On October 28, law professor and former U.S. Department of Justice attorney Gilda Daniels (Uncounted: The Crisis of Voter Suppression in America) discussed her book and her work on voting rights and battling voter suppression in a special election Virginia Festival of the Book event, with Daniel Fairley. Professor Daniels served in the Civil Rights Division, Voting Rights Section of the Department of Justice in the Clinton and Bush administrations and has two decades of litigation, negotiation and consulting experience in the substantive voting rights area.
Watch the video of the event here and read the transcript below:
“…it is important for all Americans to understand that voting is not a black and white issue and that it is not a Republican or Democrat issue. It is a fundamental democratic issue.”Gilda R. Daniels
For information on related episodes on With Good Reason Radio, click here for #WhyIVoteVA and the Election Episode. See Encyclopedia Virginia‘s Election Edition for entries related to U.S. Presidential Elections, including the 1800 election, the first peaceful transfer of power between political parties in U.S. political history.
“In this guide to the practice [of voter suppression] and its effects a law professor Daniels, former deputy chief in the civil rights division of the U.S. Justice Department, describes how it works and provides a road map and a call to arms for participants in what she calls the fight to vote… This book is a valuable resource for all participants in civic life.” —Booklist (starred)
“Replete with documentary evidence and examples, this work sounds an alarm for any and all readers interested in reversing the damage and danger of the nondemocratic dynamic threatening truth, justice, and the fight to vote.” —Library Journal
“Foundational for anyone committed to fighting voter suppression in the current era. Daniels offers a rigorous historical narrative rooted in lived experiences that leaves readers with an understanding of the centrality of the right to vote, and the severity of the threats to that right, in democracy today. A must read for anyone seeking to understand the status of American democracy today.” —Kristen Clarke, President and Executive Director, Lawyers’ Committee for Civil Rights under Law
This program was funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by The Andrew W. Mellon Foundation.
Thanks to our community partners for this event: The Equity Center at UVA, The Democracy Initiative at UVA, Maryland Humanities
JANE KULOW: Good evening, and welcome to the Virginia Festival of the Book and our pre-election special event VOTE!, featuring Gilda Daniels and the #1 Antidote for Voter Suppression. I’m Jane Kulow, director of the Virginia Center for the Book, a program of Virginia Humanities. Thank you for joining us.
This program is funded by the Why It Matters Civic and Electoral Participation Initiative, administered by the Federation of State Humanities Councils and funded by the Andrew W. Mellon Foundation. We appreciate their funding, and we also appreciate the partnership support from the Equity Center at UVA, the Democracy Initiative at UVA, and our counterpart humanities council in Maryland, the Maryland Humanities. A couple of notes before I hand the program over to our speakers:
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- If you haven’t already read today’s book, we hope you will. For details about how to buy it from a local bookseller or check out a copy from your library, visit VaBook.org, where you can also explore our full schedule of virtual events.
Now, I am so pleased to introduce today’s speakers.
Gilda Daniels, the author of Uncounted: The Crisis of Voter Suppression in America, is a former deputy chief in the US Department of Justice, Civil Rights Division, Voting Section. She is a professor of law at the University of Baltimore Law School and the director of litigation for Advancement Projects National Office. You can learn more at gildadaniels.com.
Daniel Fairley II currently serves as the youth opportunity coordinator focused on black male achievement for the city of Charlottesville. He received his BA from the University of Richmond and his master’s in education from the University of Vermont. An alumni of the Obama White House administration, Daniel serves on the board of the Loaves & Fishes Food Pantry, he chairs the UVA Equity Center Youth Educational Pipeline Program, and he is president of the 100 Black Men of Central Virginia.
Tonight’s featured book, Uncounted, examines the phenomenon of voter suppression through the lens of history, race, law, and the democratic process. Uncounted also reminds us that enfranchisement-minded grassroots organizers, advocacy groups, and determined voters hold the key to unlocking the prize of democracy: the right to vote.
Gilda and Daniel, we are so glad that you are here. Welcome. Please tell us more.
GILDA DANIELS: Thank you.
DANIEL FAIRLEY II: Yes, thank you very much. I just want to say hello to everyone. I hope you all are doing well. Like Jane had said earlier, my name is Daniel Fairley. One of the greatest joys that I had actually the past couple of weeks—because it’s been kind of a crazy time—was reading Professor Daniels’s book Uncounted. It was truly a remarkable book that just kind of reminded me over and over and over again about the different ways in which both enfranchisement and then disenfranchisement happened within the United States.
As a black man, it’s been—and a young black man at that. Like I’ve voted in a couple different elections. I’ve gotten the chance to vote for, now, two different presidents. But to realize that it always felt, for some reason, kind of like feeble or kind of in a way that I wasn’t sure—I wasn’t for certain that the next time that I went to go into the voting place or to go and cast my vote that I wouldn’t run into some type of—whether it was like I was at the wrong polling place or my voter registration because I had moved so many different places. I was in Vermont. I was in Virginia. Different counties. I was always worried—is this going to be the time where I need to find something else? Or is this going to be the time in which, like, this is actually going to work out?
