John Blomster: Hello and welcome to DISCOVERY, a podcast presented by the University of Washington School of Law. I'm your host, John Blomster. And today we're speaking with Franita Tolson, professor of law at the University of Southern California Gould School of Law. Franita is a renowned scholar and expert in a number of exceptionally important fields as we ramp up towards election season. And she's written extensively on a number of issues, including partisan gerrymandering, campaign finance reform and constitutional law. She's here today to discuss a very specific, yet incredibly broad topic, that gets to the very important voting rights in the United States. It’s a topic that she addresses in detail in her forthcoming book, A Promise Unfulfilled: Section 2 of the 14th amendment and the Future of the Right to Vote. And we are very excited to dive in here on DISCOVERY. So Franita thank you very much for being here.
Franita Tolson: Thank you for having me.
Blomster: So first off, I could recite the language of that particular section at hand, but my head would kind of spin so if you could explain what is Section 2 of the 14th Amendment, and why is it important?
Tolson: Of course. So Section 2 allows Congress to reduce a state's delegation in the house if the state abridges or denies the right to vote. It's never been enforced, but it's really important, or else my book is pointless. So it must be important, right?
So the book has a couple things that I hope to achieve. The first is to tell the story of Section 2. Because it's never been enforced, histories of reconstruction, or the 14th Amendment, or even books written by law professors that tend to be more normative in scope, they discount Section 2, because it's never been enforced. So there's a story there. And it's a really interesting story that I just hope to draw readers in with. But the second goal is to show that the normative importance of Section 2. So one of the arguments in the book is that Section 2 informs the scope of remedies that Congress can adopt to address voting rights violations, because so often we think about Section 1 of the 14th Amendment and what equal protection means and what due process means, and how that affects Congress’s power under Section 5 to enforce the 14th Amendment, but we don't have a conversation about Section 2 and how that also informs Section 5 in the scope of remedies that Congress can adopt. So from the book, I'm hoping to start that conversation.
Blomster: Absolutely. And I would love to get into that story. And it takes us all the way back, to the way back. When it came to the founders’ view of the republic, and who should be able to vote and what voting means to the stability of that republic, what was their thinking? Who should have been able to vote?
Tolson: So the founders, for that generation, a lot of things were about virtue, right? So only those who possess virtue should be involved in running the government. Only those who possess virtue should have the political power in society. And so, of this virtuous, metaphorical human being, property owners were considered to be the community best able to safeguard the political power within the community. And most people are familiar with that story, that at the founding property owners were the main individuals who could exercise the right to vote, what they're less familiar with is what everybody else could do.
So one of the stories that I try to draw in in telling the story of Section 2 is about the natural rights to alter or abolish government. Property owners could exercise the right to vote. For everyone else, there was a natural right to alter or abolish government, which is very similar to the right of revolution that the colonists exercised against Great Britain in 1776. The national right to alter or abolish government meant that if the people were dissatisfied with their governments, they can overthrow them. It wasn't always violence, even though we typically associate it with exercises of violence, if you think about the Revolutionary War. But they also used it to create new states. They used it to alter their state constitutions outside of the state legislatures. They used it to call elections. So they used to abolish power in a number of ways during the founding era. And that was the way that the people who were not able to vote could exercise their voices. And so one thing that the book draws on in thinking about the right to vote is how, over the course of the 19th century, you see a move away from the natural right to alter or abolish government, and you see more people being enfranchised. And eventually by the time we get to the post-Civil War era, the natural right to alter or abolish government has become disfavored, because the confederates relied on it to secede from the union. And so Congress realized, even though we typically think of the natural right to alter or abolish government as a natural right, we have to find some way to neutralize it. And the right to vote serves that purpose, right? The right to vote becomes the vehicle through which people can express their sovereign authority as opposed to the natural rights to alter or abolish government. So in the course of telling this story about Section 2, I uncovered this really interesting link between the natural right to alter or abolish government and the right to vote.
Blomster: If the country was founded on this idea of equal representation under the law, but voting was not considered a natural right, but the right to overthrow the government is a natural right, how do you reconcile that? Or how was that reconciled back then? Like, why did it take the Civil War to?
