2012 Constitution Day Lecture: Alexander Keyssar

"The history of the right to vote in the United States has not been one of steady movement toward inclusion," says Richter Professor of Political Science Carol Nackenoff. "The topic is especially timely for 2012, when a number of laws requiring state-issued voter identification cards are being challenged in the courts."

Alexander Keyssar is the Matthew W. Stirling Jr. Professor of History and Social Policy at the John F. Kennedy School of Government at Harvard. His book, The Right to Vote: The Contested History of Democracy in the United States (2009), was honored by both the American Historical Association and the Historical Society and was a finalist for the Pulitzer Prize. Keyssar is an authority on voting, elections, and election reform. He writes frequently for the popular press about American politics and history.

The event is sponsored by the President's Office, the Department of Political Science, the Black Studies Program, and the Center for Social and Policy Studies.


Audio Transcript

Rebecca Chopp:  I'm Rebecca Chopp, president at Swarthmore College, and I'd like to welcome you all to this event to celebrate and recognize Constitution and Citizenship Day. In 2004, the federal government mandated that if you receive any kind of federal funding you have to, on this day, study the Constitution somehow. I don't always like the federal obligations and regulations that they put upon us, but this is a, actually, really great one because we're able to have wonderful speakers like the one we have today.

To introduce Alex Keyssar, the Richter Professor of Political Science, Carol ... I just, like, blanked. Sorry about that. It's Friday afternoon, will give the introduction. Thank you. Carol Nackenoff. Sorry about that.

Carol Nackenoff:  That's all right. It's all right, Sandy. Yes, this has been a wonderful opportunity. This unfunded mandate that congress has created has allowed us to bring in, in recent years, just to name a few: Michael Dukakis, a Swarthmore alum; law professor, Sandy Levinson and Jack Balkin, and Judge Jedd Rakoff, a Swarthmore alum who was here last year and gave a fascinating talk.

This is not only the Constitution Day lecture this year but we are combining it with the annual political science Gilbert Lecture, which is named in honor of Professor Charles Gilbert, a emeritus professor in American politics in the political science department. He's still a very active member of our community. He was unfortunately not able to be here today. The even is sponsored by the president's office, the Department of Political Science, The Center For Social and Policy Studies, and the Black Studies Program.

I'm pleased to introduce Alexander Keyssar, the Matthew J. Sterling Jr. professor of history and social policy at Harvard's Kennedy School of Government. Professor Keyssar has taught previously at Duke, MIT, and Brandeis but he has returned to Harvard [inaudible 00:02:14] both his BA and his PhD. He is recipient of the Guggenhiem Fellowship.

He is the recipient of a number of book prizes. The Right to Vote received the  Eugene Genovese Prize from this historical society and the Albert Beveridge Prize from the American Historical Association. The Right to Vote was also a finalist for the Pulitzer Prize in history and several other major prizes. A significantly revised and expanded edition was published in 2009 and is used in some of our Swarthmore classrooms.

As impressive as this book is, it's even more impressive to me to consider the range of Professor Keyssar's intellectual reach. His 1986 book, Out of Work: The First Century of Unemployment in Massachusetts, received several scholarly prizes including the Fredrick Jackson Turner Award from the Organization of American Historians.

He has a strong interest in maritime history and in 2008 coauthored The Way of the Ship: American's Maritime History Reenvisioned, 1600 to 2000. He also coauthored a text integrating the history of science and technology into the mainstream of American history. It is entitled Inventing America, it's a history of the United States. He co-edits a series on comparative international working class history.

Professor Keyssar chaired the Social Science Research Council's national research commission on voting and elections in 2004-2005. He contributes many pieces to the popular press: NPR, New York Times, Huffington Post, and some of you have already encountered his February 2012 piece in The New York Times, The Strange Career of Voter Suppression. He writes about the history of poverty, election reform, history of democracies, and is now doing quite a lot of work on this history of the electoral college in efforts to end it.

His talk today on voting rights and voter suppression in the United States could not be more timely. In 2008 the Supreme Court upheld Indiana's photo identification law, holding that the state certainly had an interest in preventing voter fraud and in maintaining the integrity of the electoral process and, at the same time, that the burden of obtaining the free state photo ID was not undo, not substantial.

Subsequent to that and subsequent to the election of President Obama, with voter registration drives, higher than usual turnout among young people and among African American voters, a number of states have passed voter ID laws; laws that alter rules for voter registration drives for early voting, for absentee voting. You probably know that Pennsylvania passed a law much like Indiana's that required documentation to obtain the official ID that is among the strictest rules in the nation.

The Supreme Court in Pennsylvania hear that case yesterday. A decision is expected before the end of the month and Professor Keyssar's work locates the recent wave of struggles over the right to vote in a long and rich history in which the struggles are patterned. Professor Keyssar, welcome to Swarthmore.

Alex Keyssar:   Thank you, Carol, for the very generous introduction and thanks to the various organizations that sponsored my being here, not all of whom I remember from your introduction but thanks to everyone and thanks to all of you for coming on a beautiful Friday afternoon. I recognize the sacrifice you've made and we'll try to make this an interesting, but not necessarily uplifting, hour as we talk about voter suppression.

As I'm sure you have all noticed, there is an election campaign underway. Indeed it's been underway for several years now or, arguably, it's always been underway. Since the beginning of this campaign, really since 2009 and starting even with Obama's election in 2008, the issue of voter suppression has been present. It's has been nare, if not always on center stage, it has been somewhere on the stage. Carol mentioned support of the backdrop to this.

You may have seen the article in The New York Times earlier this week which suggested that, perhaps, the outcome of the election would be left in doubt because of conflicts over who is permitted to vote, who is not permitted to vote, and legal conflicts over access to the polls.

Now, these debates, again as Carol mentioned, have been set up and prompted by the passage of laws in a variety of states including this one that could and likely will make it more difficult for some people to vote. The most well known of these laws are the new ID requirements that have been passed but they, again, these are not alone.

