Announcer: Listener-supported WNYC Studios Announcer.

Kai Wright: I'm Kai Wright and this is The United States of Anxiety, a show about the unfinished business of our history and its grip on our future.

Speaker 1: The purpose of this law is simple. There are those who are equal before God shall now also be equal in the polling booths.

Speaker 2: The bill is passed without objection.

Speaker 3: Disenfranchisement did not mean that Black women sat down and waited for enlightenment when it came to voting rights.

Speaker 4: Socially distanced voters, snaking for blocks in Georgia, Texas, South Carolina and North Carolina.

Speaker 5: They don't want you voting in-person. They don't want you voting early.

Speaker 6: It's a matter of a violation of the 13th, 14th and 15th Amendment. What I'm curious to see, do the constitution of the United States mean anything.

Kai: I voted yesterday, in-person. It was the first day of early voting here in New York and actually our first time voting early in a presidential election at all. We've not had that option. It's one of the changes that came out of a new progressive state legislature that swept into office a couple of years ago. It was kind of an event.

Tens of thousands of people lined up outside places like Madison Square Garden and the Brooklyn Museum, a drum line even turned out at the Barclays Center. They of course killed it on Twitter.

There was a novelty to it all, but also there was real emotion. As I walked up to the polling site and yes, found a line wrapping around the block. I passed a young Afro-Latin couple with their little girl, maybe five or six years old. She and her dad were posing in front of the 'vote here' sign as her mom took a picture of them and just beamed at them. I can't speak for everybody, obviously, but for a lot of Black people, voting is more than picking your candidate or your party. It's less a statement about them over there. More statement about us, me, I am here. I will be counted. I will have a say in how this society has ordered.

Nationally more than 53 million people had already voted as a Friday, from Georgia to Pennsylvania, Wisconsin, several States are on track to break turnout records. The president has repeatedly and baseless lead challenged the integrity of much of this voting. We've talked about that already on this show, but the anti-democracy wing of American politics, it existed long before this election and even now it involves a great deal, more people than Donald Trump.

That's what we're going to talk about on this week's show. Later in the show historian, Carol Anderson, is going to tell me the story of the modern war against the voting. First though, we're going to meet some of the people who have benefited from that war. Christopher Werth has been investigating the lawyers.

Christopher Werth: The Thurgood Marshall courthouse sits near the base of the Brooklyn Bridge in downtown Manhattan. It's an imposing classical style building that houses, the Second Circuit Court of Appeals. There's a big set of granite steps at the front. There's a long row of four story columns. In October of last year, this court heard a case that a lot of people were paying attention to because of who the plaintiff was.

William Consovoy: Donald J. Trump versus Cyrus R. Vance

Christopher: The president of the United States was fighting to keep his tax records from being turned over to the Manhattan district attorney. His personal lawyer that day was a New Jersey native named William Consovoy.

Consovoy: Thank your honor. May it please the court. This appeal-

Christopher: Consovoy is not a household name, like say Rudy Giuliani or some of the other people in Trump's orbit?

Consovoy: We view the entire Subpoena as an inappropriate fishing expedition.

Christopher: He attracted attention that day because the argument that he put forth was so provocative, so radical that it would fundamentally change the way we understand presidential power in the constitution if it were accepted.

Consovoy: Immunity extends certainly to the precedent in our view.

Christopher: Because what Consovoy told the court was that as long as the president is in office, he's immune from any criminal investigation.

Denny Chin: Absolutely you say?

Consovoy: Absolutely, yes.

Christopher: Consovoy sounded very sure of himself in this hearing and then one of the judges challenged him with a hypothetical scenario. It's one that Trump himself has perpetuated.

President Trump: I could stand up in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters, okay? It's, like, incredible.

Denny: What's your view on the Fifth Avenue example? Local authorities couldn't investigate? They couldn't do anything about it?

Consovoy: I think once a president is removed from office, any local authority. This is not a permanent immunity.

Denny: Oh, I'm talking about while in office.

Consovoy: No, there was-

Denny: That's the hypo. Nothing could be done. That's your position.

Consovoy: That is correct.

