, you know, there is a model for reform and, you know, at least at the congressional level that could be done by Congress and not just the states. You know, Congress could require the use of independent commissions. You know, that sort of has stalled out in Congress but, you know, a future Congress might take that up. And so, you know, there are, you know, a lot of things that you can do.
FASKIANOS: Thank you. All right.
So, the first written question from Mike Green, who’s a city council member in West Columbia, South Carolina. How does voter ID affect voting rights and is this something that is necessary, the voter ID? This is, you know, is the subject of a lot of debate here about whether or not people should be required to show ID.
ANDERSON: I’ll take that one.
FASKIANOS: Yes. That’s for you Carol. (Laughter.)
ANDERSON: Yes. Voter ID is like the way that the poll tax and the literacy tests were where it sounds reasonable, but once you pull back the veil you see that it isn’t. One is voter ID is predicated on the lie of massive rampant voter fraud, voter fraud, voter fraud, voter fraud. But when you look you don’t see massive rampant voter fraud.
Justin Levitt, a law professor out of California, did a study from 2000 to 2014. Out of 1 billion votes cast in the U.S. there were thirty-one cases of voter impersonation fraud. Thirty-one out of 1 billion. That becomes the foundation for the lie of voter fraud, voter fraud, and why we need voter ID.
The way that the states have done it is that it plays to a middle class norm. Everybody’s got an ID. You’ve got to have an ID to get on a plane. You’ve got to have an ID to go to the bank. How hard is it to have an ID? And so you get this kind of—the same way with the poll tax. If you really believed in democracy you would pay this small fee. If you really believed in democracy you would get up and go get an ID.
The thing is the way that these states have written the voter ID laws is that they are racially distinctive. They deal with the racial disparities in access to different types of IDs. And so the Help America Vote Act had a large range of IDs that could be used. When the states got a hold of this and started with Indiana, really, and then Georgia, and then it just took off after Shelby County v. Holder, they said government-issued photo ID but not all government-issued photo IDs.
So Alabama said your public housing ID doesn’t count as a government-issued photo ID. Seventy-one percent of those who had—who were in public housing in Alabama were African American and for many, the Legal Defense Fund found, it was the only government-issued photo ID that they had.
Then the governor shut down the Department of Motor Vehicles in the Black Belt counties, making it doubly difficult for those who didn’t have a car to be able to go fifty miles to go get a driver’s license in the next county in order to be able to vote. And so what you see with the deployment of voter ID is, one, it’s predicated on a lie and then, two, the way that it has been designed and implemented has strong racial biases where you have politicians, just like with gerrymandering, being able to carve out and choose their own electorate based on the types of IDs that are deemed acceptable to access the ballot box.
So what Texas did was it said government-issued photo ID but your student ID from a state university doesn’t count but your concealed weapon card does. Fifty percent of those in state universities and colleges in Texas are people of color. Eighty percent of those who have the concealed weapon card are White.
This is how you can carve out your electorate by carving out the types of IDs. The thing is so nefarious but it’s being read as so logical that it’s doing damage.
FASKIANOS: Thank you. Let’s go to a raised hand from Penny Young, town council member in New Canaan, Connecticut, I believe.
Q: Yes. Thank you.
I was just sitting listening to this response and I cannot tell you how it has raised my blood pressure because we have been dealing with this issue of photo IDs and it seems like there’s always a reason why we can’t come up with a solution, as opposed to all of us wanting to have a solution and coming together with a colorblind, genderblind, whatever, you know, ABC attachment you want to put to someone blind solution to a problem. So why don’t we talk about solutions as opposed to undermining whatever is being discussed? I mean, I, frankly, am—every time I turn around it is more, more, more discussion about separation and division in our country than it is all of us looking together for solutions for unity.
LI: Well, I can make a couple of comments on that. I mean, I do think, like, on voter ID there isn’t an inherent problem with requiring people to identify themselves in some way. The problem is requiring them to identify themselves in ways that, like, you know, if they don’t have the IDs, right, and a court in North Carolina, for example, found that the legislature acted with surgical precision to carve out exactly—and those are the words the court used, surgical precision—exactly IDs that Black people, in particular, were less likely to have and to include the IDs that, you know, other people—White people—were likely to have.