There have been laws in several states shortening early voting periods and there was a particularly notable law in Florida which has been ... Florida has now backtracked somewhat from, which was to in effect make it very difficult for dangerous third party radical organizations like the League of Women Voters to protect against their voter registration drives. I mean, the law didn't say they couldn't do it, but it imposed fairly significant financial penalties if they did not turn in any registration forms within 48 hours of when they collected them.

Those are some other fronts in which this has been going on, but the centerpiece of the story ... Although, I want to emphasize it, I don't want to go into details about the other ... The centerpiece of the story has been the ID requirements. More than 30 states have tightened their ID requirements in the last four or five years and nearly a dozen, depending on how you count and depending on what's going on in the courts, somewhere between 11 and 17, have now passed what are called strict versions of these laws.

The strict versions of the laws are ones that require current government issued photo IDs from a very limited roster of such documents. The actual roster depends, of course, on the state. In Texas, I imagine many of you have heard this, a student ID from the University of Texas does not count but a concealed gun permit does. I'm not giving this talk in Texas, by the way.

Really, I should have said at the beginning that for people in my line of [inaudible 00:09:36] mandated by the Constitution Day has been a profit center. We get frequent invitations to speak. There are about a half dozen cases included yours in Pennsylvania, there are laws that are still embattled in the courts. Some of these laws, and this might come up in discussion because it's a fairly arcane point, but it matters whether these laws are passed in states that are covered by the Voting Rights Act or in states that are not.

Texas is covered by the Voting Rights Act. Put very simply: in states that are covered by the pre-clearance provision of the Voting Rights Act, any indication that these laws would have a discriminatory consequence in terms of African Americans and other minorities could jeopardize the law. That isn't necessarily true in other states.

 The legal terrain is fairly complicated and just a very brief aside on that, it's further complicated by the fact that there are a number of people who are worried that when a law like the Texas law, or if a law like the Texas law or the South Carolina law, goes to the Supreme Court, that the Supreme Court might possibly use that as an occasion to toss out the pre-clearance provision of the Voting Rights Act.

There are a lot of things that are going on that are at stake around these laws. These laws have almost invariably been introduced into state legislations by Republicans. The stated rational for the laws are that they're necessary to prevent election fraud, which is surely a worthy goal. It is widely believed that they will have a primary impact on particularly the young poor and the elderly poor and the elderly more generally. These are also groups that are considered to be more likely than not to vote Democratic.

The laws were the subject of partisan combat in almost every legislature where they were discussed. Actually, Rhode Island may be the one real exception to this. One of the first laws passed in Indiana in 2006, I think, 2007, passed on a straight party vote. Every Republican in the legislature voted for it, every Democrat voted against it.

The New York Times and other newspapers have been editorializing about them repeatedly. You may remember that Bill Clinton actually mentioned this whole issue in his much celebrated speech at the Democratic National Convention ten days ago. They have become a big public issues for two reasons. One is that they could tip the election depending on how many people were prevented from voting or now and the second reason is they appear to violate ... Although this is in the eyes of the beholder, they appear to violate some accepted norms about democratic behavior.

The issue is not brand new. I think, again, I want to emphasize this. I'm going to take you on a fairly long historical excursion but even at the outset the issue is not brand new in 2012. For the last ten years in a fairly insistent form, there has been partisan warfare between Republicans, who have been saying that the issue is voter fraud, and the response of Democrats that the issue is not voter fraud, that voter fraud is a minor problem and that the issue is that anti-fraud laws are being passed in order to prevent people from voting.

Those of you with long memories, say way back to 2005, you know, maybe remember that there was a whole issue about US Attorneys in the Bush Administration, Republican US Attorneys, about six or seven of them, who were removed from office or not renewed in their office because they were viewed as being not sufficiently zealous by Karl Rove about prosecuting election fraud or by detecting election fraud. This issue has been around a lot really for the last decade.

In Ohio, again some of you hopefully remember back to 2004, there was a very interesting ... There was Secretary of State of Ohio, a man named Kenneth Blackwell, who was intent on enforcing the letter of Ohio law so that at his order thousands of voter registration forms that had been turned in were rejected because the paper was not on the correct weight of paper. He had to backtrack when it was discovered that the forms that his office issued were also not the correct weight of paper.

In 2008, you may recall, there was a lot of concern about an organization called ACORN and it's voter registration drive. In the last Presidential debate, Senator McCain maid a reference, I'm quoting here, he said that, "ACORN was maybe perpetuating one of the greatest frauds in voter history in this country."

To Senator McCain's credit, after he lost he didn't bring the subject up again about whether ACORN had cost him the vote although I recently saw a statistic which, if true, I found to be truly alarming and whether it's true or not, spread it around, is the statistic that said in a poll conducted in the United States in late November 2008 found that 52 percent of Republicans believe that Obama had become President because ACORN had stolen the election. Make of that if you will.

I do not want to spend time today engaging in a debate about whether the current wave of laws constitute efforts at voter suppression. Some people argue they do, they're maintaining the integrity of the ballot box, others call them voter suppression. I have engaged in such debates as recently as last night somewhere in another city.

Frankly it's an easy issue and I want to dispense with it quickly so that we can move onto things more interesting. The answer simply is that these laws are attempts to suppress votes. The rational for them, the claims to the contrary, there's a formal political science term used to categorize them which is they are bogus.

The only type of electoral fraud that these laws can prevent, that the ID laws can prevent, is in person electoral fraud where I go to the polls and pretend to be you, and that is a crime that barely exists. As authorities acknowledged in Indiana when they passed the law, there were no known instances of voter impersonation fraud in the state's history. Basically there have been similar stipulations in Pennsylvania from a distance.

In Texas, which passed a strict law, between 2008 and 2010 in various ... In 2008/2010 in some state elections as well, there were a total of 13 million votes cast in Texas and of those 13 millions there were five formal complaints about possible voter impersonation fraud. One Texas legislator quipped, I'm quoting here, "There are more UFO and Bigfoot sightings than documented cases of voter impersonation."

