From Poll Taxes to Partisan Gerrymandering: Voter Disenfranchisement in the United States

Eric Michael Rhodes 
Welcome to the History Talk, the podcast that brings together experts to discuss current events in historical perspective. My name is Eric Michael Rhodes, and I'm here with my co host, Lauren Henry.

Lauren Henry 
Hi Eric. Voting is perhaps the most fundamental act of democratic citizenship. In a democracy our political leaders receive their mandate, and the system itself derives its legitimacy from the people who elect them. In the United States, however, the right to vote has never been extended universally. Although the franchise has expanded to include many more citizens. These gains have come haltingly and unevenly. Even as women gained suffrage, African Americans were kept from the polls in many parts of the country for decades, and elected officials have long meddled with district boundaries to choose their constituents rather than the other way around.

Eric Michael Rhodes 
To help us better understand the history of voter disenfranchisement in the United States, and how it continues to shape American elections today, we're thrilled to be joined today by two esteemed experts in electoral history and politics. With us, we have Professor Daniel Tokaji, Associate Dean for faculty and the Charles W. Ebersold and Florence Whitcomb Ebersold professor of constitutional law at The Ohio State University Moritz College of Law. A preeminent expert in the law of elections and democracy. Professor Tokaji has published extensively on a variety of voting issues as well as successfully litigated a number of prominent election law cases. Thank you so much for joining us today, Dan.

Professor Daniel Tokaji 
Well, thank you for having me.

Lauren Henry 
Also, joining us is Professor Pippa Holloway of the history department at Middle Tennessee State University, a legal and political historian of 19th and 20th century America, Professor Holloway's research examines race, law and gender in the American South, particularly around disenfranchisement of people who have been convicted of felonies. In June, she published a feature article on the subject in Origins entitled "A History of Stolen Citizenship" and we're so happy to have her on to discuss the topic today.

Professor Pippa Holloway 
Thanks. I'm glad to be joining you.

Eric Michael Rhodes 
We've heard that suffrage has never really been universal in the United States, but where did the notion of the fundamental right to vote come from?

Professor Pippa Holloway 
Really, the idea of voting and the idea of citizenship predates the United States or even Western democracies, I mean it goes back to the idea of citizenship. In ancient Rome in ancient Greece, the idea that some people are part of a community, they're citizens in a community and that entitles them to certain rights and privileges, among which are voting. And that eventually changes and passes through time to the United States and the early days of our democracy, which of course, initially suffrage was limited to white men who owned property for the most part. And then in the 1820s, that expands states begin to drop their property requirements for male suffrage. And by the 1820s and 30s most states, certainly by 1850, we have the idea of universal male sufferage universal white male suffrage in the United States. Which then, of course, the post Civil War era, there's debates over the enfranchisement of  women, African Americans, Native Americans and other groups. So it moves forward through time and really the 19th century has been identified as a critical period in the United States in which we work out these legal questions around citizenship and the rights of citizens.

Professor Daniel Tokaji 
From a legal perspective, the idea that the right to vote is fundamental dates back to a case from 1886 called Yick Wo versus Hopkins. The case itself actually didn't involve voting at all, but in the course of its opinion, the court said that the right to vote is fundamental because it is preservative of all rights and the basic idea or theory behind that is that the main way that we protect our rights and interests is by voting and by electing people who in turn represent our interests in Congress and state legislative bodies and local bodies across the country. And this is the main means through which we as citizens protect our interests by voting and having people who will stand up for us elected in legislative bodies. The reality has often been quite different. And indeed, in 1886, at the very time that the court wrote those words, African Americans throughout the states of the former confederacy were being systematically denied their right to vote, despite the fact that about 16 years earlier, the principle that the right to vote may not be denied on the basis of race had actually been enshrined into our constitution through the 15th amendment. So the idea that the right to vote is fundamental, goes back a long way in our history, but for most of our history that right has not been fully honored.

Lauren Henry 
You've mentioned both the role that the federal government and states have had in determining who is eligible to vote. And how does that process work typically or historically?

Professor Pippa Holloway 
So historically, each state since the origins of state constitutions, the origins of states, have set their own requirements and qualifications for voting. That's part of every state constitution. But then, of course, there's times that the federal government has intervened through federal constitutional amendments, which establish some federal parameters for who gets to vote.