Christopher: It was a preposterous argument that Consovoy ultimately lost, but William Consovoy is a rising star in Republican legal circles. He owns a small boutique law firm that's known for taking on controversial conservative causes and in this election cycle with all the complications of casting a ballot in a pandemic, Consovoy is now representing the Trump campaign and the Republican Party in a slew of voting related cases.

Marc: He and his firm are very laborious.

Christopher: I spoke with Marc Elias, he's a leading elections lawyer for the Biden campaign and the Democratic Party. He says, hiring Consovoy has really marked this dramatic escalation in Republican efforts to limit access to the ballot.

Marc: The Republican Party and the Conservative Movement has been played over the years by some pretty crackpot lawyers. I sometimes joke that I have been blessed by my competition and I do not feel blessed when I see Consovoy his name on the other side.

Christopher: Since the start of the pandemic, Elias has repeatedly found himself fighting Consovoy in court as Republicans have pledged to spend a war chest of more than $20 million this year on voting litigation.

Marc Elia: It's extraordinary because a major political party has said, "We're going to spend $20 million to fight against people's rights vote", and it is clear that in that battle, Consovoy is their field general and his law firm is their army.

Christopher: Consovoy isn't in every single election-related case but Elias says he appears to have a hand in the ones that matter most to the Republican Party and to the president. In Wisconsin, for example, key swing state for Trump and winning a second-term, Consovoy firm has been fighting to shorten the deadline for absentee ballots. His firm also sued California to try to prevent the state from mailing a ballot to every registered voter. In Nevada Consovoy did the opposite. He was fighting democratic efforts to expand a number of in-person polling sites.

Marc: The fact is I can't find a single case in which Consovoy firm or the Republican Party represented by anyone else is in favor of anyone having more voting rights. They oppose voting everywhere on every ground. They don't want you voting by mail. They don't want you voting in-person. They don't want you voting early. They are simply in court fighting against voting rights at every turn.

Christopher: I wanted to know more about William Consovoy. Who is this person who's willing to take on all this voting litigation? Who's willing to stand in front of a court and say, the president can shoot someone and not be prosecuted. How far does his work with Trump go? I called Consovoy's firm tried to speak with him, Consovoy didn't respond to my request for an interview, but his father Andrew is also an attorney who was this really colorful notorious figure in New Jersey politics. 30, 40 years ago, he ran with a number of people who would have been in Trump's circle at that time. I wondered if he had any answers.

Can I record for my story? Is that okay?

Andrew Consovoy: Yes. Yes, sure.

Christopher: Andrew Consovoy, is probably best known for his stint as chairman of the New Jersey state parole board from the mid to late 90s, which meant he was in charge of the system that decided who got to get out of prison and who didn't. In 2000 he became the center of a police investigation into whether he'd use that power to fast-track members of the mob out of prison and whether he'd used those mob connections to get his son William, a job at a construction site, although Andrew maintains his innocence.

Andrew: Yes, I took some lunches, but I never did anybody a favor. I never felt and I never did feel and I still don't feel that I did anything wrong here, not at all.

Christopher: That investigation was eventually dropped but before that, Andrew had worked on a number of political campaigns in New Jersey, including both of Tom Kane's successful runs for governor, where he worked alongside Roger Ailes, who would go on to lead Fox News and Roger Stone, who of course, has worked for Donald Trump for decades.

Andrew: Roger Stone was key player in '81 and I worked a lot with him. I was on his level. I got to know Roger very well.

Christopher: Andrew says he even went to a party at Trump's house in Connecticut, but that he had nothing to do with introducing his son to the president. William had gone to George Mason, now Antonin Scalia Law School. He clerked with Justice Clarence Thomas in the Supreme Court and it appears that he has found his way into Trump's world through his own conservative legal circles.

Andrew: To think that my son can get to that level is his father's pride.

Christopher: Has he been offered a job within the administration? What's your awareness of that?

Andrew: There was talk from him that they were going to ask them to be in the justice department, but that's all I heard and he turned them down and that was that. I happen to like Trump. He's been very nice to my son.

Christopher: Now, it may be that life outside the administration is just far more lucrative for someone like William Consovoy. FEC filings show the Trump campaign and the Republican national committee have paid Consovoy's firm, Consovoy McCarthy, just over $2 million over the past year. His work with the campaign is largely centered around absentee and mail-in ballots, but Consovoy also represents conservative groups with deep pockets and with close ties to the president and in his work with at least one of them, Consovoy has gone after the voter rolls themselves.

