If there's only
one thing I would
look at war,
famine, poverty,
issues of human
suffering,
but because I'm a
professor of
election law and
voting rights, I
would tie it back
to democracy.
And so the one
thing that I
think can tie it
all together and
help on
some of those
major issues of
human suffering
is a better
commitment to
democracy and
stronger voter
engagement and
stronger
education, civics
education. And
you know in the
United States,
you know, we have
voter turnout in
presidential
elections of 60
or 65 percent. I
think that's
pretty horrible
and you know that
needs to be a lot
higher. It's not
clear whether
that would
actually change
outcomes in a
place like
America, which is
already somewhat
of a democracy,
at least seen
around the world
as one of the
most important
democracies. But
I do think that
this collective
action towards
self-governance
with better
informed
electorate
can help to
realize greater
good for
everyone.
Joshua Douglas is a
law professor at the
University of
Kentucky.
Besides running
the marathon,
playing baseball,
hiking and
traveling, his
most
recent hobby is
to play the
guitar, which he
even brought to
Italy where I met
him for this
episode. He
promised me
that the next
time we record,
he would play us
a song and I have
a video to prove
it. So this is
definitely
happening. He
also has two kids
who keep him busy
and to whom he
dedicates his
latest book.
It's entitled
The Court v the Voters
to be
published on the
14th of May,
2024. And
I give you
the link in the
description to
pre-order it. In
this episode,
Joshua Douglas
reveals
for us some
of the key
moments of what
he calls the
troubling story
of how the
Supreme Court has
undermined
voting rights.
In undergraduate, I
was a political
science major and
then I went to
law school, which
in the United
States is a
graduate program.
And I took a
course on voting
rights and
it really
opened up my eyes
to how my
political science
background and my
legal training
could come
together. The
reason I think
it's so important
and why I decided
to study it is
because
everything
starts with the
voter. I mean,
you know, if you
think about all
the various laws,
all the various
rules that govern
society in a
democracy at
least, the people
who decide those
laws are elected,
right, by the
people at large.
So nothing starts
until you get a
voter and then a
group of voters
to come together
to elect someone
to a governing
body. And then
that governing
body can pass the
laws to regulate
society. And
those laws are
not legitimate
unless you have a
free and fair
election
to elect the
peoples to that
governing body.
So I think, you
know, I sort of
came to an
understanding
that the way the
world works, the
way society is
governed, at
least in a free
and fair
democracy,
starts with the
voter. Sure. And
you've published
already about
that. You
published a new
book about
that. And I had
the chance
because you made
a presentation
last time to
separate
the first
draft of the
book. So I
remember I see
that, I don't
know how it's
called in
English,
but you know,
to who you
dedicate, was it
one of your
family? Yeah, to
my kids, to each
of my kids. And
you were
saying that you
hope that they
will see how much
you contributed.
I mean, that you
fight for
democracy, let's
say, and that you
were hoping that
they do the same,
right? Yeah. I
mean, I
think that
it's really
important to
engage young
people in
democracy. You
know, I always
encourage people
to bring their
kids along with
them when they go
vote. We always
go vote as a
family.
And we talk
about issues of
democracy, you
know, at the
dinner table,
essentially,
because I think
it does start
with young
people. You know,
one of the things
that's really
discouraging is
that
voter turnout
among young
people is low.
You know, it
increases as you
get older. And I
think one
way to really
reform, at least
American
democracy and
probably
democracies all
around the world,
is to better
engage young
people. So I
dedicated the
book to them. You
know, they're 12
and eight
right now.
So they're not
quite voting age,
but it won't be
too long. And I
hope they and
their generation
are engaged
citizens. For
you, it's crystal
clear that it's
so important
democracy, etc.
And I mean, your
wish now is to
have people more
committed to
that. And so for
many people,
it's not that
clear. And how do
you explain that
some people are
more reluctant or
less interested
and don't feel
the same passion
as you have for
the end
democratic
rights?
Well, I think,
you know, part of
the problem is
that people
sometimes are
suffering from
their own
issues, you know,
whether it's
poverty, whether
it's the daily
life and the
struggles
of daily
life. And they
don't see how
democracy can
help their
everyday lives.
So I think we as
academics
and just people
in general need
to do a better
job of explaining
to those
individuals why
democracy
actually matters
and can help
them. You know,
it can come down
to the smallest
thing, like
you have a
pothole on your
street, right,
that it's, you
know, harder to
or public
transportation
is not as
reliable. Well,
what can you do
about that? You
can get leaders
who will
respond to
the people, you
know, in a true
representative
democracy, where
you can vote the
bums out if
you don't like
what they're
doing.