In an interesting recent study, and I'll come back to this at the end of my talk, indicating that these laws have been passed in states where republicans have a secure majority, where there is a growing non-citizen population and increasing minority turnout in elections.

I want to make a couple of disclaimers here. I'm speaking specifically about voter impersonation. There are other kinds of vote fraud which exist to various degrees in the United States. I think most people who are involved with this issue think that the big arena of concern is absentee ballots, that they are much more vulnerable, but they're not addressed by this issue. The other point that I want to make about the IDs in themselves is to say that I don't think that an ID requirement in and of itself need be suppressive.

I think you can have a voter ID system that would not constitute voter suppression. Most countries in the world, or many countries in the world, have some kind of ID requirement. Brazilians have a national voter ID card, you know, everybody gets one. Other places have a national identity card. You just show that. There are ways of having it but that's not ... With the possible exception of Rhode Island's law, that doesn't seem to be what's going on.

You could have a law, for example, which said that you had to have a voter ID and stated very clearly that it is the states responsibility to make sure that everybody in the state has such an ID. The state will spend the money and invest the resources to do that and then you could have, as a fall back system, you could have a mechanism which said if somebody shows up at the polls and does not have an ID, they cast their provisional ballot and while they're doing so they apply for an ID for future elections.

That way over time everybody would acquire the IDs. People have cited as version of this that works, the Brazilian system, again where there are ... At least there are stories about that Brazilian election officials taking canoes down the Amazon to find communities with 25 people to make sure that everybody has their voter ID. [inaudible 00:20:27] like you're really weird, I want to go fishing.

You can make that kind of effort to make sure and when you make it very clear that it's the responsibility of the state or the national government, almost all these laws are saying it's up to the individual. You go figure out how to get yourself an ID. It also seems very clear to me that these laws are partisan in their intent and partisan in their potential consequences. We don't know what the consequences are going to be in this election.

What I want to do is not to ... I'm happy to discuss this issue and people may want to challenge this perspective in discussion, but I don't want to spend a lot of time trying to hammer this home. What I want to do instead is to try to, I hope, maybe broaden our understanding of these laws and to invoke some history because I am a historian at heart. To try to help us explain why these laws have been passed and what they mean and why we are engaged in a new challenge, a quasi challenge, to universal suffrage in the 21st century.

What I want to do is to try to offer a framework for looking at this that sees voter suppression as intrinsically linked to advances in voter rights. I want to offer a suggestion that rights and suppression are dynamically linked to one another and that laws of this type are not an aberration but they're, in fact, really as American as apple pie.

They fit squarely into our political traditions and that in the long view one can see ... This may be a little bit too rosy for many of you, it may be a little too rosy for me too, but that one can see the appearance of episodes of suppression as a sign of the advance of some democratic norms. I'll flesh that out later.

I want to try to mobilize this history to try to explain why these laws are happening now. Okay? That's where I'm going. I'm about to take you on an excursion into the distance past back to the late 18th century and then we're going to sprint up to the present with selected overview with the history of voting rights.

The story begins with the Constitution. It has to because this is Constitution Day. What's most notable about the Constitution with respect to voting rights is that the Constitution says almost nothing about voting rights. Okay? There is no right to vote in the US Constitution either in the text or the Bill of Rights. Those of you who thought that there was a right to vote in the Bill of Rights, I'm sorry.

The only illusion to the franchise in the Constitution is a statement that everybody can vote for their representatives to the house of representatives, who can vote for the most numerous house of the state legislature in which they live. Otherwise the entire issue of voting rights, the franchise, who can vote, who can not vote, was left to the states.

It was left to the states, not because of any high minded theory or set of principles. It was left to the states because by 1787 every state already had it's own particular franchise requirement; in some cases tax paying, in some cases property ownership. Some of the property ownership states, sometimes it was acres, sometimes it was monetary amounts.

The founding fathers were concerned that if they adopted any national standard that might annoy people in one, or two, or three states and that it would jeopardize ratification. The key reason this is done has to do with the politics of ratification of the Constitution in the 1780s. What that did is to create a decentralized framework for voting rights and related issues in the United States, but I think in many ways have bedeviled us again, and again, and again in our history.

That's why, for those of you who are wondering, that's why are these laws that are popping up are state laws. That's why there's very little federal intervention in this. It was from the very beginning, this whole domain. There have been federal intrusions into this and a federal takeover of some dimensions of it but the domain is one of the states.

Now, if there's no affirmative right to vote in the Constitution in general, the situation ... many of you probably know this, but just in case you don't, the situation is even worse with respect to Presidential elections. The Constitution says that the electors, people who go to the electoral college ... Which is not a phrase that is every used in the Constitution, the electoral college, and I've recently discovered that it only becomes a current phrase in the 20th century which is it's own interesting aside, but that the electors in each state shall be chosen in such manner as the legislature thereof may direct. Okay?

What that means in modern terms is that you have a right to vote for President only if the state legislature of your state says that we're going to choose electors by having an election and it does not have to do so and it can change it's mind about how to do it.

In 2000, in Florida, I had the ... I'm not sure the good fortune is exactly rhe right word, but my first addition of my book on the history of the right to vote happened to be published about eight weeks before the 2000 election, so I had a period of popularity as people were looking at arcane features.

I received a phone call one day from an African-American member of the Florida legislature. This is before the Supreme Court decision that ended the whole thing. He wanted to know what they could do about the fact that the Republican majority in the Florida legislature was planning ... If the Supreme Court case came out wrong, okay, in other words if it said, "Gore can have his recount and we'll recount however many votes" ... If the court came out wrong, the Florida legislature was going to choose it's own electors. Okay?

It was basically going to annul the popular vote. There's reason to believe from the decision in Bush v. Gore that that would have been regarded as permissible by the Supreme Court. There are some questions about the timing of that. Presidential election, again, a part of the framework here is we don't really start out with any federal or national right to vote.

