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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. As we head into the 4th-of-July weekend, so much of the big news about patriotism and our democracy that we might chew on at our barbecues. It's coming from the court system the last few days, there's the indictment of the Trump Organization and its CFO, Allen Weisselberg on tax fraud charges. [unintelligible 00:00:32] for alleged tax fraud that Weisselberg got charged with grand larceny.

The DA says he failed to report as income, things like Mercedes-Benz leases and private-school tuition for his grandchildren paid by Trump, rather than the normal way you pay for luxuries in your life. They pay the money to you as an employee, and you buy the Mercedes or the private school, the patriotism of America first, allegedly at least included bilking America out of being able to pay its bills. One aspect not getting too much attention, but that I will ask Mayor de Blasio about later in the show today, because it's a New York city angle an alleged scheme to let Weisselberg avoid New York City's income tax, by falsely claiming he lives on Long Island.

How? The indictment says the company paid for the Manhattan apartment, where he really lived, and even paid his utility bills, so he could claim he didn't live there, the Trump Organization did. That's one thing from the court system in the last day, and there's Bill Cosby, and there is another landmark voting-rights ruling from the Supreme Court. We talked about it, [unintelligible 00:01:42] yesterday, just after it came down.

That one allowed the State of Arizona to disqualify ballots, if voters showed up in the wrong precinct, rather than just getting the paperwork straight and to ban what opponents called ballot harvesting. You've heard this, allowing other people to collect your absentee ballots and submit them for you. As Nina Totenberg described on Morning Edition today, the 6-3 majority said, "Even if Arizona showed no actual fraud associated with these practices, a state doesn't have to wait for fraud to occur." As a voting-rights case, the court said the unequal impact on minority voters were small.

It said, "Voting can be made somewhat inconvenient, if it's for a greater good." It allowed these rules because other states have similar laws. "The other kids are playing with firecrackers, so why can't I?" Justice Alito even noted that many places used to require voting only in person, and only on Election Day implying at least that the court might allow even that, if a state wanted to turn back the clock all the way that. What comes next? So many states are currently passing laws to make it harder to vote, based on Donald Trump's lie about rampant election fraud, even as he was allegedly helping Allen Weisenberger lie about where he lives.

If the original Independence Day was partly about no taxation without representation, maybe now it's no taxation if you have a friendly boss and no representation, if the majority group has a friendly Supreme Court. With me now, is Sean Morales-Doyle, Acting Director of the Voting Rights and Elections Program at the Brennan Center for Justice at the NYU Law School. One of his latest tweets says, "The Supreme Court didn't just uphold to discriminatory Arizona voting practices, it rewrote the law that applies to lawsuits, challenging such practices." Sean, thanks for some pre-4th-of-July time for us. Welcome to WNYC.

Sean Morales-Doyle: Yes, thanks for having me. Great to be here.

Brian Lehrer: Let me go down that list of reasons from Justice Alito and the 6-3 court majority, and ask you to respond to some of his specifics as Nina Totenberg laid them out this morning. One, a state doesn't have to wait for fraud to occur to enact measures to prevent it. Sounds reasonable on its face, do you take issue with that premise?

Sean Morales-Doyle: I do. I do because of what it's being used to justify here. I think we've all heard this many times now, the idea that we have some problem with rampant voter fraud in this country is just a lie. I don't think the state has to wait for fraud to occur in order to try to prevent it, but the states are already preventing it. Arizona and every other state across the country already has laws in place that prevent it, and that's why we don't see it happening.

To use the prospect of fraud as a justification for passing laws, that in this case were discriminatory but that often make it harder for people to vote, it's just not a good faith basis for passing these kinds of laws when that's not actually a problem we need to solve right now.

Brian Lehrer: Related to that, the majority opinion said, "Voting can be made somewhat inconvenient, if there's a good reason, if it's for a greater good." Again, that would be to secure elections I presume. What's wrong with that as a premise?

Sean Morales-Doyle: Again, the fact is that first of all, the court describing these things as mirror inconveniences, it is really wrong and frankly offensive that the opinion accepts the idea that maybe it's going to be harder in some situations for voters-of-color and Native American voters to vote. That's just what we have to live with in order to what? In order to, as you said, make election security better, with no evidence that we actually have a problem there that we need to fix.

