TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. We're about to have perhaps the most important midterm election of our time. The outcome will determine who controls the House and the Senate in this very divisive era, as well as who governs key battleground states. The results could be determined by who has the right to vote. Since the 2010 election, over 20 states have adopted new restrictions on voting, such as stricter voter ID laws, cutbacks to early voting and aggressive purging of voters. Since 2014, hundreds of thousands of people were purged from the rolls in states that have a so-called use-it-or-lose-it policy, which removes people from the rolls if they haven't voted frequently enough. In Georgia alone, that policy purged an estimated 107,000 voters, according to a new investigation by American Public Media's investigative unit. In 2013, the Supreme Court struck down the heart of the Voting Rights Act. But current ballot initiatives in several states could make it easier in the future to register to vote in those states and to crack down on gerrymandering.
My guest, Ari Berman, has been covering developments in voting rights and voting restrictions. He's the author of the book "Give Us The Ballot: The Modern Struggle For Voting Rights In America." He's a senior writer for Mother Jones, a reporting fellow at The Nation Institute and has also written about voting issues for The New York Times Magazine and Rolling Stone.
Ari Berman, welcome back to FRESH AIR. Before we talk state by state and get into specifics, is it a coincidence that there are voters being purged or asked for IDs that many citizens don't have in several states?
ARI BERMAN: It's not a coincidence. And let me just give you the big picture of what's happening with voting rights right now. So since the 2010 election, 24 states have implemented new restrictions on voting. So nearly half the states in the country have tightened their voting laws to do things like require strict forms of photo ID to cast a ballot or make it more difficult to register to vote or to cut back on early voting periods or to close polling places or to purge the voting rolls. And many of these restrictions on voting are playing out now in the 2018 elections in critical states like Georgia, North Dakota, Kansas, et cetera, where there are very close elections.
GROSS: So is it a coincidence that all this is happening?
BERMAN: It's not a coincidence. This has really been a major strategy within the Republican Party. After the 2008 election, when Republicans gained control of a number of really important states in 2010, they began to introduce a wave of new restrictions to tighten access to the ballot. Then those efforts were basically given a green light by the Supreme Court when it removed a critical part of the Voting Rights Act in 2013 in the Shelby County v. Holder decision and said that those states with the longest histories of discrimination no longer had to approve their voting changes with the federal government. That allowed states in the South that previously had to prove their voting changes with the federal government - places like Texas and Georgia and North Carolina and Alabama - to implement these new restrictions on voting. So I think you're seeing a national effort by the Republican Party to try to restrict voting rights, and it's playing out in states all across the country.
GROSS: Now, there's a couple of states in which the secretary of state who oversees the election is also running for office. Is that an inherent conflict of interest?
BERMAN: I think most people would say it is an inherent conflict of interest, Terry, because not only are secretaries of state running for office, but secretaries of state who have loudly championed efforts to restrict access to the ballot - people like Kris Kobach, the secretary of state of Kansas, and Brian Kemp, the secretary of state of Georgia. These have been the most outspoken advocates of making it harder to vote. And now these same people are running for governor and are locked in very, very close elections. So it seems like there's an attempt by these officials to restrict voting rights in a way that will benefit their candidacies for higher office.
GROSS: So one of the states in which the secretary of state is running for office is Georgia. Brian Kemp is the secretary of state. He's also running for governor. You describe Georgia as the epicenter of the current voter suppression battle. What has earned Georgia that distinction?
BERMAN: I think a number of different things Georgia has done has earned the state that moniker. But more recently, this issue exploded because the news emerged - it was reported by The Associated Press that Brian Kemp's office, the secretary of state's office in Georgia, was blocking 53,000 voter registrations in that state - 70 percent from African-Americans, 80 percent from people of color. What was happening is people were submitting voter registration applications, and if it didn't exactly match - if their names on the voter registration forms didn't exactly match other state databases - these voters were sent a letter telling them that their applications were pending and they needed to provide more information to election officials.
This was very confusing to people because even though these pending voters could show up and vote at the polls with the correct ID - they couldn't vote by mail, but they could vote at the polls. If you got a letter in the mail, Terry, that said that there was a problem with your registration, you probably would think that you weren't eligible to vote. So this set off widespread confusion. The fact that Brian Kemp, the secretary of state, was running for office at the same time his office was doing this and that he was running against Stacey Abrams, who could be the first black woman governor in U.S. history, that really made this a huge national story.
