Has the Supreme Court Undermined Voting Rights? David Daley Explains

>>> AND NOW WE TURN TO DEMOCRACY IN THE UNITED STATES, WHICH OUR NEXT GUEST BELIEVES IS UNDER THREAT.

IN HIS NEW BOOK DAVID DALEY SUGGESTS FAR-RIGHT ACTORS INCLUDING WITHIN THE SUPREME COURT ARE CONTROLLING AMERICAN ELECTIONS.

HE DESCRIBES A 50-YEAR PLOT TO UNDERMINE VOTING RIGHTS.

HE JOINS HARI SREENIVASAN TO DISCUSS IMPLICATIONS.

THIS PART OF OUR DISCUSSION IS PART OF AN ONGOING INITIATIVE THAT REPORTS ON THREATS TO OUR DEMOCRACY, THE IMPACT ON CHANGES TO VOTING LAWS, AND WHAT CITIZENS NEED TO KNOW CALLED PRESERVING DEMOCRACY.

>> DAVID DALEY, THANKS SO MUCH FOR JOINING US.

YOUR MOST RECENT BOOK, "ANTIDEMOCRATIC" INSIDE THE FAR RIGHT'S 50-YEAR PLOT TO CONTROL AMERICAN ELECTIONS, I'VE GOT TO ASK, LOOK, WHEN SOMEONE READS 50-YEAR PLOT, THEY'RE GOING TO BE LIKE, OKAY, THIS IS TINFOIL MATERIAL -- TINFOIL HAT MATERIAL, A CONSPIRACY.

WHAT MAKES THIS NOT A CONSPIRACY IN YOUR MIND?

>> THIS HAS BEEN A VERY STRATEGIC EFFORT AT THE HEART OF THE REPUBLICAN PARTY OVER THE LAST 50 YEARS.

THEY HAVE UNDERSTOOD I THINK MORE EFFECTIVELY THAN THE DEMOCRATS HAVE THAT THERE ARE PRESSURE POINTS WITHIN OUR DEMOCRACY, AND THAT IF YOU CAN PUT YOUR FINGER ON THEM, IF YOU CAN CONTROL THESE LITTLE LEVERS THAT SORT OF FLY UNDER THE RADAR WHETHER WE'RE TALKING ABOUT GERRYMANDERED STATE LEGISLATURES OR WHETHER WE'RE TALKING ABOUT THE CONSTITUTION OF THE U.S. SUPREME COURT, THAT YOU ARE ABLE TO HAVE OUTSIZED INFLUENCE AND TO WIN VICTORIES THAT YOU NEVER COULD HAVE WON OTHERWISE.

IN MANY WAYS CHIEF JUSTICE JOHN ROBERTS IS THE MOST EFFECTIVE REPUBLICAN POLITICIAN OF HIS GENERATION BECAUSE BY CONTROLLING THE SUPREME COURT AS REPUBLICANS HAVE, THEY'VE BEEN ABLE THE LAST 20 YEARS TO WIN VICTORIES ON GUNS, ON VOTING RIGHTS, ON THE ENVIRONMENT, ON THE REGULATORY STATE THAT WOULD SIMPLY HAVE NOT BEEN POSSIBLE THROUGH THE ELECTORAL PROCESS AT THE BALLOT BOX.

>> WHAT MAKES HIM A POLITICIAN, HE AND LOTS OF MEMBERS OF OUR AUDIENCE WOULD SAY HOLD ON HE'S NOT ELECTED, HE'S A PRESIDENTIAL APPOINTEE.

I MEAN YOU GO BACK INTO HIS HISTORY AS A YOUNG LAWYER AT THE DOJ.

>> THAT'S RIGHT.

JOHN ROBERTS IN MANY WAYS HIS LIFE'S WORK HAS BEEN CURTAILING THE VOTING RIGHTS ACT.

JOHN ROBERTS GREW UP IN AN EXTRAORDINARILY WHITE TOWN IN INDIANA.