The court is downplaying the significance of the way that race works and the real-life impact on people's lives, and on people's ability to vote, which is proven in Israel in favor of pursuing an objective and a goal that isn't real. In so doing, has made it much harder to challenge discriminatory voting laws.

Brian Lehrer: Listeners, your questions and comments, welcome here about the Supreme Court's Arizona voting-rights decision and the voting-rights battles that really are only just beginning, after there was such a big turnout in the 2020 Presidential Election. It came out the way a majority of state legislatures-- Majority of state legislatures are Republican majorities, didn't like.

646-435-7280, or tweet your question or comment for Sean Morales-Doyle from the Brennan Center for Justice. Let's keep going down this list of reasons, for this decision that justice Alito and the majority gave. They also said the unequal impact on minority voters in the case of Arizona was small. I guess we could say people-of-color turnout did help Biden win Arizona last year, first time for a democratic president in a long time. Fair analysis by the court on that?

Sean Morales-Doyle: I think that the impact in terms of the sheer number of voters that were stopped from voting was maybe in the grand scheme of things, relatively small. That doesn't really answer the question that Section 2 poses, which is whether or not people are being denied the right to vote because of their race. We shouldn't be okay with only a few thousand people being denied the right to vote on the basis of race, we shouldn't be okay with one person being denied the right to vote on the basis of race.

It also ignores the fact that on a statewide or a nationwide basis, maybe a few voters doesn't impact the outcome of elections, but these policies have an impact on the local level and in districts as well. There is evidence in this case that this limitation on ballot collection was introduced, because of specific legislators' fears that it was being used to turn out Latino voters in their districts and impacted their elections.

In fact, the lawyer for the Arizona Republican Party basically admitted out loud, during the argument before the Supreme Court in this case, that the reason they care about the outcome of the ruling on these policies is because to strike on these policies would put them at a competitive disadvantage. They admitted that this has a real impact on elections. I don't think we should only care about these provisions, if they impact the outcome of elections, we should care about race discrimination whenever it occurs, but even if that was the reason we cared, I think that there's plenty of reason to be worried about these policies.

Brian Lehrer: Maybe the most infuriating reason from the ones Nina cited this morning, the court upheld the law in part because other states have similar laws. What occurs to me is, "Well, they all had Jim Crow before the Voting Rights Act in the Jim Crow states," but I guess the argument is common in court cases that if a state's practice is mainstream and not an outlier, that works in its favor. Your response to that?

Sean Morales-Doyle: Even more aggravating than that, the court essentially says that if it was mainstream in 1982 when Congress amended Section 2 of the Voting Rights Act, that that's something to take into consideration in deciding whether or not this is really putting a burden on the right to vote, which is just frankly, a bizarre reference point. I think my response is that, that's not how the Voting Rights Act is supposed to work, that's not how Congress intended it to work.

Congress was very clear when it amended the law back in 1982, that you were supposed to take into account the way that a policy interacts with the social and historical conditions in a particular place at a particular time, and the way that ballot collection works in Arizona is different than the way that it might work elsewhere. For example, there are a lot of people living on Native-American reservations in Arizona that don't have mail at their homes. They don't have traditional addresses, they don't have access to mail the way the rest of us do, and they live very far away from their polling places. Ballot collection means something different for folks in that circumstance than it does for many of the rest of us.

To say that there's a similar ballot collection rule in North Carolina, is not really a helpful point to make or in New York for that matter. I just think the court has shifted its focus away from what the law was always supposed to be about, which is how race actually works in the real world and the places where the laws are challenged, and focused on some other new set of factors that they came up with just now including, "What did laws look like across the country in 1982?"

Brian Lehrer: Let me ask about your tweet that said the Supreme Court didn't just uphold two discriminatory Arizona voting policies. It rewrote the law that applies to lawsuits, challenging such policies. How do you think they made it hard for future challenges?

Sean Morales-Doyle: As I said, they essentially got rid of the central analysis for evaluating laws under Section 2, which was that you're supposed to see whether a policy creates a discriminatory burden. It disproportionately burdens voters-of-color, and then see whether that is a result of how the policy interacts with the real-life social and historical conditions in a place, whether or not this policy is interacting with the way race and race discrimination function to make it harder for people-of-color to vote.