Earlier this year, he sent letters to government officials in several States, Michigan, Colorado, Florida, that essentially said, "Your voter registration rates are really high. We suspect that's because you're not removing dead people and people who've moved. That's a violation of federal law and my client is going to sue if you don't begin removing voters from the rolls."

Eliza Sweren-Becker: First of all, the very premise of this argument is that the registrations are too high and that's a tell.

Christopher: Eliza Sweren-Becker is a voting rights lawyer at the Brennan Center for Justice.

Eliza: The plaintiffs don't want full participation by the electorate and they think high registration rates are a problem or a sign of something going wrong.

Christopher: Now, Sweren-Becker says legal threats like these are really common from conservative groups. In many cases, they work most notably in Ohio where the Republican secretary of state implemented this really robust process for purging tens of thousands of voters, primarily in democratic leaning districts. In 2018, the Supreme Court said that was okay by a five to four vote. Given that history, I was curious how Republican election officials in Florida were responding to Consovoy.

I submitted a records request for emails between the agency and Consovoy's firm and I was able to read a handful of responses to Consovoy's accusation. Three were from Republican election supervisors and even they were contesting Consovoy's data. None would talk to me, but in one exchange you see an election supervisor call Consovoy's claims "completely unfounded" and that the data he's using discredit his claims.

Eliza: The methodology being used in this letter is inherently flawed.

Christopher: Sweren-Becker says a federal court in Florida had already found calculations like the one Consovoy use to be misleading and yet she says letters like his, just keep coming

Eliza: Consovoy and McCarthy may be newer to this game, but they are attempting to bully jurisdictions, States and localities into removing voters from the rolls in these aggressive unwarranted purges.

[music]

Kai: Okay. Christopher, that is the story of William Consovoy as Marc Elias told you, he's the field general in Donald Trump's war on voting, but as I said at the top of the show, the whole point is there's a lot of people involved in enabling this attack on voting rights. Who else? Who are the other lawyers that are fighting this war?

Christopher: There are dozens of lawyers out there who are fighting these types of cases, but certainly the largest by size if you look at a firm is Jones Day.

Kai: That's a notable firm. That's quite a big and famous firm.

Christopher: Right. It's a really large firm. It represents a lot of big companies, but it also has very close ties to the Trump administration. Many people will remember Don McGahn who was Trump's White House counsel during much of the Mueller investigation. McGahn left Jones Day for that job and he went right back to the firm after falling out with Trump. That's true of about a dozen Jones Day attorneys that have rotated into the justice department and back to the company throughout Trump's term. In fact, Jones Day is a tenant in a building in San Francisco that Trump owns a 30% stake in at 555 California Street in San Francisco.

Kai: How much money are we talking about here for Jones Day in terms of what they're making to represent the Trump campaign?

Christopher: Just by comparison, I'd mentioned Consovoy McCarthy has been paid just over $2 million from the Trump campaign and the RNC over the past year. Jones Day has been paid over $18 million since Trump first launched his campaign five years ago, they were one of the first firms that were willing to work with him as a candidate and that's if you include the joint fundraising committees between the Trump campaign and the Republican Party. Now it's hard to tell exactly how much of that money is being spent on these types of voting rights cases that we've been talking about but Jones Day has certainly taken on at least a few of them.

Kai: I wonder what this means for a firm like that. They are a large firm. I know people who've worked for Jones Day, liberals who I imagine wouldn't consider themselves representing Donald Trump, has this impacted their reputation at all or?

Christopher: I have heard from some that-- For example, recruiters have told me that they're finding that lawyers don't want to work for Jones Day because of the firm’s closeness to Donald Trump. I reached out to the firm for a comment, they didn't get back to me, but as one lawyer who I spoke with put it, Jones Day represents a lot of these big industrial firms that might not mind that proximity to the president and certainly would have benefited from the corporate tax cuts that Trump signed into law.

Kai: This brings us back to the point at the top of the show, but also what we've been talking about in a couple of episodes of the show that, this is not just about Donald Trump, this moment we're in particularly this anti-democratic moment. There have been a lot of people who got something out of this and have this and as a consequence been enabling of it.