Politicians, at
least should be
responsive
to the people
because they're
fearful that in
the next
election, they
won't win. And so
I think what we
need to do
is explain to
people who are
disillusioned
with democracy,
how it actually
impacts their
everyday
lives. I'm
wondering
something about
it's a reflection
that I have for
quite a
long time.
What tools are
you suggesting
that we should
explain to people
and make them
show why
Fabio Bolan, I
totally
understand. I
agree as well.
I'm wondering
about the means
to do that,
because, you
know, if you look
at the statistic
and you've said
it just before,
younger
generation, they
are even less
interested, they
go less to vote,
and maybe
they are less
into democracy
than older
generation. There
are some
statistics about
that. So,
I'm wondering
also if the fact
to actually
explain to them,
like, what is
good for them,
actually, there
could also be
some, you know,
teenage reaction
where I don't
like to be told
what I should do,
you know, or I
don't like, okay,
you tell me
what's good, but
you're not my
parent, I'm free,
I prefer to have
maybe something
else than voting,
something else
than democracy.
Like, people
don't like to be
told what to do,
even at the same
time. It's not
only teenage,
I say teenage.
But so, do you
think that's part
of the problem?
Or what do you
think about that?
So, one thing we
really need to
fix and improve
is civics
education in
schools,
right? So,
one thing we have
in all modern
democracies is
kids are going to
school. And so,
we have a captive
audience. And
it's more than
just telling them
democracy is
good, you
actually have to
show it,
and you actually
have to help them
recognize the
power. And so,
I'll tell you a
quick story,
where the
students were to
look at a problem
that they faced
in their everyday
lives and
figure out
if they can try
to solve it. And
one problem that
the students
themselves
recognized was
that a lot
of kids were late
to school.
Tardiness was a
big problem. And
when they dived
down to figure
out why,
they realized
that a lot of the
students didn't
have reliable
transportation.
These were high
school students.
The kids went to
the city council
and convinced
them to pass a
law, and
the program
is known as kids
ride free. And
then the next
school year,
tardiness went
down.
Kids were not
showing up late
as much because
they can now get
to the school
with free public
transportation.
I don't think any
of those students
will ever forget
the power of
local democracy
to change
their lives, to
change the
reality of their
everyday
problems. And so,
that's
the sort of
thing we need to
do in the
scholarship world
of education
policy. It's
known as
action civics,
teaching students
not just by
telling them to
memorize
different aspects
of how
government works
or, you know, in
America, we often
say, well,
students need to
be able to recite
the declaration
of independence.
That's boring.
That's
memorization.
That doesn't
instill in them
the value of
democratic
engagement. But
an action civics
project like they
did in
Washington, DC,
certainly would.
Here, also, the
difference that I
see from before
what I was
saying, like
people
don't like to be
told what to do.
Here, not only
you're saying
it's not about
the message,
telling
them, oh, good
quality to do it
for democracy,
but actually
making them live
that and
experience that
by themselves
that they really
feel that in
their own.
Exactly, exactly
right. Another
reform that
I'm excited
about is lowering
the voting age to
16, at least for
local elections.
Studies show that
18 is not
a great age to
start the habit
of voting. At
least in America,
kids are moving
out of
their home.
They're either
going to
university or
they're entering
the workforce. We
move a lot in
America,
and so people are
often moving far
away from home.
Now we have
various voting
laws that
make you
register to vote,
obtain the right
kind of ID
There's so much
going on in an
18-year-old's
life,
it's no wonder
that voting is
not a priority.
But if we lower
the voting age to
16, maybe
just for
local elections
or school board
elections, we
have them all
there still in
school. We can
get them
registered. We
can educate them
properly. And
what's happened,
there's about six
cities in
the United
States, mostly in
Maryland and
California, that
have done this,
that have lowered
the voting age
to 16 for local
elections or
school board
elections. And
what the study
shows is that
voter turnout
jumps about
double for 16 and
17-year-olds as
compared to 18 to
24-year-olds. So
it seems to make
a big difference.
And then the idea
is that if you
start voting in
the first
election when
you're eligible,
you're much more
likely to become
a habitual voter.