The court essentially acknowledges in this opinion that there are real disparities caused by race discrimination in Arizona and across the country, but then says that they're so baked in, and they're so real that the core kind of the majority throws up its hands and says, "It's going to be really hard for any state to pass laws that don't disproportionately burden voters-of-color. Instead we're going to focus on a whole new set of factors that weren't the factor that the Senate said they wanted us to focus on, when they passed this law 40 years ago."

We're going to focus on things like voting laws in 1982. We're going to say, "You don't just need to prove discrimination, you have to prove that there's lots of people who are being denied the right to vote. You don't need to just prove discrimination, you have to show that this discrimination outweighs the state's justification in pursuing voter fraud." Even if the state has no evidence, that there's a problem that needs to be fixed there, with each one of these new factors that the court created, it is making it harder in the future to prove that a policy produces discriminatory results.

Right now, we are facing a wave of new laws across the country that will make it harder to vote. This is precisely the wrong time to take away this vital tool that we have to fight back against that.

Brian Lehrer: We'll get into the Justice Department's new lawsuit, challenging the new Georgia Law and how this Arizona Supreme Court decision plays into that. Let's take a phone call. Vanessa in Queens, you're on WNYC with Sean Morales-Doyle from the Brennan Center. Hi, Vanessa?

Vanessa: Hi. My comment was just really that they basically sound like children, when you're playing with the kid and they know that they're losing, and all of a sudden they want to change the rules to go fish, and they're like, "No, that's not how you play. Now, you have to do this and this and this," so that they're winning. Everyone has a right to vote. No one party has a right to win.

Brian Lehrer: There you go. Maybe no comment even needed on that. Vanessa, thank you very much. Let's take Joe on Staten Island. Joe, you're on WNYC. Thanks for calling today.

Joe: I can't see that the changing of ways of voting is racist. Where is the proof? Where's the substantial proof to show that? I would like to see that in writing, or some form that would change my outlook on it.

Brian Lehrer: Sean, make your case.

Sean Morales-Doyle: Well, I think that it's a historical fact in the history of this country, that the way we design-- The way elections work has often been intended to be racist, intended to stop people-of-color from voting, and to successfully do that. That was true with things that from the beginning looked on their face like they were neutral with regard to race, like literacy tests and old taxes, but which in reality were absolutely proven to almost entirely stop Black people from voting in some places in this country.

It's true today with many of these new changes to the way that voting laws work and that elections are run. We see legislators either trying to, or actually passing policies that are pretty clearly targeted at voters-of-color. A few years back, the Fourth Circuit Court of Appeals overturned a set of North Carolina laws, which it said targeted Black voters with surgical precision. These are lawmakers who are identifying the ways that voters-of-color vote, and the burdens that are on voters-of-color in turning out to vote and targeting exactly those methods of voting, in order to make it harder for those voters to turn out. There was [crosstalk]--

Brian Lehrer: Give Joe a concrete example of that, either from the Arizona Law that the Supreme Court just held, or maybe from the new Georgia or Texas Law, give a real concrete example where minority voters seem to be directly in the cross hairs because they're minority voters.

Sean Morales-Doyle: In the Arizona case, we see that there were Latino voters using this ballot collection, handing your ballot off to someone else to turn it in, as a way of turning out the Latino vote in certain districts. The Ninth Circuit found that that is exactly why legislators passed this law, to make it harder to collect ballots, not because of a fear of voter fraud, but in order to stop those efforts by Latino voters to turn out the vote.

In fact, the Arizona Elections Director back in 2011 admitted to the Department of Justice that, that was the purpose of this policy, the first time Arizona passed it. In the cases we see down in Georgia and in Texas-- In Texas, we saw the legislature attempt to pass a law that would have made it illegal to vote on the last Sunday morning, before Election Day, knowing full well that in the Black and Latino communities in Texas and across the country, there's a tradition of doing souls-to-the-polls efforts to turn out voters on Sunday morning, before Election Day.

I think that there's many more examples, but the fact is that these policies are often aimed at stopping certain groups from voting, and clearly do accomplish that goal in many circumstances.

Brian Lehrer: Joe, did he convince you at all?

Joe: No, not at all. I believe that this is a political thing, a decision and not a concrete evidential thing. I really wish that he did have the evidence, because I would be on his side 100%, but I can't see it or I don't hear it.

Brian Lehrer: Joe, how about that souls-to-the-polls example? You know how the Black churches in many cases will do kind of, "Let's all go vote after services on Sunday during the early voting period," and that got locked out in one of those versions of the Texas Law. How does that strike you?

