Transcription
This is Democracy Watch. Mark, the fallout from the Supreme Court's Cala decision continues. This time with an unprecedented step that's going to help Republicans. Can you explain what just happened as the result of the Supreme Court's decision?
Yeah, Democracy Dogget broke this news that Republicans are now using that Klay decision not just to defend gerrymanders, but now to try to unravel voting rights in the United States. They have cited the KA decision in the critical voter suppression lawsuit that has been going on in the state of Georgia over mailin ballots, specifically a provision that requires the voter to put their birth date on the outer envelope uh when they return their mail-in ballot.
Now, you might ask yourself, why on earth do you have to put your birth date on the outer envelope? I have no idea. You have no idea. I don't think the state of Georgia has any idea. As a result, it violates what is referred to as the materiality provision. This is a provision in the civil rights law that among other things bans literacy tests, bans guessing the number of jelly beans in a jar. Right? It prohibits these immaterial requirements from preventing people from being able to vote or having their v votes counted.
Well, Republicans citing Klay are now asking the conservative courts to say that those provisions that ban these immaterial requirements are unconstitutional unless we are able to prove racial discrimination. So, unless we're able to show that these birth date uh requirements or other things are intentionally discriminatory, in other words, they were intended to harm black voters, they are saying that they have to stay on the books. This is a five alarm fire not just for mail-in voting in Georgia, but for all of the breath of these kinds of frivolous requirements that Republican legislators will put back in place if they can get away with it. And this is just the beginning of the fallout that we are seeing from Clay.
Mark, are these immaterial provisions that that serve as barriers for people voting is that only uh uh prohibited due to the voting rights act? There's no other provision anywhere in the constitution or in statute that prevents states from erecting barriers to voting other than the Voting Rights Act.
So, it's actually in the Civil Rights Act. It's actually in a law that's a bit older than the Voting Rights Act. And the Civil Rights Act, these provisions don't just prevent racial discrimination and voting, they prohibit all immaterial requirements. The idea was that it's not just black voters who shouldn't have to, you know, be subject to these immaterial provisions, but no voters should.
Right? But what Republicans are saying is that because of Clay that this entire regime of laws that prohibit immaterial provisions, it they it needs to fall because if it does not if it does not involve intentional racial discrimination, then the Constitution doesn't allow Congress to pass these laws in the first place. This is an unprecedented view of the Constitution and is being urged by the Republican party. It is being advanced first in Georgia, but we're going to see this around the country. And this is the kind of fallout we see from the Klay decision.
Now, I don't want to embarrass you, but you have done something to help allow me and my team to fight this case in Georgia and around the country. We are in this case in Georgia and we are only able to be there because of the funding that is underlying our plaintiffs in these cases through something called the free election fund and you have made a generous offer as a result of you publishing a new book that will help fund this litigation. So in addition to people reading and learning and being uh able to get more educated about what is happening and in addition to be able to support your work as an author, they are also by purchasing this book going to be supporting the litigation efforts to fight against exactly these kinds of legal challenges.
Now, I I appreciate you bringing that up and we've decided with this book not just to to talk the talk literally and figuratively, but also walk the walk. And so decided to donate um proceeds from this book in my personal capacity with the help of my editor. So, he's matching my donation. And then Harper Collins, my publisher, is matching that donation. So, all three of us are going to pitch in uh and donate proceeds from every single book sold to the free election fund uh to help litigation like this um that that that look we need and and all of us truly believe in. So, um you know, the the thanks goes to you for for engaging in this litigation and for stepping up. Um which is in large part, I think, what the book uh talks about. It talks about how Democrats have to fight back. And so I thought it was only uh wise here, only responsible to make sure um to give a little bit back to to the group right now who is doing the exact thing that I would like to see uh uh everybody do as we move forward in this process.
So for those who are looking to support not just my work, but also the work that uh Mark and his team are doing with the free election fund, I'm going to put a link to pre-order the day after right here on the screen and also in the post description of this video. or you can go to brianttylercohen.com/book.
Mark, to that end, talk about this litigation and what you expect uh what you expect as this process moves forward. Is there anything that you can read from the tea leaves? Is there any precedent that that uh that you can rely on? Give a lay of the land of what this litigation will look like.
Yeah, so people may remember I think we did a video on this a video on this a while a ways back. We won a landmark case involving the Pennsylvania requirement, the dating requirement. Remember the misdated ballots, all of that. We won exactly this claim there in the third circuit court of appeals. So, we won in the trial court and then we won in the third circuit court of appeals under a constitutional theory uh that is related to not exactly the materiality theory, but but a similar theory. And and the the Republicans are trying to get the US Supreme Court to take that case. They're trying to get this reversed in the Supreme Court. So, that is one case to watch that has already had success. Um, and we will see if the Supreme Court takes that case. In the meantime, we now have in the in Georgia and that will obviously go up to the 11th Circuit this claim.
What we are witnessing at a broader level is an effort by Republicans to not only gut the legal protections for voters. Not just gut the Voting Rights Act, gut the Civil Rights Act, but simultaneously with that, they want to put new traps in the law to find new ways to disqualify the ballots of the people they don't want to vote. You know, if you boil down what the Republicans are trying to do, what Donald Trump is trying to do with the US Postal Service with the collection of the voter files from all of these states, something you and I have followed very, very carefully and which me and my law firm is litigating again only able to be able to do again only able to bring these cases because of the support of the free election fund. So, I hope everyone uh buys your book and provides uh a way to help indirectly. So, I hope everyone buys your book because it's a direct way to help support that litigation.
