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The Voting Rights Act is being attacked from 'every possible angle,' journalist says


This is FRESH AIR. I'm Tonya Mosley. We'll soon be entering another presidential election season, and some courts are laser focused on dismantling the Voting Rights Act, with the sharpest undercut handed down just before Thanksgiving. A federal appeals court issued a ruling that would prevent private citizens and civil rights groups from filing lawsuits that enforce the Voting Rights Act. It basically establishes that all lawsuits must be brought by the Justice Department. Passed in 1965, the Voting Rights Act has been seen as one of the most significant achievements of the Civil Rights Movement. It dismantled decades of discriminatory Jim Crow laws and aimed to protect against racial gerrymandering.

But for decades, really since its inception, the Voting Rights Act has also been under legal assault, with court decisions hollowing out key provisions of the act. Here to talk about the history and what's at stake with the latest action is Ari Berman, a national voting rights correspondent for Mother Jones. He's the author of "Give Us The Ballot: The Modern Struggle For Voting Rights In America." Ari Berman, welcome back to FRESH AIR.

ARI BERMAN: Thanks so much for having me back, Tonya.

MOSLEY: Yes. So this latest ruling, it'll likely be appealed to the Supreme Court. But can you give us more detail on the ruling itself and what it actually means for the power of the Voting Rights Act?

BERMAN: So the Eighth Circuit Court of Appeals, which covers seven states in the Midwest and Great Plains, ruled just before Thanksgiving that under Section 2 of the Voting Rights Act, which is the key remaining provision of the Voting Rights Act, private individuals and private groups can't bring challenges to enforce this key part of the VRA. And this would be a near death blow to the Voting Rights Act because the way that most Voting Rights Act cases work is that individual voters who are affected by discriminatory voting laws, discriminatory voting changes, they are plaintiffs in most of these lawsuits. And they're represented by voting rights groups, groups like the ACLU and the NAACP and the NAACP Legal Defense Fund. That's how most Voting Rights Act cases are brought, and what the Eighth Circuit said is that only the Department of Justice can bring these cases under the Voting Rights Act.

But the Department of Justice brings very few voting rights cases. If you look for the past 40 years, there have been 182 successful lawsuits filed under Section 2 of the Voting Rights Act. Only 15 were brought by the attorney general of the United States, meaning that 90% of successful lawsuits under the Voting Rights Act are brought by private groups and private plaintiffs. And those kind of lawsuits would just be banned right now, according to the Eighth Circuit's ruling, in these select Midwestern and Great Plains states.

MOSLEY: OK. And those places are places like North Dakota, South Dakota, Minnesota, parts of Missouri.

BERMAN: So the states that are subject to the Eighth Circuit are Arkansas, Iowa, Minnesota, Missouri, Nebraska and both Dakotas.

MOSLEY: Can you explain what Section 2 prohibits and grants? - because it has been the main tool for civil rights groups to challenge congressional and legislative district maps, for instance.

BERMAN: Section 2 prohibits voting changes and procedures that lead to the denial or dilution of voting rights for minority voters. So it can be used to challenge discriminatory voting laws, and it can also be used to challenge discriminatory election maps. And it applies nationwide. And any minority group can file a lawsuit under Section 2 to enforce the Voting Rights Act.

MOSLEY: Thinking about examples, I was actually reading a case involving two tribal nations, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe. They alleged that the collective voting strength of Native American voters in North Dakota had been diluted by the way the state legislative maps are drawn. So in this instance, would a case like this be thrown out if this ruling stands?

BERMAN: Yes. And, in fact, the court in North Dakota just ruled that those maps were discriminatory against Native Americans. And there's been many lawsuits that are now pending, not just before the Eighth Circuit, but before circuit courts all across the country where there has been evidence alleged and court rulings that have found discrimination against minority voters under Section 2 of the Voting Rights Act. I mean, pretty much every circuit court in the country has this kind of litigation ongoing. The Supreme Court just ruled over the summer that a redistricting map in Alabama discriminated against Black voters. That case was brought by private plaintiffs, by Black voters who had their representation diluted. And it was represented by voting rights groups, groups like the NAACP Legal Defense Fund. That case that the Supreme Court just decided this summer would not have been able to be brought under the criteria that was laid out under the Eighth Circuit because it was not brought directly by the attorney general of the United States.

