Who Gets to Vote?

Pam Karlan: Do we have any evidence that there’s a substantial number of non-citizens voting?

Sophia Lin Lakin: Absolutely not. In fact, the complete opposite of that—citizens aren’t voting. Yes, that too.

Pam Karlan: It’s not that non-citizens are voting, it’s that citizens are not voting.

Sophia Lin Lakin: And I would certainly say, if we’re worried about the integrity of our elections, we should be worried about making sure that more people are participating in our elections and not chasing a fantasy.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan. Please subscribe or follow this feed on your favorite podcast app. That way you’ll have access to all our new episodes as soon as they’re available.

Back in the 1880s, the Supreme Court said that the right to vote is fundamental because it’s preservative of all rights. And today we have with us a guest who’s going to talk about trying to preserve that right to vote. It’s a pleasure always to have my colleagues on the show here at Stanford. But I have a special pride when we have one of our alumni back to be on the show. And today we’re joined by Sophia Lin Lakin, who is the director of the Voting Rights Project at the American Civil Liberties Union, which is, as its name suggests, an organization that’s trying to preserve all of those rights. And so, I like to think of Sophia’s work there as, perhaps, the most fundamental piece of that because it’s about voting rights. So welcome to the show, Sophia.

Sophia Lin Lakin: Thank you so much for having me on.

Pam Karlan: I want start with, the way I think about the right to vote is that there are really three big buckets of voting rights issues: There’s the right to participate. The right to cast a ballot and have that ballot counted. There’s the right to … what I sometimes think of, aggregation, or the rights that go to determining who wins an election and there are lots of rules there. And I think probably the one we’ll probably talk the most about is how districts are drawn.

And then there’s a kind of third which is a right to governance which is really about the overall composition of voting bodies. So you vote for your own representatives, but you care who else is in the government as well, because that determines what kinds of laws are going to be passed or the like. And you folks at the ACLU are involved in all of these. So, I thought we might start by talking about just the right of people to cast a ballot and have it counted and the various kinds of work you’re doing there.

Sophia Lin Lakin: Yes, absolutely. That’s probably the most fundamental of the work that we’ve done, or at least the most stable of the work that we’ve done over time, unfortunately.

And that’s because for time immemorial, there have been efforts to make it more difficult or outright strip the rights of… the right to cast a ballot at all from some subjects, some segments of the population. And so, the tactics may have changed slightly over time, to where we are today, but for the most part, this is a pretty common theme throughout this nation’s history.

Pam Karlan: Yes, one of the things that seems to be going on today is it used to be that the states were very resistant—a number of states, were very resistant to the votes of immigrants or the votes of members of racial minorities or the votes of poor people. So we had the poll tax. You had to pay money in order to vote, or we had literacy tests, which were hard for people to pass if they didn’t have an education. And the federal government came in and tried to vindicate the right to vote. But today we seem to be seeing something that’s almost the inverse of that, which is you have a number of states that have made major strides in enabling every eligible citizen to register, to cast a ballot and have accounted and a federal government that seems to be moving in the other direction. I wonder if you might say a little bit about the litigation you’re doing with regard to that.

Sophia Lin Lakin: Yeah, that’s very different than what we’ve been doing before. As you’ve noted, we’ve… the bulk of our work, previous to … I’d say, this past year has been against states who have put in place different kinds of requirements that make it harder for certain people to vote.

Nowadays, unfortunately, what we’re seeing is a Department of Justice and an administration that has actually gone on the offensive, I would say. There are a couple of different cases, right … one whole set of cases is related to the administration’s efforts to obtain the unredacted voter rolls, complete voter rolls of every state in this country, in an effort to build a, some sort of super… “supah” database for surveillance, for their own voter roll maintenance, we don’t know. Entirely the scope of why this is being done. And you have a number of states who are actually trying to resist this, I think understandably, to say, look, there’s information that you can certainly get public—the public is allowed to obtain certain kinds of information from the voter rolls, but there’s some sensitive information that we, rightly, protect from voters—driver’s license numbers, social security numbers, and the aggregation of all of that personal identifying information to one identity itself.