And so, you know, many countries do have some kind of ID requirement. Canada has an ID requirement but the list—there are, basically, forty-five different types of IDs that you can show in Canada. And, really, the idea is that, you know, you have to have some kind of—something that you would unlikely not have if you were not the person in question.
And so, you know, like, you can show, for example, you know, a lease, you know, a health card, you know, any number of documents. A utility bill is a prime example, right. You know, you’re not likely to—if I just were—if I were to try to go to someplace and impersonate Carol I probably would not have Carol’s utility bill. That would take a lot of work for me to go impersonate Carol by getting her utility bill and then going to pretend that I was her.
And so, you know, there are lots of common sense things that you could probably do. The problem is that, you know, I don’t think that the people who are advocating IDs oftentimes are acting in good faith.
FASKIANOS: Carol, do you want to weigh in?
ANDERSON: Yes. And so the element of the problem that we’re trying to solve, what problem are we trying to solve with these IDs? Because these IDs are cast as solving the problem of massive rampant voter fraud.
We are not able to document massive rampant voter fraud and so then we get the element of trying to clean up corruption at the ballot box, and then we get the legislatures writing these ID laws that, as Michael said, are using surgical precision in order to knock certain people out.
And so the divisiveness that you find so appalling, I do, too. I find the divisiveness that—of denying American citizens the right to vote based on what type of ID that they have so that in North Dakota the legislature wrote a law for voter ID saying you must have a physical address on your ID to vote, knowing good and doggone well that 61 percent of their indigenous population lived on reservations that did not have a physical address.
So the only reason why you write that into the law is that you know that 61 percent of your indigenous population does not have a physical address. That’s what’s divisive.
FASKIANOS: Thank you.
I’m going to go next to Veronica Paiz, who is a council person in Harbor Woods, Michigan, and a state representative candidate in Michigan: Though the maps seem “fair,” quote/unquote, regarding population, the districts are drawn make it difficult to address specific concerns. Her district is part urban Detroit and part suburban, Tourism Lake in two counties, different concerns, different needs. Michigan Republicans tried to get thirty-nine pieces of anti-voting legislation through the house last year. So this is not a question, but could you address these kinds of situations?
LI: Yeah. I mean, I do think, like, drawing the districts in Michigan and the Detroit area was complicated. You know, Detroit has lost significant population over the last couple of decades, really, over the last few decades, and so because there’s a constitutional requirement that districts be equally populated, you know, some of the districts did have to include, you know, parts of Detroit and parts of areas like the suburbs of Detroit, and making those decisions optimally you would want, like, input from people about, like, OK, we have to, like, have these sort of urban-suburban districts so which one makes the most sense, right.
You know, it’s—you know, of course, it was a little bit difficult to get input this cycle because of the compressed timeline because of the—you know, they didn’t have the data until August of last year and then also because of the pandemic. So you weren’t able to do as many in-person hearings and the like.
But, you know, I think, you know, overall, the districts are much better than they were before the—you know, they’re sort of, you know, the—politically, they’re sort of jump ball maps or a jump ball state in terms of its racial fairness. I know there have been some critiques about that and we’ll have to see.
I mean, I think, you know, there were data challenges in drawing the maps, you know, about—you know, particularly, around the Black ability to elect and it might be that, you know, like, somebody might be able to bring a lawsuit under the Voting Rights Act if, in fact, the districts don’t perform the way that they were intended to perform in preserving Black political power.
But, you know, like, I think the commission did the best job they could, given the time constraints it was under and, more particularly, with respect to Black districts, given the limited data that was available.
FASKIANOS: Thank you.
Councilman John Rutherford wrote a question, and he is a Metro Council member in Nashville, Tennessee. Are candidates being removed from ballots seen as a voting rights issue? Both parties have done this. Three GOP candidates for Tennessee—five just this week—GOP redrew the lines to favor their candidates. Now they are limiting who can run in their primary, for what used to be a strong Democratic district.