Christopher: Right. The bigger thing at stake here is not just the trench warfare state by state election related litigation that we've been talking about but it's also about the Voting Rights Act itself. The Voting Rights Act was passed in 1965. It has been one of the most important pieces of legislation in protecting voting rights and making it possible for us to have a multi-racial democracy in this country.

William Consovoy was a key player in the case, Shelby County V. Holder that kick the legs out from under one of the Voting Rights Acts most important provisions, section five, which required States with a history of racial discrimination to get permission from the justice department, before making any changes to their election procedures. Now Consovoy and lawyers from Jones Day are involved in a new case. That's going after the Voting Rights Act again. One that the Supreme Court will hear later this term and given the Supreme Court that we have now, we could soon see a moment when the Voting Rights Act as we know it just doesn't exist anymore.

Kai: How'd we get here? The Voting Rights Act, it worked really well. It meaningfully expanded democracy. Then what happened? Historian Carol Anderson will tell me the story after a short break. We'll be right back.

[advertisement]

Kai: This is The United States of Anxiety. I am Kai Wright and I am thrilled to welcome back to our show historian Carol Anderson. Dr. Anderson is author of One Person, No Vote: How Voter Suppression Is Destroying Our Democracy among other books and she's chair of the African-American studies department at Emory University in Atlanta. Dr. Anderson, welcome back.

Dr. Carol Anderson: Thank you so much for having me.

Kai: The last time I spoke to you here, it was during the 2018 18 elections, and we were following the voter suppression efforts in the Georgia governor's race. I have to say, as I look at this remarkable early voting turnout that we're seeing in Georgia right now, it feels like a continuation of that same campaign. Is that how it feels down there?

Dr. Anderson: Yes, it does. I think part of what you're seeing is that the issues of poll closures are still here, but what you're seeing is a resolve, a determination of the people to overcome every one of the barriers, including COVID-19, in order to be able to vote.

Kai: Well, I wonder, though, when you talk about that resolve, and we see these long lines, where do you fall on this spectrum of whether when you look at that, is it inspiring or is it enraging?

Dr. Anderson: It's enraging. It's absolutely enraging. It is unconscionable that we would have 11 hour lines to vote. It makes no doggone sense that we would have five and six hour lines, and what we know is that this has been a long standing strategy where you don't put enough resources into polling precincts that are overwhelmingly minority. There was a study done for the June primary here in Georgia, and it found that communities where 90% of the voters or more were white, they had about a six minute wait. Communities that were 90% or more minority, they had a 51 minute wait. You don't do that by accident.

Kai: The lines themselves are a form of voter suppression?

Dr. Anderson: Absolutely. You begin to think about when they say, "time is money". That is a poll tax. It is a poll tax to have people stand in line for hours like that. When you begin to think about what happens on a work day, when you begin to think about what does it mean when you're going to be late to pick up your child from daycare, and the fees that happened there. When you think about what it means in terms of everything else that has to be done that day, the toll that it takes on people. Here you see, again, that determination. This election is so important that people are having to make that choice.

Kai: I have decade's worth of history, I want you to walk me through. There's a lot to cover, but before we do that, I'm just curious for you, how did you get started studying this? Why did voting rights and voter suppression becomes something that was the focus of your work?

Dr. Anderson: I am a human rights scholar, I am attracted to the fractured citizenship of African Americans and how that came to be. The first few books really looked at that, and then came the 2016 election. The pundits were saying, "Well, Black folks just didn't show up. Well, they just didn't show up, because they really weren't filling Hillary because she's like, Hillary." It enraged me, because I knew that this was the first presidential election in 50 years without the protection of the Voting Rights Act. To have a narrative basically of black pathology, "Black folks just didn't show up", instead of really looking at the structures and the policies that made that happen, that's how I got here.

Kai: Well, let's talk about how we all got here. You've spent a lot of time on this over the past year talking about reconstruction and the constitutional amendments that came out of it, including the 15th Amendment, which to remind everybody says that you can't stop Black men, at least from voting. In your book, Dr. Anderson, you detail how southern states in particular spent the next century after the 15th amendment, finding ways to get around it using poll taxes and literacy tests and all the rest of it, right? To keep Black people from voting without naming race or gender for that matter.

