‘It Had Everything to Do With Trying to Decrease Black Voter Turnout’

Janine Jackson interviewed Ari Berman about the attack on voting rights for the May 26, 2017, episode of CounterSpin. This is a lightly edited transcript.


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Janine Jackson: That Donald Trump got to the White House is something Americans will be reckoning with for a long time. Interrogating the white supremacy, misogyny and nativism that Trump was able to draw on is a critical effort.

But while we rightly concern ourselves with the public mood, there are serious questions about to what extent the electoral process really reflects that mood at all. Where the voting process is marred by exclusions, barriers and unfairness, its results are imperfectly described as the public will.

Recent court developments remind us we are still in a pitched battle for this most fundamental of rights. Ari Berman tracks that struggle for The Nation, where he is a senior contributing writer and a fellow at the Nation Institute. He’s also author of, most recently, Give Us the Ballot: The Modern Struggle for Voting Rights in America. Welcome back to CounterSpin, Ari Berman.

Ari Berman: Thank you, Janine.

JJ: Let’s talk about North Carolina, where we’ve seen a couple different types of efforts to suppress votes. Before we get to the redistricting that the Supreme Court just addressed, can you remind us of the voting restrictions that North Carolina put in place a few years back? What did they look like, and what became of them?

Ari Berman (cc photo: Shawn)

Ari Berman: “You really think there could be some consensus in this country that at the very least, protecting and preserving American democracy would be something that we can all agree on.” (cc photo: Shawn)

AB: So in June of 2013, the Supreme Court overturned a key part of the Voting Rights Act and said that states with the longest histories of discrimination no longer had to approve their voting changes with the federal government. A month after that decision, North Carolina passed the country’s most sweeping voting restrictions, in July of 2013. They required strict voter ID to cast a ballot, they cut early voting, they eliminated same-day voter registration, they eliminated out-of-precinct voting, they eliminated preregistration for 16- and 17-year-olds. They even eliminated Citizens Awareness Month, which North Carolina did to encourage people to register to vote.

So this was really a very, very dramatic bill, both for what it did, and also the fact that it just came a month after the Supreme Court gutted the Voting Rights Act. In July of 2016, the Fourth Circuit Court of Appeals struck down this law, and they said it targeted black voters, in the court’s words, “with almost surgical precision.” And it said that some parts of the law were “as close to a smoking gun as you’ll ever see in modern times.” So this was an absolutely remarkable opinion, just completely laying out everything that North Carolina had done to try to disenfranchise African-American and other voters.

And then recently, the Supreme Court decided not to hear an appeal of the case, meaning that, at least for now, the Fourth Circuit opinion stands, which is a big victory for voting rights, because I think a lot of people were afraid, with Neil Gorsuch on the Court, that now there would be five votes for reinstating this law.

JJ: I’m going to bring you back to that in just a second, but I wanted to hold with this Fourth Circuit ruling for just a second. Because the judge reporting for the panel, Diana Gribbon Motz, noted that North Carolina’s law

impose[s] cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the state’s true motivation.

And I found an editorial in the Virginian-Pilot which said, well, the truth is they never bothered to conceal them. That law was put together, wasn’t it, after Republican leaders actually sought out information from the state about the voting habits of black and Hispanic residents?

AB: Yeah. Basically what had happened is in North Carolina, obviously, you had a long history of disenfranchisement. Then after the Voting Rights Act was passed, many people were enfranchised, but black turnout still lagged behind white turnout, and black registration lagged behind white voter registration.

And then after North Carolina, beginning in the early 2000s, began to pass reforms like Election Day registration, like early voting, these kind of things, and black turnout increased dramatically—at the same time that North Carolina became a swing state and went for Barack Obama in 2008, which surprised many people. And, in fact, in 2008 black turnout in North Carolina actually increased over white turnout. And it was only then that North Carolina Republicans decided to cut early voting, to eliminate voter registration, to require strict voter ID that disproportionately harmed black voters.