Professor Daniel Tokaji 
If we look back through history, the major advances in the right to vote have come during periods when the federal government was playing a more assertive role in protecting the voting rights of people who had been denied those rights. Going back to the period right after the Civil War to the Reconstruction Era when the Federal troops were down in the south for a period of time, a brief period of time, they succeeded not only in fulfilling the promise of the 15th amendment and allowing newly freed African Americans, at least African American men, to exercise their constitutional right to vote, but also in allowing African Americans to get elected to office in significant numbers. During the early years after reconstruction there were as many as 300 or more African Americans serving as legislators from states of the former Confederacy. But at the end of reconstruction and proceeding through the really through 1900s those states often viciously and quite violently suppress African American voting and representation. The result of which was that by 1901, there were no African Americans left serving in State legislatures or Congress from the south, and for the most part, African Americans were denied the right to vote all together. That wasn't repaired or at least addressed in a major way until the Voting Rights Act of 1965. There were some gains between 1901 and 1965, but the major event was the Voting Rights Act of 1965, which knocked down the barriers to African American voting that had been in place at least in some parts of the south for almost a century. So it's quite true that for the most part, administration of elections is left to state and local authorities. But if we look back on the history of the right to vote the major advances have come when the federal government has stood up for the right to vote, especially on behalf of people of color.

Eric Michael Rhodes 
So we've heard a little bit about how the African American vote has been suppressed. We'd like to know a little bit more details about those barriers. What sort of de facto or extra legal restrictions affected the right to vote in the 19th and 20th centuries?

Professor Daniel Tokaji 
Maybe I'll just reframe the question a bit, you know, a lot of the barriers that were created to prevent blacks from voting, and often I should say quite explicitly to prevent blacks from voting were in fact adopted through changes in the law. For example, a number of southern states such as Louisiana and North Carolina actually amended their state constitutions in order to adopt practices like literacy tests that were often quite expressly intended to keep blacks from voting. Poll taxes are another example of a practice that was again adopted through the law to make it more difficult for blacks to vote, but there were extra legal barriers as well, often, violence and threats of violence for people who so much as tried to register to vote. And that persisted through the 1960s and the enactment of the Voting Rights Act to some degree even after that point in time. So there have been a lot of barriers both legal and extra legal to many people, but especially people of color and African Americans in the south, most particularly being able to exercise their constitutional right to vote.

Professor Pippa Holloway 
And within those legal barriers to electoral participation are also issues of implementation that make what appear to be neutral or possibly even benign rules or processes for voting have racial implications, right. So literacy tests might be unfairly administered. They might be disregarded in certain ways. Another common requirement were residency requirements. So something like that you had to have lived at that address for a certain amount of time, and particularly in the reconstruction and late 19th century south, which African Americans were rarely property owners. People moved around a lot. So a residency requirement might actually be a barrier to suffrage for people that were landless, and thus quite transitory. Even the secret ballot, which we associate today with transparency and fairness and elections, in fact, had its origins in preventing people who were illiterate from being able to participate in an election because they weren't able to read the ballot. So a number of these laws had implications that were not immediately clear on the surface but actually had intent, racial intent and partisan intent.

Professor Daniel Tokaji 
Yeah, and Pippa and I've been focusing, for the most part to this point on what in the legal literature is referred to as vote denial. That is practices that are designed or have the effective of preventing people from voting at all. But we should also remember that a lot of the most serious impediments to equal voting involve what's called vote dilution, and that is the weakening of the votes of groups of people even after they have fought for and won their rights to vote. And in the era after the enactment of the Voting Rights Act in 1965, after African Americans had won their right to vote or so they thought in the south, what happened in many state and local jurisdictions, especially though not exclusively in the south, is that means of diluting their votes were developed like at-large elections, where for example, instead of electing members of a city commission from districts, we had a city-wide election and in a place that was two-thirds white and one-third black, no blacks would get elected to that city commission. We subsequently have issues about the drawing of district lines in a way that effectively prevented African Americans, Latinos and other racial minorities from getting elected to office even though they had won their ability to cast ballots that were counted. And today the big vote dilution issue, that unfortunately from my perspective the Supreme Court has declined to address is the issue of partisan gerrymandering, where districts are commonly drawn in a way that entrenches in power the dominant party, while effectively denying power to the other major party. So we should think about not only vote denial, but also vote delusion when we consider what's sometimes referred to as vote suppresion or the denial of the right to vote.