I just want to cite a couple of the stats you use to show just how total the success was in this regard. In 1867 66%, of Black adults in Mississippi were registered to vote. 66%. By 1955, just 4.3% of Black adults were registered. From 66% to 4.3%. Then you point out that in Alabama, there were counties by the time we got to the 60s where there was 0% of Black people registered to vote.

I don't know that people appreciate the totality of voter suppression, before the Voting Rights Act came about or really even what the law itself set out to do about that. Can you just explain the logic and the function of the Voting Rights Act when it came about in 1965. How did it respond to the numbers that I just gave?

Dr. Anderson: Absolutely. The Voting Rights Act was landmark because it had that pre clearance provision. What that did was it said, you have states that have a history of discriminating against their citizens have to get their voting laws okayed first. What that did is it prevented this states from implementing these racially discriminatory laws, having those laws take effect, having them cauterize the electorate. Having them shut down access to the ballot box, so that politicians who are getting elected are getting elected on these truncated gnarled votes, instead of by a full, vibrant democracy. What the Voting Rights Act did was it stepped in and said, "Not today, son."

It it said, "Before you go and change your requirements about what it's going to take to vote or before you draw a line for your redistricting, before you start annexing these places to begin to diffuse the Black vote in a sea of white voters. Before you do any of that mess, you got to come through us."

Kai: The point was, it was preventive. It was a really big part of it, right? That's what you're saying, because there had already been in 1957 a law that tried to stop voter suppression and didn't work out because it wasn't preventive enough, right?

Dr. Anderson: It wasn't prevented at all. What it was, was it was about litigation. You think about this, you're in Mississippi, and your voting rights have been denied, you have to sue, and then there's a an investigation that's going to take over a year, while you're Black, and in Mississippi, suing a white registrar. Then there's a trial and then the case, they would change the registrar, whatever, and the case will become moot, and you'd have to go back all over again.

Kai: Assuming you survived all that.

Dr. Anderson: Assuming you survive, so years of litigation meant that there was no change. That's what makes the Voting Rights Act so landmark is because you have change.

Kai: Right. It worked, right? This is something I think a lot of people don't ask, just how rapidly it changed democracy in this country. Can you talk about that?

Dr. Anderson: Absolutely. In the early 1960s, for instance, there were only like 5% of Black Mississippians were registered to vote. Two years after the Voting Rights Act, it was almost 60%. Imagine going from 5% to 60%, almost 60%-

Kai: In two years.

Dr. Anderson: -in two years. You had federal electors who were going in like in South Carolina, because South Carolina still wanted to do the literacy test. The federal electors were like, "No." You began to see a change in South Carolina, as you had federally electors there ensuring that the poll workers were not discriminating against Black citizens. That's the change and you started seeing Black elected officials.

Kai: Right. I wonder, was it just Black voting? Is there any data that shows what it did to voting overall and democracy overall?

Dr. Anderson: Not that I know of, but I do know that by the time we get to the '75 Reauthorization Act for the Voting Rights Act, is that they added language in there dealing with language discrimination. Part of what you see happening here is as a more thorough recognition of the barriers that are put in place in front of American citizens to stop them from voting. It says that if you're in a county, or in a region or area that has a certain percentage of folks who speak a different language, and these American citizens have the right to vote, so you need to put your election materials in that language as well. This is how you broaden this democracy and get it vibrant.

Kai: That's over a course of a decade.

Dr. Anderson: Yes, and that's why it was so threatening.

Kai: Well, on the question of threatening, another thing I've heard you talk about that I don't think a lot of us appreciate. I didn't appreciate till I read your book, is just how rapidly white people turned against civil rights in general once Black people started voting. Can you talk about that?

Dr. Anderson: Oh, my gosh. We get the Civil Rights Act in 1964, that is about ending discrimination and we get the Voting Rights Act in '65. By '65, '66, you have the majority of whites saying that we're moving too fast on civil rights issues, too fast. This is just trying to redo the mess that happened during Reconstruction, a century before. A century is too fast. What you also see happening here is that the majority of whites have not voted for a Democratic candidate for president since 1964.

Kai: Since that time, since this law.

Dr. Anderson: Yes, yes.

Kai: Your previous book is called White Rage. You talk there and other places about the idea that we understand white rage, that phrase as you use it, as only in the realm of physical violence, but that's not only or even the primary place that it shows up in American life.