LI: Well, I, certainly, think, like, you know, there is—you know, like, Carol is the expert on some of this but I do think, like, you know, in the South, in particular, there is sort of this, like, tradition of oligarchy, right.
You know, like, there is this group of in people who sort of rule and they kind of, like, use, like, all kinds of things to sort of make sure that they stay in power and I think you’re, perhaps, seeing that, you know, both in the redistricting in Tennessee but then, you know, also in some of the aggressive sort of stances that they’ve taken on who can be on the—you know, who the Republican candidates can be. I think the issue in Tennessee is that, you know, you had to have voted in a certain number of Republican primaries and some people hadn’t and so that’s sort of an issue.
But, you know, I do think, like, you know, one of the things that we’re facing now is that people are constantly changing the rules, right. You know, like, every time, like, you know, like, people are kind of, like—it’s, like, oh, people have figured out how to do this. Now you’re doing something else, right, and that is a—that’s something, of course, that has occurred around the country. But I think it’s, you know, particularly, something that’s occurred in the South. But Carol may have more to say on that.
ANDERSON: Absolutely. I mean, we’re seeing it. After the 2018, I believe, election here in Georgia where there was a couple of safe Republican seats in Cobb County, which is a suburb of Atlanta, well, that suburb has become more racially diverse and those safe seats barely won, and the legislature then redrew the districts before the redistricting process—redrew the districts in order to move Black voters out of those Republican districts and to move White voters into those Republican districts to make them more safe and to put Black voters into a Black legislator’s district.
I mean, so we’re seeing this happening and before the cycle is supposed to happen. So we’re seeing these rule changes to deal with the changing demographics and what the changing demographics mean for political power.
FASKIANOS: Thank you. I’m going to go next to Ellen Craig-Bragg, who’s raised—has a raised hand—city clerk in Romulus, Michigan.
Q: Hi. Good afternoon. And I’m Ellen Craig-Bragg. I am a city clerk in Michigan.
And I wanted to just have a comment on the photo ID requirement here in Michigan. City clerks or township clerks in Michigan, we administer elections within our jurisdiction. I am one who supports our photo ID requirement. I really believe here in Michigan that we have a comprehensive or an inclusive set of election laws that address, particularly, the photo ID requirement. As a clerk, we use that photo ID to verify, you know, the address—of course, the identity of the voter, but their address, making sure that they are in the correct precincts.
We allow—you know, we have several types of ranges of identification for voters and the one—there’s another piece to this, that if a voter comes in and they do not have the required photo ID—you know, ID requirements, there’s an affidavit that they would sign to say, I’m not in possession of the required photo ID so we don’t have to turn a voter away. They can still vote, you know, on election day.
So as a clerk, which I understand, Ms. Anderson, and I appreciate the historical information there and I agree that probably—that in some states and a lot of the photo ID laws were predicated, you know, on, you know, voter fraud.
But as a clerk for going on sixteen years, we’ve found that the photo ID has helped us in making sure in how we manage our voters in our precincts, making sure they’re in the right precincts. Maybe they’ve moved and we want to make sure that we can correct that information for the voter, especially with addresses, because we get people you know, moving around.
So I just wanted to make that comment because someone mentioned about having a solution. So I think—here in Michigan, I think, we have a pretty good set of election laws concerning photo ID. Thank you.
LI: And you’re absolutely—so, first of all, thank you for the work that you’re doing. It’s so critically important to our democracy.
But I think the one thing that you pointed out in Michigan is that, you know, if you don’t have the ID for whatever reason—you know, if you’ve lost it recently or, you know, sometimes, like, senior citizens don’t have a recent ID, right, you know, because they stopped driving, right, you know, and they rely on their, like, old expired driver’s license, right, you know, for everything that they need and they don’t really need an ID very often, you know, like, you could sign this affidavit and say, like, you are who you are and you sign it and, you know, it matches up against the book and everything like that and so, you know, that it can be a very reliable, you know, alternative.