GROSS: And Stacey Abrams is actually a voting rights activist.
BERMAN: Stacey Abrams is a voting rights activist. And the big picture in this race is that these two candidates have a very different view of voting rights in this country. Stacey Abrams, the Democrat, is running to become the first black woman governor in U.S. history. She needs very high black voter turnout. And, in fact, she has made it her goal to register a lot of new black voters. She started a group in 2013 called the New Georgia Project that had the intent and purpose of registering more black voters. Brian Kemp, on the other hand, the Republican, is very reliant on support from white voters in Georgia. And so his view of the electorate and his view of voting rights is that it's necessary to restrict access to the ballot. And in fact, the people that are most affected by his policies are the kind of people that are going to be most likely to vote for Stacey Abrams. So there is this clash between their two ideologies.
These two figures have clashed themselves because when Stacey Abrams founded this group called the New Georgia Project, in 2014, they submitted 85,000 voter registration applicants to Kemp's office, and Kemp blocked about half of those registrations from going through, and he claimed that there was fraud going on within Abrams' group, the New Georgia Project. Ultimately, there were no fraud charges that were filed against the group. However, this battle between these two people - Brian Kemp and Stacey Abrams - dates back a few election cycles. So when I saw that they were running against each other, I knew that voting rights was going to be a major issue in this race, although I don't think anyone quite saw that the issue was going to blow up quite as much as it did.
GROSS: You know, the exact match rule, where your registration has to exactly match your voter ID - I understand how hard that could be. I mean, I have a passport and a driver's license, and one has a middle initial, and one has a middle name. And in trying to change the passport, there's so much - I tried and failed. I really tried. And so I still have to work on that. It's not fast, and it's confusing which form to use, which office to go to. I got wrong advice. So it's not simple to change that kind of really minor discrepancy.
BERMAN: If it makes you feel any better, you're not alone, Terry. There - when Wisconsin was thinking about adopting a similar exact match system, the six retired judges who help oversee elections there - they ran this test, and four out of the six judges in Wisconsin failed the exact match system because their names on their voter registration forms were different than their names in state databases. And so this kind of exact match system is known as disenfranchisement by typo because when you submit a voter registration form, if you have a hyphen missing on your name, if you have an apostrophe missing, if you use Tom on one form and Thomas on another, your form is going to be blocked by the state of Georgia.
And what's interesting to me is that Georgia first tried to put this policy in place in 2009 when it previously had to approve its voting changes with the federal government under the Voting Rights Act. And the federal government actually blocked this exact match system from going into effect because they said it was discriminatory against minority voters, who are more likely to be flagged by this system. Then when Brian Kemp was elected in 2010, he started doing this administratively. He was sued in 2016 by the Lawyers' Committee for Civil Rights, a voting rights group, because 35,000 registrations were flagged as pending under the exact match system, and there was a huge racial disparity in terms of who was flagged. And Kemp's office actually said he was going to stop doing this system.
But what happened is the Georgia Legislature basically reauthorized the law, gave voters more time to do this. And so a lot of people didn't even realize this law was back into effect. They thought - and I was one of those people that thought this law was blocked in 2016 - how is Brian Kemp doing this again? And that's only when I realized that the Georgia legislature had reauthorized this law and given Kemp new powers that a federal lawsuit was meant to prevent.
GROSS: Why are people of color more impacted by this exact-match law than white people are?
BERMAN: That's a very good question. And that was a question that I posed to a number of voting rights lawyers recently. And what they told me is that basically the names of people who are African-American or Latino or Asian-American tend to be more unfamiliar to election workers. So they might have names that don't match on the databases from one form to another. Or election officials might actually enter the correct name incorrectly because they're confused by the spelling, or they don't recognize the name. And so I think that basically people of different kinds of backgrounds are sometimes unfamiliar to the largely white officials that are running Georgia's elections. And I think that's one of the reasons why a lot of people of color are ending up on these pending registration lists.
GROSS: Are there other ways that Brian Kemp as secretary of state has restricted voting rights?
BERMAN: Yes. So there was recently a very interesting report by the U.S. Commission on Civil Rights, a very historic group that's been monitoring civil rights for many years. And they looked at the different ways in which voting is being targeted. And they found five different ways that voting is being targeted - through voter ID laws, through proof of citizenship laws to register, by purging the voting rolls, by cutting early voting and by closing polling places. They found that Georgia was the only state that has adopted all five of these voting restrictions.