Eric Michael Rhodes 
Pippa, in your piece for Origins you wrote about the use of violence as a method for disenfranchisement. Would you tell us a little bit about the history there?

Professor Pippa Holloway 
The violence against African Americans who are seeking to vote dates back to basically the earliest days of African American voting in the south after the Civil War in the first elections in which every American were able to participate. These would have been elections that were overseen by the reconstruction government by the Freedmen's Bureau, there were threats intimidation and attacks against these first time African American voters. These are some of the elections to which the Ku Klux Klan originates. The 1866 elections were really the time at which the Klan was born and it was born in that era as an organization that was aimed at blocking and minimizing African American electoral participation. And that violence continues through the 1860s and into the 1870s. So that really by the mid 1870s period that we associate with the basically the end of reconstruction, violence carries the day. They were able to successfully limit the African American vote to the extent that white Southern Democrats were able to retake power in the south, a process that we refer to as the Redeemers and the Period of Redemption, which is what they would have called it. Not really a term that most historians would see as, in fact, anything redemptive. But white Southern Democrats are able to use violence as well as other tools, including, as my work demonstrates, felon disenfranchisement, as well as literacy tests, poll taxes, residency requirements, and so on. Violence goes hand in hand with these other means of electoral intimidation and efforts to limit the franchise so that white Southern Democrats are able to retake political power.

Lauren Henry 
We've alluded several times in passing to the Voting Rights Act of 1965 and its impact. For our listeners who may not be familiar with it, could you explain what the Voting Rights Act was and how it changed voting access?

Professor Daniel Tokaji 
Sure. The Voting Rights Act of 1965 is one of, if not the, most successful pieces of civil rights legislation of all time. Signed by President Lyndon Johnson, it was designed to knock down the barriers to voting, particularly those faced by African Americans in the south that had existed by that time for almost a century, at least in some places. There were several components of the Voting Rights Act. It adopted a multi-tiered approach to address the problem of African American disenfranchisment. One of the things that it did, and probably the most important initially, was to prohibit literacy and interpretation tests throughout the so-called covered states, places that had very low rates of registration and voting, at that time places in the south. So literacy tests were suspended initially, later abolished, and that abolition of literacy tests was later made nationwide. In addition, the 1965 Voting Rights Act required covered jurisdictions to pre-clear voting changes. What that meant is they effectively had to get advanced permission either from the United States Department of Justice or from a federal court to make new changes to their voting rules and this turned out to be really important in the years after 1965. What had happened before then is that every time the Justice Department went to court to stop one practice that was designed to keep blacks from voting a new one would emerge in its face almost like a multi headed Hydra. After the Voting Rights Act of 1965, states had to get permission to implement new voting changes, and that had a major effect in curtailing the southern states and local jurisdictions' ability to adopt changes that would keep blacks from voting. So the practical effects of the Voting Rights Act of 1965 were enormous, both in the immediate aftermath of the act in terms of substantially increasing registration and participation by Southern blacks and in the long-term in terms of making it more difficult, if not impossible, for states and local jurisdictions throughout the country to dilute the votes of African Americans and other racial minority groups.

Professor Pippa Holloway 
I'll just add a couple of things to that, one of which is historians will point out that the 1964 Civil Rights Act which, you know, we associate with the integration of public accommodations also had a provision in it which prohibited discrimination in voting. But after that's passed, it was really clear that that wasn't sufficient. Because many of the tools that have been used to prohibit African Americans from voting or to practically prevent them from voting, were sort of racially neutral, at least on the face of the literacy tests, poll taxes, and so on. So after the great victory with the 1964 Civil Rights Act, there had to be another push and that was the push that resulted in 1965, and the Voting Rights Act. Now, the other thing I'll point out to add to Dan's answer is that although southern states were very much the motivation, southern elections were very much a key reason that the Voting Rights Act was passed, there were jurisdictions outside the south that were covered by the heart of the Voting Rights Act that requires preclearance. There's parts of California, Maine and other places in the northeast, where small counties and small areas had variance with this franchisement based on race, on ethnicity, Native Americans, Hispanic groups, and so on. So although we tend to think of the voting rights act as about the south and for the south, there's actually a number of parts of the country that were also covered by it.