Sometimes I’d get a little worried, right? But I see the reason why my fears weren’t unfounded. There is a very hard system that is in place that is working towards both disenfranchisement for some and then enfranchisement for others. And so it’s amazing to see that. So I’m so thankful for Professor Daniels coming and speaking with us today.
So one of my first questions. I think one of the biggest things that you talk about inside of your book is the cycles, right? The cycles of voter suppression and then the cycles of progress. You’ll see in the beginning there were maybe laws—let’s say the Constitution is created in 1787, establishing literally the United States and the right to vote for white wealthy landowning men. And then after the Civil War, after the Civil War amendments, you have 1865 through 1870, kind of passing these different rights that were almost a hundred years later but really working towards getting more and more people access to the American government and the American dream. And then another hundred years passes, and you have the Voting Rights Act in 1965.
So, I know that we’re only about fifty-five years from that last time. Only about fifty-five years from that last point. For you, I wonder, do you see that we’re in another hundred-year cycle, or do you feel that we are hopefully closer and not just the halfway point of another big legislative gain for voter rights inside the United States?
GILDA DANIELS: Great. That’s a wonderful question. Thank you, Daniel, so much for reading the book, and I’m glad you’re enjoying it. And I have to say, before I answer your question, that you’re the person I wrote the book for. I wanted people to read the book and say, “I knew something was going on. Now I can identify it, and I know what to do about it.” So thank you for reading the book, and thank you to the Virginia Book Festival for holding this and Virginia Humanities and all other entities and organizations that are involved in this occasion.
We are less than a week away from the 2020 presidential and other elections. And so I think it’s also important for us to understand that there are a number of things on the ballot. And you have correctly identified—certainly one of the premises of the book is that we operate in cycles in regards to voter suppression. That we have cycles of great progress and then regress, starting with the founding of our country; and, the founding fathers saying all men are created equal and, at the same time, saying there’s a Three-Fifths Compromise. So all men are created equal, but we’re going to count these men and women as less than equal. So the Three-Fifths Compromise was for the purposes of apportionment. So an apportionment is: we count up all the numbers of persons and determine how many representatives a state gets. So from the outset, voting was singled out as a measure upon which we would determine that some people would not get the full benefits of citizenship. And, not only the full benefits of citizenship, but we created a type of second-class citizenship. But as you also pointed out, at the founding of the country, only white men who owned property were allowed to cast a ballot.
And then if you fast-forward to the passage of the Civil War amendments—the Thirteenth Amendment ended slavery, the Fourteenth Amendment provided equal protection under the laws, and then the Fifteenth Amendment gave Black men the right to vote. And they enjoyed that right for a very short period of time. But while they were—certainly after the passage of the Fifteenth Amendment—and for about a twelve-year period, you had Black men who were able to elect around two thousand representatives. Remember these are people who were just out of slavery, and particularly in the South, were able to elect more than two thousand representatives. And they did so on the local, state, and federal levels. And on the federal level, they were able to elect people to the United States Senate and to the House of Representatives. And in Mississippi, they elected two African Americans to the United States Senate. Think about that, Daniel. And we have only three African Americans in the United States Senate today. So from 1890 to 2020, you’ve had a net gain of one.
So, to have that level of participation and to actually have that level of success, right, in that very short period of time. But it was short-lived because the federal protection was removed. In the Hayes-Tilden Compromise, the states had to agree to adopt the Thirteenth, Fourteenth, and Fifteenth amendments. And the southern states took it upon themselves not only to adopt the Thirteenth, Fourteenth, and Fifteenth amendments but also to adopt mechanisms like the poll tax, literacy tests, felon disenfranchisement, the grandfather clause—which essentially said that if your grandfather was able to vote, then you could vote, right?—and the date they chose,if your grandfather was able to vote prior to the passage of the Fifteenth Amendment, which as we just talked about gave Black men the right to vote, then you could vote.
So grandfather clauses, poll taxes, literacy tests, and all those were disenfranchisement devices that were very effective that essentially eliminated the Black male vote. In 1896 in Alabama, there were more than 140,000 African-American men who were registered to vote. By 1906, there were only forty-six because of the poll taxes, literacy tests, and the grandfather clause.
So from the passage of the Fifteenth Amendment in 1870—that one-hundred-year period from 1870 to the Voting Rights Act of 1965—I use it as a framework in the book. My grandmother, who lived to be ninety-nine years old, she was born in 1919. We’re celebrating this year, 1920, as the one hundred years of the ratification of the Nineteenth Amendment, which provided women with the right to vote.
So my grandmother was born in 1919, yet she didn’t vote for the first time until the 1960s. So even though there was a Fifteenth Amendment and there was a Nineteenth Amendment, because she was an African-American woman who lived in the South and because poll taxes, literacy tests, the grandfather clause, economic terror, violence, and other measures, she did not vote until the passage of the Voting Rights Act of 1965.