And so what the Court said is that the very message that had been used to increase African-American registration and turnout were the methods that North Carolina Republicans eliminated, and that’s why they said that this law was intentionally discriminatory. It had nothing to do with voter fraud. It had everything to do with trying to decrease black voter turnout and black voter participation.

JJ: Now when the Supreme Court let stand that lower court ruling, a few people noticed what was called an asterisk from Roberts. It seemed to be a signal that maybe folks should just try again. What was that about?

AB: So there were some procedural issues in this case, because North Carolina Republicans appealed the Fourth Circuit’s decision back in 2016, and then in November of 2016, North Carolina elected a Democratic governor and a Democratic attorney general. And they essentially pulled the appeal; they told the Supreme Court, we want the Fourth Circuit’s decision to stand. Meanwhile, the Republican legislature in North Carolina said, no, we want to keep appealing.

So there were a lot of questions about who had standing to actually appeal on behalf of the state of North Carolina, and the Supreme Court basically said, we don’t want to get into this; we’re not sure who has standing, we’re just going to let the Fourth Circuit opinion stand because it’s too confusing, too convoluted.

But Chief Justice Roberts said this doesn’t set a precedent, it doesn’t have any impact on future cases—meaning, if states enact strict voting restrictions that are then overturned by the courts, feel free to appeal to us in the future. So I took this very much as a sign of John Roberts’ continuing hostility to voting rights.

JJ: Right. Well, of course, listeners know North Carolina is not alone. Texas also had a voter ID law that a court struck down. And the pretense of this has always been fraud, as you alluded to. And on this point, media have evolved somewhat. I mean, they used to say — you and I have talked about it — they used to say, “Republicans charge voter fraud, Democrats warn of voter suppression,” as though those charges had equal merit.

AB: Yeah.

New York Times: For Voting Rights Advocates, Court Decision is 'Temporary Victory'

A New York Times article by Michael Wines (5/16/17) expressed hope for “compromises that would protect against possible fraud but not be so onerous that they kept voters from the polls.”

JJ: At some point, they seemed to determine it was safe to acknowledge that voter fraud is not just a myth but a tool. But it still wasn’t treated as, really, the attack on democracy that I would say that it represents. And in fact you can still find—this is from the New York Times just a week ago, they’re writing about Justice Kennedy, and they say that he may

have qualms about the partisan effect of laws like those requiring strict voter IDs, and may be instrumental in helping the court come up with compromises that would protect against possible fraud but not be so onerous that they kept voters from the polls.

You know, as though we still need to find this happy middle ground.

AB: Yeah. I mean, this is really remarkable, because I don’t view Anthony Kennedy as anything of a swing vote on this issue. He voted to gut the Voting Rights Act; he would have voted to reinstate North Carolina’s voting restrictions when this came up before the Court in 2016 and they did not have the votes to hear the case. Kennedy signaled that he would have put the restrictions back into effect for 2016. And what the North Carolina case, the Texas case and others have shown is that there’s virtually no evidence of voter fraud in the country, and there’s absolutely no evidence of voter impersonation, which a voter ID law would stop.

And in fact, in both Texas and North Carolina, their voter ID laws would have made the problem of voter fraud worse, and let me explain how. Both in Texas and North Carolina, they exempt absentee ballots from the voter ID requirement. Well, absentee ballots are where voter fraud is much, much, much more likely to occur. It’s still rare, but if you’re going to try to steal an election, you’re going to do it when nobody’s looking, and not when you’re at the polls surrounded by poll workers, election officials, many other voters. That’s the kind of time you’re going to get caught.

And the reason why Texas and North Carolina exempted absentee ballots from the voter ID requirement is because white Republicans are far more likely to vote absentee, in particular elderly voters. Whereas African-American voters, younger voters, voters of color, much more likely to vote in person, either because of a skepticism of absentee ballots or just wanting to vote in person. For one reason or another, we see that there is a very different impact in terms of who votes when. And so even under the guise of, quote-unquote, “stopping voter fraud,” it actually made voter fraud more likely to occur.