THIS WAS A TOWN THAT EVEN AFTER AMERICA BANNED DISCRIMINATION IN-HOUSING LAWS WAS STILL ADVERTISING ITSELF IN VACATION BROCHURES AS A HOME WHERE ONLY CAUCASIAN GENTILES LIVED.

HE CLERKS ON THE SUPREME COURT FOR BILL RENQUIST, WHERE IT'S BEEN DOCUMENTED DURING HIS DAYS IN ARIZONA WAS PERSONALLY HARASSING AND INTIMIDATING VOTERS BACK IN THE 1960s.

AND ROBERTS IN HIS FIRST JOB AT THE DEPARTMENT OF JUSTICE, IT IS REALLY HIS JOB TO TRY AND DERAIL THE BIPARTISAN RE-AUTHORIZATION OF THE VOTING RIGHTS ACT WITH SIGNIFICANT CHANGES THAT WOULD HAVE ENHANCED IT AND MADE IT BETTER.

ROBERTS IN HIS MEMOS WRITES OVER AND OVER AGAIN IT SHOULD NOT BE TOO EASY TO PROVE A VOTING RIGHTS ACT VIOLATION.

HIS SIDE LOST THAT FIGHT BACK IN 1982, BUT ROBERTS WOULD HAVE THE LAST WORD ON THIS.

I THINK THE LESSON OF WHAT HAPPENED IN 1982 IN THAT FIRST DEFEAT FOR JOHN ROBERTS WAS THAT YOU COULD NEVER DERAIL SOMETHING AS AMERICAN AS THE VOTING RIGHTS ACT, SOMETHING AS AMERICAN AS MOTHERHOOD AND APPLE PIE AND JAZZ THROUGH THE ELECTORAL PROCESS.

BUT IT WOULD BE A WHOLE LOT EASIER TO DO THIS, YOU WOULD NOT NEED 218 IN THE HOUSE, 51 IN THE SENATE.

YOU'D NEED A SMALLER NUMBER OF FIVE ON THE U.S. SUPREME COURT.

AND HE WOULD BECOME ONE OF THEM 23 YEARS LATER.

>> OKAY, SO FAST FORWARD.

ONE OF HIS FIRST CASES AT THE DEPARTMENT OF JUSTICE UNDER RONALD REAGAN IS ABOUT THE VOTING RIGHTS ACT.

AND THEN IN 2013 HE IS WRITING THE OPINION FOR A REALLY IMPORTANT DECISION, SHELBY COUNTY vs. HOLDER.

AND FOR PEOPLE WHO MIGHT NOT HAVE BEEN PAYING ATTENTION THERE'S A CONCEPT IN THERE CALLED PRECLEARANCE.

WHAT WAS IT?

WHY WAS IT SO IMPORTANT?

>> PRECLEARANCE IS SO IMPORTANT BECAUSE IT WAS THE -- IT WAS THE MUSCLE, IT WAS THE TEETH, IT WAS THE ENFORCEMENT MECHANISM WITHIN THE VOTING RIGHTS ACT.

PRIOR TO THE VOTING RIGHTS ACT OF 1965 THERE HAD BEEN MANY EFFORTS TO TRY AND BRING EQUALITY AND TO PUT AN END TO OUR RACIAL VOTING OPPRESSION ACROSS THE SOUTH AND OTHER PARTS OF THE COUNTRY.

NONE OF THEM REALLY WORKED.

IT TOOK TOO LONG TO CATCH THESE EFFORTS IN ALL THIS.

AND WHEN CONGRESS PASSED THE VOTING RIGHTS ACT IN 1965 AND WHEN IT RE-AUTHORIZED IT AGAIN IN 1982 AND 2006, IT INSISTED ON PRECLEARANCE THAT TOLD THESE LOCALITIES AND STATES THAT HAD THE WORST HISTORY, YOU'RE NOT GOING TO BE ABLE TO GET AWAY WITH THIS ANYMORE.

YOU'RE GOING TO HAVE TO RUN ANY CHANGE YOU WANT TO MAKE PAST THE DEPARTMENT OF JUSTICE OR A COURT IN WASHINGTON, D.C. FIRST.