Professor Daniel Tokaji 
Yeah. And just to add to this response, the original Voting Rights Act is enacted in 1965. It's covered formula was limited to places in the south, states like Georgia, Alabama, Mississippi. But it was later expanded to include places with substantial populations of other racial minorities, especially but not exclusively, Latinos. So places like Texas, parts of California and New York were also covered by the voting rights act as it was subsequently amended in the '70s. And those changes to the coverage formula remained in effect until the decision in Shelby County versus Holder just a few years ago, which effectively abolished the preclearance requirement by getting rid of the coverage formula declaring that coverage formula is unconstitutional because it hadn't been updated since the 1970s.

Eric Michael Rhodes 
Speaking of how the Voting Rights Act fared, can you tell us a little bit about how it's been undermined since 1965?

Professor Daniel Tokaji 
I think the most crushing blow to the Voting Rights Act was the Shelby County decision, which effectively put an end to the preclearance requirement under sections four and five of the Voting Rights Act by declaring the coverage formula to be unconstitutional. That decision by the Roberts Court has had a significant impact in that it eliminated the requirement that state and local jurisdictions in covered states get advanced permission for their voting changes. And the major impact of that I think it's probably different from what most people think. Its major impact is most likely in smaller local jurisdictions where there may be some change that effectively dilutes the votes of racial minorities in say a city commission or a school board. A lot of these things don't wind up getting litigated otherwise, but changes that diluted the votes of African Americans or the racial minorities before Shelby County could be stopped or at least taking a closer look at through the preclearance process. That really doesn't happen anymore. So that's been a major change and I do think that the Supreme Court over the years has issued decisions that have in some ways at least weakened the Voting Rights Act and we may see more of those decisions in years to come.

Professor Pippa Holloway 
That's exactly right. The Shelby v Holder is really the most important blow to the 1965 Voting Rights Act that's ever happened. And we have and will continue to see the implications of that. Just in the aftermath of the Shelby decision, we see an uptick, particularly although not only in southern states, in voter ID laws. We saw the effort in North Carolina to limit early voting hours. We've seen other issues. Our states are reducing the number of opportunities and locations where you can register to vote. So it's empowered certain states and certain jurisdictions to try things that they wouldn't have been able to try before, due to the preclearance element of the Voting Rights Act. The other thing I'll add is, I guess since, my article was about felon disenfranchisement, a slightly less important but I think still quite significant blow to the 1965 Voting Rights Act would have been the US Supreme Court case, Richardson versus Ramirez. And that case interpreted section two of the 14th amendment to exclude people with former convictions. So it allowed states to disenfranchise felons and ex felons, because it found that felons don't have a constitutional right to vote under this interpretation of section two of the 14th amendment. And so while I would never argue that that had the kind of potential for really shattering the impact that Shelby v. Holder did, Richardson versus Ramirez has had an impact in expanding the reach of felon disenfranchisement laws.

Lauren Henry 
Professor Holloway I wanted to ask if you could talk to us a little bit about how felon disenfranchisement and the restriction of the vote from people who've been convicted of crimes came about in the United States and how it has been implemented.