And so, you know, I think, you know, providing people without ID a way to be able to vote and to, you know, assert their identity, I think, is a good solution, right. But requiring people to have a(n) ID, which, you know, like, in many states, like, it has to be, like, a current ID. It can’t be expired more than, like, six months or something like that, right.
You know, and, like, sometimes, you know, like, there are people who, you know, like—you know, like, I know, like, you know, like, sometimes when people move, like, they forget to get a new driver’s license, right. You know, like, they forget to get—(laughs)—you know, like, it’s just not, like, you’ve got to get your kids in schools. You’ve got to get your utilities set up. You’ve got to start working a new job. Like, you know, like, you know, you forget about doing that until, like—you know, and the election’s coming up and if you have to have a current ID with your address and everything like that there’s no way to sort of get around that. Like, you know, like, for lots of good faith reasons people might, you know—if there’s no way around that then they will be disenfranchised and that’s, like, something that we shouldn’t really be doing.
FASKIANOS: Yeah. And I would just say thank you for sharing your experience and we welcome that feedback as well because we want to share best practices amongst all of you and what’s working in your communities. So anybody else who wants to weigh in please raise your hand.
I’m going to go next to Senator Sam Hunt in Washington State: Washington State has one of the most accessible voter laws in the country. We vote by mail with each ballot returned envelope requiring a signature. Online voter registration, election day registration, and ballots mailed to every voter over two weeks before the election. When registering, potential voters must sign an oath that say they are U.S. citizens. We have no—we have a record of virtually no voter fraud in our state, and I guess that’s more of a comment than a question, but sharing.
One thing that we may have seen, however, in the 2020 election was the complexity of how to fill out that online ballot, that there was a lot of concern on how to do it and there were a lot of tutorials online. So is that something that could be streamlined across states, you know, how you do vote by mails so that your ballot isn’t invalidated if something is out of place?
ANDERSON: You know, part of what we saw with the absentee ballots—the use of absentee ballots during the 2020 election was you saw an exponential increase in their use because of COVID-19, and so people were trying to juggle, how do I maintain my health and maintain my right to vote, and absentee ballots appeared to be the way to do it.
But you saw some states that were putting additional requirements on the use of absentee ballots so that you had to get it notarized or you had to have witness signatures that you were who you were, which then seemed to undermine the whole thing about social distancing when you have to go get your ballot notarized. And it felt like yet another hurdle instead of—and because we do have these incredible models around the nation of states that use, basically—overwhelmingly use almost universal absentee ballot—mail-in ballots—to vote. We already have the model but you have states that were, like, how do we slow this down—how do we stop this.
One of the things we’re looking at is how you had the problems with the post office and getting the ballots mailed in on time—the concern that that wouldn’t happen and so the rise of drop boxes. Well, when that became effective, then you had this assault on drop boxes and you also had the assault on the use of absentee ballots where you started getting the language that they were the source of massive rampant voter fraud, although we have these states like Washington that can clearly document that going to a universal mail ballot does not create massive rampant voter fraud.
And so we have to always pay—to key into that language about real election integrity and the aura of election integrity in order to do damage to the American electorate.
FASKIANOS: Mmm hmm.
Next question from Hans Dosland, who is a legislative assistant in the Minnesota House of Representatives: What states have been champions of voter expansion? What are a few examples of some innovative approaches?
LI: Oh. Well, there are a lot of states that have been doing a lot of good work. You know, some of the most exciting work now has been around automatic voter registration, which is a really great innovation, you know, where—you know, anytime you have interaction with a government agency you have the opportunity to sort of register to vote or to update your registration and, likewise, you know—you know, and that is really good reform. I mean, it makes voter registration much cheaper than it would be otherwise because if you think about it—like, I used to live in Texas and in Texas to this day if you want to register to vote you have to fill out a paper form and mail it in, and then somebody has to sit there and type it in and, invariably, you know, they will misspell your name or get something wrong. My middle name is Chinese and so, you know, invariably, people misspell it and it comes back wrong and, you know, in a world where you have a photo ID that matches, like, your voter registration, sometimes, you know, it’s, like, you actually have to sit there and go correct it and things like that.