I'm going to take advantage of the Constitution Day commemoration to just have one more aside before going back to the mainstream of the story, which is about the Constitution, which is that the drafting in the Constitution of how we choose our Presidents, and I'm doing this obviously because we're in a Presidential year, really has to be considered, I think, to be among the worst features just as a matter of Constitutional drafting of the US Constitution.

Not only did they make an elementary mistake which most of you, I'm sure, know about which is that they forgot to indicate some method by which the electors were to distinguish votes for President and Vice President, which produced a kind of confusion and they had to amend the Constitution in 1804 to straighten that out.

Not only did they create an institution that never functioned in the way it was intended, you know, as a set of bodies that would deliberate and choose, but they also did, it seems to me, something that a Constitution dealing with political processes should never do, my own feud about this is ... I mean, that if you are drawing up a Constitution and you want to talk about the processes in which people gain power, what the constitution does is to establish the rules. It establishes a set of rules which, presumably, you think are fair to all parties and everybody plays by those rules.

What the US Constitution did was this provision that electors shall be chosen in such manner as each state legislature shall decide, was to create the possibility of state legislatures changing the rules for partisan advantage and changing them every election if they wanted to. That is exactly what happened for the first 20 to 30/40 years of our history.

Again, I presume most of you know this but some of you may not: the winner take all provision, you know, the allocation of electoral votes which means that you folks fortunately are having to get all the television advertising that we are not getting in Massachusetts because the outcome in Pennsylvania is thought to be in doubt.

That is not part of the Constitution. That was something that happened as various parties started gaming the system being in the 1790s and then into the early 19th century. In effect the Constitutional design permitted a gaming of the system by the political parties which was utterly unintended, but I digress.

The Constitution left the franchise to the states and then, I think most of you probably know the well known thread of the story, most states had property and tax paying rules. Some had racial restrictions, there were gender specifications everywhere but in New Jersey, which meant in effect that the franchise at the outset was limited largely to property owning adult, white males.

There was some opposition to this; most vividly from Benjamin Franklin with what I put on the board for a story that Franklin told, which I quoted in my book, about who owns the franchise, whether it is the man who brings the jackass to the polls or, in fact, whether it's the jackass who has the franchise if you have a property requirement. Jackson was the oldest of the founding fathers in Philadelphia and in many respects probably the most progressive.

Just an aside about this quote is that this was a sufficiently well known story that when I was doing research for this book and I was reading the minutes and records from Constitutional conventions from the 1840s ... This date is 1828, but Franklin was long dead in 1828. That's the publication date of a collection. He was saying this in the 1780s. In the 1840s in Constitutional conventions I found several times in different states people just using the phrase referring to Franklin's jackass.

The way it was said was that everybody understood what that meant in 1845. The story was extremely well known. In the 60 to 80 years after the ratification of the Constitution, voting rights were then enlarged throughout the country. It's a well known story, an often told story. Property and tax paying requirements were dropped almost everywhere, effectively permitting nearly all adult white males to vote.

It's the period of Jacksonian democracy, the rise of democracy. In many states, notably, even noncitizens could vote. Something which we can return to in discussion but people who were not citizens but had been here for a couple and declared their intent to become citizens.

There were limits to inclusion. There were actually more racial exclusions passed in the first half of the 19th century, including here in Pennsylvania where there was not a racial exclusion out the outset but one was adopted in the 1830s. Paupers were disenfranchised interestingly. They dropped property requirements but they disenfranchised paupers and paupers were defined as anybody dependent upon public welfare.

I mean, this is a real democratic advance. I do not for a minute want to minimize that, but importantly the democratic expansions of the antebellum period were not intended to extend political rights to the social and class groupings that really, in the 19th century and for most of the 20th century, defined the limits of democratic thinking. That's to say do you extend the franchise to the peasantry and to the industrial working class and particularly to an industrial working class of semi-skilled and relatively unskilled workers, not artisans but a real factory working class.

Debates over those inclusions marked [inaudible 00:34:28] all of European history and Latin American history, in fact, in the 19th century and well into the 20th century. I mean, you know, rather recently. Chile had a literacy requirement for voting which targeted basically poor peasantry and some workers until just before the election of Salvador Allende in 1970.

Our peasantry or the closest thing we had to a peasantry was enslaved in 1820 or 1830 when the suffrage was being expanded. Nobody worried that dropping property requirements or other requirements in 1820, 30, or 40 was going to end up enfranchising these millions of agriculture laborers in the south because they were slaves anyway.

In the north, very notably, almost all of the expansionary laws that were passed were passed before the Industrial Revolution has proceeded very far. They were mostly passed in the north by the 1820s. There's a fascinating debate in New York, which passes it's key laws in 1820 or 1821, where there's some opposition to getting rid of the property requirement and people are talking about, "What if we turn out looking like England and looking like an industrial center like places in England where cotton mills are growing?"

The response to that, the counter argument from the people who wanted to expand enfranchise and end the property requirement ... The counter argument was not, "Well, those textile workers should be enfranchised anyway, they're people, they're workers." That was not the argument that was made. The argument that was made was, "We have nothing to worry about." The notable phrase from one man, he said, "I would not support this were I not completely confident that new york will remain a predominantly agricultural state for the next 1,000 years." That was in 1820.

He was off by 970 years in that prediction of what would happen. The reason I bring up such a little of arcane, sort of, special comparative history is to say that in a lot of ways I suspect there was never really a commitment in the United States in the 19th century and pretty far into the 20th century towards universal suffrage; that when the voting rights were expanded people were picturing a different society, a society that was more equal, more homogenous, and there was a much higher proportion of people who owned land, okay, or owned some kind of property.

The expansions did not necessarily reflect a commitment to universal suffrage. The high water mark in the expansion of voting rights in the 19th century was the 15th Amendment. The 14th Amendment a little bit but the 15th Amendment, I'm sure most of you know, but the 15th Amendment which banned denying people the right to vote because of race, color, or previous condition of servitude.