Tolson: I don’t think you could reconcile it. So one of the difficulties in writing this book has been questions about how to frame the underlying rights that people are contesting, because there's all this discussion in the pre-Civil War period about how the right to vote expanded. But at no point did it really include women, Native Americans, African Americans. Now, African Americans could vote in some states at the founding, but for the most part, there were movements away from that, especially as the base over slavery heated up and there were concerns about the rights of free African Americans and how that imperiled that institution. There was a level of discomfort because you couldn't really reconcile it. You can't have a discussion about equality, and the rights of man, while excluding people. One of the things that the book tries to do in telling this story is be honest about that tension, because I don't think that is something that could be reconciled. In the context of adopting Section 2, Congress very much wanted to expand the scope of federal power. But Section 2 is also a story of exclusion, right? Section 2 explicitly mentions evoking the penalty of reduced representation for the disenfranchisement of those who are male, over 21 and citizens. That excludes a whole bunch of different groups from being able to exercise the right to vote. And so I think an important thing that the book has to be honest about is the fact that while Section 2 is about expanding the boundaries of the political community, it’s also about exclusion.
Blomster: Yeah, that's, that's one of the very interesting things, especially since it hasn't been enforced. So how did over time, like how did the idea behind Section 2 start to expand to be more inclusive of, you know, historically disenfranchised peoples?
Tolson: Indirectly, because there were subsequent constitutional amendments that affected our understanding of Section 2. So for example, the 19th Amendment enfranchised women. And so just by definition, women are brought within the ambit of the political community protected by Section 2, right? So just because Section 2 mentions the word male, the 19th Amendment changes that. So another interesting tributary in the story is: How is Section 2 affected by the court’s jurisprudence under Section 1? The Supreme Court has developed an entire line of cases about a right to vote that exists under Section 1. Section 2 references a right to vote. Is that right to vote influenced by the court's interpretation in Section 1? One might say yes, right? Or is it purely a reference to the right to vote as interpreted under state law? Every state constitution protects our right to vote, right? Does Section 2 just simply reference that? And so it’s all of these very interesting interpretive questions about how we think about what Section 2 actually does. So in the book, I'm trying to unpack some of that.
Blomster: Do you lean one way the other?
Tolson: You know, that's hard for me. Honestly, I'm not sure. And so what I do is I sort of frame it as: look reader, all of these different things are possible. Now I do come down on the relationship between Section 2 and Section 5. So my argument that Section 2 should inform how we think about what Congress can do under Section 5. To me, that's a much, much cleaner argument to make. But in thinking about the right to vote and what it means under Section 2, that's a little bit more difficult, because there are so many different conceptions of the right to vote. And honestly, that's part of the story, right? Part of the story is that the right to vote is dynamic, and it changes and our understanding of what the right to vote requires, it changes. So maybe that is the answer. And we just have to be okay with that.
Blomster: Yeah, that's very timely, the idea that the right to vote is dynamic, because we are sure seeing this evolution play out right now as we lead up to the election. So why did you choose to write this book right now? Why is it important that we're talking about this today?
Tolson: That gives me more credit than I deserve. I've been working on this book for four years.
And so to be honest, post-Bush v. Gore, anything voting rights has been a hot topic for almost 20 years now. At least one could say the high watermark of voting rights was mid-1960s to early 1970s. And post- Bush v. Gore, though you really see convergence of election law as its own field. And you see many more election related textbooks, many more election related books written for general consumption, many more academic elections and so I don't think my book is unusual in that respect. There's definitely been a movement by scholars in the field to write more in order to invite people to care about these issues.
Bush v. Gore got people mad, right? People were mad about the outcome. And even if for those who supported the outcome, I think there was a little bit of anger that the Supreme Court was involved in the dispute, right? Because there are any number of ways you can look at the case of Bush v. Gore and its implications for both the right to vote in our system of federalism, right? But I think what it did, importantly, was it invited people to care about this. And so I think I'm right in that moment. I'm telling my readers, you should also care about this. Yes, I know, it's never been enforced, but it matters and it affects how we think about the right to vote and why it’s important.
Blomster: Absolutely. Yeah, Bush v. Gore changed the course of American history in so many ways. And now we're at this crossroads of sorts, where you're seeing, you know, the field of election laws you say become so important, and we're seeing these different challenges to voting rights through felony disenfranchisement, voter ID laws, immigrant population restrictions. So what do you see as the biggest challenge as we go into 2020, in terms of preserving that right to vote or making sure that this is as fair and balanced of an election going in? What are the biggest challenges that we're facing?