But, you know, in states like Minnesota, you know, a lot of, you know—Washington State—you know, have made it a lot easier to sort of vote by mail and to do it securely. You know, there are lots of—and, likewise, in Minnesota you can vote in person early, right, you know, for a very extended period of time and, you know, all of that, you know, just making it—you know, building—you know, making it so that you could vote in ways that are sort of convenient to you and sort of the ways that we expect.
You know, we don’t think that we necessarily have to go to the, you know, the grocery store. If we can’t go to the grocery store we can order things online. You know, we can do—you know, we can do a lot of things. We can check our banking account. We don’t have to go to the bank. We can check our bank account online.
You know, just having a lot more options that meet a very mobile, you know, time-pressed society can be great and I think, you know, there are lots of great examples around the country that are—where people are, you know, making it—and creating more options for people to vote and to vote securely.
ANDERSON: Right. I think one of the things is what California did, which was it looked at Oregon and said, oh, we can do that. Because California had, like, a 42 (percent), 43 percent voter turnout rate, and the secretary of state said, no, we can do better. But what they added was to have preregistration for sixteen- and seventeen-year-olds, because in order to get them hyped about the kind of civic engagement that voting requires and so to smooth the path for them that when they turned eighteen they were registered to vote.
So you’re learning when you’re a sixteen- and seventeen-year-old, I’m going to be—I’m going to be registered to vote when I turn 18, and so that is one of those innovations in the system that has been really good.
So next question from Amy Loprest, who’s executive director of New York City Campaign Finance Board: What impact do you think that the gerrymandering and lies about voter fraud have on our already low voter turnout and how do we combat that?
LI: Well, having, like, run campaigns in Texas in a prior life, I can tell you, like, when you sometimes call voters up and say, like, hey, are you going to vote for, you know, candidate X, they’ll tell you, like, why should I bother voting because they’ve already determined who’s going to win, right, you know, and, like, I do think, like, you know, like, I think that, you know, there’s a cynicism in a lot of states, you know, because of the way the district lines are drawn, and I think people—you know, it does impact turnout, particularly, you know, if you’ve got other things to do, right. You know, it’s, like, I could vote. You know, it’d be nice to vote. I happen to vote in every election. I probably drive by the polling place on Tuesdays just make sure there’s no election I forgot about.
But, you know, not everybody’s like that and so sometimes you have to—you know, if people feel like, you know, everything has been predetermined, gerrymandering is, certainly, not helpful to that. And, likewise, you know, some of the gerrymandering is actually—you know, there’s at least some of this, you know, we’re still sourcing out. You know, we’ll know more.
But, you know, it does increase, like, polarization, right. You know, like, parts of—I showed you in my PowerPoint, you know, parts of Denton County of suburban Dallas are now drawn into a very deeply red district that stretches all the way to the Texas Panhandle. Like, that’s going to produce a very different kind of Republican than was elected in a suburban Republican district, and I think that that also can be a turn off for people.
And, you know, frankly, both parties, you know, are becoming more polarized as a part—you know, like, the Democratic districts are really Democratic and the Republican districts are really Republican and the only thing that matters is the primary, and when the only thing that matters is the primary you get more extreme candidates, and that can also be a turn off because, you know, if you’re, like, there’s nobody who—like, the candidates don’t represent me. Like, the guy who’s going to likely win does not in any way sort of, like, reflect my concerns. He doesn’t live here. He lives in rural Texas, right, you know, and things like that. And so, you know, I think that can also be a turn off.
ANDERSON: Absolutely. And one of the things about—like, when Wisconsin was drawing its maps after the 2010 election they had two goals. One was to eliminate as many competitive districts as possible because they knew that competitive districts spurred voter turnout because people believed that their vote counted.
But when you eliminate the competitive districts then it’s, like, oh, they’ve been here since— my mother would say since Hector was a pup. You know, they’ve been here. They’re always going to be here. This is what they are, right. This is—you know, so it doesn’t matter if I vote or not. This is who my representative will be.