And studies
also show that if
you miss the
first election
when you are an
eligible voter,
you're much
more likely
to become a
habitual
non-voter. And so
I think one key
is to figure out
how do we get
young people
to start engaging
earlier on so
that they become
lifelong voters.
Scotland is a
great example of
this, where it
lowered the
voting age for
the independence
referendum. Both
sides, both major
political
parties, saw it
as a success, and
then they lowered
the voting age
for all
elections in
Scotland. And I
think the results
have been pretty
positive in terms
of engagement of
young people.
So if the
question is also
about creating a
habit, so there's
of course this
age limit that we
can lower,
but also would
you be in favor
of making vote
compulsory? I
think so, yeah.
You know, some
countries have
done that.
Australia is the
example that most
people point to.
Belgium, because
Belgium.
Certainly, yeah.
You know, other
places like I
think Argentina
has compulsory
voting. 16 and
17-year-olds
are allowed to
vote in
Argentina, but
it's not
compulsory, but
once 18, I
believe it's
compulsory
there. I was
actually part of
a working group
in America
through the
Brookings
Institution that
looked at
compulsory
voting. We called
it universal
voting. I think
it sounds a
little bit nicer,
universal civic
duty voting. And
the idea here is
that, yeah, I
think that would
solve a
lot of the
problems. I mean,
one of the things
it would do was
going to take
away what
sometimes is
referred
to as the voting
wars in America,
where the parties
are fighting over
who's
allowed to vote,
and we're passing
all these voting
rules that lead
to voter
suppression,
especially when
it comes to
minority
individuals. We
obviously have a
very sorry
history of racism
in America, and
it exists
still to this day
with respect to a
lot of voting
policies.
Universal voting,
I think,
would fix a
lot of that. Now,
I'm not so naive
as to think that
it's likely to
pass in America
nationwide,
but I think the
countries that
have it see a lot
of positivity
with respect to
voter turnout and
voter engagement.
And in fact, the
electorates in
those countries
often are much
better educated
on civic issues
than in other
countries.
That would be
interesting to
have a statistic.
I don't know
if you have them
or whatever, but
maybe not, of
course, about
that they're not
that wouldn't say
much, but about
how people
support
democracy, like
what is the
attitude of
people for
democracy.
So Belgium,
Australia
compared to
Vancouver, it's
not compulsory.
Does the fact
make it
compulsory
make people
actually like
more democracy?
Well, one thing
you can look at
with
respect to that is
how many people
submit a blank
ballot or in the
countries that
allow it have a
none of the above
option. So it's
not requiring you
to vote for a
specific
candidate, but
requiring you to
submit a
ballot, either
blank or choosing
none of the
candidates. And
yet what you see
in these
countries
is that it's a
pretty small
percentage of
people who do
that. And so that
suggests, at
least to me,
it doesn't prove
it, but it
suggests that
people are
engaged enough to
choose a
candidate. We do
know that some
studies show
that, again,
voter education
is better in
those countries
than in,
say, the United
States. But to
me, the fact that
there are not a
large number of
ballots that are
voting for no
candidate
suggests that
people are
engaged and
committed, at
least to
vote for a
particular
candidate. Now,
there's a lot of
other voting
reforms we could
talk about.
Ranked choice
voting, I think,
has a lot of
promises as well.
Again, yeah, and
again, to help
engage people and
give them better
choices and
actually be able
to show their
preferences. Actually,
doing my
PhD thesis on
similar topics,
so I will talk
about it just
after. But yeah,
you said I'm
not so nice
to think that in
the U.S. such
laws could pass.
And why do you
think so? Is it
about politics,
because people
don't have an
advantage to have
everyone allowed
to vote? I think
it's more than
just politics. I
think Americans
have a real sense
of individuality
and freedom from
government
dictates. You
know, when Barack
Obama was
president and he
passed, helped
pass the
Affordable Care
Act, also known
as Obamacare for
health care
coverage, there's
a lot of
resistance
to people
just getting
health care
coverage, even
though the
government was
going to provide
it. There's this
whole notion of
the talking line
was the
government can't
make me eat
broccoli, you
know, can't make
me be healthier.
So there's just a
streak of
individuality. I
do think the way
to go about it
in America would
be to see if we
could get a city
to pass it in a
state that would
allow a city to
enact its own
voting rules. If
a city were to
pass it for its
elections, we
would have at
least some
good data about
how it works,
what the problems
are, and
hopefully a
success story.