AND THIS, EFFECTIVELY, PUT AN END TO MUCH OF THOSE EFFORTS BECAUSE STATES WERE NOT ALLOWED TO DO THINGS WITHOUT PREAPPROVAL.

>> TELL ME WHY IS IT SO IMPORTANT TO UNDERSTAND THIS ATTACK THAT YOU SAY IS AN ATTACK ON THE VOTING RIGHTS ACT, YOU KNOW, IT'S BEEN A LONG PLAN.

WHY IS THAT CRUCIAL TO UNDERSTANDING NOT JUST THE POWER OF THE ATTACKER BUT THE CONSEQUENCES TO THE ATTACKED?

>> IN THIS DECISION JAUB ROBERTS SAYS THAT THINGS HAVE CHANGED IN THE SOUTH AND THAT THE PROTECTIONS OF THE VOTING RIGHTS ACT WERE NO LONGER NECESSARY, THAT WE LIVED IN A DIFFERENT COUNTRY, IT WAS NOT 1965 ANYMORE.

THE TROUBLE WITH THAT IS THAT THE ATTACK ON THE VOTE BEGAN THAT VERY MORNING, THAT STATES ACROSS THE SOUTH AND ELSEWHERE WERE WAITING FOR THIS DECISION AND IMMEDIATELY BEGAN IMPLEMENTING THINGS LIKE VOTER I.D.

PUSHES AND VOTER ROLL PURGES AND ROAD CLOSURES THAT THEY COULD NOT HAVE GOTTEN AWAY WITH PRIOR TO THE COURT'S DECISION.

SO WHEN ROBERTS SAID THINGS CHANGED IN THE SOUTH, ALL HE HAD TO DO WAS OPEN HIS EYES TO WHAT WAS HAPPENING BEFORE THE COURT'S DECISION AND IMMEDIATELY AFTERWARDS.

VERY LITTLE HAD ACTUALLY CHANGED IN THE SOUTH EXCEPT NOW THANKS TO THE COURT THESE DARK FORCES THAT THE DECISION IN SHELBY COUNTY UNLEASHED WERE ABLE TO GET AWAY WITH IT AGAIN.

>> GIVE ME AN EXAMPLE, THE FIRST FEDERAL ELECTION AFTER THAT DECISION WOULD HAVE BEEN HILLARY CLINTON VERSUS DONALD TRUMP.

WAS THERE AN IMPACT OF THE SHELBY DECISION ON THAT ELECTION?

>> YES.

I THINK THAT ABSOLUTELY WE CAN SEE THE IMPACT OF SHELBY COUNTY ACROSS AMERICAN ELECTIONS.

WE CAN SEE IT IN THE 2024 ELECTION RIGHT NOW.

SO MUCH OF THE ELECTION CHICANERY UNDER WAY IN THE STATE OF GEORGIA RIGHT NOW IN WHICH A STATE ELECTION BOARD IS ATTEMPTING TO CHANGE LAWS AROUND HOW ELECTIONS ARE CERTIFIED OR CREDENTIALED WOULD NOT HAVE BEEN POSSIBLE UNDER SHELBY COUNTY.

IT WOULD HAVE HAD TO BE PRE-CLEARED FIRST.

SO MANY STATE LEGISLATURES ACROSS THE SOUTH THAT ARE ENACTING THESE NEW LAWS, THOSE MAPS WOULD HAVE HAD TO HAVE BEEN PRE-CLEARED TO ENSURE THAT THEY WERE NOT RACIAL GERRYMANDERS.

SO IN STATES LIKE TEXAS, IN STATES LIKE GEORGIA WHERE THE POPULATION GROWTH HAS BEEN ALMOST ENTIRELY DRIVEN BY BLACK AMERICANS AND LATINOS, AND YET THEIR REPRESENTATION HAS NOT GONE UP.

IN FACT, IN MANY CASES IT HAS GONE BACKWARDS.