So now we are in the middle of another hundred-year cycle. I’ve identified these hundred-year cycles. And we’re at year fifty-five. And I don’t have another forty-five years to wait for us to get this right. So we actually have an opportunity to create the democratic process that we want to see, one where people have the ability to freely, fairly, and without discrimination cast a ballot. So that’s certainly the reason I wrote the book, because I certainly want us to identify these issues. I try to connect the dots and how we can see these patterns of suppression across the country. And hopefully in connecting these dots, that this book serves as a constellation of sorts and may be able to serve as a north star that we can see where we need to go and how we can get there.
GILDA DANIELS: Daniel is working with his audio. I think we’re having some technical difficulties.
SARAH LAWSON: Is there a section of the book that you might want to read from, if you have it with you?
GILDA DANIELS: I do have a copy of the book, but Daniel’s back, and we hear you now.
SARAH LAWSON: Oh, you’re back. Excellent. Daniel?
DANIEL FAIRLEY II: Yep.
SARAH LAWSON: Perfect. I will let you go back to it.
GILDA DANIELS: Thank you. You are out. Can’t hear you, Daniel.
SARAH LAWSON: All right, I’m back. So while we’re waiting for Daniel, why don’t we look at some audience questions? So Carlisle Jones asks, “How can we make sure that folks can vote once they get to the polls, before they go to vote?” And really making sure that that’s not something that, once they get there, they are turned away or anything.
GILDA DANIELS: That’s a great question. There are a couple things that we can talk about. Certainly in this age of COVID, we certainly have—in some areas, they’ve actually expanded ways that we can actually cast a ballot. In other places, it’s certainly been restricted. So we’ve expanded it in that there are certainly jurisdictions that have expanded vote-by-mail and the ability to vote by mail. And that you can request a vote-by-mail ballot for any reason. In some places, like Texas, you have to be over a certain age—over sixty-five—and you have to have a doctor’s excuse. In other places, you can request it, but in order to mail it in, you have to have a witness sign it as well.
So with vote-by-mail in particular, one way to make sure that your vote counts, I would say if you’ve requested and received your vote-by-mail ballot and you have not mailed it in yet, I would highly recommend that you drop your ballot off at a drop box. Because, even the United States Postal Service said that you need to give them at least seven days in order to deliver your vote-by-mail ballot. And we are, as of today, six days away from the election. So if you’re using a mail-in ballot, take it to the registrar or voter’s office. If you’re in Florida or somewhere, it’s the supervisors of elections. Take it to the Division of Elections office, the Department of Elections office. Or take it to a drop box. Everybody who is doing early voting is in the middle of early voting right now. And in most jurisdictions, you can take your ballot to an early voting site and drop it.
So if you mailed your vote-by-mail ballot, I encourage—first of all, it’s important to follow instructions. If it says use black ink, use black ink. Don’t use blue ink. If you use blue ink, it’s a reason for them to throw your ballot out. So you don’t want that. If it says sign the back, please sign the back. Because if you don’t sign the back of the envelope, then that’s a reason for them to throw it out. You don’t want to give them opportunities—them being the election officials—an opportunity to throw your ballot out. So follow the instructions.
Secondly, have what I call a consistent signature. In places where they do signature matches, they are going to look at the signature that’s on your driver’s license. That’s the signature, generally, that they have on file. And I don’t know about you, but I signed my signature on my driver’s license probably ten years ago. My signature has changed dramatically. But you want to make sure that your signature is consistent. Because, again, you don’t want to give them an opportunity.
You could also take a picture—once you’ve done all the things, followed the instructions, used black ink, put it in the envelope, and signed the back, take a picture of the back of the envelope. Because that has a tracking number. And you can track your ballot that way. You also should be able to contact your local registrar and ask them if they have received and whether they were able to count your ballot. Most jurisdictions are beginning, or will shortly begin, what’s called canvassing, where they are going to go through those ballots to make sure that they can be counted. And for those that cannot be counted because there’s no signature or because they didn’t use black ink or whatever other instruction was not followed, they will be put to the side, and voters should be contacted and then given an opportunity to correct those issues.
So that’s one way, certainly, you can make sure your vote counts. I voted early today. I voted during early voting. And let’s be clear that vote-by-mail is causing a cultural shift, particularly in black and brown communities. You watch Eyes on the Prize and other documentaries, you see African-American men in white button-down shirts and slacks and hats and women in their Sunday best, right? Because voting was an act of dignity. And because of the efforts to thwart and stop Blacks from voting. I know Black people of a certain age want to vote in person because they had to fight so hard for the right. They want to actually see their ballots going into the machine or see that they’ve actually voted. So it is certainly causing a cultural shift. But certainly because of COVID, voting by mail is a good option for those who don’t want to chance exposure.
So you can certainly make sure your vote counts by tracking your vote-by-mail. If you didn’t take a picture of the back of your envelope, you can contact your Division of Elections, and they should be able to tell you whether or not it has been received and whether it will be counted. Also, most jurisdictions have a system where you can put in your name, address, and other identifying information, and they can tell you if your ballot has been received. So, no worries if you didn’t take a picture. It’s fine. You can still track it. But that’s certainly how you can make sure that your vote counts.
