Voting Rights: “There Is Reason to be Optimistic as Well as Alarmed”

Michael Waldman hadn’t planned on rereleasing his 2016 book, The Fight to Vote, anytime soon. But he didn’t anticipate that a sitting president would attempt to steal an election.

The Fight to Vote traces the evolution of voting rights in the United States, from the drafting of the Constitution through Reconstruction and the modern civil rights era to today’s partisan battles. The revised edition, published in January, introduces readers to the notorious origins of the phrase “the Big Lie,” explores the COVID-19 pandemic’s impact on the 2020 election, predicts upcoming Supreme Court battles, and more.

Waldman heads the Brennan Center for Justice, a nonprofit law and policy institute at the New York University School of Law, which works to improve systems of democracy and justice by focusing on voting rights and campaign finance reform, among other issues. He previously directed the White House Speechwriting Office under Bill Clinton, served as a member of the Presidential Commission on the Supreme Court of the United States, and has authored several books, including The Second Amendment, My Fellow Americans, and POTUS Speaks.

This conversation has been edited and shortened for clarity.

AD: In the wake of Trump’s “Big Lie”—the false assertion that the 2020 election was stolen—do you see democracy becoming an organizing factor for political parties?

MW: Throughout American history, it’s very often been the case that voting rights advances are pushed by one party or another and fought by one party or another. For the first time, we have one of the political parties in thrall to the former president, who says the election was stolen and is now urging people to change the rules to make it harder to vote.

The Big Lie is becoming a mobilizing principle for Republicans. Most politicians know it’s nonsense, but tens of millions of voters believe the lie because their former president told them it’s true. That’s scary and authoritarian and new.

What is also new is Democrats mobilizing around voting rights and strengthening democracy. Some of that comes out of the response to Trump and the Big Lie and some out of the movement to pass federal voting rights legislation.

There’s an extraordinary coalition around the democracy movement. One of the big questions for me is whether it will make itself felt around the country—in effect, a pro-democracy fight to match the attack on democracy. I don’t think we know the answer yet. 

AD: Are the attacks on democracy and voting rights a continuation of historical trends?

MW: It’s important not to overstate it. I’m not, as the book describes, talking about the period before the Voting Rights Act. There was brutal and almost entirely successful disenfranchisement of Black voters in the South for many decades. That’s not what we have right now. 

Some of these laws are worse than others—several of them have been softened as they’ve moved through the legislative process, but unfortunately [are] targeted very precisely to affect Black, Latino, Asian, Native American, and young voters. 

The other thing that’s important to remember is that people now—much more than they did in the past—understand that Black men won the right to vote during the Civil War. That right was guaranteed by the Fifteenth Amendment, resulting in a flowering of democracy in the South. Then, as we know, it was taken away because of cowardice by the North and terrorism by the KKK and other terrorist groups acting as an arm of the Democratic Party in the South.

But disenfranchisement didn’t happen right away. As late as 1890, most voters in Mississippi were Black, but they were under attack. That year, Republicans tried to pass a voting rights bill, which passed the House of Representatives but was blocked by the first major Senate filibuster of a voting rights bill. Southern states passed Jim Crow constitutions, resulting in seven decades of disenfranchisement and discrimination. 

In other words, things can go backward. When the federal government won’t do its part, things can get bad. Right now, if Congress cannot pass voting rights legislation because of the filibuster, and the federal courts will not defend voting rights, states get the green light to abuse the rights of their people. There’s no reason to think that things can’t get a lot worse. 

AD: What has been the Supreme Court’s role in curbing and expanding voting rights? 

MW: One of the surprises from looking at American history is the limited role the courts have played in defending and expanding American democracy. Voting rights advances have come in the legislatures, at the ballot box, and sometimes on the streets, but almost never in the courtrooms.

In recent years, it’s gotten worse: It’s not just that the Supreme Court is not a leading force for American democracy over the past decade or more. It has aggressively ruled in ways to undermine American democracy. In 2010, the Citizens United ruling upended a century of campaign finance laws designed to keep the wealthy from dominating American politics. In 2013, the Shelby County decision gutted the Voting Rights Act of 1965—the most effective civil rights law in the country. In the 2019 Rucho decision, the Court said, in as many words, “Oh, we think partisan gerrymandering is a bad thing, but we can’t do anything about it, and federal courts are barred even from hearing cases alleging partisan gerrymandering,” and washed their hands of it.

AD: What issues are you seeing in upcoming Supreme Court cases?

MW: There are lots of reason to worry that the Court will take a wrecking ball to what’s left of the Voting Rights Act over the next year. 

In 2013, the Court gutted Section 5 of the Voting Rights Act, or the “preclearance” section, which said that a state with a history of racial discrimination in voting had to get permission from the Justice Department or a federal court before changing their voting rules. In the Brnovich case last year, the Court gravely weakened Section 2, making it very hard to challenge new voter suppression laws. People said at least the part used to block racial gerrymanders was still standing.

In recent months, an appeals court blocked a racial gerrymander in Alabama, and the Supreme Court said to let the election go forward with a map that the federal judges had said was racially discriminatory. 

The other issue is a fringe legal theory that says only state legislatures have the power to make voting rules. Its proponents call it the “independent state legislature doctrine,” except it’s not a doctrine—no court has ever found it.

At least four justices seem to think it’s a pretty good idea. They point to the Constitution’s elections clause, which says the legislature sets the time, place, and manner of elections, but Congress can override that and set national rules. James Madison insisted that the Constitution include this clause because he was convinced that state legislatures were corrupt and would do what we now call “voter suppression” or “gerrymandering.”

These proponents now argue that because the clause uses the word legislature—by which the Constitution means “state”—only legislators, meaning people in ill-fitting suits under a dome, can have anything to do with elections.

It’s constitutional upside-down land, but there may be a big fight in front of the Supreme Court very soon.

AD: What are you optimistic about?

MW: There is reason to be optimistic, as well as alarmed. Until quite recently, the trend has been toward enhanced democracy and expanded access to voting. What makes me optimistic is people showing they care about the health of democracy. People looking to undermine American democracy know that people care about it. 

For years, most consultants in the Democratic Party would whisper in the ears of their clients, “Oh, nobody cares about this stuff—it’s boring. It’s technical. It’s arcane.” We’ve learned that when you take away people’s right to vote or when you have an assault on our democracy as visible as the assault on the Capitol, people care.

What gives me hope is that if this remains a central burning political issue going forward, that can help transform the country.