THAT WOULD NOT HAVE BEEN POSSIBLE -- THE COURT'S DECISION IN THE DOBBS CASE THAT EFFECTIVELY PUT AN END TO ABORTION IN MANY PARTS OF THE COUNTRY, IN THIS CASE THE JUSTICE WHO WROTE THE DECISION, SAMUEL ALITO, ENSURED AMERICANS THAT THE COURT WAS NOT TAKING AWAY A RIGHT, IT WAS SIMPLY RETURNING A CONTENTIOUS ISSUE TO THE PEOPLE IN THE ELECTORAL PROCESS.

EXCEPT THE COURT KNEW FULL WELL THAT THEY WERE RETURNING THIS ISSUE TO GERRYMANDERED, OFTENTIMES RACIALLY GERRYMANDERED STATE LEGISLATURES THAT THEY HAD ALLOWED TO BE RIGGED IN ADVANCE.

AND THE OUTCOMES WERE ENTIRELY PREDICTABLE, AND THE OUTCOMES WERE OPPOSED, OFTENTIMES DIAMETRICALLY OPPOSED TO THE WISHES OF THE PEOPLE OF THESE STATES.

AND YET VOTERS HAD LITTLE RECOURSE AT THE BALLOT BOX THANKS THE DECISIONS THE COURT HAD MADE OVER THE COURSE OF THE PREVIOUS DECADE.

IT'S AS IF THEY PLANNED IT THAT WAY.

>> WELL, IF SHELBY COUNTY'S DECISION, SHELBY COUNTY vs. HOLDER, THAT DECISION HAD AN IMPACT ON THE NEXT FEDERAL ELECTION, I THINK A LOT OF PEOPLE ARE ALSO WONDERING WHAT DOES THE RECENT SUPREME COURT DECISION ON PRESIDENTIAL IMMUNITY DO TO THE ELECTIONS THAT WE HAVE COMING UP?

>> IT'S A GREAT QUESTION AND A REALLY IMPORTANT ONE.

WHAT THE COURT DID IN THAT DECISION WAS EFFECTIVELY GIVE PRESIDENT TRUMP IMMUNITY FOR THE ACTIONS THAT WERE TAKEN ON JANUARY 6th AND THAT AMERICANS DESERVED TO HAVE SOME SENSE OF COMPLETION THERE BEFORE THIS NEXT PRESIDENTIAL ELECTION.

THERE WERE TRIALS UNDERWAY THAT WOULD HAVE GOTTEN AT THE HEART OF THE QUESTION AS TO WHETHER OR NOT A PRESIDENT ACTING IN WAYS THAT HELPED BLOCKED THE PEACEFUL TRANSFER OF POWER WOULD BE HELD ACCOUNTABLE FOR THAT.

AND THIS COURT ENSURED THAT THAT VERDICT WOULD NOT COME UNTIL AFTER THIS PRESIDENTIAL ELECTION, WHICH I THINK IS -- IS VERY DANGEROUS.

WHAT THIS DOES IS WHEN YOU ADD THIS CASE TO THE LARGER PICTURE OF WHAT COURT HAS DONE ON QUESTIONS OF DEMOCRACY, CAMPAIGN FINANCE, AND VOTING RIGHTS OVER THE LAST 15 YEARS, THE ROBERTS COURT CONTINUOUSLY PUTS ITS THUMB ON THE SCALE TO THE ADVANTAGE OF THE REPUBLICAN POLITICIANS WHO PLACE THEM THERE.

NOW THE COURT LOOKS AT THE KINDS OF REFORMS THAT MANY HAVE OFFERED, AND THEY SAY THAT, WELL, THOSE REFORMS WOULD THREATEN THE COURT'S JUDICIAL INDEPENDENCE, WHICH TO I THINK MANY OF US FEELS A LITTLE BIT RICH THAT THE COURT HAS BROUGHT ON THIS CRISIS OF CREDIBILITY ITSELF THROUGH DECISION AFTER DECISION THAT HARMED VOTERS AND ADVANTAGED THEIR OWN IDEOLOGICAL SIDE.