So this is a completely manufactured crisis. And what I find frustrating is that when President Trump says three to five million people voted illegally, the media says, “Oh yeah, that’s crazy, there’s no evidence for that.” But in Texas and North Carolina and other places where Republicans say, over and over and over, that voter fraud is widespread and occurring rampantly, there’s a lot of deference.

And the other thing is that the media are just totally unable to grasp the idea that some people are turned away from the polls by voter suppression efforts. They’re constantly pouring cold water on the idea that people could be turned away. They spent so much time interviewing Trump voters and trying to figure out, why did people vote for Donald Trump, what was their motivation—as opposed to spending even any time trying to interview people who were turned away from the polls or who weren’t registered to vote, and asking them, what happened to you, why were you disenfranchised, why did you decide not to participate, why did you try to participate and you couldn’t? So to me, I still have a lot of issues with how the media is covering this issue.

JJ: Absolutely. And I think the same New York Times story I was quoting earlier says that—just sort of tosses it off—proving that a voter ID law depressed turnout is “devilishly difficult.”

AB: Yeah. Honestly, I—some liberal academics have fallen into this same trap where they say, well, the right exaggerates voter fraud, but the left exaggerates voter suppression. And I’m sure that’s true, I’m sure there are some people on the left that exaggerate voter suppression. But there’s no equivalence at all between the two.

We have multiple studies now that show that voter ID laws, and other things like that, reduce voter turnout. We have studies by the Government Accountability Office that found that voter ID laws in Kansas and Texas reduced voter turnout by 1 to 2 percent, which is enough to swing a close election. We have data from other political scientists, we have other studies that have recently come out. We’ve looked at the turnout in states like Wisconsin that adopted these laws, and saw that turnout was down.

Now, I understand that turnout is difficult to measure, because there’s lots of different reasons why people don’t turn out. But I also think it makes objective sense that if you pass a law and hundreds of thousands of voters don’t have the documents to comply with it, that’s at least going to have some suppressive effect. I mean, this is not exactly rocket science here.

JJ: Right, right, and we make those sorts of leaps, if you will, on issue areas all the time, where we see a connection there. Especially where you can find intent from the people who are doing it!

Well, let’s talk now about redistricting, and this latest ruling from the Supreme Court with regard to North Carolina’s plan. Explain what the state did with these two congressional districts.

North Carolina Gerrymandering

Mother Jones (2/26/17) noted that North Carolina’s gerrymander did not pass the “WTF?” test.

AB: So what North Carolina did is, they had these two congressional districts that had been electing African-American representatives for the House for the last 20 years. So they were functionally majority-black districts. But what North Carolina did is, after the 2010 census, when they controlled the redistricting process, they increased the number of black voters in these districts, even though the black Democrats who represented these districts didn’t want any more black voters in their districts.

And the reason why North Carolina Republicans did this is they wanted to make the surrounding districts whiter, more conservative, and then more likely to elect a Republican. So essentially they packed as many minority voters as possible into as few districts as possible, so that they could benefit everywhere else.

And what the Supreme Court said was, this was an example of unconstitutional racial gerrymandering, that race was the predominant issue in terms of why these districts were drawn that way, and that even if Republicans in North Carolina claim that they just did it for political reasons, the fact that African-Americans in North Carolina are so heavily identified with the Democratic Party means you couldn’t separate race from party.

So this is potentially significant, because the Supreme Court has decided that they will weigh in on racial gerrymandering, but they won’t weigh in on political gerrymandering, and there’s been this distinction between the two. And what Justice Kagan said in her opinion was, maybe at some point these things are the same. Like if you’re just trying to disenfranchise Democratic voters, and most of those Democratic voters happen to be African-American, well, then, clearly the partisan reasons also have racial implications as well.

JJ: Let me just ask you, as a lay person, why is it OK to draw districts to benefit your party?

AB: Well, this is honestly something that the Supreme Court is probably going to weigh in on, because there’s a challenge from Wisconsin that is trying to get rid of partisan gerrymandering too. And basically saying, when there’s too extreme of a map on one side or another, there should be some objective criteria for striking it down.