Dr. Anderson: No, no. White Rage really is about the bureaucratic violence, the ways that policies and judicial decisions and laws and executive orders come down to undermine African-Americans' access to their citizenship rights. Because it isn't that kind of physical violence, we often don't see it. You think about it, it took the cataclysm on the Edmund Pettus Bridge and the filming of Bloody Sunday that's cutting into nightly news programs to have people in America go, "Wait a minute, they're getting beaten because they're just trying to vote?"

Now that it takes seeing visual violence to understand the depth of what literacy test can do, to understand the depth of what poll taxes can do, to understand the depth of what good character clauses can do. That's white rage, the policies, and that's where we are in so much today. The kinds of policies that we don't see the physical death, but we are experiencing the civic death.

Kai: Let me jump ahead to 1988 in our story of voting. Despite the white rage backlash, democracy does, in fact, expand as we've talked about, but then the presidential election of 1988 comes along, what happened in that election in terms of turnout?

Dr. Anderson: Oh, that turnout was so low. That was the Bush 1 H. W. and Dukakis. That turnout was, I think, the lowest it had been since 1924 or something like that. It's just like [unintelligible 00:32:42] It was this [unintelligible 00:32:45] moment of like, "Oh, my gosh, people are turning out." You saw this movement, particularly of the Democrats to figure out how do we expand voter registration? Because if voter registration is opaque, how do you get registered to vote?

If the place where you go was only opened when you're at work-- All of these barriers that were there. They started crafting legislation, what would become the National Voter Registration Act to open up access to voter registration with the Motor Voter Law, but there was-

Kai: Can I just-- Before you go forward with that law, the lack of turnout that we were seeing there by 1988, help me understand this arc of turnout. We get this spike in voting after the Voting Rights Act, Black people are now voting, you see that increase that you described in a place like Mississippi. How long does that go on before it starts to dip and why does it start to dip?

Dr. Anderson: One of the things we have to understand is that with the Voting Rights Act, there was immediate backlash. It wasn't like the Voting Rights Act got here and there was peace and joy and wonder in the land. Voting has been a consistent battle. We have had states continuing to try different maneuvers to block the vote. We have had voter intimidation happening where you have places that are hiring off duty law enforcement to be in uniform and carry guns at the polling places.

You have had them being in places where you're moving a polling place into the sheriff's office for the Black community. All of these things, all of these machinations are happening. This isn't smooth. This isn't easy. Voting is a battle in the United States.

Kai: I saw somewhere, is this correct, that part of it was that there-- Well off Black people and well off people were voting but lower-income folks, people who were not English speakers, that's where we were seeing the problem. Is that an accurate understanding?

Dr. Anderson: That is accurate. Again, when registration is opaque, when registration can only happen between eight and three or eight and five, when people are at work, when working-class folks are at work and the place is open from Monday through Friday, it makes it difficult. It makes it difficult. This is what the National Voter Registration Act, the Motor Voter Law was going after, was to open up access.

Kai: What did it do? I think a lot of people might know the Motor Voter Law or at least people of my generation are familiar with that phrase.

[laughter]

What was the Motor Voter Law? Because it's another huge deal in the story of democracy in the United States?

Dr. Anderson: Yes. What the Motor Voter Law did was it said that instead of having to go to the board of elections to register to vote, when you're getting your driver's license or when you're getting your license plate, going to the Department of Motor Vehicles provides another space where you can register to vote. Wow, that opened up access. Registration went up by over a million new potential voters as I recall at that time. This is no small thing, but there was a poison pill in that thing, right?

Kai: Let's take a little break and we're going to come back and talk about that poison pill that was buried in this otherwise successful law and how we're still swallowing it now.

[music]

Christopher: Hey, everybody, Christopher Werth here from The United States of Anxiety. I told you earlier about William Consovoy and other lawyers who are litigating voting rights cases on behalf of the Trump campaign and the Republican Party. I want to tell you about another podcast here at WNYC. It's called Trump, Inc. This week, they're looking at a number of people who've profited from Trump being in the White House, including William Consovoy. You can find it at wnycstudios.org or wherever you get your podcasts. Thanks.