This comes right after the Civil War, not surprisingly, and in some ways it's quite extraordinary that the freed men are enfranchised and African-Americans throughout the country because African-Americans couldn't vote in most places in the north either and that this does happen. Given prevailing attitudes it was quite an extraordinary thing.

Now, this 60 to 70 year expansion of voting rights ends up setting the stage for a series of reversals in the last 30 years of the 19th century and in so doing, giving rise to the first wave of voter suppression. I am coming back to the voter suppression issue. The first wave of voter suppression ... I'll show you in a little bit.

I'll show you a little engram that my assistant worked up about the use of the phrases voter suppression and vote suppression, but the phrase vote suppression first becomes current in the United States in the 1870s and 1880s and 1890s. It's actually vote suppression then, not voter suppression. What's happening in the late 19th century, of course, two different things, there is a crackdown. There's voter suppression starting to happen and there is a loss of faith in democratic institutions and a loss of faith in universal suffrage in both the south and the north in people who we would today call opinion makers.

This is a view of a very, very eminent American intellectual, I'm sad to say, a historian Francis Parkman writing in 1878. Parkman is talking about the north, not the south. What Parkman is saying is now that we've got all these horrible foreigners coming in, all these horrible immigrants coming in who are untrustworthy and would probably steal elections and commit electoral fraud of various sorts, that universal suffrage is not a desirable thing anymore. This is from a leading American intellectual.

Another version of that by an anonymous writer just the year before, and I won't bother reading through it, but it's another statement of the same view. What you have in south, of course, the political rights of African-Americans are imposed upon white southerners. I mean, there's a few exceptions, but they're imposed by Union armies and by the government in Washington. If you want to be readmitted to the Union you have to go along with this. I'm not sure that many white southerner had a lot of faith in the democratic potential of African-Americans at the time.

In the north there's this backing away again. [inaudible 00:41:43] this really does lead to the first major episodes of voter suppression. Here I want to make a conceptual distinction, which I think is useful, which is to distinguish between vote suppression and disenfranchisement terms that in the current debates, I think, have tended to be used too interchangeably by participants on all sides.

Disfranchisement or disenfranchisement is taking away a persons legal right to vote; just simply taking it away or taking away a groups legal right to vote. Changing your legal rights. If you pass a law saying that black people can't vote you are disfranchising it. If you pass a law saying that people under the age of 25 can't vote, you are disfranchising or if you say that short people can't vote, that would be a law that disfranchises. 

Suppression, it seems to me, is something different and we should understand it as something somewhat different. It's what you do if you want to disfranchise people, if you want to keep them from voting, but you are unable to politically or ideologically, that you can't, in fact, disfranchise them. What suppression means is making hard for them to register and vote, put obstacles in their path, maybe surmountable obstacles, but surmountable obstacles that would take a lot of work, and energy, and resources.

What suppression does is not to blanket prevent an entire group of people or an entire category of people from voting, but it shrinks their participating. It [inaudible 00:43:24] down the size of the group. Disfranchisement and suppression proceed from the same impulse but I think that they signal the existence of different political and ideological climates. In the south in the late 19th century the efforts to reduce the political participation of blacks first took the form of suppression. Okay?

That was the first form of voter suppression. Violence was one of those forms of suppression, vigilante violence was one way to do that. Other legal devices like requiring people to present the receipts that they had paid their poll taxes, having complicated ballot arrangements, a lot of the first whole waves of laws in the south did not wholesale prevent black people from voting but just because to cut down on it.

White southerners had to do this because of the 15th Amendment and because they couldn't change the 15th Amendment. The 15th Amendment said that you could no disfranchise someone based on race, color, or previous condition of servitude, and the south was not going to be able to get the north to agree to reverse the 15th Amendment.

There's a turning point that comes in this history and it comes really in the 1890s, probably in the early 1890s, partly with the failure of the Lodge Force Bill to ... The Lodge Force Bill was actually an early version of the Voting Rights Act and it came very close to passing congress in about 1890 and it didn't, but there were clear signals that began coming out of congress at that point that the north was not going to police what was going to go on in the south.

At that point what happens is that the white south decides that it can move from suppression to outright disfranchisement and pass more draconian laws. The ultimate step of which was, of course, the white primary where basically ... By this point there was no Republican party in the south. The only elections that mattered were in the Democratic party and southern states began to pass laws saying that only white people could vote in Democratic primaries. That's the southern story.

In the north you got a wave of suppressive laws and suppressive tactics that seem to me to be remarkably similar to some things that we're seeing today. Okay? These are aimed at immigrant workers by and large. You see literacy tests also. A literacy test is not quite a disfran ... It's somewhere on the border of disfranchising and suppression because if you are illiterate you can become literate if the test is fairly administered.

There were poll taxes, also, in the north and there were very intricate registration requirements adopted in a number of places, often applicable only to large cities or only to targeted cities. Pennsylvania at several points had registration laws that applied only to Philadelphia or only to Pittsburgh.

In New York state there was a requirement that you had to register to vote every year, but only if you lived in a city with a population more than 500,000. That was the whole category. There's only one city in New York state that ... You don't want to just name the city because that would look like you were targeting a city, so every city over 500,000 you had to register every year. In many places you had to register if you moved and changed precincts within the city.

Some states passed laws saying that you had to present your naturalization papers at the polls. In some places you were suppose to, before you registered, bring witnesses to establish your residence. In one very ingenious move at voter suppression targeted at left leaning Jews in New York City during the progressive era, a registration law was passed, I think it's 1908, it's a year around there, which said that you had to register every year and then the only days in this particular year when you could register were either on Saturdays, the Jewish sabbath, or on Yom Kippur. Not very well disguised effort to prevent certain groups from voting.

Yet another technique had to do with the hours that you kept the polls open, right? People worked a 10 hour day if you were an industrial worker. If you closed the polls at sunset, which they began doing, or earlier you would keep a lot of people from voting. Again, one thing I would say about these laws is these were suppressive techniques because outright disfranchisement was not politically possible because there were political parties that were relying on some of the votes of these new immigrants.