Professor Pippa Holloway 
Briefly, these laws date back to ancient Greece and Rome. Just as the idea of voting citizenship participation dates back to this very early period, so too does the idea that certain people might commit crimes that would exclude them from the privileges of citizenship, which would include voting. Those traditions also existed in the medieval era, and then early modern Europe. So there's a long history here. But I think your question gets at the key point, which is at what point did these start being used in the United States for racial and partisan ends. And that's what my work demonstrates. That begins right after the Civil War, that in the first elections of 1866, in which African Americans are given the opportunity to participate in elections, African American men, laws denying them the right to vote due to prior convictions, prior accusations of criminality, prior punishments for criminal behavior are rolled out in that 1866 election. Perhaps one of the most chilling examples of that comes in North Carolina. In North Carolina in 1866, in advance of the election there, a group of white male democrats embarks on a campaign to whip African American men. And their argument is that whipping is punishment for disenfranchising crime and so if people are whipped, they become infamous, and therefore they can't vote because they're legally infamous and disenfranchised. So that gives you a sense of both the power of these laws and these traditions, the way they were implemented and utilized in that very first election then in 1866 and also I think it underscores the role of violence. We talked earlier about violence and how that was used to intimidate voters. But violence can take that form as well. These people were subjected to a violent punishment for crimes they didn't commit, and then were barred from voting as a result of that. This moves forward throughout the 1860s and 70s, throughout the reconstruction period, or the period in which people were trying to push back against reconstruction. And so then in the 1870s, my work demonstrates that a number, almost every southern state, passes laws or implements Attorney Generals' opinions, court decisions and so on that lower the bar for disenfranchisement for larceny. Generally a larceny offense, that is disenfranchising would have been grand larceny. It would have been a felony grade larceny. But many, if not most, southern states lower the bar to make misdemeanor larceny or larceny of very low value objects also a disenfranchising offense. And that is explicitly a racial and partisan move. It's celebrated at the time by people that are seeking to reduce African American voting and it's bemoaned at the time by African American voters and their allies to see this very much as a racist  and partisan ploy. So the 1860s, and 70s, are really the key periods in the south in which felon disenfranchisement laws get expanded, so they affect more people and so that they have racial and partisan implications.

Eric Michael Rhodes 
To what extent do these laws exist and how have they been challenged recently?

Professor Daniel Tokaji 
Felony disenfranchisement laws do still exist and have a significant impact on who can vote and who can't. The sentencing project estimates that today approximately 6.1 million Americans can't vote as a result of a felony conviction. And there's a stark racial disparity, as well. While about one in 56 nonblack voters are prevented from voting due to felony disenfranchisement laws, according to the sentencing project, one in 13 African Americans can't vote because of a felony conviction. So there's a really significant racial disparity in the effect of these laws even today There have been challenges to felony disenfranchisement in addition to the constitutional cases that Pippa mentioned a few moments ago some challenges under Section 2 of the Voting Rights Act. That section of the Voting Rights Act, as it was amended in 1982, prohibits practices that result in the denial or abridgement of the vote on account of race. The significance of that results in language is that section two by its terms prohibits not only practices that are intended to discriminate on the basis of race, but also practices that result in or have the effect of discriminating. Now, there's been some disagreements in the courts on what exactly that legal standard requires. In some cases, in recent years, plaintifs have been successful in challenging some practices like voter ID laws, for example, under Section two. But the challenges to felony disenfranchisement laws or disenfranchisement laws based on section two have not succeeded. Courts have actually relied on, at least in part on, the case that Pippa mentioned earlier, the Richardson versus Ramirez case to say that there's a constitutional authorization for felony disenfranchisement laws, at least where those laws don't have the intent of discriminating against a particular racial group. Of course, many of us might argue that these laws, and Pippa's scholarship supports this point, that if you actually dig deep enough, a lot of these laws actually were intended to discriminate, even if people aren't so aware of that today. But it's proven difficult to mount successful legal challenges to felony disenfranchisement laws. However, you know, there has been at least some degree of success in moving forward with reform at the state level through legislative process.

Professor Pippa Holloway 
Which gets us back to kind of a key point, which is your question about kind of the landscape of these laws today is that it continues to vary tremendously by state. There's two states, the United States that allow everybody to vote even if you're incarcerated and there's a number of states that have lifelong bars on voting by people with prior felony conviction. So we have a tremendous spectrum within the United States. Your ability to vote depends very much on where you live if you have a prior conviction. And within that there are states that allow immediate registration, as soon as you are released from prison and there's many states that continue that through probation and parole. A number of states also require you to have paid all your courts fines, fees, and restitution, which can cause significant barriers to people who are unable to pay those fines, which can amount to thousands of dollars. So there's really where you stand depends or shapes very much how these laws affect you.

Lauren Henry 
Dan, you mentioned here today the difference between vote denial and vote dilution. In your recent work, you've also written about something you've called vote dissociation. I wonder if you could explain this concept to our audience and how it affects voting in America.