DANIEL FAIRLEY II: That’s fantastic. I was feeling really good. I got maybe four out of five of the things. I didn’t take the picture, but I did use black ink. And, I was following up and I did go on the Virginia.gov/elections and I was able to find that my ballot is submitted and counted. My grandmother called me and asked me to do the same thing for her because she wasn’t sure how to see. She knew she had put it in the mailbox and that she had voted absentee, but she didn’t know if it had made it or not. It was really helpful to be able to get the information from her and look it up, so I could tell her over the phone that, yeah, she had successfully voted.
GILDA DANIELS: Great. So can I tell you one other thing? I teach election law at the University of Baltimore, and we do election law updates. Talking about making sure your vote is counted. Every week, they have to share, like, news articles—media articles. So one of them shared today a media article about an astronaut voting online. So she actually made sure that her vote counted as well. We aren’t at online voting here on Earth yet. So if anybody tells you that you can hashtag Harris or hashtag Biden in order to cast a ballot, that is not true. The ways that we vote here on this Earth, not in outer space, is that you have to make sure that you use that paper ballot with a vote-by-mail ballot or vote in person.
DANIEL FAIRLEY II: Mmm-hmm. Absolutely. What it sounds like is some of the things you had mentioned before about like voter suppression tools, right? Different ways that you can talk about disenfranchisement or say Republicans vote on Tuesdays, Democrats vote on Wednesdays, or other things. What are some other things that you’ve seen—other tools that have been used—to muddy the waters for voters?
GILDA DANIELS: Well, many, if we’re just looking at voter deception. I had a call today from a friend who’s a minister, who said that we had a member who was trying to encourage him to vote, and he said that he couldn’t vote because he owed taxes. That’s a common belief. Because in regards to voter deception, if you owe alimony or back taxes or had outstanding traffic tickets, then you could not cast a ballot. All that is untrue. That is not true. You are eligible to cast a ballot if you’re over eighteen, if you’re a resident of the state or the jurisdiction. And in many places—in the DMV area, it’s not as much of an issue in regards to previous conviction of a felony. Even that, in this area, doesn’t bar you from casting a ballot.
So certainly deception is rampant. And you see, certainly, high levels of disinformation. They’re calling it disinformation and misinformation. Ads on Facebook and other issues. So that’s certainly an issue, when there are people who believe that they can’t cast a ballot because of various reasons, and it’s just untrue.
But there are certainly voter suppression measures that are happening today. We talked about poll taxes, literacy tests, and grandfather clauses as historical disenfranchising methods but certainly contemporaneously. We can look at something that happened just two weeks ago in the state of Texas. In the state of Texas, the governor decided that each county—of which there are more than two hundred—each county in Texas could only have one drop box. Now I just told you to take your ballot to the drop box. If you live in Texas, there’s one drop box. But in a place like Harris County, Texas, where Houston is—Harris County is the third largest county in these United States of America. So imagine living in the third-largest county in the United States, and it only has one drop box. The county had previously decided that it would have twelve drop boxes. But because of the governor’s declaration, now it can only have one. And they’ve been litigating that for the last two weeks, to try to get more. Because they had planned to have more. This is certainly a suppressive measure. Because I define voter suppression as a systemic way to thwart, deter, and prevent groups of people from casting ballots and participating in the electoral process.
This is also exemplary of how we are in the middle of this cycle as well. So this cycle of regress started in the 2006–2008—but certainly after the Shelby County v. Holder decision in 2013—we’ve started to see more and more of these kinds of decisions that made it harder to vote. The Shelby County v. Holder decision said that there were parts of the Voting Rights Act that were outdated. I already told you that it was the Voting Rights Act that provided my grandmother and other black and brown people, certainly in the South and Southwest, the ability to vote when the Fifteenth Amendment and the Nineteenth Amendment was unable to do so. So the Voting Rights Act has been called monumental.
It had two primary provisions. One is Section 2, which is a nationwide prohibition against discrimination based on race or language ability. And that’s primarily litigation. You go into court and you say this does not provide an equal opportunity to participate in the electoral process, and your honor, this rule, this practice, this law needs to be changed.
The other was Section 5, which required certain jurisdictions—they were called coverage jurisdictions—to submit voting changes to either the attorney general for the United States or the district court for the District of Columbia. I used to be a deputy chief in the Civil Rights Division Voting Section of the Department of Justice. And DOJ would receive approximately five thousand voting changes every year. And that’s from eleven states, and those states were primarily in the South.
So Governor Abbott—Texas was one of those coverage jurisdictions—under Section 5 of the Voting Rights Act, he could’ve made a declaration, but it would not have gone into effect until the Department of Justice—until the attorney general had reviewed it to make sure that it didn’t put black and brown voters in a worse position.