[music]

Kai: We had a bit of a cliffhanger here about the Motor Voter Law of 1993. There was a poison pill inside it. I'm going to hold that cliffhanger for just another bit because I want to jump ahead and ask you, Dr. Anderson, about 2008. There's this thing, I feel like amongst Black people when we start talking about voting, just about where were you when you went to vote in 2008 for Obama's first election? Where were you in 2008? Do you have a memory of that?

Dr. Anderson: What I remember is I was in Missouri at the time because I taught at the University of Missouri at the time and I remember seeing the tallies come through. I remember looking up to the heavens and saying, "Mommy, can you believe? Wow." Yes.

Kai: I hate to pivot from something so sweet but you've also pointed out that this moment is the next big moment in White Rage in terms of how it impacted our voting. Can you say a bit about that? Do you feel like that it was in the immediate wake of Barack Obama's election that we saw just a real resurgence in voter suppression?

Dr. Anderson: Oh, absolutely. We hear this narrative that how racist can America be because we put a Black man in the White House. That talks about how racist because white voters overwhelmingly voted for Barack Obama, but as I mentioned earlier, that's not correct because the majority of white voters have not voted for a Democratic candidate for president since 1964. What Obama had was a sizable number of whites, not the majority but he had an incredible ground game.

That brought millions upon millions of new voters to the polls and they were overwhelmingly African-American, Hispanic, Asian-American, young and the poor. That combination would become the hit list for voter suppression.

Kai: What language was inserted in there that became a problem and why was it there?

Dr. Anderson: It dealt with-- That's why there's a five-year gap. The Republicans insisted as they knew that this was really going to expand the electorate, they insisted on what they called voter maintenance. Voter maintenance meant that the secretaries of state had to go through and call their list of A, people who had died naturally, B, people who had moved out of the district or out of the state, but there was a C, that said you cannot remove people from the voter rolls simply because they haven't voted and that C got ignored and the Supreme Court allowed it to happen.

Kai: There it is. It sits there until we get to 2000, people hear about the 2000 election and they immediately think about Bush V. Gore, but in terms of voter suppression, there was a whole another election, the Missouri Senate race, that became really important indeed. The best you can remember, what happened in that race that now really changed history of voting.

Dr. Anderson: We had this election because again, I was in Missouri at the time. We had this election where the Governor Mel Carnahan was actually, he had died, he had been killed in a plane crash, but his name was on the ballot because he died too close to it, to the election and John Ashcroft was his Republican opponent. In this election, the St. Louis Board of Elections had illegally removed, purged, almost 50,000 voters from the rolls.

These nearly 50,000 folks didn't know it. They show up at the polls and their names are nowhere on the books and they get sent down to the board of elections downtown hours go by and the polls are getting ready to close so the Democrats sued. Now, the Republicans are upset because they're saying, "They're going to try to steal the election. They're trying to steal the election", but the Democrats are suing because people have been illegally purged from the rolls and were denied their right to vote.

The judge agreed and said that the polls can stay open for three more hours. The Republicans came in right behind with the language of voter fraud, stealing the election and that judge shut down the polls within 45 minutes, so the polls closed at 7:45. From there US Senator Kit Bond began really riding that hobby horse of massive rampant voter fraud.

Kai: This is really the introduction of this idea into our political lexicon. It's so familiar now, but it was after that election in the Bush administration and with Republicans and Senate that we first started really hearing this term voter fraud, voter fraud, voter fraud. I think something I've heard you point out is that the language of it was notable at the time that this idea of "stealing" elections in urban areas that were full of people of color. Talk about that.

Dr. Anderson: They created an organization, they kept talking about, "This is what's happening in St. Louis. This is what's happening in Cleveland and in Philadelphia", and you get this image of urban Black criminals, stealing, faffed from good, honest, hard-working Americans, which as we know, is coded as white because in this lexicon, good, honest, hard-working Americans just can't be Black, but those who are stealing our elections, stealing our democracy.

The problem with that narrative, there's so many problems, but one with the narrative of massive rip and voter fraud in the cities is that it didn't exist. It just didn't exist. Kit Bond had said that there were dogs on the rolls voting. There were dead people on the rolls voting, and all of these people were using these vacant lot addresses to come back and vote multiple times using a different address. The St. Louis post dispatch, the local newspaper did a beautiful investigation of all of those charges and found that they didn't hold water. There was a dog on the rolls, Ritzy Meckler.