>> I CAN HEAR CONSERVATIVES RIGHT NOW SAYING WHAT ARE YOU TALK ABOUT?

THE ROBERTS COURT IS THE ONE THAT UPHELD OBAMACARE.

IT MADE YOU HAVE SAME-SEX MARRIAGES THE LAW OF THE LAND.

AND YOU CAN KIND OF GO THROUGH A LIST OF OTHER IDEAS OF -- THEY UPHELD SECTION 2 OF THE VOTING RIGHTS ACT.

I MEAN, IS JOHN ROBERTS REALLY THIS KIND OF SINISTER CHARACTER THAT YOU PAINT HIM OUT TO BE?

>> YES.

WHEN YOU LOOK AT THE AMERICA THAT WE LIVED IN IN 2005, WHEN YOU LOOK AT THE AMERICA OF 2024, OUR CONSTITUTIONAL RIGHTS HAVE BEEN DRAMATICALLY CHANGED, AND THERE'S BEEN A DRAMATIC SHIFT IN CONSTITUTIONAL LAW OVER THE PERIOD OF TIME.

ROE v. WADE SIMPLY NO LONGER EXISTS.

A QUESTION OF GUNS, CONSERVATIVE HECKLES IN THE NRA'S AGENDA HAS REALLY BEEN ALLOWED TO RUN ROUGHSHOD OVER ANY EFFORTS BY STATES AND LOCALITIES TO CONTROL THE SAFETY OF THEIR OWN CITIZENS.

WHEN YOU LOOK AT THE COURT'S DECISIONS ON THE REGULATORY STATE, WHAT WE HAVE SEEN IS A COURT THAT HAS PLACED ITSELF AGAIN AND AGAIN ABOVE THE CHECKS AND BALANCES OF -- OF OUR SYSTEM, WHICH IS SUPPOSED TO HAVE THREE COEQUAL BRANCHES.

THIS COURT HAS PLACED ITSELF ABOVE THE OTHER BRANCHES, AND THE AMERICAN PEOPLE SEE AND RECOGNIZE THIS.

THE COURT'S APPROVAL RATINGS ARE AT ALL-TIME LOWS.

HUGE MAJORITIES OF AMERICANS BACK THE IDEA OF ETHICS CODES, OFTENTIMES ABOUT 70% OF AMERICANS.

SO I THINK THAT THE COURT WOULD LIKE US TO THINK THAT THEY ARE SIMPLY NEUTRAL ARBITERS OF THE LAW, BUT WE DON'T HAVE TO CLOSE OUR EYES TO WHAT WE SEE.

THIS IS A COURT THAT IS UNELECTED, THAT MAKES ITS DECISIONS IN PRIVATE, THAT IS BOUND BY NO ETHICS CODE, THAT HAS LIFETIME APPOINTMENTS.

AND IT HAS BEHAVED IN WAYS THAT HAS TURNED ITSELF INTO A SUPER LEGISLATURE IN MANY WAYS.

AND ABRAHAM LINCOLN AT HIS FIRST INAUGURAL TALKED ABOUT HOW IF THE DECISIONS OF THE ENTIRE PEOPLE HAD TO BE FIXED BY THE SUPREME COURT, THE PEOPLE HAD CEASED TO BE THEIR OWN RULERS.

I THINK WE'RE DANGEROUSLY CLOSE TO EXPERIENCING THAT MOMENT.

>> PRESIDENT BIDEN RECENTLY CALLED FOR A BINDING ETHICS CODE AND EVEN TERM LIMITS FOR THE SUPREME COURT.

AND I'M WONDERING ARE THOSE PROPOSALS ENOUGH?

WHAT WOULD YOU SAY IS NECESSARY TO REFORM THE COURT?

>> I THINK THAT THE PACKAGES THAT HAVE BEEN PROPOSED SO FAR ARE A GOOD START, THAT THEY HAVE THE -- THE BACKING OF THE AMERICAN PEOPLE.