Partly it was ideologically difficult but also they had acquired enough political power so that they couldn't be banned outright. That's why in New York, for example, there's a very interesting struggle over this when, in a complicated back to fashion, New York tries to reimpose a property requirement for voting by creating a new board that will control the fiances of New York City and to say that to vote for this new board you have to own a certain amount of property. They're able to block that and defeat it eventually so that, again, it becomes impossible to have outright disfranchisement laws and the next best thing is voter suppression from that perspective.

Just let me briefly show you, this is the vote suppression, this is the number of appearances or something in print of the phrase vote suppression over time. As you can see it goes forward from 1880 to 1960. I do not understand, maybe someone here does, I do not quite understand why there's this peak, one 20th century peak, but I will be exploring that at some point in the future.

Here is the more modern term voter suppression, which you cans see that also pops up a little bit at the same points earlier and then, as you can see, as we got towards the 21st century we have this enormous increase in the incidents of the phrase.

What I want to suggest here is that this late 19th century wave of suppression, that it was a reaction by large numbers of Americans to a very substantial and potentially decisive shift in the composition of the American electorate under existing laws. Okay? That the reaction to this constituted these way ... The new groups were African-Americans in the south and immigrant workers in the north and in parts of the west.

We should understand voter suppression in this context as a response to an earlier expansion of the franchise and then the kind of social enlargement of that by the Civil War but also by social forces such as immigration which produced really quite unforeseen consequences in terms of the people who passed the laws.

I want to fast forward here in this history. I'm going to skip over those minor years between 1900 and the 1950s. There's something of a stasis in the history of voting rights except of course with the enormous exception of the franchisement of women, which is an extremely important story but doesn't intersect very directly with this story.

Basically, if the late 19th century is a period of reaction against a broader franchise which had already occurred, things are fairly stable for about 50 years, and then there are extraordinary advances that take place after World War II. There is a nationalization of voter rights after World War II and of voting rights and really something of a minor political revolution and I don't use that word cavalierly.

The second reconstruction, as it's called, was real and dramatic. It happened through Constitutional amendments, through legislation like the Voting Rights Act, and through court decisions. The upshot of it was that African-Americans were enfranchised in the south, a century after the 15th Amendment had been passed but better late than never one presumes. Native Americans in a number of western states, who had not been permitted to vote, were enfranchised.

Devices such as literacy tests and poll taxes were banned from use throughout the United States. Literacy tests, even as late as the 1960s, is not a fairly southern phenomenon. There was a literacy text in New York and it was an English language literacy test. The people it was having the greatest impact one were actually Puerto Rican born US citizens living in New York of whom the figures roughly half a million did not vote.

That's an arcane detail but if you look at the voting rights act there are two counties of New York that are actually covered by the Voting Right ... The Voting Rights Act covers New York and Alabama. That's really the reason why. All of that is eliminated, the age of voting is reduced, and then the protections given to African-Americans through the Voting Rights Act in the 1960s are extended to what are called language minorities in the 1970s. Basically it's the other minority groups. Language minorities is something of a euphemism for doing this.

The key point, an enormous expansion of the franchise and one could meaningfully speak of universal suffrage in the United States existing by the early 1970s, not before. I mean, whatever we say about we're the world's oldest and greatest and everything, universal suffrage, okay, 1970 although some people would argue about even that given the [inaudible 00:54:40] and disfranchisement laws and other things, but universal suffrage by 1970.

Now, a note here about this change in the electorate: without the change in the composition of the US electorate that happened in the 1960s, Barack Obama could never have been elected President. Put aside changing attitudes, which we know are important as well; changing attitudes, changing norms, changing values. Picture an election in which African-Americans did not vote in the south. As you know, Obama won Virginia and North Carolina last time and he did not win a majority of the white vote.

One key ingredient. Hispanic voters which voted something like 61 percent Democratic and young voters, you folks if you voted in 2008, if you're voting now. If the voting age was 21 instead of 18 and that group also broke very heavily for Obama. The electorate of 1965 would not have chosen Barack Obama or anybody like Barack Obama to be President.

It's in this context that I want to come back and then relocate the current wave of voter suppression efforts. Okay? Because what I want to suggest is that they are a response to the significant enlargement of the American electorate over the last two generations. They are a response to the enfranchisement of African-Americans in the south and their growing political power since the 1960s and they are a response to an extremely large wave of immigration that has affected many parts of the United States, particularly but not exclusively since 1980.

Now, to be sure, you don't automatically have to have a counter reaction to such an expansion. Political tendencies are not laws of physics that you would have to have this, but I think it would also be naïve to expect that the people who resisted the expansions of the franchise of the 1960s and the 1970s would suddenly all change their minds about their beliefs and universal suffrage and whether or not that was a significant value. Those are the people who still, when you get them into conversation often in public, still talk about voting as a privilege and not as a right.

Indeed there's always been an at least latent to not always latent resistance to broad voting rights in the United States. The dirty little secret of American democracy is that not everybody believes in it. If we have these broad changes that created the preconditions for suppression then I think there are two other things which provided triggers to the new wave.

Again, I'm trying to explain why this has happened. The first is that there were a series of efforts, which are not that much talked about now, a series of legal efforts in the 1990s to make it easier for poor people to register and vote. Okay? The most well known of these was the National Voter Registration Act commonly known as the Motor Voter Bill.

The Motor Voter Bill was actually first passed by congress in ... I think it was 1992. It was when President Bush the father was still President. He vetoed it on the grounds that the Motor Voter Bill was going to encourage fraud. A year later George Bush was back in Maine and Bill Clinton signed the same bill, and it became law, and it really did provide tremendous encouragement ... Motor Voter Bill said you had to provide registration materials to vote at government offices, particularly motor vehicle bureaus.