Kai: For once he gets a shout out.

Dr. Anderson: Yes, Ritzy gets a shout out. Ritzy nor Rin Tin Tin nor Lassie nor Fido voted in that election. With almost 50,000 people purged from the rolls somehow the St. Louis board of elections left one dead man on the rolls.

Kai: This stuck despite the absurdity of the facts that you're laying out, Dr. Anderson, because this is literally the conversation in this election right now that there's going to be fraud. Why? How did this manage to stick for now 20 years?

Dr. Anderson: I think it stuck because one, it played to a larger vein in American society that cities are corrupt, that cities are where bad things happen, that cities that have large segments of minority populations you can expect that crime is just around the corner. You had an incredible PR campaign where they're in Congress testifying and using the language of voter fraud, voter fraud, voter fraud. If you say a lie enough times and you put it in the garb of respectability of US senators, of big time lawyers and you have the media that see this like slashing headline of voter fraud, voter fraud and they don't do the interrogation fully, wow, and it just stuck.

Kai: All of this leads up to the Supreme Court ruling that we discussed earlier in the show when the Supreme Court struck down the enforcement part of the Voting Rights Act, the key enforcement part of the Voting Rights Act and the consequences of that were immediate. We've seen a lot of coverage of that ever since.

Now as Christopher Werth reported, there is another case coming to the court that is going to, again, get the Voting Rights Act in all likelihood, given the likelihood of a 6-3 Supreme court. I say all that to say, what is the current proactive solution? If the Voting Rights Act was the proactive response to the way in which the South got around the 15th amendment, what is the current proactive solution to the fact that the Voting Rights Act appears to be on its way out?

Dr. Anderson: There are several things. One we have to know that the John Lewis Voting Rights Act is sitting on Mitch McConnell's desk because he is the Senate majority leader. We need to make him the Senate minority leader. That is what this massive turnout in spite of all of this voter suppression can do. The other thing is that we really have to be cognizant of the need to rebalance the courts.

What I'm seeing here and Mitch McConnell was really clear today, he's like, "These past four years have been about whatever happens in this election. We will be able through our work on the courts to control what goes on." He's been very clear about what this is about. It reminds me of the courts after Reconstruction that gutted the 14th and the 15th Amendment, as well as the Force Acts and the Enforcement Acts and said that the 13th Amendment's badges of servitude did not apply to a Jim Crow segregation. That's what the setting up is a reconstruction court to undo and to stop progressive legislation.

Kai: That's a chilling idea.

Dr. Anderson: We have got to be cognizant of that scheme and be willing to use our constitutional authority to rebalance the courts.

Kai: In the last few minutes we have here, really few seconds we have here, you end your book on a chapter called the resistance. I want to end this here too. How do you feel going in watching these lines out here, they enrage you, but how do you feel about voting in Georgia for-- Really the whole country, but particularly Georgia for the rest of this election?

Dr. Anderson: I think it's going to be great. I think it's going to be with this massive turnout and I'd just leave it with this, Paul Weyrich, who was the co-founder of the Heritage Foundation. He said, "I don't want everybody to vote because quite candidly, our leverage goes up as the voting populace goes down." As our voting populace is going up, it's time to weaken that leverage.

Kai: Dr. Carol Anderson is author of One Person, No Vote: How Voter Suppression Is Destroying Our Democracy among other books. Thanks for joining us, Dr. Anderson.

Dr. Anderson: Thank you so much, Kai. Thank you.

[music]

Kai: United States of Anxiety is a production of WNYC Studios. Jared Paul makes the podcast version. Kevin Bristow and Matthew Marando were at the boards for the live show. Our team also includes Carolyn Adams, Emily Botein, Jenny Casas, Marianne McCune, Christopher Wirth, and Veralyn Williams. Our theme music was written by Hannis Brown and performed by the Outer Borough Brass Band. Karen Frillmann is our executive producer and I am Kai Wight? You can keep in touch with me on Twitter @Kai_wright. That's Wright, like the brothers. As always, I hope you'll join us for the live version of the show next Sunday, 6:00 PM, Eastern. You can stream it at wnyc.org or you can just tell your smart speaker to play WNYC. Until then, thanks for listening and take care of yourselves.

 

Copyright © 2020 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.