So when you eliminate competitive districts—and this is what one of Michael’s slides showed—when you eliminate those competitive districts you bring down voter turnout. The other component in Wisconsin’s plan was to say regardless of how many votes we get we will always have the majority of the power in the legislature. And so when voters see that, what it does is it causes a sense of cynicism, a sense of futility, that it doesn’t matter if I vote because this is what’s always going to happen.
And so the gerrymandered districts do that. When you see that there is a massive difference between the polls of what Americans want in terms of key issues and then what the legislation that is coming through these spaces are bringing, and that also then spurs the sense of futility. Yes. And so the disenfranchising of techniques do damage to American democracy.
FASKIANOS: Next question from Scot Wrighton, city manager in Decatur, Illinois: Has there been any progress on legally determining the respective role in election management between the federal and state governments based on Article One Section Four of the Constitution or will this legal gray area only be resolved by the Supreme Court?
LI: Well, I think it’s been pretty clear that, you know, like, at least when it comes to federal elections that, you know, the states have the right to enact rules regarding the time, place, and manner of elections but the federal government has the ability to override those or create different rules, and, you know, Justice Scalia famously said that, you know, Congress has the power to, basically, enact a federal election code if it wanted to. It hasn’t. But he said, like, it could. That’s how broad its power is under the federal elections clause—Article One Section Four—of the Constitution.
But there are some new challenges that are coming up and percolating up through the system about how, actually, you know, state courts, at least, don’t have the power to sort of, like, rule on election challenges or redistricting plans because Article I, Section 4 says the power to regulate the time, place, and manner of federal elections is given to the legislatures of the state, and Republicans have been advancing the argument that, well, like, a court is not the legislature of the state and so, therefore, the courts have no power, even though like, you know, state courts have long ruled election disputes and the like.
But, you know, this is sort of the argument and, you know, in that case, you know, we think it will probably be heard by the Supreme Court at some point. At least four justices have indicated a desire to hear that argument and it only takes four justices out of the nine to hear a case. It takes five to make a decision but, you know, it takes four to decide to hear a case. And so at an appropriate point in time sometime, you know, in the next year or two there will probably be some case that reaches the Supreme Court on that.
I will say it is a radical argument. You know, like, in 2018, Republicans raised that after the Pennsylvania Supreme Court struck down that state’s congressional map in order to redrawn—Republicans went to the Supreme Court and said the state supreme court has no power to do this. Justice Alito didn’t even grant the request for a stay.
Well, he didn’t—he not only did not grant their request for a stay, he didn’t even refer to the whole Court. You know, the request for a stay comes to a single justice and they usually refer to the whole Court and the whole Court decides. Justice Alito just said denied.
But now, you know, at least four justices seem to think it’s, like, a live issue, which, I think, shows you how conservative in a lot of ways the courts have gotten and how much in uncharted territory we really are.
FASKIANOS: I’m going to combine a couple questions from Rose Reyes in Windham, Connecticut, town council and Mike Jacobs in Madison, Wisconsin. So, first, is—have all the maps been drawn and is there a deadline for completion and then from—where did that go? Sorry, as I go back—are legislators consulting academics when creating the maps?
LI: Well, most of the maps are done, which is act one in America, right, because we—we’re Americans. We draw maps and then we litigate about them in court, right. So act one is almost done. There are three states that don’t yet have final congressional maps—New Hampshire, Missouri, and Florida, although Florida just passed maps today and Governor DeSantis is expected to sign them because they’re maps that he drew.
And so congressional redistricting is almost—legislative redistricting is almost done. You know, the one round of redistricting that still is taking place around a lot of the country is local government redistricting because many states have—many local governments have elections in the odd-numbered years. You know, redistricting is still going on for city councils, county commissions, school boards, and the like, and so that will play out.
And in terms of just consulting with academics, you know, they—you know, everybody has their experts and things like that. You know, I will say, like, commissions probably do a much better job of consulting with, you know, neutral experts because, you know, they—you know, I think when partisan actors draw maps they start off with the end goal in mind and they kind of consult with experts who help verify—(laughs)—where they want to go.
