Democracy Decoded: Season 2, Episode 4 Transcript

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Simone Leeper: Election day in America is the first Tuesday in November. And while there are other ways to vote, like voting by mail or submitting an early ballot in a Dropbox, voting in-person on election day is the one method every state offers.

Valencia Richardson: In-person voting historically has been seen as the default option for voting. It's the option that most people associate with voting just on a basic level.

Leeper: That's Valencia Richardson from Campaign Legal Center, and she's right. Casting a ballot in-person has always been the most popular method of voting. In the 2016 presidential election, 60% of voters cast their ballots in-person. Other methods of voting became more widely available during the 2020 election because of the COVID-19 pandemic. But for a lot of voters like Valencia, voting in-person has an emotional pull.

Richardson: Voting in-person for me is one of the most profound experiences, both as a voting rights advocate, but also as a citizen. Being able to cast my ballot on the voting machine, see my choices and get my vote sticker has always been a favorite part for me on election day.

Leeper: But ever since a landmark Supreme Court decision in 2013, voting in-person has become more difficult for many voters. I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. This season, we're digging into the issue of voting access in our country and today's episode is all about in-person voting. Before we learn more about that Supreme Court case and the barriers some people face when trying to vote in-person, I want to talk a little bit about the history of in-person voting.

Like we said a few moments ago, election day is the first Tuesday in November, but that feels kind of random. Why a Tuesday and why in November? To answer that question, we're going to dig into a little history. When the Constitution was ratified in the late 1700s, there were a lot of details left undecided, such as how will elections work? For decades, elections in different states were held on different days throughout the year. In 1845, Congress wanted to streamline this by creating a national date for federal elections. How they arrived on the first Tuesday in November has a lot to do with what life was like in the 1800s.

Polling places were far apart, so most voters needed to travel, often by horse and buggy if they wanted to vote. Also, many voters at the time were farmers, so election day needed to be after the big summer harvest, but before winter weather set in and made traveling difficult. That's why election day is in November, but why a Tuesday? Monday didn't work because voters would have to travel on Sunday, the Sabbath, and farmers needed to make it back home by Wednesday when they typically sold their goods at local markets. That leaves us with Tuesday, which gave voters enough time to travel on Monday, vote on Tuesday, and make it back in time for the market on Wednesday.

But obviously, life for voters today is very different from the 1800s. Our lives are busier and can vary from person to person. We have work and caregiving responsibilities that can make carving out time in the middle of the day on a Tuesday difficult. That's why our last episode focused on the importance of vote by mail, but lots of Americans need to vote in-person, so it shouldn't be an afterthought.

Richardson: Voting in-person is crucial for a lot of voters, including voters with disabilities, rural voters who might not have access to mail, elderly voters who might have formed a habit to vote in-person and want to continue to do so.

Leeper: Valencia says one of the most inclusive ways to offer in-person voting to the most people is with early voting.

Richardson: Early voting is the time period prior to the election, typically the week or two before an election, where a voter can choose to cast her ballot early.

Leeper: Like voting by mail, early voting rules vary throughout the country.

Richardson: Early voting is actually not available everywhere. It's a state by state decision, and the state decides not only whether early voting exists, but where early voting locations are located. Early voting is an important option to have because it offers method of voting that is convenient for voters who otherwise would not be able to vote on election day, providing additional days helps voters who work and cannot take off of work to vote. It helps caretakers who find it more difficult to leave on election day and have additional days to head to the polls. It helps student voters who might have class on election day.

Leeper: She says that right now, 31 states offer early voting periods. For the states that don't, that means voters only have one day to cast their ballot. Depending on where you live, that could make election day a challenge.

Jante Austin: We made it y'all. We made it. It's been an honor to share this almost 11 hour experience with y'all that we did it. Vote. Vote.

Leeper: That's a Twitter video from Atlanta voter Jante Austin, who stood in line for 11 hours to vote during the 2020 presidential election. Many Georgia voters, as well as many other voters around the South, endured long lines during the last presidential election.

Richardson: Polling places aren't staffed with enough poll workers, that can increase wait times for voters. Anytime you're increasing wait times for voters, you're decreasing the likelihood that that voter will stay in line. It becomes extremely problematic when we're creating in-person voting barriers, particularly on election day, because that's almost certainly going to disenfranchise that voter for that election.

Leeper: In our last episode, we talked about how vote by mail is crucial for people with disabilities, because less than half of the polling places in the country are accessible. Some voters with disabilities prefer voting in-person because it is easier for them to get assistance costing their ballot.

