States. This is just over an hour. 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 mention. Here we go. Recite after me. The National Constitution center is the only institution in america to increase awareness and increasing of the u. S. Constitution among the American People on a nonpartisan basis. Beautiful. That is a wonderful recessation. Before we begin, i want to provide a quick plug for our next town hall. Join us for the 2020 annual Supreme Court review presented with the antidefamation league. And it will feature president ial scholars. It will be a wonderful discussion of the most important cases of the term. And, friends, 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. Its 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 meaningful to reopen the National ConstitutionCenter Building which is glimmering behind me on the fake backdrop to open the doors and welcome people to see the exhibit. Please put your questions in the chat box and i will introduce them to our panelists as soon as possible. We have the previofessor of hisy and social policy at harvard. Hes the author of many books including the right to vote which was a finalist for both the pulitzer prize. Franita tolson is vice dean and professor at law at the gould school of law. Her forthcoming look is rethinking the structure of Voting Rights, from the founding to the dawn of the progressive era. And Derrick Mueller is professor at the university of iowa school of law. Before joining the university of iowa, he was a professor of law at pepperdine university. Thank you for joining. Thank you. Thank you. Let us begin with alexs book. 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 towards justice. Its been a bumpy ride with peaks and valleys and you note a series of cases of reversals of the right to vote, for example, women in new jersey had the right to vote until 1807 and lost it for more than a century. Africanamericans in many northern states 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 lost it in the 1900s, the effort to limit the power of grinimmigrants. 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. You know, there is or there used to be, you know, a history that was much more 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 its been on ward and upward ever since. Its a chronicle of progress. What i found was precisely what you described. 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 mentioned several examples, let me mention a few more. In the early 19th century or the first or third 1810 and 1850, property requirements are eliminated 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. Paupers being defined as anybody who was dependent on the state. Some of those same conventions that eliminated property requirements in northern states disenfranchised africanamericans. After the civil war you mentioned the broad pattern of immigrants being restricted. We find these remarkable quotes from leading 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 its very hard to actually reinstitute a property requirement after youve gotten rid of it. What they do is to create a lot of procedural obstacles to those immigrant voters voting. They switch from disenfranchisement to voter suppression. Of course the big story, the largest quantitative 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, you know, 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 are going on this year and that have been going on for the last 20 years, perhaps 30, are in a key respect a reaction against but also people 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 theres a precedent for efforts to restrict the franchised by imposing voter i. D. Requirements or trying to prevent fraud and this period you identify in particular from around 1850 through the past world war i when the franchise is 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, i cant wait to read your new book which will be coming out soon, rethinking the constitutional structure of political rights. Tell us about the thesis of that book and to what degree was the contraction that alex talks about from the end from the mid 19th century through the progressive era driven by the withdrawal of federal Voting Rights enforcement. I think alex is too modest in talking about his book and how it informed the thinking of everyone who works in in this area. It looks at the same issue from a bit of a different perspective. Alex has done a wonderful job of showing how the right to vote has expanded and contracted throughout history. It raises a question in my mind how Congress Responded to those contractions. A lot of the stuff was happening at the state level. And so, you know, reconstruction is a time when you really 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 formally enslaved population. One thing that came to mind for me, what about the period before reconstruction . And i think the assumption is that congress didnt really 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 have much to say about it. But then Shelby County came out. The decision was the decision in which the Supreme Court invalidated a portion of their preclearance regime of the Voting Rights act of 1965. In that decision, the Supreme Court said that congress has overstepped the bounds of its authority under the 14th and 15th amendments when it required certain jurisdictions, mostly in the Southern States, to any changes to their law with the federal government before the laws go into effect. In finding that congress overstepped, i had questions in my mind about if that was in fact true. Ive always conceived of federal power being quite proed. Maybe im just, you know, sort of adherent to the court and ive drunk the koolaid. I decided to take a close look and a deep dive into this question. And so that was the motivation for writing a book which starts 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 a Legal Community really talk about. For example, the book talks about how congress exercises authority under the elections clause which gives congress the power to make or alter state regulations that governor federal actions. And also the guarantee clause in which congress guarantees a republican form of government and congresss power which allows us to judge the loeelects of its membership. These are all sources of authority that congress has used in order to influence state political systems. And i realize this was 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. Not only did the 14th and 15th amendments provide an additional basis for congress to act, so those are the provision that is we think of as being directly relevant to the individual right to vote. As alex mentioned, the 15th amendment enfranchised africanamericans by prohibiting discrimination on the base of race. But congress has used its authority under the guarantee clause to force Southern States to pass new constitutions