But what we're seeing in that is Donald Trump trying to create a series of of hoops that voters have to go through. And if they don't go through, they're just not on his list of who gets to vote. So, it's just a massive disenfranchisement effort. By creating these artificial rules, Donald Trump then becomes the arbiter of which rule leads to being on his list and which one being off his list. And that is ultimately the threat to democracy that I worry most about.
Um Mark, what I'm what I'm having a little bit of trouble understanding is the Cala decision um was basically a gutting of the Voting Rights Act, but this provision that we're discussing here um where again they're trying to say that any barriers that have been erected they that that you have to prove that uh there's racial animus involved. Okay, but that's a that's a different that's a different statute. That's the Civil Rights Act. And so, how can they claim that the Voting Rights Act is akin to the Civil Rights Act when when they're two completely different pieces of legislation and the Cala decision only um only dealt with the VRA.
Right? Well, remember their argument is that white voters were the subject of racial animist or discrimination uh in in in Louisiana, right? So they flipped the whole analysis on its head. But what they're basically saying is that the 15th amendment uh which gives Congress the ability to pass uh these laws along with the 14th amendment uh that they only allow for the protection of a narrow class of voters and that is uh prohibitions against intentional racial discrimination. And since in their view the Voting Rights Act allowed for the prevention of discrimination based on an effects test, they would argue in their view that that did not involve intentional racial discrimination and therefore it could not Congress couldn't have passed the law under the 15th Amendment.
Here they're saying the Civil Rights Act couldn't have been passed under Congress's authority under the 15th Amendment because it doesn't always involve racial discrimination. This is bonkers. I mean, if this sounds crazy, it is because it is. It would literally say that Congress couldn't ban literacy tests, couldn't ban pole taxes because they're not proven to have racial animist behind them. I mean, this is crazy crazy stuff that no one at the time of the 15th Amendment was passed thought would be the case. And certainly no one at the time of the Civil Rights Act or the Voting Rights Act. No one, even the the the southern states who are employing Jim Crow would be making these arguments.
This is the product of a Supreme Court that issued an opinion that has done enormous damage that I warned at the time and I wrote about this in democracy doc and you and I talked about it that it would have broader cultural effects beyond just redistricting. And we are starting to see those reverberate. And the Republicans are trying to take advantage of those cultural effects by saying to courts, look that what this means is not just this one law under the Voting Rights Act. This means that we that you courts need to take down the entire regime of voting protections that have been on the books for decades and decades.
And I think that's what's most striking about all of this and and kind of fearinducing about all of this is look how steep this slippery slope is. And we've seen so many iterations of a thing where Republicans might claim or might not even claim that that they're just doing something because of some narrow interpretation and then all of a sudden what follows is, you know, Ro gets gutted and they say we just wanted it to go back to the states and then boom, there's a 15week abortion ban that gets introduced in the Senate and the House. we have uh Ro getting gutted and then all of a sudden privacy rights are on the chopping block and Republicans immediately start trying to undermine same-sex marriage or or inter interracial marriage. And so every time we hear from these Republicans that they are just attacking some narrow interpretation of some of some law or principle, it immediately expands into some broader attack on some massive swath of the population that frankly we knew they were going to attack all along.
Look, and Brian, this is the reason why I'm very worried about the Watson case. This is the case out of Mississippi that I've been involved in litigating. Again, another case that the free election fund is critical to allowing us to be litigating. So, again, another good reason to buy Brian's book. Uh, this is the vote by mail case. This is the case about whether or not uh the election day law that says that election day is the Tuesday following the first Monday in November, whether that prohibits states from counting mail-in ballots that are postmarked by election day but received a few days afterwards. And the Republican party is saying no. That election day means that if it's not received and counted on election day, then you stop.
Well, well, what will that mean to early voting? What will that mean to states like California? I can assure you that all of the lies and the rhetoric that the president of the United States is spreading right now about California, I can promise you that all of the lies that the US attorney in California and around and and other federal prosecutors are spreading about California, I can promise you the lies that frankly the New York Times is now joined into about vilifying California. that if the Watson case comes out and says, "Yeah, ballots have to be postmarked by election day." You're going to see them argue no more early voting, no more ballot curing, no more provisional ballots counting, no more vote by mail at all because after all, voting by mail is before the election day. Right? They're going to argue that that Donald Trump gets his dream of everyone has to vote in person on a single day of election day. And if you think that that that is not the case and you haven't been paying attention to what Donald Trump always does and he'll be joined in a chorus of Mike Johnson and John Thun and he'll be joined in a chorus of of right-wing um uh social media accounts and right-wing agitators. And then next thing you know, the Department of Justice will be issuing some guidance to states saying, "Yo, boy, wouldn't it be terrible if we had to seize our ballots? Wouldn't it be terrible if we had to invoke criminal prosecutions based on this?"
So this slippery slope idea is is not unique to as you point out, you know, the the they said send abortion back to the states. Now now you've got them trying to ban, you know, states from from companies from making medicated the medication necessary for safe abortions, right? Like so we know where they're going to go because we've seen where they've gone before and this Klay extension is just the first of many. And it's the reason why I hope you subscribe to Democracy and it's the reason why I want you to subscribe to this channel. But right now, it is the reason why I want to make sure you buy his book and pre-order it because he is being generous enough along with his publisher and his editor to help take a portion of your proceeds and use it to make sure that there are sufficient funds for these kinds of cases.
I appreciate that. And again, I'm going to put that link to pre-order the book right here on the screen. I'm also going to put a link to Democracy Docket, which is the news outlet Mark founded to focus on everything voting election. That right here on the screen, so you can support and elevate Mark's work. uh a very small step that we can all take to make sure that we can amplify him in this media ecosystem and it's never been more important to do that than right now. So both of those links are right here on the screen. I'm Brian Teller Cohen.
I'm Mark Lias.
This is Democracy Watch.