The National ConstitutionCenter Hosted a discussion with legal scholars on the 100th anniversary of the 19th amendment. Guaranteeing women the right to vote. It was moderated by jeffrey rosen, president of the ncc. Ladies and gentlemen, welcome to the National Constitution center. And to todays version of americas town hall. I am jeffrey rosen, the president of this wonderful institution. And as folks who have joined us before know, we begin our programs by reciting together the National Constitution centers inspiring mission. So we can prepare ourselves for the learning ahead. Here we go. Recite virtually after me. The National Constitution center is the only institution in america chartered by congress to increase awareness and understanding of the u. S. Constitution among the American People on a nonpartisan basis. Beautiful. That is a wonderful recitation, and before we begin, i want to provide a quick plug for our next town hall on august 4th, please join us for the 2020 annual Supreme Court review presented in partnership with the antidefamation league, and it will feature the distinguished legal scholars erwin chemarinsky and dahlia renfrwick. I must tell you with great pleasure that on august 26th, circumstances permitting, the National Constitution center will open our new exhibit, how women won the vote, about the 19th amendment. Very relevant to todays topic. Its an exhibit about the history of the expansion of womens suffrage and our team is hard at work and it will be so meaningful to reopen the National Constitution center building, which is glimmering behind me on the fake backdrop, to actually open the doors and welcome people to see the exhibit. Throughout the program, please put your questions in the chat box, and ill introduce them to our panelists as soon as possible. Now, its my great pleasure to introduce our phenomenal guests. Alexander cizahr, matthew sterling professor of history and social policy at the john f. Kennedy school of government at harvard. Hes the hauther of many books including the right to vote, the contested history of democracy in the United States. Which was a finalist for the Pulitzer Prize and the Los Angeles Times book prize, and his forthcoming book coming out in ten days is why do we still have the Electoral College. Franita tolson is vice dean for faculty and Academic Affairs at the gould school of law, university of southern california. Her forthcoming book is rethinking the constitutional structure of political rights, the evolution of federal Voting Rights enforcement. From the founding to the dawn of the progressive era. And Derrick Mueller is professor of law at the university of iowa college of law. He has published widely and before joining the university of iowa, he was a professor of law at pepperdine university, Caruso School of law, and a visiting assistant professor at penn state law school. Alex, franita, and derrick, thank you all so much for joining. Thank you. Thank you. Let us begin with alexs book, and friends, please consider getting it, because its a definitive history of the right to vote in america and perfect homework, which i hope youll be inspired to read after todays discussion. In this important book, alexander, you argue that the right to vote has not been a steady bending of an arc toward justice or toward universal suffrage. Instead, its been a bumpy ride with peaks and valleys. And you note a similar a series of cases of outright reversals of the right to vote. For example, women in new jersey had the right to vote until 1807 and then lost it for more than a century, until the 19th amendment. Africanamericans in many northern staets had the right to vote at the time of the founding, and then lost that right in the 1820s and 50s. And people of foreign birth, similarly, had the right to vote in the midwest and southwest and then lost it in the 1900s in an effort to limit the power of immigrants. A broad question, but tell us about the unsteady progress of suffrage in the United States. Thank you, jeff. Thank you for the introduction and thank you for this question. There is there used to be, a history that was much for comforting of the right to vote which was okay, yes, when the nation was founded, the suffrage rights were limited to white male Property Owners but then it has been onward and upward ever since. So it is a chronicle of progress. What i found in doing the research for the book is what you describe. And what seems to happen is that each advance or most advances are accompanied or followed by conflict over those advances or conflict over the actual exercise of the expanded franchise. You mention several examples, let me mention a few more. In the early 19th century, in the first third, through 1810 and 1850, property requirements are illuminated in most states, in all states by 1850. There are no property requirements to vote. But often the same constitutional conventions that did that instituted other requirements such as a prohibition of paupers voting, being defined as anybody dependent on the state. Some of the same conventions that illuminated property requirements in northern states, disenfranchised africanamericans, who were not disenfranchised earlier. After the civil war, you mentioned the broad pattern of immigrants being restricted and we find these remarkable quotes from leading intellectual figures in the 1870s saying if we had known there were going to be all of these poor immigrants flocking into the country, we never would have eliminated property requirements. And so what they turn around and do, they cant it is very hard to actually reinstitute a property requirement after you got rid of it. But what they do is create a lot of procedural obstacles to