Professor Daniel Tokaji 
The best way of understanding what I call vote dissociation is with reference to the more commonly recognized types of violations of the right to vote, namely vote denial and vote dilution. We've touched on these in this conversation already, but vote denial generally is used to refer to practices that keep people from voting all together. In the old, the bad old days practices like literacy tests, poll taxes or out and out violence more recently, strict voter ID laws that have a disproportionate impact on people of color and of course poor people generally. So that's vote denial. Vote dilution refers to practices that make it more difficult for people to elect their representatives of choice. So at large elections, which I discussed earlier, gerrymandered districts either on the basis of race or party that make it more difficult for some groups of people to elect their representatives of choices--those are examples of vote dilution. What I refer to as vote dissociation is the idea that the way our political system works today is quite often to dissociate or separate the vote from any meaningful political influence in other words. Even if we're able to vote on equal terms, and even if we're able to elect our representatives of choice, that doesn't mean that we all are going to enjoy equal political influence. And the biggest barrier I see to that equal political influence is the effect that money has in our political system, not only in terms of the money that's spent to finance election, but really even more importantly, in terms of the back end impact that money has on our political system. There's now a lot of research showing that wealthier individuals and entities like big corporations exert vastly disproportionate influence in our political system, that they're able to get their way or at least stop bills that are harmful to their interests. And so I really do think that this is the next front in the battle to protect the constitutional right to vote, to deal with this problem of vote dissociation, of people's votes being separated from any real political influence primarily through the effect that money has in our electoral and political system. And this is, of course, something that not only has a disproportionate negative impact on poor people, but on racial minorities as well, by virtue of the persistent disparities in income and wealth on a racial basis that exist in our society.

Eric Michael Rhodes 
Pippa, what would you say is the most significant recent change in our voting process and in our elections more generally? We've heard a little bit about monies influence from Dan.

Professor Pippa Holloway 
Let me put it this way, when I began my research project on the history of felon disenfranchisement in the mid 2000s, a prior felony conviction was the most likely reason why you would lose the right to vote if you would have otherwise enjoyed it. So it was the primary means of denying the vote to people who would be otherwise eligible to vote. And today, as important as I want to argue that my work is that's no longer true. If you can't vote today, it's likely because you don't have an ID, or you don't have a birth certificate that enables you to get an ID. My sense is that over the past decade or two of American history, at every level, from the local to the national, there have been efforts, successful efforts, to make voting harder. And that distinguishes the United States from really any other modern democracy, which have explosive efforts to make voting easier to increase electoral participation and to get voting to reach and to be extended to all elements of society, specifically citizens, but even not always just citizens. So I see that as a sort of big picture trend that's incredibly worrying. Electoral participation is dropping, not dropping necessarily through apathy, but through intent. There are fewer limitations, the number one exhibit being the weakening of the Voting Rights Act under Shelby. And so that, for me is the most significant trend a  downward pressure on electoral participation.

Lauren Henry 
In the long view, is it getting easier or harder to vote in America?

Professor Daniel Tokaji 
I think it really depends on where you live. If you live in some states, and this has been in recent years, especially states, with Republican legislators, it's probably getting harder because those legislators are adopting rules that make it more difficult to vote. And at one period in time decades ago, we might have counted on the Supreme Court to serve as a bulwark against those efforts to make voting more difficult, but that's not where the courts are these days, the Robert court especially. On the other hand, there have been changes for the better in a number of states. Some states have actually relaxed their disenfranchisement laws or made it easier for people to get a restoration of their voting rights. Colorado is one very recent example of that. Other states have adopted reforms like same day registration or automatic registration that make it easier to participate in elections. So I wouldn't give a straight thumbs up or thumbs down answer. I think like everything else in our politics, it's very much polarized along party lines and in general, in blue states, it's getting a bit easier to vote. In red states, it's getting more difficult. But I do want to really come back to this point that we've got to think about vote suppression beyond simply being able to cast a ballot that will count. When we think about the weight that our vote actually has, we have to think about the influences on lawmaking and policymaking and the reality is that wealthy individuals and groups exert a lot more influence. And we have to start seeing this as a form of vote suppression that in my view, is actually much more significant than the barriers to actually voting and being able to cast a vote that counts that exists today.