MOSLEY: I want to talk about this in the context of another big case. We've been talking for quite some time about how there's been an effort, really since the beginning, to dismantle the Voting Rights Act. But what happened 10 years ago with Shelby County v. Holder feels like maybe the biggest undermining of the law so far. Can you describe what that case was about and what the court ruled in that case?

BERMAN: The 2013 decision Shelby County v. Holder gutted the heart of the Voting Rights Act. What it ruled is that those states with the longest history of discrimination, largely in the South, but not exclusively, no longer had to approve their voting changes with the federal government. This was the most important part of the Voting Rights Act because it gave the federal government a tremendous opportunity to be able to block discriminatory voting laws before they ever went into effect in places like Alabama and Mississippi that have a long history of voting discrimination.

And this part of the Voting Rights Act, which was Section 5 of the Voting Rights Act, blocked 3,000 discriminatory voting changes from 1965 until 2013, when the Supreme Court gutted the law. So I think a lot of people know about the importance of the Voting Rights Act in the 1960s, but what they don't realize is that the Voting Rights Act blocked a lot of discriminatory voting changes in the '70s, in the '80s, in the '90s, in the 2000s, all the way up to the gutting of the law in 2013. And so what the Supreme Court did is they ripped the heart and soul out of the Voting Rights Act.

MOSLEY: How has the ruling impacted elections since 2013?

BERMAN: It's had a huge impact because now in those states with a long history of discrimination, they can put into place discriminatory voting procedures. And they can only be challenged after the fact through very lengthy litigation. Immediately after the decision, you had states like Texas implementing laws that were blocked previously as discriminatory. Texas put in place a voter ID law that said that you could vote with a gun permit, but not a student ID. There were 1,600 polling places closed throughout the South in states that previously needed to approve their voting changes with the federal government. In Texas, for example, in the 50 counties that had the fastest growth of minority voters, they closed over 500 polling places.

And I think it's really given a green light to states with a very tortured history when it comes to discrimination, that they now feel like they can do whatever they want when it comes to voting, and the federal government is no longer around to police them.

MOSLEY: Justice John Roberts authored the majority opinion for the Shelby County v. Holder case, correct?

BERMAN: Yes, it was authored by Chief Justice John Roberts.

MOSLEY: Can you give us an idea of some of these conservative groups that are challenging the Voting Rights Act, that's taking it to the courts, to these lower courts?

BERMAN: So one group that's been very influential is the Honest Elections Project, which is linked to Federalist Society co-chairman Leonard Leo. He, as you, I'm sure, know...

MOSLEY: Yes, yeah.

BERMAN: ...Has been the driving force behind putting conservative judges on the court. And so, really, the strategy of the conservative legal movement and the strategy of people like Leonard Leo has been to put very conservative justices on the court and then to put really radical theories before these judges and hope that they strike down things like the Voting Rights Act. And that's what we're seeing. We're seeing that it's nominees of people like George W. Bush and Donald Trump that are vetted by Leonard Leo that are putting down - that are creating these very radical rulings on voting rights. And basically, what's happening before the lower court is they're just throwing everything at the wall and see what sticks before the Supreme Court. And they've been emboldened by the Supreme Court by the fact that the Supreme Court has gutted the Voting Rights Act in 2013, by the fact that the Supreme Court has further gutted the Voting Rights Act in 2021.

And even when the Supreme Court upholds voting rights, as surprisingly happened this summer in an Alabama redistricting case, there are still dissents from justices like Neil Gorsuch, from justices like Clarence Thomas. And that emboldens lower court nominees to say, even though we weren't in the majority in this case, let's see if we can win the majority in other cases. So we're going to keep putting through these radical decisions. And we're going to eventually hope that the 6-3 conservative supermajority on the Supreme Court agrees with us because they've already agreed with us in previous cases already.