those immigrant voters voting. Okay. If one wanted to be a little bit shorthanded about it, they switch from disenfranchisement to voter suppression. And the big story, the largest story in the late 19th century is that africanamericans, who are technically enfranchised by the 15th amendment to the constitution after the civil war, are removed wholesale from the electorate in the south by 1900. And the pattern continues in ways small and large. And just to round this out, i would say that the kinds of restrictions on and obstacles created to the exercise of the right to vote that have been going on that are going on this year and have been going on for the last 20 years, perhaps 30, are in a key respect a reaction against [ technical difficulties ] but also immigrants and speakers of foreign languages. So i think this pattern continues, and we have to recognize that not all of the American Population has been happy about the expansion of the franchise. Thank you very much for that powerful distillation of the wisdom of your book. It is meaningful to learn that there is a precedent for efforts to restrict the franchise by imposing voter i. D. Requirements or trying to prevent fraud, and in this period you identify in particular from about 1850 through the past world war i, where the franchise restricted not only on the basis of race but also with new property requirements, as you said, to prevent africanamericans and immigrants from voting, is deeply meaningful to learn about. Franita tolson, i cant wait to read your new book, which will be coming out soon, rethinking the constitutional structure of political rights, the evolution of federal Voting Rights enforcement from the founding to the dawn of the progressive era. Tell us about the thesis of that book and to what degree was the contraction that alex talks about from the end from the mid19th century through the progressive era, driven by the withdrawal of federal Voting Rights enforcement . So, i think alex is too modest in talking about his book and sort of how it informed the thinking of everyone who works in this area. So my book is it looks like the same issue from a bit of a different perspective. I think alex has done a wonderful job of showing how the right to vote has expanded and contracted at various points in history. And in reading his work, it raised a question in my mind about how Congress Responded to those contractions bah a lot of that stuff was happening at the state level. So reconstruction is a time when you see congress becoming more involved in sort of regulating the right to vote and sort of forcing states to be more aggressive about enfranchising the formerly enslaved population. But one thing that came to mind for me was what about the period before reconstruction . What did congressional power look like then . And i think the assumption is that congress didnt do much. We thought about the right to vote as a creature of state law. And so congress, at least in my mind before i started studying this, congress didnt really have much to say about it. But then Shelby County came out, the shelley county v. Holder decision was the decision in which the Supreme Court invalidated a portion of the preclearance regime of the Voting Rights act of 1965. And in that decision, the Supreme Court said that congress had overstepped the bounds of its authority under the 14th and 15th amendments when it required certain jurisdictions, mostly in the Southern States, to clear any changes with the laws with the federal government before those laws could go into effect. And so finding that congress had overstepped, i had questions in my mind about whether that was in fact true. Because i conceived of federal power in the areas being quite broad, and im like, maybe im just, you know, sort of an adherent to the warren court and ive drunk the koolaid, so i decided to take a close look and a deep dive into that question. So that is the motivation for writing the book, which started at the founding. And what i found was that congressional power was in some ways before the civil war quite modest. But it manifested in ways that i dont think we in the Legal Community really talk about. For example the book talks about how congress exercised its authority under the elections clause, which gives congress the power to make or alter state regulations that govern federal elections. And also the guarantee clause, in which congress guarantees to each state a republican form of government, and finally, Congress Power under article 1, section 5, which allows it to judge the elections of its membership. So these are authority that congress has used in order to influence state political systems. And i realize this is an important part of the conversation that we were not having. And in many ways it laid the foundation for exercises of congressional power during reconstruction. So not only did the 14th and 15th amendment provide additional basis for congress to act, so those are the provisions that we typically think of as being directly relevant to the right to vote. So the 15th amendment enfranchise africanamericans by prohibiting discrimination on the basis of race with respect to voting. But congress used its authority under the guarantee clause to force Southern States to pass new constitutions and to remake the political systems and they have constitutional conventions in which they were required to have multiracial coalitions. These werent constitutional conventions staffed purely by White Property males. So essentially, by reconstruction, you see this marriage of the constitution of political structure as i call it or Congress Power under the elections clause and the guarantee clause in article 1, section 5, which