That's exactly
what happened
with ranked
choice voting in
America. Now, it
started in San
Francisco in
2002, spread
to some other
cities, Portland,
Oregon, Portland,
Maine, some
places in
Minnesota,
St. Paul in
Minneapolis,
Minnesota, and
now it's being
used statewide in
the state of
Maine, in
Alaska, and
Nevada voters
will vote this
November as to
whether to adopt
it. The Nevada
Constitution
is a little
weird in that the
voters have to
pass something
two elections in
a row for it to
take
hold, and the
voters pass it
once already two
years ago, and so
they're going to
get the measure
again. So we're
seeing this local
reform for ranked
choice voting
spread to other
cities, but now
other states as
well. So maybe
because maybe not
everyone is
familiar with
that. I think
it's in
Europe, maybe
in Ireland it was
used, but can you
explain briefly
what's ranked
voting? Yeah, so
instead of having
to vote for just
one candidate on
the ballot, you
get to rank order
your preferences.
Like this
person first,
this person
second, this
person third, and
so on. And then
the
counting, the way the
counting works is
essentially we
look at which
candidate
refused, which
candidate
received the
fewest first
place votes. That
candidate is
eliminated, and
the ballots are
redistributed
so that the
second choice on
that ballot
counts. And you
basically keep
doing that until
you have
a candidate that
has 50 percent of
the vote. So
instead of a
situation where a
candidate
wins with
maybe 30 or 40
percent of the
total vote, even
though they had
the most votes,
now you have a
much more of a
consensus
candidate. We
have much more of
a consensus, and
also I
mean one big
advantage that I
see in that, that
is for example
with the French
system that I'm more
familiar with,
that it
eliminates what
we call the vote
utility, like
useful vote. So
for example, you
are really
into a candidate,
but that would be
just five percent
of the vote. Then
there are
someone who's
doing, who has a
chance to be
elected, an
actual chance to
be elected as
president. And
for example,
people don't like
Macron, but don't
like even less
Repen or V
and they like a
very more leftist
candidate, just
for instance. And
with that, they
can put their
favorite
candidate first,
and then second,
they can put
Macron more.
And then the
Repen, if they
like less, V,
they. And in
America we call
that the spoiler
effect, or
the spoiler
vote, that you're
voting for the
lesser of two
evils, you have
to choose that,
or you vote for
the third party
candidate,
which can spoil
the results
essentially. And
there are
examples where
this made a
difference. So in
the 2000
presidential
election in
America, between
George W Bush and
Al Gore, of
course that
election
came down to
Florida, and 537
votes out of
millions cast in
Florida changed
the result or
dictated
the result
of George W Bush
winning the state
and therefore the
presidency. But
there were
thousands
of people
who voted for
Ralph Nader, a
green party
candidate, a
third party
candidate who had
no chance
of winning
in the electoral
college. If just
some of those
voters had
selected Al Gore
instead,
Gore would have
won Florida in
the presidency.
Now if we had had
a system of
ranked
choice voting,
it's probably
likely that the
Nader voters
would have put
Ralph Nader one
and Al Gore
two, because
Gore was a much
more palatable
choice for those
voters than
George W Bush. So
I do think that
something like
ranked choice
voting would have
actually changed
at least that
election,
potentially
others. You know
the election
between Trump and
Hillary Clinton
came down
to just a
handful of states
and not a lot of
votes in those
states. Same with
Trump versus
Biden in 2020.
Yeah, in the
longer term, so
it would not only
help for that
specific
election,
but since
the wish that you
have is to have
people more
committed, I also
believe that if
people can see
that their vote
is better
reflected in the
reason, maybe
there will be
much more into
vaccinating in
the democracy. I
think that's
right. And again,
the cities that
have
adopted it in the
U.S., we do see
better voter
engagement. So I
think that's
right. And you
know, people say,
well, it seems
more complicated,
but everyone has
preferences, has
preferences,
right? So
you know,
we're in Italy
right now. I love
gelato. And so I
like using the
example, if I go
into the local
gelato shop and
they don't have
my favorite
flavor, I don't
just leave
without any
gelato, right? I
get my second
choice. We all
have preferences.
And so shouldn't
we be able to
express those
preferences at
the ballot box?
That makes very
sense. Then back
to the statistic
where I was
saying that more
and more people
are not so into
democracy. How do
you explain
that? Because
so first, that
could be
education, of
course, like we
could do better,
like you say,
also make them
fill them with
value, etc. But
these are ways to
do it. How do you
explain that we
need, I have the
impression or
maybe you would
tell me the
opposite, but as
the impression,
we need more
and more to
provide even more
efforts to
convince people
that democracy is
a good thing. So
why do you think
people have to be
going far away
from democracy?