Sean Morales-Doyle: Not really that important, because everybody goes to church on Sunday, so that would restrict everyone. That doesn't make any sense. If you could tell me that it was directed at a certain minority group to stop it, of course, but they were really just people that go to church every Sunday.

Brian Lehrer: Sean, go ahead.

Sean Morales-Doyle: In Arizona, for example the court did find that the ballot collection prohibition was directed at stopping a group from voting. The main evidence of fraud that the Arizona Legislature claimed to be considering in enacting this law was a video of a Latino man, dropping ballots off the mailbox with a voice-over calling him a thug and suggesting he was doing something illegal, when there was absolutely no evidence. That's what he was doing. That's what the Arizona Legislature used to justify passing a law, knowing full well that Latino voters were voting this way more than others.

The court found that the other policy struck down in Arizona, the out-of-precinct policy resulted in twice as many ballots of voters-of-color being thrown out as ballots of white voters. These are real hard numbers that just show that people-of-color being denied-- Having their ballot tossed away at a rate twice the rate of white voters as a result of this policy.

Brian Lehrer: Joe, I appreciate your call, call us again. What you just described, Sean was from the lower court's decision that the Supreme Court overturned. Did they address those items specifically? It seemed to point so directly to racial targeting?

Sean Morales-Doyle: Yes. On the second one that the ballots of voters-of-color were thrown out at twice the rate as white voters, the court essentially says, "Yes, but there still wasn't that many ballots thrown out for voters-of-color, so it wasn't that big of an impact. There weren't that many people, who weren't able to vote. If most people can figure out a way to get their ballot to count, then it seems to be working okay." Then once again turns back to this idea that, "It wasn't that big of an impact and whatever the impact was, it's outweighed by the state's justification, the state's desire to pursue election integrity." In other words, in my view, the court is essentially willing to look away when voters-of-color are being denied the right to vote, as long as it's not that many of them, even if it is entirely discriminatory, and that's really problematic.

With regard to the evidence that the ballot collection provision was intentionally discriminatory, that the debate was really about this racially-tinged video, the court acknowledged the problem there, but then said-- That may have been what prompted the conversation, but then the legislative debate really got into a real conversation about the merits of ballot collection, and whether or not it needed to be constrained in order to prevent fraud. That's really what got the law across the line.

As long as the legislature is able to come up with a reason that sounds legitimate, maybe we can look past the fact that there is evidence that something else was going on. I think that with each one of these justifications, it's less important in my view. Obviously, this is going to have real harm on voters in Arizona, but the real damage being done here expands well beyond Arizona. Every time we look at one of these laws, we have to remember the way that states accomplish voter suppression, the way they accomplish discrimination. It's not by saying out loud the fact that they are trying to stop people-of-color from voting, that rarely, if ever it happens in 2021.

It didn't really even happen that often in 1965. The Voting Rights Act has always been about facially neutral policies, policies that look like they are not about race, but that actually produce discriminatory results. It also is not the case that in 2021 these laws are going to say that entire swaths of the country can't vote, that all Black voters can't vote, or all Latino voters can't vote. Instead, the way this is accomplished is by carving out small segments of the population, and keeping them from voting by impacting each one of these different mechanisms.

Again, this is something that the Arizona GOP admitted at oral argument, matters to them. These small carve-outs matter. They see that changes to these laws puts them at a competitive disadvantage, so for the court to say it's only a few thousand voters though there's some concerning conversation about race here, they were really talking about this other thing, glosses over precisely the way that racial discrimination happens in voting and have happened for decades and decades.

Brian Lehrer: Here's another caller from Staten Island, who I think wants to talk to his neighbor. Louis, you're on WNYC. Hi, there.

Louis: Good morning, Brian. Thanks for taking a call. Joe, if you are listening, please take note of these three books. Your answer is in all three of those books. The first one is called How Democracies Die. There are two authors, Steven Levitsky and Daniel Ziblatt, How Democracies Die. That's the first book, Joe. Joe, the second book is One Person, No Vote, and this is by Carol Anderson. One Person, No Vote. The third book is called White Trash: The 400-Year Untold History of Class in America. This is by Nancy Isenberg.

We can prove of your answer that you find there, Joe, so please read the book, and you'll find your answer there, any one of them. One Person, No Vote, How Democracies Die and White Trash. They're not going to tell you--

Brian Lehrer: Go ahead, Lou.