Professor Pippa Holloway 
You know Dan, your answer is very judicious and probably right, but I have to say from where I sit in Tennessee, the glass is much more half empty than half full and you're totally right, that there are states where voting is getting easier, out West states that have vote by mail. But I'm looking at places like Florida where what we thought was a huge victory with the passage of the amendment allowing reenfranchisment and ex-offenders now being just killed by accident legislature, which will require you to have fulfilled all legal financial obligations in order to register. And unless those get struck down by the courts, that's going to render that largely ineffective. Where I'm here in Tennessee the legislature passed a law that criminalized voter registration mistakes. It basically made organizations that do registered voter registration civily liable and also potentially, I think criminally liable for mistaken forms. So if people fill out the form wrong and make mistakes on registration, the organization that ran that are liable in some form. And then just more generally, we're seeing across the country, more and more criminalization of mistaken registration. The woman in Texas who has become something of a poster child for this who mistakenly registered and wound up in prison for that. That's again, a potential in Florida. Few are able to register despite outstanding financial obligations. That's a felony. So you're right that there's definitely states that are making voting a little easier. But there's also a lot of states that are making voting a lot harder and also potentially fraught with criminal penalties if you do it wrong.

Professor Daniel Tokaji 
Well, I appreciate those comments and you're certainly right that there are many places in the country where there's been a deliberate effort to make voting more difficult. And indeed, I spent probably the first decade of my academic career focused on laws and practices that make it more difficult to vote like voter id, felony disenfranchisement, strict voter registration rules, limitations on early and absentee voting. Here's the thing and I'm going to be brutally honest about this. What I've come to believe over time is that while these laws and practices have some effect, they're not as great as some of their opponents fear and some of their proponents probably hope. They do have some impact on turnout, especially a really strict voter ID law like the one that Texas adopted a few years ago. But we're talking about a few percentage points, maybe 2 to 5 percentage points at most. When we think about the big problems in our democracy today, I really think that while there's some connection to what I've called in my scholarship vote denial, the big issues have to do with the separation of voting from meaningful political influence. And if we don't look at the man behind the curtain, at the way in which our campaign finance system and our lobbying system, which are now largely unregulated, distort political power and give way more to those with a lot of money and way less to those without significant resources, we're missing the biggest voting rights problem that exists today.

Professor Pippa Holloway 
I'll agree with you to the extent that brings it back to felon disenfranchisement, which was again when I began this research, I felt and I think a lot of people felt that felon disenfranchisement was kind of like the next frontier. Getting people their voting rights back, particularly in the states where the numbers of people and the racial inbalance of the impact of these laws was so stark was really just a critical issue for our democracy and I don't disagree with that, for sure. I still think it is a critical issue for our democracy. But I've also heard people say in the last few years that it's kind of an easier issue. We've certainly seen over the past decade or so, pretty solid progress on felon voting. Many states are making it easier. Many states are having automatic restoration as soon as you're done with prison. Just in the last month, two states eliminated the requirement that you be completed with probation and parole. So probably in the larger trend, you can look at felon disenfranchisement and say, yeah, this is getting better. More and more ex-offenders are now getting the right to vote and I think you could possibly argue, and I think you're making a great point that this might be because there's less of a fear of the impact and the power of voters due to exactly what you're describing. That voting is sort of the gateway to electoral office, but once you're there, you are very likely to be serving moneyed interests more so than the people who actually elected you.

Lauren Henry 
All right, well, I guess we will wrap it up on that note. Thank you to our two guests, Professor Dan Tokaji and Professor Pippa Holloway.

Professor Daniel Tokaji 
Thanks so much.

Professor Pippa Holloway 
Thank you. It was a great conversation.

Professor Daniel Tokaji 
Yeah

Professor Pippa Holloway 
I really appreciate it.

Eric Michael Rhodes 
Thanks, everyone. This episode of History Talk was brought to you by Origins, Current Events in Historical Perspective, an online publication of the public history initiative, the Goldberg Center and the history departments at The Ohio State University in Columbus, and Miami University in Oxford, Ohio. Our main editors are David Staley, Steven Conn and Nicholas Breyfogle. Our audio and technical advisor is Paul Kotheimer. Our audio producers and hosts are Lauren Henry and Eric Michael Rhodes. Song and band information can be found on our website. You can find our podcasts and more on our website origins.osu.edu on iTunes, Stitcher and SoundCloud, as well as wherever else you get your podcasts and as always, you can find us on Twitter @originsOSU and @HistoryTalkPod. Thanks for listening and we'll see you again soon.