Well, you know,
this is not a
recent
phenomenon,
right? You know,
we've seen this
happen in, you
know, in Germany
in the 1940s,
right? Where,
you know, Hitler
was, you know,
became a leader
under a populist
idea. I don't
know enough about
the history of
Italy, but you
know, Mussolini,
I suspect, was
kind of came
about from
a similar
ideal of
populism, telling
the people what
they want to hear
what they think
they want
to hear,
which is really
more about
consolidating
power.
Unfortunately, I
think Trump is
leading down some
of those same
paths right now
in America,
telling, you
know,
particularly
poorer people,
only I can fix
it, only I can
help, and they
believe it. And
so I have to just
circle back
to education. I
think that if we
were to truly
educate people,
now there's a lot
of other
problems,
of course, with
media landscape,
with social
media, and you
know, AI now is
changing things.
So there's not
one cause here
and there's not
one solution. But
I do think if we
could double down
on our commitment
to education,
then these
populist ideals
perhaps would not
create or
would not have as
much sway among
so many people.
Before you do,
let me add one
more thing real
quick, by the
way. That's not
to say that only
uneducated people
are drawn to
these ideas of
anti-democracy.
There are
certainly very
many smart people
as well. And I
think that goes a
lot to political
power, right? So
people see the
desire for
political power.
And
sometimes that's
through
anti-democratic
forces. And so we
also need to
think about what
it means to
have power
in society and,
you know, why
there's a benefit
to what we call
America's checks
and balances,
right? Or this
diffusion of
power not in one
individual. So
according to
you, I mean,
what's mainly
driving people
away from
democracy is that
they have some
needs which are
not fulfilled
or as I bet so
otherwise they
would feel
satisfied. And
there is one
candidate which
appeals to what
they want to
hear. Maybe it's
more populist
ideas. And this
is what makes
people turn
away from
democracy. I
think that's
right. I mean,
again, I think
there's multiple
causes. I don't
think we can
point to one
thing. But that
summary, I think,
is certainly one
cause of the
turn towards
anti-democracy
that we're seeing
in many places
right now.
Because one
explanation that
I have in
my mind is that
people are
actually turning
away from
democracy. But
it's very
compatible
with what
you just said,
actually. It's
aligned very
much. That maybe
it's because they
didn't
experience the
harm of not
having democracy.
Because now we
are a generation
that we got
spoiled. I
mean, we grew
up with
democracy. We are
good with that,
etc. And maybe,
you know, it's
just like
cigarettes.
If you've never
tried it, you see
it, it's a bit
attractive. You
want to try
something else,
you want, and
then you're
trying because
you don't know
what's the harm
of a cigarette
and I don't know
if it's a smoker
or something. But
once you get to
smoke, every
smoker
would say that
it produces many
bad effects for
them. Like they
don't feel good.
Maybe they feel
the need
not to have a
cigarette. And
maybe with
democracy, that's
also something
similar where if
you don't
get the, if you
don't know why
it's harming you,
then you just
want to try
something new.
Yeah, I think
that maybe is
right. And the
harms aren't
immediate, right?
So if you
start sliding
towards
anti-democracy,
you may not
recognize the
harms right away,
but slowly they
build upon each
other. And then
all of a sudden,
you're in a
situation where
it's hard to get
out of. So maybe
the cigarette
analogy is a good
one. So it's not
only that they
don't recognize
the harms because
they haven't
experienced it,
but that the
harms are
sometimes hard to
understand, or at
least hard to
grasp. And they
take a while to
see the actual
results. Yeah,
because then
after it's about
short term versus
long term effect.
So getting back
to the cigarette,
short term, you
get actually a
reward that
you're kind of
happy to smoke.
And maybe that's
only in the long
term that you see
effects.
Yeah. And the
other thing I
say, at least
about America and
the rise of
Donald Trump,
is that race also
plays a part in
this in the
American story,
right? That a lot
of white
individuals see a
threat to the
power that whites
have always had
in America,
especially
then with
the rise of
Barack Obama
becoming the
first black
president. And so
Trumpism, it's
not entirely
explained by
this, but I think
part of the
explanation also
is a backlash
with respect to
race, which again
goes back to
political power.