are on the structural provisions that delegate power directly to congress, but also these individual rights provisions. So Congress Power under the 14th and 15th amendments in particular, really Gave Congress a quite broad basis to act to remake southern political structures. And it is this understanding and i argue that influences that should influence what congress could do now when we think about the scope of congressional power over elections. Instead of just focusing solely on the 14th and 15th amendments. Thank you so much for that. And i have to say how exciting it is to read your work and to find you pointing our attention to the very few parts of the constitution you just described, the structural guarantees as well as the aspects of the 14th and 15th amendments, dealing with the right to vote, teaching us that historically, these provisions had been relied on to protect the franchise, and in your really creative and important articles, you argue that these clauses could provide a Solid Foundation for protecting Voting Rights today. I want to ask you more specifically about all of those arguments soon. But friends who are watching, lets just review some of the provisions that professor tolson has called our attention to. Article i, section 4, the time, place, and manner of Holding Elections for senators and representatives shall be prescribed in each state by the legislature thereof, but congress may make or alter such regulations except the place of choosing such senators. She talked about article i, section 5, which says each house shall be the judge of elections. She talked about the guarantee of a republican form of government, and then the 14th amendment, which has a little considered provision in section 2 which says if any state denies the franchise, it correspondently loses representation in congress. These are really important arguments and were going to return to many of them in a moment. Derrick, in your very important work, you have argued that deference to the states when it comes to elections is important. You note that the constitution doesnt create any federal right to vote but leaves it up to the states to set voter qualifications, and you say that kind of diversity is appropriate and should be deferred to by the courts. Tell us more about that argument and your reaction to what your colleagues have said. I think its a fascinating strucksure we have in the United States of federalism. We talk about it sometimes as the negative, whether its the state or federal government that someone is not acting appropriately or not exercising its authority in the right way, and theres been plenty of instances in American History where we can point to that. But the constitution default setting for that in elections is that the states are going to run them. The states pick the times and places and manner of Holding Elections unless Congress Steps in. The states get to choose the qualifications of eligible voters for the house of representatives and later after the 17th amendment for the senate but there is a floor in the constitution saying, states, when you establish the right to vote for your citizens for members of the house, it has to be the same as the right to vote for the citizens of the Largest Chamber in the state legislature, the notion being were going to create this floor for the states and hopefully the thought is the states are going to enfranchise broadly and at the founding that was White Property males who would have the franchise and it is broadened since then with fits and starts as alex pointed out. So the constitution structure sets this up in an interesting way. It presumes a couple things. The first is if we want to expand the qualifications of the electorate, the presumption seems to be it happens in the state or we have to amend the constitution. Thats what happens with the 15 amendment. Essentially, we think that friedman has the right to vote and should be given the right to vote, so were going to pass the 15th amendment to insure that will not be deprived of any africanamerican in any of the states. And when it comes to Something Like the 19th amendment and womens suffrage, its an interesting and slightly different story because it states that really start this movement of infranchising women out west. As the lore tells it, a motive to have women move out west and it will be an opportunity for them to vote and participate in these elections. And so womens suffrage movement, we celebrate it as 100 years this year, but thats 100 years of the 19th amendment. It was happening much earlier, and many other places throughout the country. And even today, when we talk about noncitizens and whether or not noncitizens should vote, it is something that happens, as alex points out in his book, at points early in the history of the United States. Today there is actually a federal law that prohibits you from doing so. Any state from doing so. I think there are questions about the constitutionality, is that some that the federal government can do, under the immigration authority, i dont know. But there are a lot of states that have localities and School Board Elections do experiments and say we want noncitizens to vote and participate in these elections. So when we think about what the right to vote means and we focus on a lot of the instances where states denied the right to vote to a number of individuals and we passed a constitutional amendment to insure there would be authority for the federal government to intervene or insure that we set some minimum standards. But it is an interesting story to think about this overlap in relationship between the state and federal government when it comes to defining the right to vote and who should