And I agree with you, I think it’s insane that either Democrats or Republicans are allowed to draw their own districts. I mean, that’s such a fundamental conflict of interest. I oppose it when Republicans do it in North Carolina, and I think it’s bad when Democrats do it in California. I think that we need to have much more competitive elections, that I think would benefit democracy more broadly. So I’m hopeful that the Supreme Court will figure out some way to objectively look at this. Basically, what they’ve said so far is, it’s too complicated, gerrymandering is one of those things that politicians have deference on, and so we’re not going to weigh in here. But as gerrymandering gets worse and worse and worse, I think that partisan gerrymandering should clearly be something that they look into more.

JJ: And in the Supreme Court ruling, you reported a—I guess “funny” could be one word for it—behind-the-scenes episode that Kagan cited, and it has to do with how North Carolina Republicans thought they were actually going to sell this redistricting to black people.

AB: Yeah. So what North Carolina Republicans said is that they needed to draw districts that had over 50 percent black population to comply with the Voting Rights Act. And the Voting Rights Act has never said that. What the Voting Rights Act has said is that when you can draw a district where minority voters could elect a candidate of their choice, you should. Well, in both the 1st and the 12th congressional districts, that was already occurring. These were not 50 percent black districts, but they had elected black Democrats for over 20 years.

Rep. Mel Watt

Rep. Mel Watt (D.-N.C.): Doesn’t need to win with 85 percent of the vote.

And so what Congressman Mel Watt, who represented the 12th Congressional District, which is one of these districts, in Congress for 20 years—when a Republican state senator told Mel Watt that we’re doing this to comply with the Voting Rights Act, and we’re going to sell this to the African-American community, Mel Watt told him that the African-American community is going to laugh at you, because I’ve already been in Congress for 20 years and I’m already winning 65 percent of the vote. So I don’t need to win 85 percent of the vote; that’s not what the Voting Rights Act was designed to do.

So I think that this was an incredibly cynical invocation of the Voting Rights Act by North Carolina Republicans. These are the same Republicans that cheered the decision gutting the Voting Rights Act, and now they’re saying that they did all of this to comply with the law? I mean, it’s so transparently cynical, I don’t know how anyone can believe it.

JJ: Well, you can’t overemphasize the importance of voting as a linchpin issue. I mean, every day we’re being told, call your representatives to respond to this or that outrage. And so it just seems to me, as you’ve already started to say, that as a story, the overt attack on the democratic process, as represented by the electoral process—how could there be a bigger story, in some ways?

AB: Well, I agree, and I think it’s much bigger than voting at this point. Because I think Donald Trump is an existential threat to democracy in this country. His attacks on the judiciary, his attacks on the free press, his foreign entanglements, the cronyism of his family, all of these things—his firing of the FBI Director, the multiple interferences with normal agencies, with the FBI, with intelligence agencies, the hacking of our elections. I mean, this all to me is a related issue, which is that we have both the president and a party that has complete contempt for the democratic process.

And I think the media need to start to calling this out for what it is, because they are one of the chief people that are under threat by these attacks on democracy. That it’s no coincidence, at the same time that you’re attacking the right to vote, you’re attacking independent judiciary, you’re trying to shut down criminal investigations, that you would also then be going after the people that are going to report on all of this, which is us, the media

JJ: Yeah, and even at this point physical threats, we’re seeing. So again, we want those media outlets who do have powerful institutions behind them—it just seems to me that people are crying out for some other sort of defense against this current system.

AB: Well, I think that, basically, this is not to me a time for false equivalence, it’s not a time for he said/she said. I think that the undermining of democracy should really be one of those issues that crosses party lines. And some Republicans have started to speak out more about this, not necessarily on voting rights, but on other issues. And you really think there could be some consensus in this country that at the very least, protecting and preserving American democracy would be something that we can all agree on.

JJ: We’ve been speaking with Ari Berman. His book is Give Us the Ballot: The Modern Struggle for Voting Rights in America. And you can follow his work at The Nation on TheNation.com. Ari Berman, thank you so much for joining us this week on CounterSpin.

AB: Thanks, Janine.


This piece was reprinted by RINF Alternative News with permission from FAIR.