Do you think we
could expand not
only
race, but also
to more general
conservatives'
progressive
values? I mean,
culturally, so
for
example, even with
religion,
abortion, race,
etc., where some
people lived with
a model that they
had in mind,
and maybe they
feel frightened
because of what
they were
experiencing. So
what they are
used to,
their comfort is
to have, you
know, the ability
to have one man,
one woman for a
couple, to have
the traditional
life, religious,
doing things
well. And maybe
all these changes
are actually
creating a
feeling of
insecurity and
threatening for
them. And that's
why they
are so much
against all this
change. I do
think religion
plays a large
part of this. And
these things
interact
intertwined. So
this is abortion
is a great
example of the
way I think this
is playing
out in America.
Donald Trump used
to be a Democrat,
he used to be a
registered
Democrat. He
became a
Republican
basically because
he saw that as
the path to
power. I don't
know what his
true views
on abortion are,
but he's
certainly saying
the things he
thinks that the
Republican Party
establishment
wants to hear
with respect to
I'm going to
appoint justices
to the
Supreme Court
to overturn Roe
v. Wade and the
right to an
abortion. And
again, a lot of
it has to do with
religion. And
it's somewhat
amazing because
Donald Trump, I
don't think is
religious. I
don't get the
sense that he is
particularly
religious at all.
And you get the
kind of far right
religious
individuals who
are supporting
him. Why a lot of
it has to do with
abortion and
getting religion
back into
society. I think
that's played a
big part. And
again, it shows
how Trump has
told people
what they want to
hear to try to
get power. I
really didn't
know that part of
the story. And
if that's true,
it's a big thing.
I mean, I'm not
so far from here.
So I let whoever
wants to just
check online. I
mentioned there
is plenty of
sort. Yeah,
again, I don't
know what his
actual personal
views on abortion
are, but I do
know that he had
been a Democrat a
couple of decades
ago and was
kind of in with
the New York City
Democratic
establishment
when he was a
businessman.
And he
saw a path
through the
Republican Party
and it worked.
Yeah, that would
be indeed like
you just
said, confirming
the idea that
maybe then it's
more about what
people want to
hear and
not what the
real. And you've
mentioned Roe v.
Wade and that
reminds me that
the book that
you're publishing
is actually about
the Supreme
Court. So why do
you think the
Supreme Court has
a role in
protecting
what you write?
Well, so when
people talk about
what happened on
January 6, 2021,
the insurrection
at the US Capitol
or just the
voting you have
in America, often
it's if you look
at Congress and
you see that
support of
Congress is
pretty low. The
presidency, I
mean, whether
it's
Trump or it's
been Biden,
support of the
incumbent
president has
been low. But
people, I think
generally,
at least used to
think of the
Supreme Court as
a protector of
rights. And what
this book aims to
do is explain
why,
unfortunately,
the Supreme Court
has been pretty
bad on voting
rights as
well. So,
you know, the
reason it's
important is that
the court is
supposed to be
the protector of
individual
rights against
majoritarianism
suppression,
right, against
the majority
trying to change
the voting
rules or suppress
voting rights in
an effort to keep
themselves in
power, which is a
lot of what
happens. You have
these rules that
politicians enact
with the sole
goal,
essentially,
of making
it harder for the
other side to win
and easier for
them to win
reelection. The
court
used to be a
protector of the
individual voter.
In the 1960s,
there was a
handful of cases
in which
the court
elevated the
constitutional
right to vote.
But really, over
the past 50
years,
we've seen the
court backslide
on its protection
of voting rights.
And so the book
tells that story
for a general
audience. So it's
written with the
everyday voter in
mind. It's
essentially each
chapter is a case
study about a
significant case
in which the
court harmed the
right to vote.
Some of the
cases people
have heard of
probably like
Bush v. Gore,
again, which
ended the 2000
presidential
election.
You need to reset
because I don't
think it's for
European
this and that.
Yeah, but I mean,
you may have
heard of at least
the controversy
that involved the
2000 presidential
election in Bush
v. Gore, another
case that most
Americans would
know it's
Citizens United,
which is about
corporations
spending money on
campaigns. So I
tell the stories
of those cases,
which again,
people who talk
about democracy
in America, at
least have heard
those names,
heard the names
of those cases,
but also talk
about some other
cases from 40 and
50 years ago
that laid the
foundation for
the court's
current under
protection of the
right to vote.