So it's not just one thing that Georgia is doing. Georgia has closed 214 polling places in recent years. They have cut back on early voting. They have aggressively purged the voter rolls. Georgia has purged almost 10 percent of people from its voting rolls - 1.5 million people have been purged from 2012 to 2016. So there's a lot of different data points that show how Georgia is leading the way when it comes to restricting access to the ballot.
GROSS: OK, there's other states with voting issues to talk about. But first we're going to take a short break. If you're just joining us, my guest is Ari Berman. He's author of the book "Give Us The Ballot: The Modern Struggle For Voting Rights in America." And he's a senior reporter for Mother Jones. We'll talk more about voting rights after this short break. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Ari Berman. We're talking about voter rights and voter suppression. He is the author of the book "Give Us The Ballot: The Modern Struggle For Voting Rights in America." And he's a senior reporter for Mother Jones. So we've talked about the current election in Georgia where Brian Kemp, the secretary of state, is also running for office. So let's take a look at Kansas where the secretary of state is also running for office. In this instance, it's Kris Kobach who is running for governor. What are some of the ways in which he's restricted voting rights in Kansas?
BERMAN: And not just any secretary of state, Terry - I would say that Kris Kobach is the most high-profile secretary of state in the country. And he has really been the leader in the Republican Party when it comes to restricting voting rights. This is the guy who was named vice chair of Donald Trump's election integrity commission, which was formed in a very high-profile way and then shut down before it actually did anything. But it requested voter data from all 50 states, which set off a huge firestorm last year. Kobach was the guy who told Donald Trump that 3 million people voted illegally in the 2016 election. No legitimate evidence has been put forward by Trump or Kobach to support this. Nonetheless, Kobach is really the guy who has formed the intellectual case for restricting voting.
And what he's done in Kansas is a few things. He wrote a law that was passed by the Kansas legislature called the SAFE Act that did a few concrete things when it came to restricting voting. The first thing it did is that it required proof of citizenship to register to vote, meaning that you had to have a passport or a birth certificate or naturalization papers to register to vote. This law blocked 1 in 7 Kansans - almost 35,000 people from registering to vote in that state. The Federal Court actually struck that law down earlier this year and said that there was almost no evidence of voter fraud in Kansas to justify the potential disenfranchisement of tens of thousands of voters. So that part of the law has been struck down. But another part of the law - a voter ID law where you have to show government-issued ID to be able to vote - that part of the law remains in effect. And I've looked at the numbers in Kansas. And over 1,200 ballots have been tossed since Kobach was secretary of state of Kansas because voters showed up at the polls without having the right ID.
But Kobach only won his primary - his Republican primary by 351 votes. And now he's locked in a very close election with Democrat Laura Kelly, who's a member of the state Senate and independent candidate Greg Orman. And even the smallest reduction in turnout could shift the race in Kobach's favor. And the Government Accountability Office did a study of Kansas' voter ID law. And they found that Kansas' voter ID law in 2012, when it was first in effect, reduced turnout by 2 percent in that state with the largest drop-off among black voters, young voters and first-time voters. And these are all people that are going to be less likely to support Kobach than the traditional Republican base.
GROSS: You say that Kris Kobach was actually the source of President Trump's false claim that millions of people voted illegally in 2016. And if you compensate for all of those illegal votes, Trump would have won the popular vote and not Hillary. So what did Kris Kobach do to plant that idea?
BERMAN: Kris Kobach met with Donald Trump after the election. Basically Kobach was auditioning for a cabinet position. He was under consideration to be head of the Department of Homeland Security. And Kobach had this study - not a very legitimate study - but nonetheless, it was a study that he gave Donald Trump that purported to show that 3 million people had voted illegally in the 2016 election. And shortly after this meeting with Kobach, Trump tweeted that millions of people voted illegally. And when I interviewed Kobach for The New York Times Magazine last year, he told me that he was the source of Trump's claim and showed me the study that purported to show this. However, when the author of that study, who was a professor at Old Dominion University, testified in a federal lawsuit challenging Kansas' proof of citizenship law, Kobach's own expert disavowed that study and basically said it didn't show anywhere near that 3 million people voted illegally.
GROSS: Kris Kobach has also been an advocate for a new question to be added to the census. And the census might not seem like it's actually a voting issue, but it is a voting issue. Kobach advocated for adding a question about citizenship - are you a citizen? And how does that apply to voting rights?