Then it was expanded in this region in a number of ways including welfare offices so that became really encouraging and particularly encouraging certain targeted populations to register. There had been some earlier efforts in the same direction. Jimmy Carter in the 1970s in response to growing concerns, which were bipartisan concerns actually in the '60s and into the '70s, concerns about falling turnout in American elections.

Jimmy Carter proposed something called the National Uniform Registration Act in 1977, which would have created a national system of registration, eliminating a lot of the complexities we've come to hear so much about. Really to his surprise, it produced fierce opposition, not only from Republicans but from a lot of conservative Democrats.

Jimmy Carter seemed to get surprised a lot, actually. It was very well meaning. He was also very surprised when his proposal to get rid of the electoral college didn't pass. His proposal would have, among other things, permitted election day registration.

This is 1977, but there's no real progress that's made on these things until the 1990s and somewhat thereafter when you get the Motor Voter Bill and in some places you get same day registration, early voting, all these mechanisms to encourage voting. The current wave of suppressive efforts, I think, have to be understood as pushback against those laws, primarily from the 1990s and the early 2000s.

That's sort of one of the precipitants, finally. A second precipitant is that we have had a pattern of close national elections, which is also true in the late 19th century, by the way, of close national elections with somewhat shifting majorities and narrow margins in important states in the electoral college. The lesson that political professionals took from the 2000 election, and we all knew ... Everyone was walking around from Bill Clinton on down saying, "See? Every vote does count," looking at what happened in Florida and it was true. People who run political campaigns and politicians control he national government depended in 2000 on way less than 1/10th of one percent of the vote of one state.

What that meant was a couple different things to political professionals. One is that it's really important to get the vote out for your candidate, but it will also do very well if you opponents votes don't all get counted or you opponents supporters don't all show up to vote. In fact, one is just as good at the other in terms of the net result.

I think it's this closeness, this part of the closeness of partisan rivalry that it the other major precipitant. Then if you want to look at really the very specific timing of why so many of these laws in the last 24 months, it has to do with the congressional elections and the state legislative elections of 2010 and when Republicans came to control a bunch more state legislatures and then they passed these through.

What are the conclusions that we can draw from this story? One is that I don't think we should be surprised by these recent suppressive efforts. I think we can still be indignant but I don't think we should be surprised. They fit into broad patterns of US history.

 Movements forward in promoting democratic rights and processes have tended to be followed by reactions against that and that those reactions have tended, when we look at the American past, to be particularly strong when the new voters, the new sources of political power, the new wielders of political power are ethnically and/or religiously different from "mainstream American society" and when they come from the working classes and the poor.

It is not a coincidence that the targets of suppression and disfranchisement in the United States have been similar over the last century and a half. It's the same kinds of folks that are always tolerated. We're to talk the obverse of this, to my knowledge, and I've been studying this for quite a long time, nobody has ever tried to disfranchise upper middle class or elite white males. It hasn't happened.

Now, to say that, say it fits into our patterns and this is all ... This doesn't mean that we should embrace it and it doesn't mean that we should relax our vigilance or it doesn't believe, depending on what your own values are, that you shouldn't be trying to resist and change those laws. What I really am trying to suggest is to think about where they are coming from and that they are coming from some larger forces and some larger alliance of [inaudible 01:04:11] in the United States.

My final comment here, and I'm committing very bad form in terms of talk giving, I'm violating the talk givers manual by introducing a new topic in my last three sentences. Obviously, I'm trying to set this up a little bit for discussion, but the existence of these broad patterns and these ebbs and flows of advances followed by reactions against it and various changes in the ideological climate strongly suggests to me the need to amend our Constitution to include an affirmative national right to vote which, in fact, might very well serve to make suppressive efforts more difficult and weaker in the future. Thank you.

Speaker 4:  [inaudible 01:05:11].

Alex Keyssar:  [inaudible 01:05:14] comment that even paranoids have enemies. I'm not sure whether I see a correlation there. I mean, I think that some of the same social conflict and social forces are going on in both phenomena. I mean, the extraordinary size of our prison population, you know, in the United States and it's extraordinary growth since 1980 and the fact that it's predominantly a minority population or a different minority, is very striking, very stunning.

I don't know. I mean, I think, like you, I don't want to quite imagine that there's some little group of people from the American Legislative Exchange Council or whatever, ALAC, the Republican [inaudible 01:06:01] that's sitting sort of thinking about the links between all these things and some conspiracy, right? I don't quite think that that's going.

People are aware. Let me just state it this way: politicians are aware of the potential political impact, particularly in some states, of ex-felons voting. Right? I mean, in Florida in 2000, we know this, there are approximately 650,000 ex-felons who could not vote. Okay?

It has to be said: ex-felons do not have the highest turnout rates in society, but, you know, if they voted the way you would expect them to vote which would have been Democratic and 1,000 of the 660,000 had shown up, which is a pretty low turnout rate, that would have been the election.

                                                      Then if you look at what's happened in Florida since then, you know, where Charlie Crist, the last liberal Republican on Earth, basically tried by executive order to liberalize the re-enfranchisement policies in Florida and then as soon as Scott came back into power he reversed it. They are aware, in some states in particular, about the potential political force but I think the real links are in this larger question of social conflict and the role of minorities in our society.

I'm not sure I understand all the pieces of the question. Let me address what I grasp and then come back to me, which is I don't know [inaudible 01:07:53] that more Republicans voted for the Voting Rights Act. Probably fewer Republicans voted against it. Okay.

The key thing there is that the Democrats who opposed the Voting Rights Act are now Republicans. The critical political realignment that occurs in the wake of the '60s and in the wake of the Voting Rights Act was to drive those white southerners, who were resistant to these changes, out of the Democratic party and into the Republican party. That has played a big role in this question.

Now, it also has meant that ... To do a cartoonish version of this history, if there's something long going on in the United States of sort of suppressing certain kinds of working class and poor groups, it was a much more bipartisan story before 1965 because basically the Democrats did it in the south and the Republicans did it in the north.