So you're saying
that before, if I
understand well,
the Supreme Court
was better
playing
the role of
protecting voting
rights and it's
got a bit worse
in the
latest years.
That's right.
Now, before the
1960s, the court
was pretty bad.
So it was really
the 1960s was
the high mark of
the court
protecting voting
rights. Previous
to that, there
were a bunch of
cases in
which the court
did not protect
the voting
rights. A good
example is a case
called Miner v.
Happerstadt,
which was about
women's suffrage
before the 19th
Amendment to the
U.S.
Constitution that
enfranchised
women. This case
held that the
Constitution did
not protect the
rights of women
to vote. So the
court was, I
think, pretty bad
until about the
1960s. And then
we had the court
do what I think
it should be
doing all along,
which is actually
protect voters in
a series of
cases. And then
we started the
backsliding
again. But what's
interesting about
the past 40 or 50
years is that the
court has not
been explicit in
what it's doing.
It chips a little
way here,
a little way
there. And now
you look back 50
years later and
you say, oh, now
we can see this
is what's
happened. But the
court was at this
high water mark
in the 1960s and
then slowly and
incrementally
started to get
worse. And now we
see the problems
that it's
created.
Okay. So we can
see that when we
see the bigger
picture. But do
you think at that
time it was
intentional from
them or
themselves they
were not
realizing what's
happening?
So some of the
cases I think
were not
intentional. I
mean, so one of
the cases I
talked about was
written by
Justice John Paul
Stevens, who is
known as a
liberal justice
who in later
years would,
I think, lament
some of the
decisions perhaps
as not protecting
voting rights
enough. And so I
think when he
wrote that case,
in the case I'm
thinking of in
particular, is
the first case I
discussed in the
book, Anderson
versus St.
LaBrize, which
revolves around a
third party
running for
president in
1980. Again,
talking about
third parties
earlier. And in
that
case, Justice
Stevens wrote a
decision which
later justices
then used, and I
think maybe
distorted
somewhat,
to even further
pull back on
voting rights. So
I don't think the
court was
initially trying
to under protect
the right to vote
under the
Constitution. But
the cases
that it set out
earlier on in the
1970s and the
1980s have now
been mangled to a
point where today
the protection
is less than it
should be. And so
what are your
suggestions to
stop that and to
get back to a
more healthy
Supreme Court,
let's say? Well,
in terms of
reforming the
Supreme
Court itself,
I do think there
are several
things we can do.
And I talked
about these at
the end of
the book.
There's been a
lot of people,
particularly
Democrats, who
have argued for
packing
the court,
that is expanding
the size of the
Supreme Court
from nine to
maybe 15. I think
that's a
bad idea,
actually. Now
Congress could do
it. There's
nothing in the US
Constitution that
sets out
the number
of justices. For
a long time early
in America's
history, there
were six justices
on the US Supreme
Court. It's been
nine since the
mid 1800s. But
Congress could
pass a law to
change that. So
although the
Democrats, if
they controlled
Congress and the
presidency, could
do that,
I don't think
it's a good idea.
And the reason is
what happens when
Republicans
take over,
then they would
pass a new law to
increase the
courts to 21. And
then Democrats
come back and
say, okay, we got
to go up to 27
and it just goes
back and forth.
So I think we
need to
look at other
structural
reforms to the
court. One idea
is term limits.
Right now,
Supreme Court
justices
serve for life. I
think if we
adopted 18 year
term limits, that
would have a
natural rotation
where every
presidential term
gets two
presidential
nominations to
the court,
basically one
every two
years. I think
that would be a
lot healthier
than the
situation where
you have justices
serving for
20, 30 years.
Another reform is
I think perhaps
over time, we
could increase
the size of
the court,
but then have
them sit in
panels. So the US
Courts of
Appeals, the kind
of mid-level
review court
before a case
might make it to
the US Supreme
Court does this.
So they have,
there's 11
numbered
circuit courts of
appeals, one
through 11, and
also the DC
circuit, which
hears
cases out of
Washington DC.
But those courts
are
multi-membered,
say, you know,
the Fifth
Circuit,
which covers
Texas, Louisiana,
and Mississippi
has 17 judges on
it, but they sit
in three judge
panels to hear
cases, a random
draw of three
judges. Why don't
we do that for
the US Supreme
Court as well?
Another idea
would be to let
some of those
Court of Appeals
judges sit
occasionally
on the US
Supreme Court.