MOSLEY: What protections are still in place? - because with this major decision in 2013, now this major decision from a lower court, now what provisions are still in place that hold power within the act?

BERMAN: So it's important to note that this decision by the Eighth Circuit that said that private individuals and private groups can't file lawsuits to enforce the Voting Rights Act only applies to seven states in the Midwest and the Great Plains.

MOSLEY: Right.

BERMAN: And, in fact, other circuit courts, including the very conservative Fifth Circuit that covers states like Texas and Mississippi, has just recently ruled in favor of bringing private lawsuits under Section 2. So there's a split at the circuit court level. So in 43 states, you can still bring lawsuits by private groups and individuals to enforce the Voting Rights Act. So those provisions still exist. It's hard to win these cases. Most of them are unsuccessful. It takes a long time to try to litigate these cases, but those protections...


BERMAN: Because under Section 5 of the Voting Rights Act in those states with a long history of discrimination, those states had to show before the laws went into effect that those laws were not discriminatory. So the burden of proof was on a state like Texas to show that a voting change was not discriminatory before putting into effect. Now the burden of proof is on those facing discrimination. And they have to find the plaintiffs. They have to find the lawyers. They have to go through a lengthy litigation process. I mean, you're talking about hundreds and hundreds of pages of statistical analysis, things that - I cover voting rights. I can't understand the stuff half the time, the kind of studies they're submitting to the courts. And then they have a trial before the lower court. Then they're going to have a trial before the appellate courts. Then it's likely going to go to the Supreme Court if it's a big voting rights case.

So you're talking about years and years and years of litigation in which voters can be disenfranchised in the interim. And that's the problem with the Voting Rights Act litigation right now. It's slow. It's tedious. And before conservative dominated courts, it's often unsuccessful. And I think that's absolutely not what the people that wrote the Voting Rights Act intended. They wanted to get rid of voting discrimination once and for all. When Lyndon Johnson introduced the Voting Rights Act before a joint session of Congress, he said, it is wrong, deadly wrong, to prevent any of your fellow Americans from voting. He wanted to solve the problem of voting discrimination once and for all, and he thought he had. But in the 50 years since the revolution of 1965, we've seen an equally committed counter-revolution to try to nullify the power of the Voting Rights Act.

MOSLEY: I want to get into the history, but let's take a short break. If you're just joining us, we're talking about the Voting Rights Act with Ari Berman. He's a senior reporter for Mother Jones who has written extensively about American politics, voting rights and the intersection of money and politics. We'll continue our conversation after a short break. This is FRESH AIR.


MOSLEY: This is FRESH AIR. And today we're talking to Ari Berman, a senior reporter for Mother Jones. His stories have appeared in The New York Times, The Washington Post, Rolling Stone and The Nation. His most recent book is "Give Us The Ballot: The Modern Struggle For Voting Rights In America."

So you were talking about the history of the Voting Rights Act, which passed in 1965, to ensure state and local governments don't pass laws or policies that basically deny American citizens the right to vote based on race. But I want to go back even further with you. In 1870, after the Civil War, the U.S. added the 15th Amendment to the Constitution, which basically guaranteed the right to vote for Black men. That was what was on paper. What were some of the realities?

BERMAN: Well, the 15th Amendment of 1870 said that the right to vote shall not be denied or abridged on the basis of race, color or previous condition of servitude. That led to multiracial government in the South for a very brief period of time. It led to the election of the first Black members of Congress, the first Black senators and governors from places like Mississippi and Alabama, where enslaved people suddenly were writing and making the law. So this was a revolutionary change in the South. But it was very short lived because Southern whites fought back with a vengeance through violence, fraud and then through, quote-unquote, "legal measures" that were meant to disenfranchise African Americans. And that led to the establishment of Jim Crow, things like poll taxes, literacy tests, all-white primaries, grandfather clauses, property requirements.

All of those things create a situation where the 15th Amendment became a virtual dead letter in the South. And in many states, Black voters were disenfranchised virtually overnight. And from - for about a hundred years, nearly a hundred years, the 15th Amendment was basically nullified. And it wasn't until the passage of the Voting Rights Act in 1965 that the 15th Amendment once again regained its teeth.