BERMAN: It's a huge issue because census data is used to draw voting districts. It's used to draw districts for state legislatures. It's used to draw districts for the U.S. House. It's used to determine how many electoral votes each state has. So the census is instrumental when it comes to voting. And what happened, according to court documents, is that Steve Bannon, at the time, the chief strategist to Donald Trump, called Commerce Secretary Wilbur Ross, who's in charge of running the census, and says, I want you to talk to Kris Kobach about adding this question about U.S. citizenship to the census. And what Kris Kobach told Ross is - he suggested wording for the citizenship question. And then he said it's needed because right now, in his words, illegals were being counted when it comes to representation.
I don't want to get too technical here, Terry. But the way that districts are drawn is they're based on total population. So everyone in a given area is counted when it comes to drawing a district and deciding what level of representation an area should have. What Kobach wants to do is restrict those districts to only counting people who are citizens. If you did that, areas with lots of noncitizens, places like Texas and New York and California, would have much less representation than places where there's a lot more citizens. If Kobach has his way, districts are going to be drawn only based on citizenship.
What that will mean is that will be a major power shift to Republicans because, generally speaking, areas with lots of immigrants tend to vote Democratic. If you exclude them from counting, then - despite the massive demographic change we're seeing - that the districts are going to become more conservative. And this question about U.S. citizenship hasn't been asked on the census since 1950. And there's a tremendous fear that if it is asked, Latinos, Asian-Americans, other minorities, whether documented or undocumented, are going to be afraid to respond to the census and that the areas where these people live will get fewer political seats, less money, less political representation than they otherwise would in a fair and accurate census.
GROSS: So where does that stand now - this question?
BERMAN: Right now, there are six different federal lawsuits challenging this question. The most high-profile lawsuit is being led by New York and 16 other states. And basically what they're saying is that this question is going to have a majorly suppressive effect on people responding to the question - that you're going to see many people afraid to give their citizenship on the census because they're worried about Donald Trump's immigration policies, and they don't want to tell Donald Trump what their legal status is. And that's going to affect the entire census. And so if the census is unfair, if the census is inaccurate, then so many things that the census does is going to be unfair and inaccurate as well.
GROSS: My guest is Ari Berman, author of "Give Us The Ballot: The Modern Struggle For Voting Rights in America" and senior reporter at Mother Jones. After a break, we'll talk more about voting restrictions and ballot measures that may expand voting rights. And we'll look at the Supreme Court with Brett Kavanaugh on the bench and how it would likely respond to cases pertaining to voter suppression and voting rights. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Ari Berman about voting rights and voting restrictions which may influence the outcome of the midterms in this key election. He's the author of the book "Give Us The Ballot: The Modern Struggle For Voting Rights In America," and he's a senior writer for Mother Jones. We've been looking at some of the states that have added the most consequential restrictions. Let's move on to North Dakota. And what's the big voting issue there right now?
BERMAN: The big voting issue in North Dakota is that that state has recently passed a new voter ID law that was upheld by the Supreme Court earlier this month. And what's alarming about that law is that the Republicans in North Dakota wrote it in such a way that for your ID to count you have to have a current residential street address on your ID. The problem in North Dakota is that a lot of Native Americans live on rural tribal reservations. And they get their mail at the post office using P.O. boxes because their areas are too remote for the post office to deliver mail at. Well, under this law, tribal IDs that list P.O. boxes won't be able to be used as valid voter IDs. So now we're in a situation where 5,000 Native American voters might not be able to vote in the 2018 elections with their tribal ID cards. And this is sending off a tremendous amount of alarm this race because normally we wouldn't be talking about North Dakota, Terry. But there is a competitive Senate race between a Democrat, Heidi Heitkamp, and the Republican, Kevin Cramer. Heidi Heitkamp only won her first race for the U.S. Senate in 2012 by 2,900 votes. And she got 80 percent of the vote on the two counties in the state with the largest Native American reservations. So there's a tremendous amount of fear in North Dakota that many Native Americans are not going to be able to vote in this state, and that's going to particularly hurt Heidi Heitkamp, the Democratic incumbent. And if Heitkamp loses, Democrats won't have any chance of taking back the U.S. Senate.
GROSS: Is there a suspicion that this law with street addresses was particularly targeted at Native Americans?