It's called
sitting by
designation. I've
been more regular
rotation of
people who hear
these cases. Why
that I think that
would work is
because it would
take away the
focus on the
identity of the
justices and make
the decisions
more about the
law, not who's on
the court. Right
now, we have a
6-3 conservative
majority in any
high profile
case, whether
it's about
abortion
or same-sex
marriage or, or
gun rights, for
example, maybe
not same-sex
marriage, because
I think that has
really been
accepted now much
more in a
mainstream
American
society. But,
you know,
abortion rights,
for example, a
hot button issue,
we can pretty
much predict
how the court's
going to come
down, it's most
likely going to
be 6-3 on
ideological
lines.
If we had a
regular rotation
or a court
sitting in
panels, the
decisions would
be much less
predictable. And
you would have, I
think, a focus
more on the law
than on the
identity.
Because at the
end, all these
ideas are to just
depoliticize,
make it less
politicize,
less about
politics and
personal
opinions, and
more about
looking at the
law, the
constitution.
That's right. And
there's no way to
get politics
entirely out of
the
court. I don't
think anyone
suggests that you
could remove
politics. But I
think you're
right that deep
politicizing the
court would go a
long way. And
again, you know,
my area is
voting rights.
Most voting
rights decisions
these days are
6-3 or maybe 5-4,
we kind of know
how they're going
to come out. And
those are the
very cases where
the court should
not be political,
right? The
cases about
political power
is where the
court really
needs to be as
unpolitical as
possible,
apolitical as
possible. And yet
we don't see that
right now.
Increasingly from
what you say, I
understand that
the forces that
are threatening
are the right to
vote or
conservative. So
the right part of
the politics in
the US, right?
Generally, yes. I
mean, the
Democrats do it a
little bit too.
Like, for
example,
when we talk
about partisan
gerrymandering,
the practice of
drawing lines
when we create a
district map,
the Republicans
where they
control draw
lines to help
themselves stay
in power, the
Democrats where
they control draw
lines to help
them stay in
power. So the
Democrats aren't
absolved from
some efforts to
skew democracy.
But right now,
it's the
Republicans that
are doing it a
lot more.
Especially when
it comes to
voting rights in
terms of voter
eligibility, who
can vote. Again,
a lot of this has
to do with race
in America. And
you know, right
now, race and
party are very
closely aligned,
generally
speaking,
although there's
been some shifts
in that. But
traditionally
over the past
several election
cycles, black
individuals have
voted for
Democrats, there's
been some
differences with
respect to
Hispanic and
Latino
individuals. But
race and party in
many places like
in the South are
closely aligned.
And so you see
the Republican
Party trying to
make, you know,
contract the
electorate. You
were telling us
last time
about the
Star Coast
Tri-Con. That was
very funny, no?
Yeah, yeah. So
that's from my
first book,
the book for us
on a chapter on
voter
registration,
where I talk
about ways that
some places are
trying to expand
the ability to
register voters,
even in the face
of often the
conservative side
trying to make it
harder to
register. And the
taco trucks
example was from
Houston,
where in a
Hispanic
neighborhood,
taco trucks
became voter
registration
hubs. They
had voter
registration
papers. So when
someone bought a
taco, they were
also asked, are you
registered to vote?
And the best part
of the story,
though, I love
tacos, I had last
night, by the
way, I had an
Italian taco,
it's a Pia Deena,
which my daughter
actually did a
research project
on tacos around
the world. And
she learned that
the Italian
version is the
"piadina" and I
happened upon a
place last
night, so I got
to try. But there
was no form for
you to register
on the not not
what I got my
"piadina". But
one of the best
parts of that
story is that the
voter turnout in
those
neighborhoods
went up after the
taco trucks
became voter
registration
sites. And so I
think you see a
real world
example of ways
to improve voter
turnout, even in
the face of some
attempts
to push back
against voting
rights. Okay,
thank you in
general. That was
super
interesting. I'm
very happy I did
this episode with
you. And I say
ciao to everybody
and see you for
the next. Ciao.
Thank you again.
Thank you. This
podcast has just
started one month
ago, and I am
already so happy
for all your
positive
feedback. It
cannot be
completely
perfect. So I
have created
profiles on
Instagram,
Facebook, Twitter
and others where
you can give me
your ideas. Your
feedback is
incredibly
helpful,
because you have
a perspective
that really I
cannot have. So
please send me
messages,
and I'll take
them into
consideration for
the next episode.
So see you
on the social
networks until the
next episode, on the
first of June.