MOSLEY: During that time period, though, there was that brief time period, as you said, when Black voters gained traction politically. There were these intimidation tactics, lynchings as well, violence, as you mentioned, push for literacy tests, intimidation. But there was also, like, a constant pushing back on that. Southern states, in particular, kept finding themselves in legal battles.

BERMAN: They did. Basically, what happened was that there were lawsuits that were filed to try to get rid of things like literacy tests and things of that nature. The problem was that litigation before the federal courts was very slow, and that every time you struck down a poll tax or literacy test in a place like Alabama, they just passed a new one. And it wasn't just a matter of law. It was also the fact that, as you mentioned, the official measures, the official literacy tests and poll taxes were backed up by a whole architecture of Jim Crow that included lynchings, violence, fraud that prevented African Americans, even if they successfully registered to vote, from ever being able to get to the polls to cast a ballot that counted.

MOSLEY: I've always heard that litigation was slow back then, but in the context of today, it actually feels like it's slow right now. When you say slow, what do you mean? Are we talking years, decades?

BERMAN: We're talking decades. I mean, the first voting section of the Department of Justice was set up in 1957 with the passage of the first Civil Rights Act. So Congress hadn't passed any civil rights laws for decades. They passed the first one in 1957. It set up a unit within the Justice Department that could file these voting rights lawsuits, and they filed lawsuit after lawsuit after lawsuit. And it took years. It took an average, I think, of three years to litigate these cases. Even if they won, it was usually overturned by some kind of extremely conservative judge that served in a place like Alabama or Mississippi.

So what the Justice Department was saying was that we need a way to abolish these tests overnight through legislation, that litigation is way too slow. It's running into a reactionary judiciary. We need Congress to step in and guarantee every American's right to vote. And that was also the position of the civil rights movement. Martin Luther King gave this very famous speech about voting rights back in 1957 at the Lincoln Memorial called "Give Us The Ballot." And what he basically said is that nothing is going to change in the South until African Americans get the right to vote. There will be no way to change all of the things that we don't like about Jim Crow until we have the power to remove the elected officials that are upholding these laws.

MOSLEY: Also, what was happening during that time? I mean, there were massive public events and demonstrations in addition to what you're talking about, this speech with Martin Luther King. And I'm also just curious about what impact, for instance, we know about the 1965 march in Selma, which was led by the late Congressman John Lewis. That had a major impact on the country's understanding, though, of the impacts of Jim Crow in a way that hadn't been seen before.

BERMAN: It did, and there had been a lot of demonstrations before the march in Selma. Of course, there had been the Freedom Rides. There had been the March on Washington. There had been the sit-ins. There had been a lot of activism around civil rights and voting rights. But Selma and the Bloody Sunday march in Selma, Ala., on March 7, 1965, captivated the nation and shook the conscience of the nation in a way that no other march had. What happened was that John Lewis, who at the time was 25, led a march of 800 people across the Edmund Pettus Bridge. They were brutally beaten by Alabama state troopers on horseback. They were trampled. They were hit with batons and bull whips. They were tear gassed. John Lewis was knocked out cold. He said he thought he was going to die.

That night, ABC broke into its prime-time premiere of "Judgment At Nuremberg," a film about Nazi Germany, to show images from Selma, Ala. And some Americans were so confused they thought the images from Selma were actually from Nazi Germany. That's how disturbing this was. And the American people reacted with outrage, and they said, we cannot allow this to happen again. And eight days...

MOSLEY: Eight days later...

BERMAN: ...Lyndon Johnson introduced the Voting Rights Act before a joint session of Congress. And he gave this very famous speech where he used the language of the civil rights movement. He said, we shall overcome, which was incredibly moving to people like John Lewis and Martin Luther King, who had put their lives on the line for civil rights and for voting rights. And to hear an American president and a Southern president say, we shall overcome, and introduced the Voting Rights Act, it was transformational.