Richardson: When we're talking about in-person voting, there are several barriers that can preclude a voter from being able to cast their ballot. In the disability context, for example, if polling places are not equipped with the proper ballot types for say, our blind voters.

Leeper: Then that voter might not be able to cast a ballot. There are also barriers for people from different racial and cultural backgrounds when it comes to in-person voting. Black Americans have long faced barriers to voting, something that's been confirmed in Valencia's research recently published by Campaign Legal Center.

Richardson: There's a disparity in the physical number of polling places relative to certain groups. Specifically, our research has found in places like Mississippi and Louisiana and Alabama, there is a disparate number of polling places relative to the number of African American communities in certain counties there. For example, Mississippi and places like Hinds County where Jackson is, there are fewer polling places in Black neighborhoods than there are in white neighborhoods with similar populations.

Leeper: Those disparities led to the long lines we saw in places like Atlanta during the 2020 presidential election. It's not just about polling locations though. After the 2020 election, the Georgia state legislature passed a sweeping new election bill.

Richardson: SB 202 in Georgia is an example of a law which is designed to prevent people from voting in-person, or at least prevent people from voting in-person comfortably and conveniently and fairly. SB 202, for example, among many other provisions prohibits people from passing out water and snacks to those waiting in line to vote. Voting in Georgia can be very hot on a primary, for example. A provision like this seems intentionally designed to make people less likely to stand in line. This compounded with the fact that Georgia has had a systematic problem with polling place closures makes it all the more likely that the line-warming ban, as it's known, is intentionally designed to disenfranchise Black voters.

Leeper: While this specific law in Georgia is new, there have been laws chipping away at the freedom to vote since the end of the Civil War. How is it still legal to do this? If you'll recall from our previous episodes, voting has been a legal battle ever since our country was founded. When Congress approved the 15th Amendment which gave Black men the right to vote after the Civil War, states passed Jim Crow laws, which made it harder for Black people to vote without specifically mentioning race.

In 1965, Congress passed the Voting Rights Act, which was supposed to get rid of the Jim Crow era laws and expand voting opportunities for voters of color. But since then, many states have employed legal methods to limit access to voting. One of the biggest shifts came from the Supreme Court in 2013.

Gwen Ifill: It's considered one of the most important pieces of civil rights legislation ever passed. But by five to four, the US Supreme Court today took the teeth out of a law enacted nearly 50 years ago.

Leeper: That's Gwen Ifill, the late PBS NewsHour host, announcing the decision in Shelby County v. Holder back in 2013. Here's what happened. When the Voting Rights Act was passed in 1965, a part of that law, Section 5, said that certain states and counties, mainly in the South where Jim Crow laws were popular, couldn't change any of their voting procedures without getting permission from the federal government first.

This policy, commonly referred to as preclearance, meant that if a state or county with a history of voting discrimination wanted to change their voting procedures, like closing a polling place, changing the hours precincts were open, or creating new eligibility requirements to vote, they needed to clear it with the Justice Department first. In order to change election procedures, states and counties had to prove the proposed change wouldn't discriminate against any group of people or deny them the freedom to vote. This clause of the Voting Rights Act was a backstop that prevented states from passing new restrictive voting laws like they had in the Jim Crow era.

But then in 2010, Shelby County, Alabama sued the federal government claiming that preclearance was no longer necessary. Here's Butch Ellis, the Shelby County attorney, in an interview for a PBS Frontline documentary.

Butch Ellis: It's just the conditions that we will face with in 1965 no longer exist. They absolutely do not exist.

Leeper: In June 2013, the Supreme Court issued their decision declaring that Section 4(b) of the Voting Rights Act, which established the formula for determining which states were subject to preclearance, was unconstitutional, effectively ending the entire preclearance regime. In a dissenting opinion, Justice Ruth Bader Ginsburg described ending preclearance when it was working to prevent racial discrimination in voting as being like throwing away your umbrella in a rainstorm because you're not getting wet. Here's Valencia from CLC again.

Richardson: That decision, which struck down the preclearance regime, led to systematic reductions in polling places across the South, in particular in states that were formally subject to federal government oversight because of preclearance.

Leeper: All of a sudden, states and counties across the country could make any change to their voting procedures without direct federal oversight, and they took full advantage of it.

Richardson: We found that in every federal election since 2012, the year before Shelby County, there has been a significant decrease in the physical number of polling places in those jurisdictions, but also within those counties where the polling place closures have happened tend to occur in Black or Brown neighborhoods. A result of this ends up being longer lines in communities of color, longer travel times in communities of color, and ultimately as a result of those issues disenfranchisement of the voter.