So Harris County had a rule that it was going to use twelve drop boxes. That’s the rule. The governor says, “No, you can only have one.” Going from twelve to one would put black and brown voters in a worse position. And that certainly would be a change that the attorney general would object to and would not have gone into effect. But since the Shelby County decision, these legislatures and governors can make these decisions, and then we’re left to litigate them. And litigation under Section 2 is more expensive, and it takes longer. In Section 5, you had sixty days to review it, approve it, or say that it can’t go into effect. With litigation, the average life of a Section 2 case is about two years, and the cost is about $1.5 million. As compared to Section 5, submitting a change is about the cost of postage.
So making those kinds of changes—going from twelve to one—or closing polling places, and primarily closing polling places in black and brown communities. In 2016, we saw it in Georgia with these polling places that were closed. And the jurisdiction said that it was closing them to save money. And litigation found out that they were only saving $100 per precinct. In some places, $150. It was between $100 and $150 per precinct. But people would say, we have to do it because we need to save money. Okay, well, if you need to save $150, I’ll give that to you.
DANIEL FAIRLEY II: Yeah, I’ll pay for that. I see we have some questions coming in from the audience. So I’d love to ask you some of those. We have John, who asked, “The Electoral College essentially counts some people’s votes as more heavily weighted than others. People in high-population states, as a result, have less influence. They, however, are not a suspected class. African Americans are also likely disadvantaged. Has anyone ever raised this as a legal issue?”
GILDA DANIELS: So has the Electoral College been challenged? I can tell you that there is a movement to adopt what’s called the national popular vote. So there is some movement to go from using the Electoral College to choose the president to the national popular vote. Have there been legal challenges to the Electoral College? None. I’m sure there have been, but I would have to—but I do want to point out that, for this election, it’s interesting because a lot of folk are now pointing to the Electoral College as an issue. And I’m telling people like, okay, we can talk about that on November 4th. Because right now it’s just an intellectual conversation, which I appreciate and I’m here for. So we can figure out what we can do in response to the Electoral College on November 4th. Now, we need folk to register and vote.
And I’m going to be very clear—one of the things that hopefully I make clear in the book as well—I don’t care who you vote for. Because I don’t think this is a Republican issue or a Democrat issue. This is a democracy issue. It’s not a black-white issue. It’s a democracy issue. This is how we’re treating our citizens and how we’re treating the right to vote. Are we treating the right to vote as fundamental? We have more rules and regulations on how we can access the ballot than we do for just about anything else.
In the same chapter on voter deception, there’s a quote from a person who was purged in Ohio. And he said, “I don’t lose my right to buy a gun if I don’t buy a gun. Why do I lose my right to vote if I don’t vote?” Because in some places, if you don’t vote, you could lose your right to vote. So because of all those rules you talked about, Daniel, it’s like the rules are different in Vermont than they are in Virginia. And they’re different in Virginia than they are in Florida or in Maryland. So knowing all these rules—and we have all these rules about how you can access the right to vote. And it is very unfortunate that in most places, it is easier to buy a weapon than it is to register to vote.
So I’m saying that we need to change that. We need to change, and we need to make sure that we’re treating the right to vote as fundamental. As something that is critical and important to how we operate as a democratic form of government.
And we’re supposed to be this beacon of democracy, yet we have people across the world looking at us standing in lines for eleven hours in Georgia. That’s voter suppression, right? So for everyone who is saying, “Look at the people who are dedicated and committed to standing in line for eleven hours,” there are people like me—I have to admit—there are people like me who are like, “I don’t have eleven hours.” If the only way I can cast a ballot is to stand in line for eleven hours—there are people who are not able to do that. So we have to do better, and I think we can.
DANIEL FAIRLEY II: Absolutely. I think it’s something that, sure, there’s excitement. You can definitely see there’s a big push for people to vote that I personally haven’t seen before. That’s been really nice to see. But, again, you talk about it in a way that it’s not just positive, right? There are definitely downsides to having to have a job that allows you to get off for eleven hours or making sure that you’re in the right polling place because your physical polling place for Election Day polling may be different from your physical polling place for early voting.
I mean, I have friends that work for the ACLU that stood in line for hours and hours in New York City, and then found out when they got to the front of the line, that they were at their Election Day site and not the early voting site. So they had to then leave and then come back the next day because the polling places were closed. It’s incredible to see just how difficult it is to vote. But for me—I think that Stacey Abrams talks about this a lot—it shows the power. People wouldn’t want to take away your vote if there was no power in your voice. And I think that’s a big part of it as well, seeing and knowing that there is power in your voice.
GILDA DANIELS: And I can say that—one of the things that I say when I speak is that—I talk about cycles. But let’s be clear. African Americans have been on these shores in this country since 1619. For four hundred years. Yet we’ve only been voting for fifty-five. Okay? So if there was no power in the vote, why are there folk fighting so hard to make sure that you don’t get to use it?