And so, you have a number of these states the DOJ has gone out and sued. I think we’re at 30 states plus the District of Columbia, for their unredacted voter rolls. You have the states fighting back and we have intervened in a number of these states. We’ve taken legal action, I believe the numbers, about 25 of these cases on the side of these states that are trying to protect the sensitive data to say, “Hey, our voters are actually very concerned about their sensitive data.” That the price to pay of voting and registering to vote is giving up my sensitive data to the federal government who has given every indication that they’re not going to be protective of this information, they’re not going to be using it in a way that protects me as a person.

Pam Karlan: Yes. So, I think some of this may be about the claim that the federal government makes, or at least the President Trump keeps making, that there are lots of people on the voting rolls who aren’t entitled to be there.

And one of the things we know from the old days is when people try to match the voting rolls against other sorts of government databases, they often get inaccuracies. I remember this back in Florida in 2000. Florida knocked a huge number of people off the voting rolls right before the 2000 election on the grounds that they had been convicted of felonies and therefore weren’t eligible to vote anymore.

And lots of those people, it turned out, hadn’t been convicted of a felony at all, but they had the same name as somebody else. So if you think about the number of people named John Smith in the United States, if you have a felony record for “John Smith” and you knock all the people named John Smith off the world, so you’re going to knock a lot of other people off. And as you may remember, the election in Florida was decided by 535 votes or 536 votes, so it could have a major impact on elections going forward.

Sophia Lin Lakin: Oh, absolutely. And what we’ve seen, and the studies have shown, if even a first name, last name, and year of birth results in a very large number of false positives. And so, you really need to be very careful when you’re trying to take different databases that aren’t meant to be put together in this way, that aren’t collecting data in the same way. And how are you matching these individuals over time? If you’re going to use it to say, “No, this is an individual who shouldn’t be on the rolls. We know who this person is.” We’ve seen time and time again. I testified earlier this year, just about this issue of using faulty methodologies, error-prone databases, to perform this kind of list maintenance, looking at the voter rolls to see who might be eligible. In this day and age, the big concern that we’re seeing and what the drumbeat that we’re hearing over and over again from the administration’s not new, but is certainly taking a lot of airspace these days, is about non-citizens, purported non-citizens on the roll.

And that’s the same issue that you’ve seen with respect to people who may have felony convictions. You have people who have similar names. You have people whose naturalization status changes and it changes without necessarily being updated in a particular database.

Pam Karlan: Because I think some of it is they want to check it against driver’s licenses. And of course, if somebody who had a green card at the time, they got their driver’s license, their driver’s license will indicate they are not a citizen in some places, but they are now eligible to register. And indeed, I think for me, one of the most moving things is to go to a naturalization ceremony and then see voter registration being done by like the League of Women Voters or stuff, of people who’ve just been naturalized, and it’s really, it’s a really inspirational thing to watch. And you’ve got to worry if the government is then coming in and suggesting that non-citizens are going to vote and do we have any evidence that there’s a substantial number of non-citizens voting?

Sophia Lin Lakin: Absolutely not. In fact, the complete opposite of that, every…

Pam Karlan: Citizens aren’t voting.

Sophia Lin Lakin: Yeah, that too.

Pam Karlan: It’s not that non-citizens are voting. It’s that citizens are not voting.

Sophia Lin Lakin: And I would certainly say you, if we’re worried about the integrity of our elections, we should be worried about making sure that more people are participating in our elections and not chasing a fantasy and every study that has been put out there, when we’ve gone to court, and we’ve done this a few times now, but gone to court and say: “Show us. Show us. Go look at the records, tell us what you find.” Time and time again it… all we can say is there have been a handful, at most, of instances of, usually error on the part of administrators or the voters getting confused about the rules, getting paperwork put in front of them and the like.

So yeah, this is not a problem that we should be spending quite this level of airtime or interest or anything on. And yet it’s being used as justification to completely change, I would say, our election system—for the federal government to try to seize control of our voter databases, which should be in the hands of the state. In fact, the Constitution says so.

Pam Karlan: Yeah, so we have … the elections are run by the state, and now there’s also an executive order that’s trying to change how people register to vote in the first place. And I know the ACLU is involved in that as well.