And LBJ knew firsthand the problem of voting discrimination in the South. He was from Texas. He had voted against all of those civil rights bills when he represented Texas in the House and in the Senate. But he was moved by the civil rights movement to finally do something about this problem. And what the Voting Rights Act did that was absolutely revolutionary was, instead of litigation, it abolished these kind of literacy tests overnight in places like Alabama and Louisiana and Mississippi, so that when you went to vote in Alabama, you no longer had to name all 67 county judges to get on the voting rolls, something that the 67 county judges themselves would not have been able to do if they were ever actually asked that question.

And not just - it didn't just get rid of those literacy tests and poll taxes, but federal officials were sent to the South to register Black voters for the first time. So in places like Mississippi, where only 6.7% of African Americans were registered to vote before 1965, hundreds of people were registered in days, thousands in weeks, tens of thousands in months. And this was a radical change in the South. And to me, the Voting Rights Act of 1965 is what, for the first time, makes the promise of American democracy real.

MOSLEY: Our guest today is Ari Berman, a national voting rights correspondent for Mother Jones. He's the author of "Give Us The Ballot: The Modern Struggle For Voting Rights in America." We'll be right back after a short break. I'm Tonya Mosley, and this is FRESH AIR.


MOSLEY: This is FRESH AIR. I'm Tonya Mosley, and today my guest is Ari Berman, a senior reporter and national voting rights correspondent for Mother Jones. He's the author of "Give Us The Ballot: The Modern Struggle For Voting Rights In America" and the forthcoming book "Minority Rule: The Right-Wing Attack On The Will Of The People - And The Fight To Resist It," which will be published in April. We're talking about the history of the Voting Rights Act of 1965, and when we left off, Berman was talking about how the Voting Rights Act initially led to a huge change in the South, including registering tens of thousands of Black voters.

As we move through the years, how did the Nixon administration come into opposition to this progress, and how did he use the Supreme Court to do it?

BERMAN: Well, Nixon had a very famous Southern strategy, right? His strategy was that he was going to go after conservative, Southern whites who didn't like the civil rights movement and weren't that crazy about things like the Voting Rights Act. And there's a famous quote by Barry Goldwater in which he says, we have to go hunting where the ducks are. Well, the ducks were the conservative white vote. That was still a much larger segment of the South than the newly enfranchised Black vote.

So Nixon allies with Dixiecrats like Strom Thurmond of South Carolina, who had fled the Democratic Party over the issue of civil rights. And he starts courting conservative whites. Nixon is someone who supports the Voting Rights Act and supports the Civil Rights Act of 1964, but he starts talking about things like busing and quotas and affirmative action and Blacks taking over positions of power to mobilize this conservative white backlash vote. And then he puts justices on the court that reflect that view. And so the court begins to shift from the Warren Court of the 1960s, a court that upholds the constitutionality of the Voting Rights Act, to a court that's much more conservative, that's filled with people like Justice William Rehnquist who have devoted their lives to try to rolling back the civil rights measures of the 1960s.

MOSLEY: There are so many parallels to today and the stacking of the courts that we saw during the Trump administration.

BERMAN: Except the justices that Trump appointed are about a million times worse (laughter) when it comes...

MOSLEY: What do you mean by that?

BERMAN: Well, I mean a lot of what Nixon and even Reagan wanted to do on voting rights and civil rights was ultimately unsuccessful. The Voting Rights Act was reauthorized four times by the Congress 'cause parts of the Voting Rights Act were temporary and had to be approved. And all four reauthorizations of the Voting Rights Act were signed by Republican presidents - Nixon, Reagan, Ford, George W. Bush. These were presidents that weren't particularly fond of the Voting Rights Act. In fact, Nixon and Reagan in particular led a very strong effort to try to undercut the Voting Rights Act. But there was these very strong bipartisan majorities in Congress that supported the Voting Rights Act, and that overruled Republican presidents that were opposed to the Voting Rights Act.