and remake their political systems and they had constitutional conventions in which they were required to have, you know, multiracial coalitions. These werent constitutional conventions that were staffed purely by White Property males. So essentially you see this reconstruction and a guarantee clause and article i section five which are i think of as instructional provisions. But also these individual rights provisions. Congresss power under the 14th and 15th amendments in particular really Gave Congress a quite broad basis to act to remake southern political structures. And its this understanding that i argue that influences what that should influence what congress can do now when we think about the scope of congressional power over elections. Instead of just focusing soully solely on the 14th and 15th amendments. Thank you so much for that. Its exciting 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 rights to vote, teaching us that these provisions have been relied onto protect the franchise. And your important articles, you argue 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. Friends who are watching, lets review some of the provisions that the professor has called our attention to. In 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 there of but congress may alter such regulations which you talked about in article i, section five which says that each house shall be the judge of elections, returns and qualifyingsications its members. And the 14th amendment which has a provision in section two which says that if any state denies the franchise, then it loses representation in congress. So these are really important arguments and were going to return to many of them in a moment. In your very important work, youve argued that deference to the states when it comes to elections is important. The constitution doesnt really any federal right to vote, but leaves it up to the states to set voter qualifications and you say that 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 structure that we have in the United States of federalism and we talk about it sometimes, you know we think about it sometimes as the negative about, you know, whether its the state or federal government that someone is not acting appropriately or not exercising sort of its authority in the right way and theres been plenty of instances in American History where we can point to that. But the constitutions default setting is that the states are going to run them. The states pick the times, 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 after the 17th amendment for the senate. Theres a place 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 lowest chamber or the Largest Chamber in the state legislature. The notion being, were going to create a floor for the states and hopefully the thought is, the states are going to enfranchise broadly. And that was White Property males who would have the franchise and its broadened since then with some fits and starts, as alex as pointed out. The constitution structure sets this up in an interesting way and it presumes a couple of things. The first is if we want to expand the qualifications of the electorate, right . The presumption seems to be it happened in the states or we have to amend the constitution. Thats what happens with the 15th amendment. We think that the free man has the right to vote and so were going to pass the 15th amendment to ensure they will not deprived of any africanamerican in any of the states. When it comes to the 19th amendment and womens suffrage, its a different story. Its states that start this movement of enfranchising women out west as the lore tells it, it will be an opportunity for them to vote and participate in these elections. And so the women suffrage movement, we celebrate it as 100 years this year, thats 100 years of the 19th amendment. It was happening much earlier throughout the country and even today when we talk about noncitizens and whether or not noncitizens should vote, its something that, you know, happened as alex points out in his book at points early in the history of the United States. Today theres a federal law that prohibits you from doing so. Any state from doing so. I think theres some questions about the constitutionality. Is that something that the federal government can do. Is that something under its immigration authority. Theres a lot of states that have their localities in School Board Elections say we want noncitizens to vote and participate in these elections. When we think about what the right to vote means and we obviously understandably focus on a lot of those instances where states denied the right to vote to a number of individuals and we passed a constitutional amendment to ensure there would be authority for, you know, the federal government to intervene or to ensure that weve set some minimum standards, but its 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 participate in our political system. Thank you for that, and for reminding of this important and complicated relationship between the federal government and the states which we will revisit throughout the conversation. In the chat box, edward says, can we recognize the fight of john lewis to protect Voting Rights. Thank you for reminding me. It is deeply meaningful to pause to recognize the role of representative lewis, one of the great constitutional heroes of the 20th century and one of the most important figures for the expansion of Voting Rights in the century. The constitution centered was honored in 2016 to award the Liberty Medal to representative lewis and it was inspiring to hear him invoke the legacy of his mentor, dr. King, in inspiring his nonviolent protest which helped to lead to the Voting Rights act of 1965 and the shining example of his moral and constitutional vision is one that will live with all of us for many years. So just take a moment for all of us to recognize and celebrate his blessed memory. Alex, with that in mind, what does representative lewis achievements and those of the Civil Rights Movement in passing the Voting Rights act of 65, how did that transform the nature of Voting Rights in america and describe that period from 1965 to the present where it seems that the path toward the expansion of Voting Rights was still not steady and secure. I think, you know, a place that i like to start with talking about the Voting Rights act of 1965 is to point to its little known subtitle. Its called the Voting Rights act of 1965. And the subtitle of it is an act to enforce the 15th amendment to the u. S. Constitution. Its a law to enforce a constitutional provision that existed already for a century. And, you know, in effect the path that led to that was a path of activism and also a conclusion by congress by many of the participants that the Southern States by themselves were not going to really reform themselves with respect to africanamerican suffrage and en