BERMAN: Yes, because North Dakota Republicans began writing this law five months after Heitkamp was unexpectedly elected in 2012. And there's been a number of iterations of this law, but the district court in North Dakota struck down this law earlier this year. And basically, they said that the law was going to uniquely burden Native American voters because as it was written, they couldn't use P.O. boxes as their addresses on their IDs. And Republicans in North Dakota, and the secretary of state who was largely behind this, knew this at the time. They knew that Native Americans wouldn't be able to use their tribal IDs as the law was written. But they put it in place anyway. The problem was that a very conservative appeals court upheld this law in September. So it was already very close to the election. And the Supreme Court upheld that decision in October. So basically, a month before the election, thousands of Native Americans were told, the IDs that you use for everything in your life, you can't use for voting.
And now this is a very confusing situation on the ground in North Dakota. What the tribes have said they'll do is they're actually going to sit outside the polls, and they're going to use GPS coordinates to give Native Americans a street address if they don't have one. And they are going to print out forms, and they're going to give them letters to then give to poll workers as correct ID. But we have no idea if this is actually going to work. The secretary of state of North Dakota has been noncommittal about whether he'll accept these IDs, whether poll workers are going to be confused. So if we have another close election in North Dakota, it could be swayed by this voter ID law.
I think the larger point is that this is one of the most historically disenfranchised - if not the most historically disenfranchised - community in this country, that Native Americans have all sorts of problems right now that they're facing because of what this country did to them, and now they're facing all of these burdens just to be able to vote in the 2018 election. And I think that's just very, very disturbing from a civil rights perspective.
GROSS: It's kind of standard - almost a cliche - for people, including, you know, elected officials, to say, get out and vote; American democracy is based on exercising your franchise. Over the weekend, President Trump tweeted a warning. He tweeted, all levels of government law enforcement are watching carefully for voter fraud, including early voting; cheat at your own peril; violators will be subject to maximum penalties, civil and criminal. What's the reaction to that tweet, then?
BERMAN: It was a very alarming tweet by the president. As you mentioned, Terry, usually, presidents and high-ranking officials encourage people to vote. President Obama just put out a tweet recently when he went through all the excuses for people not voting and said, this is why you should vote. But Donald Trump was doing the opposite. He basically made it seem like this was an act of voter intimidation by the president of the United States.
It's not the first time that Donald Trump has tweeted about voter fraud. He repeatedly claimed without any evidence that millions of people voted illegally in the 2016 elections. In fact, voter fraud is a very rare problem in American elections. It's not like it never happens, but it's not nearly as widespread as many people, including the president, would have you believe. Just to cite one study, there was a review of every ballot cast between 2000 and 2014 - so over a billion ballots cast during that period. And there were only 31 cases of voter impersonation. So that means you're more likely to be struck by lightning than you are to commit voter fraud.
But I think the real reason why Trump was doing this and why he mentioned early voting in particular is that in spite of the barriers that we've been talking about, early voting turnout is way up in a lot of crucial swing states, and it's favoring Democrats, who are getting out to vote in spite of the barriers they are facing. And this has alarmed Republicans. And so what Trump is saying is that he wants to essentially intimidate people out of voting, particularly out of early voting, because he feels like this is hurting the Republican Party. And at any time it seems like Republicans are about to lose an election, they invoke the specter of widespread voter fraud, which they feel will hopefully have a chilling effect on voter participation.
GROSS: Well, we've been talking about voter restrictions. We're going to talk about the possibility of expanding voting rights during this election after we take a short break. If you're just joining us, my guest is Ari Berman. He's the author of the book "Give Us The Ballot: The Modern Struggle For Voting Rights In America." And he's a senior reporter for Mother Jones, where he's been covering all the voting issues and more that we've been talking about. We'll be right back after we take a short break. This is FRESH AIR.
(SOUNDBITE OF DAN AUERBACH SONG, "HEARTBROKEN, IN DISREPAIR")
GROSS: This is FRESH AIR. And if you're just joining us, we're talking about voting rights and voting restrictions. My guest is Ari Berman. He's the author of "Give Us The Ballot: The Modern Struggle For Voting Rights In America." And he's a senior reporter for Mother Jones, where he's been writing about voting issues.
So you said that 2018 could actually be a big year for expanding voting rights, in spite of all these additional new restrictions that we've been discussing, and that there are initiatives on the ballot in seven states that would make it easier to vote and harder for states to gerrymander political districts. So give us an overview of those initiatives on the seven states.