Leeper: But Valencia says tracking down where voting is being limited after a change has already occurred is like playing whack-a-mole.

Richardson: The private sector is effectively tasked with enforcing voting rights laws on these counties to ensure that they are not relocating polling places or closing polling places in a manner that discriminates against Black and Brown voters and other voters of color. We are tasked with essentially finding ways to systematically understand how polling place changes have occurred.

Leeper: When the Supreme Court sided with Shelby County, it opened the door for states and counties to change voting rules and restrict voters' access to the ballot box. In this podcast, we've talked a lot about the barriers to voting different communities face, particularly rural voters and communities of color. For some, mail voting provides a safe and secure alternative to in-person voting. But for Native American voters living on reservations, voting by mail highlights the need for multiple ways to exercise the right to vote.

Samantha Kelty: I'm Samantha Kelty. I am a staff attorney with the Native American Rights Fund and it's DC office.

Leeper: Samantha, like Valencia, is constantly trying to figure out where restrictive voting laws are being passed. She files lawsuits against states and counties with voting laws that exclude Native Americans.

Kelty: For example, in the 2020 election when the rest of the world was very excited to go to all mail voting because of the pandemic, it left behind so many Native Americans who are used to voting in-person at the polling place where they go and they meet their family members. There's a potluck, and there's music, and there are t-shirts. It's a big festive atmosphere. Mail voting is not accessible for a lot of Native Americans who live on reservations where there are sometimes no traditional mailing addresses. There's no mail delivery. There's not a mailbox outside the door.

Leeper: But she says that's just one example of how our election system doesn't include Native Americans. Samantha says at every point in the process, Native Americans face challenges.

Kelty: Starting, for example, with the census, there are extreme census undercounts of the Native American community. In many states, it's the largest of any minority group. They're not being counted for purposes of redistricting, for purposes of funding. To begin with, the weight of their vote is already off.

Leeper: Then, states throw up hurdles at the very first step in the voting process.

Kelty: There are extreme issues with voter registration. We know from, for example, our litigation in North Dakota, some states will require an ID with a picture on it, knowing that tribal IDs don't have pictures. States will, for example, not allow a tribal ID when that sometimes is the only form of identification that a Native American could possess.

Leeper: She says registering to vote can be difficult because many native voters move around a lot and don't have a consistent address.

Kelty: We know also that Native Americans are a highly mobile group of people. For example, our litigation in Montana was to protect election day registration. Native Americans used election day registration at a higher rate because of that.

Leeper: Like she said earlier, for Native Americans on reservations, voting by mail can be difficult. in-person voting can also prove challenging because the reservations are often far away from the closest polling place.

Kelty: There's like a tripwire at every single step. Oftentimes, Native Americans are gerrymandered so bad that even if they do make it to vote through all these obstacles, their vote means nothing. They could never elect a representative of their choice.

Leeper: One case Samantha worked on recently was a lawsuit against a county in South Dakota where the Native population is 40%.

Kelty: Imagine being almost half of the population of your county and never ever in the history of the county having a representative on the county commission. The legislatures are well aware of what the Native communities rely on to vote. They know that they rely on election day registration. They know that their IDs don't have addresses on them. They are well aware of these things and well aware of the power that the Native vote holds. The Native contingent can be small in some states, but it's still enough to make a difference.

Leeper: Samantha says she and her colleagues are passionate about these lawsuits because it brings awareness to how severe the problem is.

Kelty: The judges that we've been in front of are just moved. There's no way you cannot be moved. There's no way you can hear the story and not feel compelled. These Native voting cases are wildly successful because of that. It's not that litigation is the answer, it's just evidence of how severe the problem is. I mean, I think the rate is something like 90% of the Native voting cases that have been brought, the Native plaintiffs have either won or successfully settled. That's unheard of in litigation. I mean, it's usually 50% at best. But with these cases, the facts are just so... It's so terrible.

Leeper: In March 2022, Arizona passed a law requiring all voters in Arizona to show documentary proof of citizenship and residency before registering to vote. The law also strips certain voters of the right to vote in presidential elections and vote by mail. On behalf of several Arizona based civic organizations and 21 Native tribes, CLC is suing the state saying this requirement unlawfully discriminates against many groups, including Native Americans, by creating burdensome barriers and violation of federal law. It also discriminates against naturalized US citizens and members of other racial and language minority communities like Latinos.