Tolson: The biggest challenge, I think, is voter apathy. Convincing people that elections matter. People remember that elections matter long after the election is over. Every election matters. And this is why people, they wouldn't work so hard to take away your right to vote if it didn't matter. And that ties into another challenge. Making people understand that the right to vote is a right and not a privilege. We have really come full circle. If you think about the founding era and the antebellum period, the right to vote was thought of as more privileged, right? It was a privilege reserved to property owners. Reconstruction, you start to see people in Congress, political elites, having serious conversations about whether or not the right to vote is a natural right. Seriously entertaining the possibility that it is. But now we've sort of entered a phase where we're back to trying to make people realize that the right to vote is a right. Right? And not just a privilege. That it's not okay to live in a system where the voter has the burden of proving to the state that they're entitled to exercise something that is theirs. It’s a right.
Blomster: One issue that is really top of mind right now is the Supreme Court is taking up the case on partisan gerrymandering, which you've written about extensively. So could you—what’s at stake in this particular case? Because this is coming up real quick.
Tolson: Yeah, June. June, we will know. The partisan gerrymandering cases, in some ways, the court punted on the issue last term, and kicked in on standing grounds, because I don't think that they had a standard that they could coalesce behind in terms of resolving partisan gerrymandering claims. So that is the core issue here. Is there a metric by which we can tell that a partisan gerrymander has crossed the threshold into unconstitutionality? And so I think the stakes are huge.
So on one hand, you do have states that are moving towards having an independent commission draw lines, right? In order to neutralize some of the partisanship in the process, but in other places, and in fact, the cases before the Supreme Court are some of the worst gerrymanders in the country. So in addition to Wisconsin, you also had a very terrible gerrymander in Maryland. You had a terrible gerrymander in North Carolina, you had terrible gerrymanders in Texas. Like I said, some of our biggest and most populous states that you have these really horrible gerrymanders. So the Supreme Court, I think, there may be a majority of justice, who are comfortable sort of policing the worst of the bunch. The difficulty comes in trying to police a gerrymander that’s a gerrymander, but that's not quite as bad as Wisconsin or Texas or North Carolina or Maryland, right? And so because we have a clear line drawing problem, I think that makes it difficult to come up with a standard. There are some possibilities out there. Political scientists have been discussing and writing about this issue for a number of years and trying to come up with various standards to try to gauge whether or not parts of gerrymanders are unconstitutional. So there are options out there. But there's a larger issue. I think that worries the court. And that is the fact that the court might be viewed as political if they weighed in on this. Thirty years ago, in a case called Davis versus Mandamus, the Supreme Court opened the door for partisan gerrymandering claims, but it was a very different Supreme Court. And it was at a very different time. Political polarization was not nearly as bad as it as it is now.
Blomster: Is there any extreme situation that could be plausible in any way where you would see, you can imagine Section 2 ever being enforced?
Tolson: If Section 2 was ever enforced, Texas is in trouble. I don't know if the political wheel will ever be there. In the most recent election, you definitely had some indication that Texas is moving towards purple—being a purple state—as opposed to a state that's just purely red. I think elected officials are more comfortable relying on changing demographics and the fact that trends seem to be moving towards, you know, some traditionally, red states becoming more purple.
So I think it's unlikely to be enforced. And this is precisely why the book talks a lot about other ways of thinking about and using Section 2 outside of the penalty.
Blomster: What role can young lawyers and legal scholars play when it comes to election law and advancing that field and really preserving that foundational idea that this is a natural right. Everyone has it, and we have to continue to all fight together for that?
Tolson: Keep suing. Keep suing them. I think that has become really important. So groups like, you know, the ACLU, for example, files lawsuits all the time against states. NAACP Legal Defense Fund, The Advancement Project, and you know, various public interest groups are at the forefront of trying to protect the right to vote by filing lawsuits when states do things that abridge or deny the right to vote. But they also work in accordance with legal scholars who are working on these issues. So they'll reach out to get some sense of, you know, good litigation strategy to, you know, I've talked to people in the advocacy community about unorthodox penalties like Section 2.
I've also talked to them about the elections clause and various provisions that are underutilized in the fight to protect voting rights. And I think as we move forward and thinking about the next wave of litigation, we have to start, we have to be willing to rely on nontraditional avenues to protect the right to vote because the way that the right to vote is starting to be suppressed. They're coming up with new and creative techniques of disenfranchisement, but we have to be creative as well, but in a different way.
Franita Tolson is professor of law at the USC Gould School of Law. You can explore the topics and more from today's conversation in more depth in her forthcoming book, A Promised Unfulfilled Section 2 of the 14th Amendment and the future of the right to vote.
Franita, thank you very much for joining us. This was fun.
Tolson: Thank you.
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