BERMAN: Yeah, so despite all of the focus on voter suppression, Terry, 2018 could actually be a huge year when it comes to expanding access to the ballot because there are initiatives that would make it easier to register to vote in crucial swing states like Michigan and Nevada through things like automatic and Election Day registration. There are initiatives in four states to make it harder to gerrymander by doing things like citizen-led or nonpartisan redistricting in places like Colorado, Michigan, Utah and Missouri.
And the biggest ballot initiative, the one that could affect the most people, is in Florida, where they have a ballot initiative that would restore voting rights to ex-felons. So Florida is one of only four states that prevents ex-felons from voting, meaning even after you've served your time, you've paid your debt to society, you have to wait five to seven years in Florida to appeal to have your voting rights restored by the governor and his Executive Clemency Board. And this current governor, Rick Scott in Florida, has restored voting rights to almost nobody.
You have a situation in Florida where 1.6 million ex-felons can't vote. That's a staggering number. What that means is that 1 in 10 people in Florida, including 1 in 5 African-Americans in the state, can't vote because they have a felony conviction. So 10 percent of people in the most important swing state in the country that has routinely decided presidential elections aren't able to participate and aren't able to vote in 2018. And this ballot initiative would restore voting rights to up to 1.4 million people in Florida. That would be the largest enfranchisement of new voters since the passage of the Voting Rights Act of 1965.
So despite all the suppression we're seeing in Georgia, North Dakota and Kansas and other states, Florida has a chance to give the right to vote back to more people than at any time since the 1960s, and that's the good news that I hope doesn't get drowned out by all the bad news.
GROSS: So Rick Scott, the governor of Florida, who you described as the chief enforcer of the felon disenfranchisement law - he's running for Senate against three-term incumbent Bill Nelson.
BERMAN: He is. And so here, you have a situation where the architect of a policy that has disenfranchised 1.6 million ex-felons in Florida is running for office. And the people disenfranchised by Rick Scott aren't able to vote against him. And previous governors in Florida have restored voting rights to many more people than Scott has. Jeb Bush, the governor of Florida, restored voting rights to 77,000 ex-felons. Charlie Crist, Jeb Bush's successor, restored voting rights to 155,000 ex-felons in Florida. Rick Scott has only restored voting rights to 3,000 people in Florida during his eight years as governor. So he has implemented this felon disenfranchisement law in the most restrictive way possible. And it's not just his race. Florida could also elect the first black governor in their state's history, Andrew Gillum. But you have a situation where 500,000 - half a million - disenfranchised African-Americans aren't able to vote, potentially to elect the state's first black governor.
GROSS: So in the past, there have certainly been a lot of voting-related court decisions that have been appealed as high as the Supreme Court. The Supreme Court now has added Brett Kavanaugh to the bench. What's his position on voting rights?
BERMAN: He has, from the cases we've seen, a pretty alarming record on voting rights. He upheld a voter ID law from South Carolina in 2012 that the Obama administration had opposed and said could disenfranchise tens of thousands of thousands of minority voters in that state. But Kavanaugh wrote the majority opinion upholding this law, and he basically said that even if there was no evidence of voter fraud, that states could enact new restrictions on voting. And that sets a very broad precedent for Republican-controlled states like Georgia, like North Dakota, like Kansas to enact new restrictions on voting. And even if there is no evidence of the kind of fraud that they are purporting to crack down on, they can uphold these measures as legal, even if they just say that they're intended to, in Kavanaugh's words, promote the integrity of the election.
And so he is going to be joining a very conservative court already. This was the same Supreme Court, remember - in Terry - in 2013 that gutted the heart of the Voting Rights Act. And he is going to be less open to potentially striking down these restrictions than his predecessor, Anthony Kennedy, who was already pretty conservative on these issues, was. And so now we're facing the most conservative court on civil rights issues since the Jim Crow era. And there is a tremendous amount of fear that Brett Kavanaugh is going to give a green light to the kind of voter suppression efforts that we're seeing playing out in the 2018 election right now.
GROSS: Well, Chief Justice John Roberts is now considered to be the swing vote in the court. What's his record on voting rights?