Sophia Lin Lakin: So now there are two executive orders from this administration on voting. And the very first one, which was issued about a year ago now, did a number of different things including trying to force the Election Assistance Commission to change the federal voter registration form. This is a voter registration form that you can access in all 50 states to, to vote by mail to register, to vote by mail. And to change that to say, instead of just being to swearing under penalty of perjury, that you are eligible to vote, including that you are a U.S. citizen, you have to provide some sort of citizen documentation, so a version of a “show me your papers” requirement to register to vote. And we know that these requirements, we’ve been able to demonstrate it in one of our cases in Kansas, that it has a pretty substantial disenfranchising effect. It’s really blocking eligible voters from getting registered to vote for a variety of reasons.

Pam Karlan: Yes. A majority of Americans, for example, do not have … I think only about … bare majority have passports in the United States, which would obviously, at least for now, be enough proof of citizenship. And of course, I should mention the ACLU is also—and your colleague Ceci Wang argued this case at the Supreme Court a couple of weeks ago—challenging the president’s birthright citizenship order, which might cast doubt on whether a passport alone is enough to show that you are actually a U.S. citizen.

Sophia Lin Lakin: And even a birth certificate.

Pam Karlan: And a birth certificate would not show it. So other than naturalization papers, which of course you’re not allowed to make copies of, and the likelihood that somebody really wants to be carrying around this precious document so that they can register to vote seems low. Is this all designed to decrease the number of voters, because it certainly seems to have that effect?

Sophia Lin Lakin: It’s hard to understand why else we would be putting these kinds of barriers that solve no problem into effect other than to make it more difficult for certain people to vote. In this case, we’re talking about, immigrants, people who have come from…

Pam Karlan: I would think the irony is almost immigrants might be more likely to be able to prove their citizenship than people who were born in the United States, but don’t have a copy of their birth certificate and don’t have a passport.

Sophia Lin Lakin: And what was also interesting, and we saw this, really take hold of the country’s consciousness when the so-called “Save America Act,” the Save Act, which would’ve put this kind of requirement in place through Congress, through legislation instead of via executive fiat. That, because there are, I think, the number is around 69 million women, married women, who don’t have current documentation with their legal name that matches their citizenship documentation, that it would put these individuals, these 69 million women into that category of uncertainty about whether or not they’d be able to demonstrate that they are able to vote. In fact, we saw this, we had a case in New Hampshire where the New Hampshire is putting in place their version of a document, a proof of citizenship requirement. Two stories from this—one, we had an individual, who was actually an attorney at the ACLU, who went to go register to vote, brought his passport, and they said “no, you need your naturalization papers.” So there was that example of, when it comes to implementation, what, how is this going to be implemented?

You are going to catch a lot of people purely through that kind of administrative problems, problematic bureaucracy, and that’s very unfortunate. But we also had testimony about this fact, that married women, that there were a number of registrations being turned away of married women who weren’t able to demonstrate that they were citizens because they didn’t have a matching document, in their current legal name, demonstrating citizenship.

Pam Karlan: Yeah. That for a lot of them, I remember this because I worked with the ACLU on the Indiana voter ID case, which is the first of this long string of cases. That there were married women who were told they had to bring in their marriage certificate because it would have their birth name on it, and then they would also need their birth certificate. And in order to get these documents, they would have to pay a bunch of money. So it almost turned into something like a poll tax. And then on a on the Texas voter ID case, I remember one woman … Texas said “we’ll give you a free ID if you show us your birth certificate.” And she had to go and get her birth certificate, which was from Mississippi, and she was very low income. And her testimony was, “why did it take you so long?” And she said, “because my family can’t eat a birth certificate.” And this was a woman who had $300 or $400 a month in cash income and a birth certificate was going to cost her $32.

So, I think for a lot of our listeners, and certainly for a lot of us, the burden might not be that high, but there are millions of people for whom it would be a big burden.

Sophia Lin Lakin: Absolutely. And if you think about: you’re already working a job where it’s difficult to take time off or you have childcare duties or other caring responsibilities, how are you going to find that time to go to the social security office to get your updated documentation and to what? Of course, we believe that voting is extraordinarily important, but when you are deciding between making sure you’re making your job in time or picking up your child at school or getting the documentation that you needed to cast your ballot in this coming election? I think we’re not giving enough of our understanding to how difficult that really is for many people.

