Speaking of election and election integrity, Josh Douglas, a University of Kentucky law professor, has just written a new book called The Courts Versus the Voters.
He looks at some legal decisions by the nation's highest court over the years that he says have hurt our election process.
On Friday, I spoke to Professor Douglas about his new book.
This book, the thesis of it is, is that the US Supreme Court rulings have fundamentally changed voting rights and how our elections are run in this country.
Is it for better or for worse?
It's unfortunately for worse, and this has been something that's happened really over the past 50 years.
You know, a lot of people have heard of cases like Citizens United from 2010, which is about campaign finance or maybe Bush v Gore.
Right.
Which ended the 2000 presidential election.
But in the book, I trace cases that no one really heard of or talks about from the 1970s, 1980s and 1990s that laid the foundation for today.
Now the court failing to adequately protect the constitutional right to vote.
And of course, the court has changed in composition over the last half century.
So many of us would think that perhaps the the court seeming to be more conservative now that the pace would have quickened on the erosion of voting rights.
But you say it dates back much farther than that.
Yeah, I mean, so certainly the past 10 to 20 years have had a series of cases that have harmed the constitutional right to vote and has cut back on protections in the federal Voting Rights Act.
But the foundation for doing so was made in these earlier cases, again, that no one's really heard of in this one.
Yeah.
So 1992, Burdick versus Takahashi is a really interesting case.
This involved an individual named Alan Burdick in Hawaii who went to his polling place that day and didn't like any of the candidates, so sought to write in a candidate, do a write in vote, and the poll worker said he wasn't allowed to.
And actually the poll worker said the machines wouldn't allow it.
And he didn't know if that meant the actual voting machines or the political machine of Hawaii that was trying to control things and know didn't want dissent from a write in candidacy.
Well, he took his case all the way to the Supreme Court because Hawaii law would not allow write in voting.
And he lost.
Now, that that in and of itself maybe is not that important, that that, you know, the Constitution does not require a state to allow write in voting.
But what was really important was the test the court set out in which you began to say that instead of scrutinizing a state law really carefully and making sure that a state has a really good justification for its rule, instead we're going to start deferring to states.
We're going to trust states to run their elections.
So in the Y case, the the state said, well, you know, basically we just we think this is easier for the ease of election administration.
And the court said, that's fine.
Now, I actually tracked down Allan Burdick in Hawaii, which was fascinating, and got to interview him via Zoom to go to Hawaii, unfortunately.
And he's still angry to this day, really, about what does the case stands for and how the case stands for this beginning of the erosion of the constitutional right to vote.
That case is cited all of the time in current cases for the idea that we can just trust the state politicians to run elections as they see fit the very people we should trust the least when it comes to voting rules.
Well, and some people would say there is always the conversation about states rights.
So why should that apply on how elections are run?
What's wrong with that?
Well, and the Constitution does give states the first cut at enacting voting rules.
Article one, Section four says the time, places and manner of running elections shall be determined by the state legislatures.
And then it says Congress can alter or amend those laws.
So, yes, states can have the first say in crafting voting rules.
The problem is, when those rules are enacted, essentially to entrench the majority in power, to make it easier for your supporters to vote and harder for your opponent's supporters to vote, then we have a situation where the politicians are, you know, essentially rigging the game and, you know, skewing the system.
So we need judicial oversight to ensure that is the voters who are paramount in our system, not the state politicians.
I've referred to this as undue deference to state politicians.
It's like the foxes guarding the hen houses when you know these people are the ones who are most self-interested.
So yeah, they should have the ability at taking it first, cut it and coming up with the voting rules, but only so far.
And they should have the burden of justifying why they need to run the election the way they are.
Well, as you very well know, there's a lot of scrutiny on these last few years about elections and election integrity and election security.
How does how do those concerns fit into the conversation that you're having about SCOTUS rulings impacting voting rules?
And does it really perhaps even further that divide the chasm that we have between those who believe that our elections are rigged and those who believe that they're not?
I think the problem here is that states are justifying all sorts of voting rules by pointing to the concern of fraud, the concern of election security, with zero evidence that there's a problem that needs to be fixed.
Now, of course, our system should be set up to deter fraud and to make sure the integrity of the election is paramount, but not at the expense of the voters.
And so here you have a situation where a plaintiff challenges a voting rule and says it harms the ability to participate and in the election.
And the court says, well, you need to provide really, really, really strong evidence, plaintiffs voters to demonstrate the disenfranchisement.
And then they ask the state, okay, well, what's your justification for the rule?
And the state will say, well, we're concerned about election integrity.
And the court then asks, well, is there a problem that you have evidence that the elections have not been secure?
And the state says, well, no, we're just worried about it.
And the court says, well, that's fine.
So the balance is off making the voters provide a ton of evidence to demonstrate the harms that they're suffering.
And we're trusting the states to just say, well, we care about election security and that's enough to defer to the states rules.
That's backwards.
If you think about the fundamental nature of the constitutional right to vote, the starting place in a constitutional democracy.
So give us some examples for those who are curious what exactly erosion of particular voting rights or rules that interfere with unfettered access to the polls?
Well, you know, you can go back to 2008 and a case called Crawford versus Marion County out of Indiana involving voter ID laws.
And not all voter ID laws are bad.
I think here in Kentucky, we have a pretty good compromise law that requires people to show ID but has lots of different kinds of IDs that count has a failsafe mechanism for people who show up to the polls and don't have an ID.
Indiana.
So there's a lot stricter a lot fewer kinds of IDs count.
If you don't have your ID, you've got to go to the county clerk's office several days, you know, within several days after the election, most voters aren't going to do that.
So this was challenged and the plaintiffs had evidence that this kind of law will actually disenfranchize some people who simply don't have a need for an ID in their everyday lives.
And again, the court says, well, do you have evidence?
Indiana State Do you have evidence that there's a problem here?
And Indiana says, well, no, we don't have any actual record of someone showing up to the polls and pretending they're someone they're not.
And the court says, well, that's okay.
We're going to just trust the state and we're going to uphold the law.
You know, more recently, you have these challenges to drop box, you know, the ability to drop off your ballot.
Again, Kentucky, we do a pretty good job of this.
We have drop boxes.
They're secure.
They're in lots of different locations.
You have states like Georgia that are passing laws to restrict the number of drop boxes allowed or Ohio, same thing to restrict how many drop boxes there can be in Ohio.
I think it's one drop box location per county, which means that, you know, the county with Columbus, with millions of people can only have one drop box.
So this is challenged.
And again, the plaintiffs say, look, this is going to make it so much harder for us to participate.
And on the other hand, you ask the state, what's your reason?
And they say, well, we're concerned about fraud or just trust us to run the election.
And now the Supreme Court, but also the lower federal courts, are trusting the state and refus You'll hear more from Professor Douglas tomorrow.
I asked him to grade the election process in Kentucky and how, quote, voter friendly it is.
Hear his assessment tomorrow night on Kentucky Edition.