Like I said, my grandmother voted for the first time in the 1960s. My grandmother, my parents, right after the passage of the Voting Rights Act. Up until that, again, you had the Fifteenth Amendment and you had the Nineteenth Amendment. But in certain parts of the South and Southwest, black and brown people were not able to cast a ballot because they could lose their lives. You’ve seen the documentaries. And certainly, I tried to capture that in my book, with giving firsthand accounts of people who had to take a literacy test. Like Ms. Myrtle Pless Jones, who had a bachelor’s degree from South Carolina State University and a master’s degree from Michigan State. And in the 1950s, she moved to Montgomery, Alabama, got married, had two children, went to register to vote, and she was asked how many bubbles are in a bar of soap. And her response was, “Over one hundred.” She was told that that was wrong and was not allowed to register. That was very common throughout the South. So, yeah, the right to vote was on the books, but black and brown folk weren’t able to access that right. You had to have the Civil Rights Movement. You had a loss of life.
And even in places like New York. My colleague’s grandmother—she’s also captured in the book—Miss Jimenez migrated from Puerto Rico to New York State in the 1950s. Before she could vote in New York State, she had to take a literacy test and had to have a piece of paper that said that she had passed the literacy test, before she could actually register and cast a ballot.
So the efforts that have been made and that continue, that make voting harder and certainly thwart, prevent, deter people of color particularly from casting a ballot is something I point out to people. If it was useless, everybody would let you do it, right? Everybody would let you go and vote. But because of the power of the vote—and voting is power. It is about power. Because of the power of the vote, that’s why we have all these impediments, and that’s why we have to identify them and knock them down one at a time.
DANIEL FAIRLEY II: Yeah, absolutely. We have another question here from Rebecca. She asks, “Professor Daniels, can you comment on the constitutional right to vote and why courts and finding and ruling in ways to restrict votes?” What rationale is there on the level for any restrictions? On the constitutional level. Like how do you cite the Constitution or say this is the founding document of our country but then also restrict people’s rights to vote?
GILDA DANIELS: Well, in the United States Constitution, we have a lot of “thou shalt nots” in regards to voting. Thou shalt not discriminate based on race. Thou shalt not discriminate based on gender. Thou shalt not discriminate based on age, right? You can be eighteen or over. Thou shalt not have a poll tax. So you have a lot of “thou shalt nots.” You don’t have a lot of “thou shalls.” For example, thou shall have the right to bear arms. We have the right to free speech or free press. But there’s no affirmative right to vote in the United States Constitution.
The other issue is that, in the United States Constitution, the Constitution—this is another one of those compromises in the drafting—was that the founding fathers gave the states the ability to determine the requirements for electors. Which essentially means the states can decide if you need a voter ID or do you not. Can you have a residency requirement that says that you have to have lived in the jurisdiction a year or thirty days or ten days, right?
As well as, we see felon disenfranchisement from state to state. There are some states that are absolutely awful and have permanent disenfranchisement. And while we certainly have constitutional amendments, and the Voting Rights Act was passed under the authority of the Fourteenth and the Fifteenth Amendments, right? The Fourteenth Amendment says equal protection. Like you have to treat people equally. So using the Fourteenth and Fifteenth Amendments was certainly the constitutional authority for legislation like the Voting Rights Act of 1965. So there are protections. But there’s also a movement of sorts for an affirmative right to vote in the United States Constitution.
Senator Dick Durbin actually presented a joint resolution about a month ago, which would include an affirmative right to vote. It would address felon disenfranchisement. When I say felon disenfranchisement, felon disenfranchisement are the rules that states adopt that determine which felonies disenfranchise or would not allow a person to vote. And this has its roots in, certainly, Jim Crow and in white supremacy. Because in the felon disenfranchisement, it came about in the early 1900s when the Southern States were adopting the Thirteenth, Fourteenth, and Fifteenth amendments. States like Mississippi said we’re going to use felon disenfranchisement as a way to disenfranchise Black men. So they identified crimes that they believed Black men committed more often than white men. So timber theft and wife beating were disenfranchising crimes. Murder and rape were not.
If you fast-forward to today, in places like Florida—we could spend a whole call on Florida. But in Florida, where you had—Florida was disenfranchising about 1.4 million people. And you think in 2000, George W. Bush won by about 535 votes. And, I think the last gubernatorial election in 2018, I think was less than 100,000 votes. But you have 1.4 million people who are permanently disenfranchised. In 2018, the people of Florida passed an amendment—a ballot initiative—that said that those persons should get their right to vote restored. Because right now, you had to go through a clemency board, and the number of persons that were having their right restored was abysmal. And it also depended on who was the governor. So the clemency board was not restoring the right to vote. There’s Amendment 4, which provided that persons should get their right to vote restored unless they committed murder or rape. So we’re talking about more than 800,000 people that believed they had gotten their right to vote restored with the passage of Amendment 4. More than 64 percent of Floridians voted for it. That’s in November 2018. March, April of 2019, the Florida legislature said free at last, not so fast. That’s one of the subtitles in the book of one of my chapters: “Free at Last, Not so Fast.” Like, yeah, you got this Amendment 4 thing, but you need to pay all your fines, fees, and restitution before you can register.