Pam Karlan: So I want to turn now to the people who have managed to get themselves on the rolls and they’ve managed to cast a ballot. We’re seeing new barriers to actually having those ballots counted. And I know that ACLU has been very active in dealing with that piece of the problem as well.

Sophia Lin Lakin: Yes. So, at this stage, we’ve been dealing with a number and they … these days again, another pet project, I guess, of the administration is around mail voting. And these are, one of this is…

Pam Karlan: Mail voting, meaning voting by mail not to deal with what we were talking about before.

Sophia Lin Lakin: Yes, that’s correct.

Pam Karlan: No, the Emily Litella: “What’s all this about male voting? Why aren’t we talking about female voters?”

Sophia Lin Lakin: There’s a question about that.

Pam Karlan: Yes, there’s that too.

Sophia Lin Lakin: Absolutely. Absolutely.

Pam Karlan: Every form of “mail” is a problem.

Sophia Lin Lakin: But voting by mail and that these attacks on that, and making it more difficult to do, or trying to get rid of it entirely. And it’s, mail voting is one of those innovations, for lack of a better word, that has … it’s been around for centuries in this country, but in terms of how states have adopted it and expanded its use and make it available to voters, it’s really been a huge boon to voter participation for a lot of these individuals—what I was just talking about—people who might otherwise have trouble getting to the polls on a particular day or particular times and able to cast their ballot by mail and get it in the mail. And we’ve had a number of cases dealing with different types of rules around counting. How do you, if you make some sort of error on these mail ballots, in a way that just doesn’t really matter. So, for example, in Pennsylvania, we had … it’s an ongoing case, it’s still ongoing at this time in state court and federal court, So it’s still, it’s been years and years now. But the issue they have there is on the outer envelope of the mail ballot. So, there are several envelopes on the outer envelope. You’re supposed to write a date, your name, you sign it, and a date. The date is supposed to be the date that you return your mail ballot.

However, everything that we’ve learned about these mail ballots is they don’t look at this date. This date doesn’t matter at all for election administration. When the election administrators receive your ballot, they stamp it with the date they receive your ballot, and if it’s before election day or it’s on election day, then it counts because they received your ballot by that time.

Voters get very confused by this date that sometimes they don’t fill it in. Sometimes they put their birth date, sometimes they put some other date. Sometimes there’s a typo, and we’ve been fighting really hard around this question of why not count these ballots?

Pam Karlan: And these cases … It’s interesting. These cases revive a piece of the federal voting law that hadn’t been used for years and years from the 1964 Civil Rights Act, called the Materiality Provision, which says, in a federal election, you’re not supposed to deny somebody’s … you’re not supposed to refuse to count somebody’s ballot if they make an error that’s not material, that is, that doesn’t apply to whether they’re entitled to vote at all.

Sophia Lin Lakin: That’s right. And this is a version that we saw in Pennsylvania and obviously no election administrator is using this date at all, and yet these voters’ ballots are at risk of not being counted. They’re otherwise the voters, otherwise, done everything correctly. Similar provision and not quite the similar provision, but a similar attack on ballot a law in Texas where part of it is you have to put a your voter identification date on your mail ballot, and it has to be either the driver’s license, the social security number, or your voter ID that you use when you register to vote. Some people registered to vote, I don’t know, decades ago, and they’ve gotten that number wrong because they put their driver’s license number, but they use their social security number to register to vote.

Pam Karlan: And they don’t remember which number they used. Yeah.

Sophia Lin Lakin: And we had numbers at the time of trial that were in the tens of thousands of voters who were caught in this, just in the short time that the law had been in, in effect. And unfortunately, it is in effect again, but it is obviously having a big impact on getting ballots counted.

Pam Karlan: So we’ve been … so we’ve now talked about: you’ve managed to register, you’ve managed to vote, and of course, voting is obviously a really important thing for lots of people in the country, regardless of the outcome of elections, because there’s a way that they show that they’re full citizens.