The Latino community is a diverse and varied group of voters of all races, that includes both recently naturalized citizens and families who have inhabited the United States for generations. Several states have continued to adopt new laws that make exercising the right to vote extremely difficult for Latino voters. Latino voters and members of other communities of color are more likely than white voters to be removed from the voter registration roles as part of voter purges, using stale or inaccurate data, and to have their mail ballots rejected because of signature mismatches or other minor technical issues.

Language barriers are another major challenge. If someone doesn't speak English as their primary language, they might struggle to get assistance at the polls so they can fill out their ballot. Access to language assistance at the polls is something many communities of color struggle with, especially those with large populations of naturalized citizens such as Asian Americans.

Terry Ao Minnis: My name is Terry Ao Minnis, senior director of Census and Voting Programs at Asian Americans Advancing Justice, AAJC

Leeper: Terry has worked for Asian Americans Advancing Justice, AAJC, for more than 20 years. She started as an intern, and when she got her law degree, joined the staff as an attorney. In her time with Advancing Justice, AAJC, she's worked as an advocate for the Asian American community and other communities of color in accessing the freedom to vote and fair representation.

Minnis: I was blessed to be able to work on the reauthorization of the Voting Rights Act in 2006. That was my first big major campaign, and we were very integral in working particularly on reauthorizing Section 203 of the Voting Rights Act, which is the language assistance provision.

Leeper: Helping voters who don't speak English as their primary language has been important to Terry throughout her entire career.

Minnis: Over 90% of our community are either immigrants or children of immigrants, so what that results in can be language barriers at the polls. There might be some difficulties with the English language. Our voting process, particular our voting materials, which are already exceedingly complex, written at very high levels of English, can be very difficult for even English only speakers to fully understand becomes that much more daunting for Asian American voters.

Leeper: She says in-person voting is often the preferred method for people who don't speak English as their primary language or are new to the voting system.

Minnis: The benefit of being able to go to a polling location is that you have somebody there who is versed in voting laws in the election practice. If there are any questions about how to properly vote or any questions about the voting process, you have somebody there that has that expertise in a way that you would not have at home.

Leeper: Asian Americans make up a growing percentage of the voting population. But when there are barriers to voting, their voices aren't heard in elections.

Minnis: The Asian American community is one of the fastest growing communities from census to census. This past census is no different. We've seen the Asian American community population grow in every state. That being said, we also at the same time continue to see a gap from election to election with respect to voter registration numbers, with respect to voter turnout numbers.

Leeper: While the number of Asian Americans is growing in every state, that hasn't always translated to more Asian Americans voting.

Minnis: Over time, you will see that as emerging populations start to grow to a number where they can influence the balance of power, that is where they can make a difference in election, that's when we start to see an increase in voter suppression tactics against these communities to try to make sure that they stay silent and don't upset, if you will, the balance of power for those in power.

Leeper: When the Supreme Court gutted the preclearance provisions of the Voting Rights Act, the court gave states a license to enact laws that make it harder for voters of color to cast a ballot. Within 24 hours of the Supreme Court decision, Texas announced a strict voter ID law, and Mississippi and Alabama quickly followed suit. Two months after the decision, North Carolina cut back on early voting and eliminated same day registration. These anti-voter laws would have been stopped if preclearance was still in effect.

It's been almost 10 years since some of these new laws went into effect. And in that time, voting rights advocates, like Valencia from Campaign Legal Center, have devoted their careers to reversing these laws and implementing solutions that expand the freedom to vote.

Richardson: First and foremost, we still need federal legislation to strengthen the Voting Rights Act and to ensure the freedom to vote by setting standards by which counties can establish and relocate polling places. But in the meantime, we have state and local policies which would help expand their freedom to vote.

Leeper: On the next episode of Democracy Decoded, we'll look into other solutions to the problem of low voter turnout and how we can make our voting system work for everyone. Special thanks to Valencia Richardson, Samantha Kelty, and Terry Ao Minnis for appearing in this episode. You can find additional background information on the topics discussed in the show notes, along with a full transcript of the show.

Democracy Decoded is produced by LWC Studios for Campaign Legal Center, a nonpartisan, nonprofit organization which advances democracy through law at the federal, state, and local levels, fighting for every American's right to responsive government and a fair opportunity to participate in and affect the democratic process. You can visit us on the web at campaignlegalcenter.org. Democracy Decoded is hosted by me, Simone Leeper, legal counsel on the redistricting team. Leading the production for Campaign Legal Center are Casey Atkins, multimedia strategist, and Mannal Haddad, senior communications manager for voting rights and redistricting.

This podcast episode was produced by Claire McInerny, edited by Paulina Velasco, and mixed by Florence Borough Adams. Democracy Decoded is a member of The Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.