With that realignment in the 1960s ... The Republicans have become custodians of those impulses north and south. It was an important historic change. There's a new book out, just published two weeks ago by Tova Wang on this question and she traces some of this flip and you might find it to be interesting. Did I answer enough of your question?

Speaker 4: It's a double standard.

Alex Keyssar:  The double standard, I mean, in terms of Democrats ... What I'm talking about in the late 19th century south was being done by Democrats.

Speaker 4: Right.

Alex Keyssar:  Right? Most of those actual people have moved onto their reward. I think it was determined sometime recently that even Strom Thurmond was mortal. You know, when you had somebody, and you're probably too young to remember this incident, it wasn't a big enough incident to have lived, but for those of ... I mean, this was maybe 10 years ago.

When Trent Lott, senator from Mississippi, okay, and I think at that point and minority leader of the senate, at an event for Strom Thurmond said, "If more of us had recognized how right you were back in 1948," right, he would seem to me ... Strom Thurmond ran in 1948 breaking from the Democratic party because it was too liberal on race, right? He didn't want any Civil Rights.

It seemed to be that what Trent Lott was doing there was publicly proclaiming the allegiance of his generation of Republicans to the ideology of people like Thurmond because he said it in public. I mean, yes, I mean, you're right. How much has changed? Look, I would be delighted to think that a lot of that had changed and maybe more has changed than I think.

I lived in North Carolina when a man named Harvey Gantt, the black mayor of Charlotte, ran for the senate against ... What was his name? Against Jesse Helms. I mean, I watched that campaign first hand and it was pretty disturbing. It was 20 years ago but ... I should move on to other people. Why don't we chat afterwards.

I think that the predominant interactive dynamic has gone the other way, okay? I think, in fact, that the expansions have tended to come in what looked more like periods of kind of calm, and stasis, and stability. Then something may happen, which triggers the reaction rather than real expansions coming and reaction, you know, against those reactions.

What happened in the north, for example, in the early 20th ... I mean, the south was it's own story, right? The south had disenfranchised black people and that's the way it stood pretty much. Some variation in some states 30/40 years later but that's pretty much the way it stood.

In the north most of the deals are cut by about 1910 or 1915 and they're compromises. You know, they're compromises. There are suppressive laws, they keep some folks out, but they're not so suppressive in most places that a well organized political machine can't figure out some way to live with it. Okay?

I'll give you an example. Your naturalization papers have to be presented to register. Okay? If you tweak the law, and that can only happen between, say, nine to five, Monday through Friday when you're working, okay? But if you tweak the law so that the voter himself does not have to show up with the naturalization paper, but somebody who works for the political organization can go in with 100 of them and get 100 voters certified, okay, then the machine can live with it. You gets deals that are cut and they're local deals.

I think then that my answer to that is I think that the US has encountered the same kind of resistances, the same kind of conflicts over enfranchisement as other countries, in Europe and in Latin American, but in the US the dynamics of it were somewhat peculiar precisely because we had this early formal expansion of the franchise. What happens between 1790 and 1850/1860 is actually quite unusual. I mean, the British model is much more of a series of incremental advances and what they mean is agreed upon, okay, and acknowledge. They knew precisely who was being enfranchised by these laws. Okay?

What happens in the United States is these laws are passed and then the social composition of the population changes. A whole bunch of people have become enfranchised that you never intended, so then you get a counter reaction against it. It's simply a different chronology and thus a different set of dynamics although the underlying issues are the same. I've been ignoring people.

Right. Let me do a couple steps back because I'm presuming probably not everybody in the room really knows what the pre-clearance requirements are. Am I right? Yeah.

The pre-clearance requirements are apart of the Voting Rights Act of 1965 and this applies, actually, only to what are called covered jurisdictions. It's New York and the south, not just those but ... Jurisdictions which we have some reason to believe we engaged in discrimination. What the pre-clearance requirement does is to say that if a covered jurisdiction makes any change to it's electoral laws, changing the way districts are done, changing it's procedures in one way or another, that change has to be pre-cleared by either a federal court or the justice department. Okay?

The reason for that was the quite sound suspicion that disfranchising people is not the only way of limiting their power. For example, you can go from a system where you had district elections in a city and, you know, you have 10 members of a district and then suddenly you had to enfranchise African-Americans, who were 35 percent of the city, and suddenly you change and you don't elect your city council by district but you do it by at-large elections so that all whites will wing by a two thirds majority.

You can't make those changes and do that. The pre-clearance requirement has been, for much of the time, has been an important safeguard against that. If the pre-clearance requirement were abandoned or if it were struck down, it would mean that ... The clearest consequence is that it would mean that actions could be taken to change electoral laws that might have quite discriminatory consequences, but that you could not really fight them until after they had been in operation and done some harm.

Look, I think there's a lot of fear out there, okay? I don't think this is just nasty people sitting there that think, "Well, let's limit the meaning of citizenship." I think there's a lot of fear and apprehension. It's obviously made worse by the time that we're living in a lousy economy right now.

There's some concerns about actually limiting the parameters of citizenship. For example, the movement which flared for a while seems to have receded about getting rid of birthright citizenship. Right? That was sort of a hot talking topic for a while. I guess I see that there's a lot of apprehension. Let me add an historical footnote. One of the strange things in the US is that citizenship has always been separated from voting rights. Citizenship does not bring you voting rights. There's a very important Supreme Court case on that in the 19th century, which actually dealt with women. One of the strategies that activist women used when they were trying to get enfranchised, they went to the courts and they said ... Actually, it was ingenious. It was after the Civil War and they said, "We should be able to vote because we're citizens." That really gave the court some trouble because they said, "We don't have to have an amendment, we don't have any change. We are citizens, you say we're citizens. We should be able to vote." The Supreme Court mulled this around for a while and said, "Well you are citizens but, actually, sorry, but citizenship does not bring the right to vote." That citizenship is actually a federal manner and voting rights are a state matter.

Speaker 5:  I think we should stop the formal portion of this. Professor Keyssar will still be here for a few minutes, but I think we should thank him.