But when you have commissions who are, you know, more honest brokers of the process and really just want to get it right, you know, they have been much more responsive to academics but, more importantly, (take a view to ?) the input, right? You know, in California, you know, like, the commission has done historically—and you see this around the country, too—a really good job of listening to community input.
Like, there—in 2011 the commission in California drew a district that was based on keeping the Los Angeles foothills together because people came to the commission and said, like, hey, we have a common concern, which is wildfires, which is not being met, and if we’re in the same district we think we’ll have somebody who will advocate about wildfire prevention and safety in Sacramento, and the commission heard that and said, like, that’s a really good argument and drew the district, and to this day they have somebody whose, like, number-one priority seems to be preventing wildfires and wildfire safety.
FASKIANOS: Carol, do you have any thoughts or should I go to the next question?
ANDERSON: Go to the next question. Yes.
FASKIANOS: OK. Great.
So we only have a few minutes left, so I want to package a couple of questions from Diane Goldring, who’s a state representative in Illinois, and Kala at WURD radio: So what can President Biden do without needing congressional approval to counter states’ voting rights restrictions and is there anything he can do, you know, with his executive orders?
And then from Kala: How do you work against voter suppression? I mean, we have seen with the 2020 election that there—a lot of talk about voter fraud, but there were very—it doesn’t really exist, right. So but there is this perception that they were not—there was voter fraud, regardless of the lack of evidence. So what do we do about this? Why don’t you each take a few—give us your final thoughts.
ANDERSON: OK. I’m going to take the what-do-we-do question, and that is it is incredible organizing and mobilizing it at the grassroots level to deal with that kind of cynicism, to get the voter registration happening, to get the voter turnout, and they did it in the 2017 special senate race in Alabama between Doug Jones and Judge Roy Moore. All kinds of voter suppression had been deployed against that Black community and civil society got in there and just started moving those stumbling blocks out of the way.
And it’s also true, though, because one of the threats—and this goes back to an earlier question—is that with all of the mobilization and voter turnout like we had in 2020 is that you see that what these legislators—legislatures are doing is that they’re adding not only these kinds of barriers, like, OK, so you used absentee ballots, let’s make that harder, but they’re also then beginning to seize control of the election certification machinery itself so that you’re getting the state takeover of local election boards.
You’re getting who’s certifying this—who’s certifying the votes. And so the guardrails of democracy are being lowered so that the vote, the will of the people, can be overturned if that kind of mobilization and organization happens.
And so it is to continue to alert and require our elected officials to actually fight for this democracy, to make it really clear what’s at stake, to get them fully engaged, to say that there is no issue that is more important than the viability of American democracy and this is where you must come down.
LI: I have nothing, really, to add to that other than it was an excellent call to action by Carol. You know, I do think that we are at a pivot point in our country in a lot of ways. You know, like, we are becoming a multiracial country, you know, in ways that, you know, I think, and, you know, are shaking the system, shaking the roots of the system and, you know, at a certain point right now people—a lot of people are viewing that as a threat and I think, you know, we need to get to the point where people can view this as an opportunity because it actually is a strength of our country, not a weakness.
But, you know, many people seem hugely threatened by it and, you know, unfortunately, it’s easy for them to push buttons and people are all too ready to respond to, and simply pushing back on that, I think, is incredibly important.
FASKIANOS: Well, thank you both for this informative hour and to all of you for your questions and comments. There were many more in the Q&A. I’m sorry we couldn’t get to them all. But we will continue to look at this important issue. So, again, thank you to Carol Anderson and Michael Li.
We will send out a link to the webinar, recording, and transcript and you can follow Dr. Anderson on Twitter at @ProfCAnderson and Michael Li at @mcpli. So, again, thank you both. We encourage you to go to CFR.org, ForeignAffairs.com, and ThinkGlobalHealth.org for more expertise and analysis and, as always, you can email [email protected] to let us know how we can support the important work you are doing in your communities.
So thank you all again.
ANDERSON: Thank you.
LI: Thank you.