That bipartisan consensus has disappeared today. When Congress tried to pass a new Voting Rights Act very recently in the last couple of years, there wasn't a single House Republican that voted for this. And remember; when the Voting Rights Act was authorized in 2006, it passed 98-0 in the Senate and 390-33 in the House, meaning that a lot of Republicans voted for this. Then it comes up just a decade later to reauthorize it, to restore it, and you don't have any Republicans favoring it. That's how much the landscape has shifted within the Republican Party when it comes to the Voting Rights Act.

MOSLEY: You write about the revolutionaries who helped push the 1965 Voting Rights Act, and then you talk about the contingent of counterrevolutionaries. And, of course, I'm sure that people find that to be a contentious description for you to describe the folks on the other side as counterrevolutionaries. Can you say more of what you mean by that?

BERMAN: I think a lot of them would be proud of that term. I think they thought of themselves as counterrevolutionaries. They described it in those terms when they took over. And this really began in earnest in the Reagan administration. But you had the beginning of a conservative legal movement, and you had people that wanted to overturn things like the Voting Rights Act of 1965, that viewed the civil rights laws of the 1960s as possibly well-intentioned but evolving into things that did more harm than good and viewed discrimination against whites as a bigger problem than discrimination against Blacks or other minority groups. And these people began to take positions of power. And some of them were people that are now on the Supreme Court - people like John Roberts and people like Sam Alito. These were counterrevolutionaries who came in trying to roll back the civil rights laws of the 1960s, and that was a stepping stone for them to be placed in positions of much greater power decades on.

MOSLEY: Ari, in your book "Give Us The Ballot: The Modern Struggle for Voting Rights In America," you take on the why - like, why there's been an effort in the last 50 years to roll back the Voting Rights Act. And the debate centers around the purpose. So many conservatives claim that it should simply provide access to the ballot. Others believe it should enforce a broader scope of the election system to allow for greater representation for people of color. Why are these seen as opposing ideas?

BERMAN: That's a really good point, Tonya, and I'm glad you brought that up. Initially, what the Voting Rights Act was aimed at was registering Black voters who had been disenfranchised for so many years, and it was very successful at enfranchising Black Americans. Then, once Black Americans were enfranchised, you began to see Southern states changing laws to dilute the power of the Black vote, doing things like gerrymandering electoral districts, changing the ways that elections operated so that even if Black Americans had the vote, they wouldn't actually get real representation. And this went to the Supreme Court in 1969 in a landmark case called Allen v. State Board of Elections from Mississippi. The Supreme Court ruled 8-1 that the Voting Rights Act didn't just pertain to registration. It pertained to anything that related to making a vote effective.

And that began a whole new struggle over voting rights. It wasn't just about access to the ballot. It was also about representation. And that's what conservatives were opposed to. They began to feel like the Voting Rights Act was facilitating affirmative action in the electoral sphere, that it was leading to things like proportional representation. And while it was well-intended in trying to register Black Americans who had been disenfranchised during Jim Crow, it took on a power that was not intended initially.

That is kind of the originalist reading of the Voting Rights Act that is used by conservatives. And now what they say today is that the Voting Rights Act was not intended to take on the second- and third-generation barriers to the ballot box - things like efforts to strike down voter ID laws or prevent efforts to close polling places and cut early voting. They say that the Voting Rights Act should not pertain to that, and they also say that the Voting Rights Act should not be used to strike down discriminatory electoral maps and that, under principles of federalism, states rights, that states should be able to run their elections like they see fit, that the Voting Rights Act is an unconstitutional intrusion onto the prerogatives of states.

MOSLEY: Would there or could there be a scenario or an appetite for creating a new Voting Rights Act that addresses the current issues?

BERMAN: That's what Congress tried to do. Congress tried to pass in 2021 and in 2022, when Democrats were in control, two major pieces of voting rights legislation, the Freedom to Vote Act, which would have created policies to enhance voter turnout nationwide, and also a new Voting Rights Act that was named after John Lewis. It was called the John Lewis Voting Rights Act. And what it would have done is it would have restored the Voting Rights Act and required states with a history of discrimination to once again approve their voting changes with the federal government, but it was based on more modern criteria.