BERMAN: It's amazing to me that Roberts is now considered the swing vote on the court when he has really been the most aggressive advocate on the court for limiting voting rights. And this goes back many years. When John Roberts was a young lawyer in the Reagan Justice Department all the way back in the 1980s, he led efforts to weaken the Voting Rights Act. That was a key part of his portfolio. And then when he joined the Supreme Court, he authored the 2013 decision that gutted the heart of the Voting Rights Act and ruled that those states with the longest histories of discrimination no longer needed to approve their voting changes with the federal government. Roberts mocked the idea that voting discrimination was still widespread or pervasive, in his words.
And in fact, everything that we're seeing right now would seem to contradict that - the fact that there are so many new barriers to voting, both in states that were covered by the Voting Rights Act - places like Texas and Georgia - or in states that weren't covered by this one provision of the Voting Rights Act, like Kansas. The fact that there is such widespread voting discrimination that we're seeing right now would seem to argue not just for keeping the Voting Rights Act intact, but if anything, strengthening it to have more protections against voting discrimination. But instead, the Supreme Court did the opposite. And voting rights advocates are extremely worried that all of these new restrictions on voting, when they go before the Supreme Court, are basically going to be upheld.
GROSS: The argument for voting restrictions is fraud - that you have to do this to prevent fraud. If you look nationally at voting fraud, how pervasive has it been?
BERMAN: Every study shows that voter fraud is a very small problem in American elections - not nonexistent, but incredibly rare - that from 2000 to 2014, according to one study, there were only 31 cases of voter impersonation out of 1 billion votes cast. So even in states where there are no voter ID laws, like New York, where I live, it's very difficult to commit fraud. In New York, what we do is we sign our names at the polling station, and they have to check that the signature on file matches the signature that we're signing when we go to vote.
Well, if I wanted to commit voter fraud in New York in a state without a voter ID law, I would have to find a voter I would have to know what their address is. I would have to know what their signature looks like. I would have to know that they (laughter) hadn't voted already. And I would be facing potentially five years in jail, a felony conviction, a tremendous fine. And I would only be shifting one extra vote after all of that. So it doesn't mean that voter fraud never occurs, but the penalties for voter fraud are already very high. The mechanisms that we have in place already deter people from doing it. If you try to commit fraud, you're most likely to get caught. And then you're only shifting a very small number of votes, one vote usually at most. And so what I see based on the data is that the number of people prevented from voting by restrictions on voting is exponentially larger than the cases of voter fraud we're seeing.
GROSS: Well, let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is journalist Ari Berman. He's the author of the book "Give Us The Ballot: The Modern Struggle For Voting Rights In America." He's also a senior reporter for Mother Jones who's been reporting extensively on the latest developments in voting issues. We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you're just joining us, we're talking about voting rights and voting suppression. My guest is Ari Berman. He's the author of the book "Give Us The Ballot: The Modern Struggle For Voting Rights In America." He's also a senior reporter for Mother Jones who's been reporting extensively on voting issues.
If you consider this wave of voter restrictions to be part of a larger Republican strategy, what's the starting point for you? Is there, like, a starting point or a group or a person that you see as having, you know, lead this or begun it?
BERMAN: You know, I date the contemporary effort to restrict voting rights back to the 2000 election in Florida because everyone knows about hanging chads and butterfly ballots and all the problems that we saw in that election. But there was a massive voter purge that was undertaken by Republicans in Florida during the 2000 election. And Florida was one of only a few states that prevented ex-felons from voting. And so what the state did is they purged thousands of people from the voter rolls. And they said that ex-felons were registered in large numbers and needed to be removed from the rolls. Well, this voter purge was very inaccurate. It was also discriminatory. African-Americans in Florida were 11 percent of the electorate, but 44 percent of those on the voter purge list. And what happened is people showed up on Election Day. They were wrongly told they were felons, and they were prevented from voting. And this was overshadowed by the hanging chads and the butterfly ballots and all of that. But after the 2000 election, the NAACP sued the state of Florida. And the state conceded that 12,000 registered voters, who were disproportionately African-American, were purged from the voting rolls and unable to vote because they were wrongly labeled as ex-felons.