And you can … the Souls to the Polls is a perfect example of that. But of course, the other thing voting is designed to do is to pick our winners and the Supreme Court this year has in front of it a case that involves Section Two of the Voting Rights Act, which is the major provision in the Voting Rights Act that has long been read to require states to come up with election systems—systems for districting, for everything from school boards to city councils, state legislatures, members of congress, systems that allow minority voters. Voters who are Black, who are Latino, who are Asian American, Native American, or Alaskan Native, to have an equal shot at electing representatives of their choice. And they can choose to be represented by somebody from their own group, some other group it’s about the voter’s choice.

And we’re now facing a Supreme Court that seems on the brink of being very hostile to this really transformative provision and the ACLU has been litigating these cases really since the 1960s, up through the 1982 Voting Rights Act to today. Do you want to say a little bit about how that law has worked and why it’s a real concern if the Supreme Court kind of monkeys with it?

Sophia Lin Lakin: That’s a big question. That’s a really big question because it’s been such a transformative law, as you say, and even if we just look at this past redistricting cycle, this is it’s important for a lot of reasons. This last redistricting cycle is important for a lot of reasons, but we had, I think it was 11 lawsuits that we filed under the Section 2 of the Voting Rights Act to try to challenge maps that were put in place—these redistricting maps that essentially both either cracked or packed—those are the languages we use. We either put minority groups all together in the smallest number of districts possible or divided them across a number of different districts so that they couldn’t come together as a community and elect a candidate of their choice, that they would like to see.

So really what we’ve been calling “diluting” the strength of these communities, that if you were to just draw the lines in a different way that respected these communities’ interests, the fact that they have a political perspective that they would like to come together and have the ability to come together and elect a candidate. If you drew your lines a little bit differently around that, you would be able to create a district in which these communities could elect a candidate of their choice. But because of the way that the draw lines were drawn, the choices that were made at the districting level, that is just completely disappeared.

So in places like Louisiana, in places like Alabama and Georgia, where we brought these cases, Mississippi, we were able to demonstrate that yes, under the framework that has been in place for decades now, using that framework, we were able to demonstrate that the lines that were put in place by the legislatures this past districting cycle that began 2021 we’re diluting unlawfully the voting strength of Black voters in these states. And in, in turn, put in a new map—had the legislature either drew new map or we put forward maps that the court ultimately chose to put in place. And for example, in a place like Alabama, that resulted in the state having, for the very first time in its history, two Black representatives from Alabama. And it’s been transformative for that community in terms of candidates, people, excitement in the communities about being politically engaged and has these really incredible impacts.

And we have this case before the Supreme Court that you’ve mentioned, it’s a case called Callais, it’s out of Louisiana, it’s our out of one of our congressional redistricting cases. It wasn’t really about Section 2, to begin with this particular case, and yet it is morphed into a case about whether or not Section 2, the vitality of Section 2 ultimately, in this type of redistricting type of issue. And without the protections or the most robust version of Section 2, we don’t know precisely what the Supreme Court will do. I’d love to hear what you think they might do, Pam. But listening to the argument, it seemed like there were a lot of different ways that the Court could go. Every day we’re watching the Supreme Court to see… there was a decision day this morning and it didn’t come out. But depending on what the court does, and I would imagine any tweaking of the framework or a wholesale saying “this framework just doesn’t work. It’s not compatible with the Constitution,” would really have a transformative impact, I would say, in not a positive way, on the ability of minority communities in this country to be able to have their voting power actually reflected in the polity of this country.

Pam Karlan: Yeah. It’s a Supreme Court has this … across a number of different areas, they’ve moved towards this idea of what they sometimes call the “colorblind Constitution,” and so they almost seem to be suggesting that unless minority districts are created by accident or by just without even thinking about where you’re drawing the lines, there’s something problematic about that.

And it seems to me, at least, like a very odd and paradoxical way of thinking about things, that you can draw a district to make sure the farmers are there.