But ultimately, it did not survive the filibuster in the U.S. Senate. You had two Democratic senators, one of whom - Kyrsten Sinema, is no longer a Democrat. I don't think Joe Manchin, the other one, is going to be a Democrat for much longer. And they joined with Republicans to block the passage of the Freedom to Vote Act and also the John Lewis Voting Rights Act. And that killed the best chance in Congress to try to create a new Voting Rights Act. And this was very different than in the past.

In the past, when the Supreme Court had weakened the Voting Rights Act, the Congress stepped in and strengthened it. And the strong bipartisan consensus in Congress preserved the Voting Rights Act for 50-plus years. But that bipartisan consensus in Congress has collapsed, antidemocratic tools like the filibuster have been used to block these kind of pro-democracy measures, and right now, the Congress is missing in action. So when the Supreme Court does something radical on voting rights, the Congress isn't there to say, we're going to do something about this.

MOSLEY: Let's take a short break. If you're just joining us, we're talking about the Voting Rights Act with Ari Berman. He's a senior reporter for Mother Jones who has written extensively about American politics, voting rights and the intersection of money and politics. We'll continue our conversation after a break. This is FRESH AIR.


MOSLEY: This is FRESH AIR. We're talking to Ari Berman, a senior reporter for Mother Jones. He's been a leading reporter covering voter suppression over the past decade, and his stories have appeared in The New York Times and The Washington Post and Rolling Stone. His most recent book is "Give Us The Ballot: The Modern Struggle For Voting Rights In America."

I want to talk with you a little bit about Justice John Roberts. So from the moment that he came to Washington, first as a clerk for Justice William Rehnquist and as an aide in the Reagan administration, he was, as you write, a key foot soldier in the effort to weaken the Voting Rights Act. There was this pivotal case that you write about that is central to shaping his views on the Voting Rights Act. It was out of Mobile, Ala., brought by a Black man named John LeFlore in 1980. This case is instrumental in us. It feels like also understanding where we are today with this latest ruling. Can you briefly tell us about it?

BERMAN: Yeah. So there was a case out of Mobile, Ala. Mobile was one of those places that was a third Black, but there weren't any Black officials on the city council and other bodies because elections were conducted on a county-wide basis. And the white majority could prevent the Black majority from winning any kind of seats. And civil rights groups litigated against this, and they said that there should be districts drawn to facilitate the election of the first Black city council members and the like.

And what the Supreme Court ruled was that you had to show proof of intentional discrimination to strike down these kind of discriminatory voting systems. You basically had to find the smoking gun, evidence of discrimination, where the people that were behind these systems would basically admit that they had created them to disenfranchise and dilute the power of Black voters. Well, that's very hard to do. What civil rights groups said is that - they wanted to show that you just had to prove the effect of discrimination. If you could show that the system led to the dilution of Black votes, that should be enough.

And Roberts really wanted to preserve this finding of intentional discrimination. And there was a big fight within the Congress in 1982 over whether to reauthorize the Voting Rights Act and how to reauthorize the Voting Rights Act, and there were people in Congress that wanted to overturn the Supreme Court ruling from 1980. And Roberts was an assistant to the attorney general of the United States. And he became the point person for the Reagan administration to try to weaken the Voting Rights Act and preserve this Supreme Court decision. He wrote upwards of 25 memos arguing that, in his words, violations of the Voting Rights Act should not be made too easy to prove. And he argued that the Voting Rights Act was going to become a form of affirmative action in the electoral sphere.

What's interesting is that Roberts lost that battle. Congress reauthorized the Voting Rights Act overwhelmingly and overruled the Supreme Court. And you had Republicans like Bob Dole, the senator from Kansas, who joined with Democrats like Ted Kennedy from Massachusetts to preserve a strong Voting Rights Act over the objection of people like John Roberts and over the objection of the Reagan administration. So Roberts loses this battle in the 1980s. But 40 years later, when he becomes chief justice of the Supreme Court, he wins the battle against the Voting Rights Act that he lost 40 years earlier.

MOSLEY: What are some of your other bigger concerns as we're entering what is a presidential election year?