And that number of people purged was 22 times George W. Bush's 537-vote margin of victory. And I think coming out of the 2000 election in Florida, we said this can never happen again. We can never have these kind of voting problems. But I think elements of the Republican Party, however, saw a different strategy, which was that small manipulations to the country's voting laws, to state voting laws, could make a very big difference in close elections and could benefit the Republican Party. So we saw these same kind of efforts in the 2004 election in Ohio when there were massive lines to vote in Democratic areas. And then after 2008 when there was a record turnout for President Obama and 5 million new voters cast a ballot, I think Republicans realized that if they were able to restrict access to the ballot, particularly for Democratic constituencies like African-Americans, Latinos, Asian-Americans, first-time voters, younger voters, they could gain an advantage. And they could gain an advantage by changing the voting laws in all of these states they controlled. So I think if you look at what we're seeing now, you can date it back to what happened during the 2000 election in Florida. And then fast forward to 2010 when Republicans took over so many key swing states and were in control of state voting laws all across the country, particularly in states that would decide the next president and decide control of Congress.
GROSS: Another issue I want to ask you about - and I don't know how carefully you've been covering it. There's a lot of concern about Russia or other foreign countries hacking into our electoral system or interfering with it through fake Twitter accounts, bots, false information, you know. So I think twice Republicans this past summer have blocked efforts to increase funding to protect our election security against hackers like the Russians. What can you tell us about that?
BERMAN: The Trump administration and the Congress have done almost nothing to make states' voting systems more secure. And this is clearly ongoing. We just saw an indictment last week by the Justice Department that showed that Russians were trying to influence the election through fake Twitter accounts and other things that, by the way, promoted things like voter ID laws and raise the specter of widespread voter fraud. So the Russian bots were basically echoing what Donald Trump and Kris Kobach and others in the Republican Party were saying about voting issues. We know in the 2016 election that Russians accessed voter registration lists or tried to access voter registration lists in 21 states. They got hold of voter data in Illinois on half a million voters, which is very alarming. And people focus on the potential of voting machines being hacked. And that is possible, particularly in 13 states that have no paper backups on their electronic voting machines, which include some very important swing states like Pennsylvania and Georgia.
But they don't even have to hack the voting machines themselves. If the Russians or others were to get a hold of registration lists like they did in Illinois and if they were able to do it undetected and they were able to delete people's names from the voter registration rolls or change one hyphen in the case of someone in Georgia or were able to change someone's last name in states like voter ID laws - that in and of itself would create huge chaos when those people showed up at the polls, and it could potentially disenfranchise thousands of people. So it's not just the voting machines that are at risk. It's the election systems themselves, particularly the voter registration lists. And I haven't seen any aggressive action by the federal government to try to do anything really substantive about this problem. So a lot of people are worried about what might happen in 2018 because the Trump administration has done so little to try to counteract the threat of Russian hacking.
GROSS: What are you going to be focusing on on Election Day?
BERMAN: I think I'm going to have my hands full. There are a bunch of new restrictions in place in very close races, so places like Georgia and North Dakota and Kansas. I'm going to be looking, first off, on if we have any hard evidence or what the stories are of people potentially being disenfranchised and then looking at, did that impact the outcome of the elections? Even if it didn't impact the outcome of the elections, the fact that people are being prevented from exercising such a fundamental right is alarming in and of itself. And then I'm also going to be looking at all of these ballot initiatives in seven different states that would potentially expand voting rights for millions of people. I'm going to be looking at what's happening in local races that have a huge impact on voting rights - local secretaries of state races, for example, where Democrats actually have an ability to take back these seats from Republicans in really critical swing states like Ohio and Michigan and Iowa and Georgia.
And so I'm going to be focused on one hand on the potential threat of voter suppression, but on the other hand, I'm going to also be focused on the opportunity to expand voting rights for a lot of people. So the 2018 election could go in two different ways. It could be tainted by voter suppression, or it could be remembered as an election in which voting rights were expanded for millions of people.
GROSS: Well, Ari Berman, I want to thank you so much for talking with us.
BERMAN: Thank you so much for having me back, Terry.
GROSS: Ari Berman is the author of "Give Us The Ballot: The Modern Struggle For Voting Rights In America." And he's a senior writer for Mother Jones. Tomorrow on FRESH AIR, my guest will be Paul Dano. He played a teen preacher in "There Will Be Blood," a moody teenager who took a vow of silence in "Little Miss Sunshine" and portrayed Brian Wilson in "Love & Mercy." Dano directed and co-wrote the new film adaptation of Richard Ford's novel "Wildlife." It stars Jake Gyllenhaal and Carey Mulligan. I hope you'll join us.
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GROSS: FRESH AIR's executive producer is Danny Miller. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Sam Briger, Lauren Krenzel, Heidi Saman, Therese Madden, Mooj Zadie, Thea Chaloner and Seth Kelley. I'm Terry Gross.
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