Louis: Joe, take note. Read, you will find your answers there, please. The next time when you call this station, you'll actually have some clear ideas as to whether or not these laws are discriminatory. That's what I wanted to say to you, Joe. We both live on Staten Island. Open your mind. I know it's a closed place, but you have to read so you can know this stuff.

Brian Lehrer: Lou with the summer reading list, really for us all. Lou, is there one example that you have from memory, from any one of those three books that you would like to cite that would make the case to Joe, that some of these voting laws are intended to suppress Black and brown votes?

Louis: Yes. The first one in Nancy Isenberg's book, the first example there is written, where once the vote was only meant for white people only, but then the people making this rule found out the white people were in the minority, so they added all to the white population to make them more than the Black population, whenever there was a time to vote. In other words, for example, it was only after 1945 that Italians in the United States became white. They weren't white.

They weren't allowed to live where white people lived. They weren't allowed the privileges that white people have, but in order to increase the majority of vote for the white, they made Italians white. That's in the Nancy Isenberg. One Person, No Vote, whenever there was time to vote, the voting booth would be as Area A. When the Black population learned that they go to Area A, when they get there, it has been moved to Area Z and on and on. You see?

Brian Lehrer: Lou, thank you for those. That was great. Thank you, Lou. Keep calling us on The Brian Lehrer Show, the show that facilitates conversations among neighbors on Staten Island. We just have a few minutes left with Sean Morales-Doyle from the Brennan Center for Justice of the NYU Law School. Let's finish up by looking at the two bills that are before Congress right now, the John Lewis Voting Rights Act and For the People Act, which you endorse. Would or would they not have prevented this Arizona Law or the new Georgia or Texas laws? I've heard some people saying, "They sound like some high-minded things on paper, but they wouldn't really have the effect."

Sean Morales-Doyle: Oh, they absolutely would have an effect in these cases and in so many others. The John Lewis Voting Rights Advancement Act would restore a different provision of the Voting Rights Act, not the one at issue in this case, a different one called Section 5, back to its former glory before a previous bad Supreme Court decision in 2013, which rendered it inoperable. That part of the Voting Rights Act essentially says that jurisdictions with a history of discrimination, and Arizona was a state that had been covered by this provision in the past, have to get preclearance of any changes to the way their voting laws work from the Federal Government before they can put them into effect.

Actually, one of the two policies that they issue in Arizona, the ballot collection prohibition, as I mentioned before, Arizona passed that back in 2011 or a version of it back in 2011, but they weren't allowed to put it into effect because preclearance was in effect at the time. They had to run it by the Department of Justice before they could put it into effect, and show that it was non-discriminatory. During that process, the Department of Justice had some questions about this policy, and while the Department of Justice was asking its questions, Arizona actually withdrew the policy from consideration and said, "Never mind. We don't need you to preclear it."

As the Ninth Circuit notes in its opinion, they had a pretty good reason for doing that, because during the process, the Arizona Elections Director had admitted to the Department of Justice that this policy, which the director had been involved in drafting, was aimed at stopping Latino voters from voting. That preclearance process really does have the effect of stopping a lot of these policies before they end up even taking effect. If Arizona were covered under the new formula, then Arizona wouldn't be free to make these kinds of changes without showing in advance they were non-discriminatory. The For the People Act-- Sorry, go ahead.

Brian Lehrer: Go ahead. You go.

Sean Morales-Doyle: Well, the other law in question, the For the People Act would have an impact in these cases, not by stopping the states from changing their laws, but by setting a new floor really, a new standard for what elections look like and should look like across the country, by putting voter-friendly policies on the books nationwide. Things like automatic voter registration and early voting, a lot of things we recently got here in New York, saying that's the new standard across the country.

If the court wants to say, "We're going to look tonight really to a benchmark for figuring out whether or not laws are unduly burdensome," then maybe it's time for Congress to come up with a new standard and set a new benchmark for what we want election laws to look like.

Brian Lehrer: That is where we live it, including your 4th-of-July weekend beach reading list from Lou on Staten Island, where Sean Morales-Doyle, Acting Director of the Voting Rights and Democracy Program at the Brennan Center for Justice of the NYU Law School. Sean, happy 4th to you. Thank you so much for coming on with us to start the long weekend.

Sean Morales-Doyle: Thank you so much for having me. It's been a pleasure.

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