I remember working on a California redistricting for the state legislature after the 2000 round of census stuff, where I was looking at district and I said to them, can you explain why the line’s drawn here? And a guy looked at me and said, with total sincerity you got to understand, on one side of that district line are that tree-growing crops. And on the other side are the ground-growing crops. And those people don’t get along.” So you could take into account where there was a community of almond growers versus mushroom growers. But you can’t take into account where there’s a large politically cohesive Black or Latino community or in parts of South Dakota, where the ACLU has been especially active, a large Native American community. You can’t take that into account when you draw districts. That does, I think, pose the risk that you will resegregate a lot of these legislative bodies and congressional delegations that have finally been integrated.

Sophia Lin Lakin: I think that’s right. And also all the effects liver down as well …

Pam Karlan: So yeah, city councils, school boards and the like.

And the Supreme Court has done this at the same time that they’ve gotten out of the business completely of policing political gerrymanders and partisan political gerrymanders. And to my mind, one of the things this seems to have done is to turn things that are really about politics into claims about race instead, which the Supreme Court can then do … can then do strange things to. So for example, when people say the Louisiana legislature drew these districts in a way that minimized black voting strength, Louisiana comes in and says no, we just wanted to eliminate Democrats,” and the like. How do you think about that kind of politics/race relationship?

Sophia Lin Lakin: I think in many ways it is … it’s just cover for trying to again, get us to this purported, colorblind world and say, “This isn’t about race, this is about politics,” but at, at bottom, when you think about, why are people voting a certain way? Why is that? It’s not about politics in many ways, if you talk to these voters about why they are voting a certain way and it’s changed over time. We go into court and we often set this whole story out about realignment and how voters changed who they were voting for because of the platforms that they were taking with respect to race, policy, equality, education, whatever it is. But the whole platform of things, and we spend that time to really educate the judge because it’s becoming more and more of a question, even putting aside what’s happening at the Supreme Court at the moment, but even getting in there over the last couple of years, this question of is it really about race or is it really about politics?

Because of, I think, the Supreme Court saying “well, if it’s about politics, then, we can’t do anything about that.” And trying to change these Section 2 cases really into political cases. So we were already seeing that happen and spending that time to, to really tease that out for the judges to say, “no, this is really about race and we are looking at how Black voters are voting and compared to white voters, and they are preferring different candidates. We don’t really care about why. In fact, if you cared about why as a candidate, you would just go out into the world. Try to win their votes as opposed to try to gerrymander them into a district so you don’t have to worry about them.”

Pam Karlan: Yes, one of my favorite moments in the North Carolina Omnibus trial, which the ACLU was in and I was working on when I was at the Department of Justice, was a moment at which the state’s own expert admitted that if you were trying to predict how somebody was going to vote in the next election, you would have a more accurate prediction if you knew the person’s race than if you knew which party they had registered with. And so racial data is used so often to the disadvantage of minority communities. It raises serious questions about the fairness of elections.

Sophia Lin Lakin: I think when you think about politicians at all being in charge of deciding who is their electorate, you do have to worry a little bit about whether or not they’re going to be thinking about the voters.

Pam Karlan: Yes. Right now we have a sort of ideology in America that every two years, you go into a voting booth and you pick your elected officials. But what we’re seeing now with increased velocity just this week, Virginia is redrawing, its districts, Texas has redrawn its districts, is, instead of the voters going into the booth to pick the candidates, the representatives are going into a back room in some sense and picking their voters. And hard to say that’s democracy, at least democracy as we would want it to work.

Sophia Lin Lakin: I think unfortunately that’s right. And with increasing data tools that are available, it’s become more of an exact science to say … to put it in that way. But we’re unfortunately seeing that kind of manipulation happening more and more without tools like, Section 2, in its robust form. I do worry about what we’re going to be able to see and how we’re going to be—you I’m putting on my litigator’s hat at the ACLU—we’re going to find a way, we will find a way to continue to try to ensure these maps are as fair as possible across the board. But you’re really tying one hand behind our backs in this fight by weakening one of these really important tools in ensuring fairness.

Pam Karlan: And it’s worth, I think, remembering that the Voting Rights Act was amended several times, each time during Republican administrations, where it was passed by overwhelming majority. So this didn’t use to be the kind of partisan issue that it’s become.

I want to thank our guest, Sophia Lin Lakin. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and helps new listeners to discover us. I’m Pam Karlan. See you next time.