So the amendment was passed in November 2018. The legislation in March, April of 2019. It has been in litigation since around August of 2019. So, again, remember I told you Section 2 takes longer. Florida was a Section 5 state. The Florida legislature could have said you had to pay fines, fees, and restitution. That would’ve had to have been reviewed by the attorney general of the United States.
So you have the ballot initiative. You have a constitutional amendment that says you now have the right to vote. The legislature says free at last, not so fast. Do you think that put black and brown people in a worse position? Guess what? That’s another example of how, if we still had a full Voting Rights Act, those kinds of measures would not be in place today. And you would have about 800,000 people who would have the right to vote, as opposed to trying to find the means to pay off their fines, fees, and restitution. And in some counties, they don’t even know how to calculate how much people owe. Some people don’t even know how much money they owe.
And I’m the messenger here. It’s a part of the record in the federal case, where the state is admitting there are quite a number of instances where they don’t even know how much people owe. So folk can’t even get on the books because they can’t pay off whatever amount they’re supposed to pay.
That’s, again, more examples of where we are. Clearly, I would hope people could see how having 64 percent of Floridians vote to say we need to restore the right to vote for this group of people, and then having the legislature say, “No, we’re not going to do that”—I mean, that’s 800,000 people. That’s certainly an example of voter suppression.
DANIEL FAIRLEY II: Yeah, absolutely. So now talk to me about H.R. 1, or the John Lewis Voting Rights Act—something that’s supposed to be championed to make sure that we’re restoring Section 5, the part of the original Voting Rights Act, and adding a couple more things on to that. How do you see that affecting the next iteration of voting rights in America?
GILDA DANIELS: Well, H.R. 1 and H.R. 4, which actually has more of a restoration of the Voting Rights Act—H.R. 1 I think has been on Mitch McConnell’s desk for more than two hundred days. H.R. 4 has been on his desk for more than 150 days. So even changing it to the John Lewis Act has not moved that legislation. So the House has acted, but we need both parts of Congress to move on it. So it’s doubtful that anything will happen, unfortunately. It’ll be up to the next Congress, whatever configuration that looks like. Hopefully that’s something that we can move because we do need more protections.
Now as you know, Daniel, everybody doesn’t believe that. Some people are like we’re fine. If you have to pay your fines, fees, and restitution, then pay your fine, fees, and restitution. You know, all those rules and regulations, like we need these. And what we need is access. Like I said, I just want to make sure that you can vote for whomever you believe is the person you need to cast your vote for. I think all these barriers that we have to the ballot make us look less than the beacon of democracy that we proclaim to be.
DANIEL FAIRLEY II: Absolutely. One person asked—this is Janie—“So what are the protections for voters who are intimidated while in the voting line? Like what should they do? What do poll watchers do in this scenario?” What’s kind of like I’m here, I’ve got my snacks, I’ve got my juice box, I’m ready to be here for a while, I’m intimidated, and what happens?
GILDA DANIELS: That’s a very important question, because we’re certainly anticipating that voter intimidation is going to be an issue, because we’ve seen calls for people to come in and watch folk at the polling places. And we’ve seen this kind of militarization and weaponization of the polling place. So those are all certainly a big concern.
Number one, we want you to make sure, Janie, that you are safe. If you are in a situation where you do not feel safe, number one, you need to tell the election official. And the election officials should contact law enforcement. And also will be contacting, I’m sure, the county attorney’s office, the state’s attorney’s offices, to ensure that people are away from the polling places.
Certainly there are concerns in places like Virginia that are open carry states, right? And people who may bring a weapon or firearm to the polling site. That is of great concern. But number one—is to make sure that you are safe. If you do not feel safe, you need to contact the Division of Elections. Contact the election judge at that polling site. Because they’re supposed to have numbers for law enforcement, as well as the county attorney’s office and others, on speed dial so those persons can be removed. But number one is certainly—because we’re in this age where people whip out their phones and start taking pictures and those kinds of things. You know people can do that, but folks that are being trained right now in de-escalation—I’m very serious, right?
The other thing you can do is dial 1-866-OUR-VOTE. That’s for any kind of election issues. But 1-866-OUR-VOTE. And particularly if you are feeling unsafe and you’re feeling intimidated and if there’s people there with firearms, call 1-866-OUR-VOTE. They will also be calling law enforcement and others to come and correct the problem.
DANIEL FAIRLEY II: Mmm-hmm. Absolutely. So I know that this is—two more questions for you. The first is about early voting. We’ve seen just a groundswell of early voting inside of America. It’s been pretty incredible. You talk about Texas. They’ve had, I think the last time I checked, between 60 and 80 percent of the vote from 2016 has already cast their ballots in Texas. Do you see this as kind of a grassroots effort to address voter suppression? I know you talked about the antidote to voter suppression is voting. Do you see this as one of those topics or something that works that way?