SOMETIMES PEOPLE LIKE TO SAY, OH, THIS IS TOO DIFFICULT, THAT THE ROAD HERE IS TOO LONG.

I THINK THAT'S NONSENSE BECAUSE I THINK THAT THE AMERICAN PEOPLE BACK THESE KINDS OF REFORMS, THAT THEY ALREADY SEE THIS COURT ACTING AS A POLITICAL BRANCH OF GOVERNMENT, AND THEY WOULD LIKE TO SEE IT REINED IN.

THE IDEA OF TERM LIMITS, OF -- OF GIVING EVERY JUSTICE 18 YEARS, THE IDEA OF GIVING EVERY PRESIDENT TWO SELECTIONS ONTO THE COURT, THE IDEA OF A BINDING ETHICS CODE, THAT WOULD TELL US WHO IS BUYING THESE JUSTICES HOUSES THAT BELONG TO MEMBERS OF THEIR FAMILY, WHO IS SENDING THEM ON VACATIONS, WHO IS SENDING THEM ON SUPER YACHTS?

WHO IS RESPONSIBLE FOR THEIR LAVISH LIFESTYLES?

AND DO THEY HAVE INTERESTS BEFORE THE COURT?

THOSE SEEM TO ME TO BE ENTIRELY FAIR QUESTIONS.

BUT I DO THINK WE ALSO ARE GOING TO HAVE TO GET TO THE POINT OF TALKING ABOUT A LARGER COURT, ABOUT EXPANDING THE NUMBERS AND ABOUT SHRINKING ITS JURISDICTION AND THE NUMBER OF -- AND THE AREAS IN WHICH IT IS ABLE TO RULE.

WHEN YOU HAVE AN UNELECTED COURT THAT IS REPUDIATING THE ELECTED BRANCHES, THE ELECTED BRANCHES HAS THE RESPONSIBILITY TO REIN IT IN.

AND TO DO NOT DO SO, WOULD BE ALLOWING THE COURT TO PUT ITSELF ABOVE ALL THE OTHER BRANCHES.

>> IF PRESIDENT TRUMP WINS ANOTHER TERM, WHAT DO YOU SEE AS THE FUTURE OF THE SUPREME COURT?

>> WELL, I THINK THAT PRESIDENT TRUMP ALREADY IN HIS FIRST TERM WAS ABLE TO PUT THREE JUSTICES ON THE COURT, AND WE'VE SEEN THE DIRECTION WHICH THAT HAS GONE.

DEMOCRATS HAVE A NUMBER OF JUSTICES ON THE COURT WHO ARE PROBABLY APPROACHING RETIREMENT AGE, WHOSE HEALTH IS KNOWN TO NOT BE IN THE BEST SHAPE.

IT IS ENTIRELY POSSIBLE THAT PRESIDENT TRUMP IN ANOTHER TERM WOULD HAVE THE ABILITY TO ADD ANOTHER JUSTICE ONTO THE COURT.

IT'S POSSIBLE THAT, YOU KNOW, SEVERAL MEMBERS OF THE CURRENT CONSERVATIVE SUPER MAJORITY COULD RETIRE AND THAT TRUMP WOULD BE ABLE TO REPLACE THEM WITH YOUNGER, MORE EXTREME VERSIONS OF THEMSELVES.

RIGHT NOW THE CURRENT CONSERVATIVE SUPER MAJORITY IS PROBABLY LOCKED IN PLACE AS FAR AS THE 2050s, SOME POLITICAL SCIENTISTS SAY, WHICH IS WELL PAST OUR LIFETIMES PERHAPS AND DEEP INTO OUR CHILDREN'S LIFETIME.

A SECOND TERM BY PRESIDENT TRUMP WOULD PROBABLY PUSH THAT DATE EVEN FURTHER INTO THE FUTURE.

>> HIS MOST RECENT BACK IS CALLED "ANTIDEMOCRATIC".

DAVID DALEY, THANKS SO MUCH FOR JOINING US.

>> MY PLEASURE.

THANK YOU FOR HAVING ME.