BERMAN: Well, we really have this three-pronged threat of voter suppression, gerrymandering and election subversion as well. So efforts to make it harder to vote, efforts to make it harder for votes to be counted, and then efforts to make it harder to have fair representation. And all of these things are working in concert, right? Gerrymandering can affect who controls the House of Representatives, and things like voter suppression and election subversion can affect who the next president could be. And what Donald Trump did in 2020, trying to overturn the election, emboldened a lot of people in the Republican Party. He lost that fight. But we've seen so many states rewrite their voting laws to make it harder to vote.

In North Carolina, there was a law passed that prevents the state's Democratic governor from appointing a majority of members to county election boards. And county election boards decide things like early voting, for example. And if the new boards can't decide on how many voting sites there'll be, they will just be one early voting site in each county, meaning that in huge cities that are predominantly Democratic places like Charlotte, N.C., there would only be one early voting location instead of dozens potentially, which could lead to much longer lines at the polls. That same law also says that if these election boards cannot agree on how to certify an election, that power instead goes to the Republican-controlled legislature, which is heavily gerrymandered. And the Republican-controlled legislature could potentially decide not to certify an election if a Democrat wins and could actually try to nullify the will of the popular vote like Trump wanted to do in 2020. And a lot of those laws are going to be in effect for the first time in 2024. A lot of people that opposed free and fair elections lost in the last midterm, but also, a lot of them won in many states. And laws have changed so that it's now easier to potentially overturn an election than it was in 2020.

And so the threats to democracy are escalating right now, and they're intensifying right now. And we don't know what the Supreme Court would do if this was done through the proper channels. They clearly didn't like the Trump administration trying to overturn the election after the fact in a really chaotic manner. But what if this thing starts going through more normal channels? What if state legislatures change their laws? What if appeals courts rule in really radical ways like the Eighth Circuit has done recently? What if it goes through the proper channels? Then what is the Supreme Court going to do now? And I think the radicalization against democracy within the Republican Party is much bigger than Donald Trump. And that's what worries me the most today.

MOSLEY: As you continue your reporting, what are some things that you're hopeful for?

BERMAN: What I feel hopeful about is it feels like there's an emergence of a real pro-democracy movement in this country for the first time since the 1960s. I think when the Supreme Court gutted the Voting Rights Act in 2013, they felt like they could do it because there wasn't going to be a public backlash against them. But if you look at the efforts to overturn the election and the counter-mobilization that was created in response to that, the fact that so many election deniers lost their races for things like governorships and secretary of state races and attorney general races in battleground states, in places like Georgia and in Arizona and in Pennsylvania - things like that show that people are voting on these issues, that democracy is not just an abstract concern for people. It's something that people are very, very concerned about. They don't want their rights and freedoms taken away. And I think that people are also connecting that the undermining of democracy has led to undermining of other rights, that, for example, the overturning of Roe v. Wade was made possible because of ways in which the political system had been rigged in one party's favor.

And so I think that there's a pro-democracy movement in this country that didn't exist before. I think it's putting pressure on the Supreme Court to try to moderate some of their positions when it comes to things like the Alabama redistricting case. I think it's been dismissed by a lot of people. When President Biden spoke about this before the midterm elections in 2022, people said, why is he talking about democracy? People don't care about that. People just care about inflation and gas prices. And, of course, people did care about these things, but people really take these rights seriously. And I think that what they saw in 2020 was just such an unprecedented effort to try to take away their most fundamental rights. I think it activated people to understand that things like voting rights are not an abstract issue, that they can be undermined, that they can be taken away and that they will not be protected unless people actually fight for them.

MOSLEY: Ari Berman, thank you so much for this conversation.

BERMAN: Thanks so much for having me, Tonya.

MOSLEY: Ari Berman is a senior reporter for Mother Jones covering voter suppression. Coming up, book critic Maureen Corrigan recommends two new mystery novels. We'll be right back. This is FRESH AIR.


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Tonya Mosley is the LA-based co-host of Here & Now, a midday radio show co-produced by NPR and WBUR. She's also the host of the podcast Truth Be Told.