GILDA DANIELS: One of the things, for example, in Texas. Texas has had a 600 percent increase in the youth vote. And we’re projecting that nationally, it’ll be one of the highest voter turnouts on record. But, Daniel, they’re only saying the record will be more than 62 percent. That’s just a little more than half. So for a lot of us, when we’re comparing it to 2016 and others, it’s like we’ve got a low bar here. I would love to see—because I argue that if we didn’t have restrictive ID, places where you only have one polling place—like Louisville, Kentucky, for the presidential preference primary, it went from six hundred polling places to one. To their convention center. Because they thought, oh, we need a central location. But it’s central for whom? Right? Everybody can’t get there. And certainly in the era of COVID, you’ve got to take your child and get off your job to do those things.
So I think if we didn’t have all of these measures that just made it so hard and confusing for people to vote, then maybe we could get to 70, 80 percent. Some people have suggested that maybe we need compulsory voting like in places like Australia, where you have to pay a fine. You pay a $50 fine if you don’t vote. I don’t know if compulsory voting is the answer. I actually don’t think there is one answer. I think there are many things that we have to do to make sure that we can make it easier to vote. And I think that’s the response. I do think voting is the antidote, but also recognizing the difficulties and the complexities in how we administer elections needs to be fixed. And I think if we do so—and not mitigate voter suppression but eliminate voter suppression—then we’ll see much higher voter turnout. And then start to look like the democracy that I think we all want.
DANIEL FAIRLEY II: Yeah, I’d love that. Of course. So we have here—I’ve read the book. I’m excited. I’m fired up. I’m like, “Man, I know that I’ve cast my vote, but what do I do next?” So after I’ve read the book, I know that voter suppression is an issue. Do I call Congress now? Do I advocate for bills? What’s your suggestion for where we go from here?
GILDA DANIELS: I tell people to do four things. I tell them to educate, legislate, litigate, participate. Educate yourselves and others about the voting process: when is early voting? What do you need when you go to vote? Do you need a voter ID? All those things. Educate yourselves and others. So make sure that you know about the process as well as—the other thing in regards to educate—know what else is on the ballot. You also have these bond issues and constitutional ballot initiatives and judges are important. And there are certainly elections throughout the country. There are places that are electing sheriffs and county attorneys like in Georgia and Florida. Know who these people are. So educate.
And then legislate. Be aware of legislation on the federal, state, and local levels that can impact your right to vote. And there are some places that are restricting third-party involvement. Meaning third-party voter registration or even providing people with water and other comfort items while they stand in four-hour lines. There are local officials that are trying to pass that kind of legislation even now. So being aware of what legislation is being passed that impacts your right to vote, including things like H.R. 1 and H.R. 4.
Litigate. Once advocacy hasn’t worked, there are organizations that are working to try to advance the ball in regards to our democracy. And organizations like Advancement Project, National Office, the Brennan Center, ACLU, NAACP LDF, MALDEF, LatinoJusticePRLDEF. Lawyers’ Committee for Civil Rights Under Law, which houses the 1-866-OUR-VOTE Election Protection Program. Once advocacy and other measures have not worked, we’re going to the courthouse to see if we can get it corrected in that way as well. So partner with those organizations. Supporting those organizations financially and otherwise is also important.
Lastly, participate. There are some jurisdictions that still need poll workers, even at this late date. So sign up to be a poll worker. And then certainly after the election, in regards to participation, our participation goes beyond November 3rd. So after November 3rd, we need to hold our elected officials accountable. And good folk like the ones on this call—this Zoom line—need to consider running for office. We need more people to run for office. So that’s another way of participating that we all too often forget about. So educate, legislate, litigate, participate.
DANIEL FAIRLEY II: Absolutely. Man, that’s fantastic. I’m going to write that down on like a vision board or something. Well, so it’s time for us to wrap things up. I just want to say thank you to Professor Daniels for taking this time to discuss your book and your work. Thank you to everyone who tuned in. It’s been an incredible opportunity. I know we had some technical difficulties in the beginning. But it’s 2020. It’s Zoom life. It’s just kind of a part of the game, so.
GILDA DANIELS: This is true.
DANIEL FAIRLEY II: Exactly, right. So definitely consider buying Uncounted: The Crisis of Voter Suppression in America. Truly one of the best books of 2020. I loved reading it and learning about everything that’s going on. It was so incredible to read the different ways of, like you would have your story of your grandmother in the very beginning, and then you have the story of the person from Ohio, and then you have the story of another person in Georgia. And it’s just kind of like, wow, this is over and over and over again. I mean, truly, read this book. Get it on your bookshelves. Contact your local booksellers and your local bookstores that we know need some help right now. So please be sure to buy locally. You also can check out future events from the Virginia Festival of the Book, including Shelf Life, which takes place every Thursday at noon. And you can learn more at VaBook.org. So I just want to say thank you all again, and it was truly incredible talking to you, Professor Daniels. You are an inspiration, and I am looking forward just to any ways that we can continue to connect.
GILDA DANIELS: Absolutely, let’s continue our connection. Thank you so much.
DANIEL FAIRLEY II: Mmm-hmm. Thank you.