Support for Overheard with Evan Smith comes from Hilco Partners, a Texas government affairs consultancy.

Claire and Carl Stuart, Christine and Philip Dial and the Eller Group specializing in crisis management, litigation and public affairs communication EllerGroup.com - I'm Evan Smith.

He's the National Voting Rights Correspondent for "Mother Jones" and the author of three books about the vulnerability of our democracy, most recently "Minority Rule: The Right-Wing Attack on the Will of the People and the Fight to Resist It."

He's Ari Berman.

This is "Overheard."

A platform and a voice is a powerful thing.

You've really turn the conversation around about what leadership should be about.

Are we blowing this?

Are we doing the thing we shouldn't be doing by giving in to the attention junkie?

As an industry, we have an obligation to hold ourselves to the same standards that we hold everybody else.

- Two.

- This is "Overheard."

(audience applauds) Ari Berman, welcome.

- Great to see you, Evan.

Thank you.

- And you too.

And congratulations on this book.

I mean it.

I would say that I liked it 'cause I did like it, except it's only about the nullification of our democracy, right?

Like, I can't be upbeat about this book.

- It has a happy ending.

- It's not, well, we don't know if it has a happy ending.

- Well, let's hope it has a happy ending.

- Right, I don't think we actually know.

I mean, look, I've worried for some time that the system that we have in place, you know, everything else in the world would be second best to the system that we have.

But the system that we have is not perfect and the imperfections have been glaring of late.

All these ways in which structurally our democracy is not producing representative government, right?

The will of the people, to the point of your book, is being thwarted.

That's really what you're getting at here.

- That is what I'm getting at.

- Yeah.

- And if you started a system from scratch today, no one would design it the way it ended up.

- Right.

- Because I tried to explain the Electoral College recently to my nine-year-old daughter, and she looked at me like I was crazy.

- Right.

- The idea that someone could get more votes but lose the election.

- Right.

- She's a big basketball fan.

When she watches Knicks games with me, she understands, the Knicks score the most points, which they've been doing a lot recently, luckily.

- Only recently.

- And they win the game.

- Yeah.

- And I have to explain to her it actually doesn't work that way in American politics.

- Well, what is the tally now?

I've lost count.

The number of elections in which the winner of the popular vote did not win the Electoral College.

I mean, lately, it's some high percentage of our elections.

- Well, it happened three times before 2000, and it's happened twice, if you include 2000, and it almost occurred a third time.

- Right.

- In 2020.

- 2020.

Right.

- And listen, Donald Trump- - And it might, by the way, it could very well, should Vice President Harris- - Very well could.

- Again, not seen the last scene in the movie yet, but should Vice President Harris lose this election, it would almost certainly be lost with her winning the popular vote, but losing the Electoral College.

- Yeah, I don't think anyone believes Donald Trump is gonna win the popular vote.

- Win the popular vote.

Right.

Yeah.

- So, I mean, we've already taken for granted that once again, he's not going to have the support of a majority of Americans because he's never had the support of a majority of Americans either for him personally or for his governing agenda.

But listen, we would've never had an insurrection at the Capitol if we had a system in which every vote counted equally.

Because Trump could have plausibly tried to overturn 44,000 votes in three swing states, but he never could have overturned seven million votes.

- Seven million popular votes.

- That would've never happened.

You can't overturn seven million votes.

So this is a system that is undemocratic at its core, violates one person, one vote, shuts out 80% of Americans from mattering.

If you live in a blue state like New York where I'm from, or a red state like Texas where you're from, your vote doesn't matter in a presidential election.

- Right.

- And so we have a very small number of swing states that receive all the attention and the rest of the country is basically ignored.

And that's no way to elect the most powerful leader in the country.

- You know, I see these polls come out, this is the national poll of the election this time or previous times.

And I have to remind people, it's not a national election, so don't pay attention to these polls.

It's interesting.

It's a talking point.

But the fact of a popular vote poll, it's kind of irrelevant.

It's 50 state elections, but as you just point out, it's not 50 state elections, right?

I mean, here we are in 2024 talking about an election that we assume, we'll have to see, will be decided by as few as seven states.

- Exactly and we said Harris expanded the map.

It went from six states to seven states with North Carolina.

- Right.

- I mean, that means that 43 states still don't really matter.

No one's gonna come to Texas who's a presidential candidate unless they're gonna raise money.

- Raise money.

- Same with New York, same with California.

And the funny thing is, people think this only hurts Democrats.

It hurts all Americans.

There's a lot of Republicans in New York and California, and no one's asking for their vote either.

And if you live in one of those sparsely populated, rural states, like Wyoming, no one's coming to your place either.

And so this is a system that really only benefits a handful of swing states as opposed to shutting out a majority of, the vast majority, of Americans.

- You've been in a position of rebutting the argument, but make the argument, put yourself on the other side of the table.

The argument for the Electoral College when people make one is what?

- Well, it depends whether you're talking about the argument they make today or the argument that they made 230 years ago.

- Yeah.

- Okay, I'll give you both arguments, right?

The argument they make today is basically the big states would dominate everything.

- Yeah.

- The New Yorks, the Californias, the Texas would dominate everything.

My counter to that is, no, every state would matter equally.

Right now we have a system in which six states matter more than 44, and actually, everything would be equal if we had a direct popular election, there would be no skews.

There would be no, you won the popular vote, but lost the Electoral College or vice versa.

- Yeah but couldn't make the argument that a state like, I was in Vermont this summer, so I'm thinking about Vermont.

Couldn't you make an argument that a state like Vermont, which has about 600,000 people, becomes relatively unimportant compared to a state like Texas?

This is the argument, you know, Texas is disproportionately influential to the outcome.

The state of Vermont is smaller, by some significant amount, smaller than El Paso.

You are disadvantaging certain states, are you not?

- Well, I happen to believe that American politics should reflect the places where people actually live.

- Yeah.

- And so, if you look at the one person, one vote opinions in the 1960s, Earl Warren said very clearly, legislators represent people, not acres or trees.

And so I think that if people choose to move to Texas or New York or California, then politics should reflect that.

And we still will have measures built in to protect the power of small states.

But right now, everything is biased in favor of more rural, more smaller areas, as opposed to the areas where people increasingly live that represent the future of American politics, not only in their size, but also in their demographics.

- You'll acknowledge that the conversation around reforming this system so that the popular vote is, it decides the outcomes of elections, the likelihood of that happening, it's wish casting.

- Yeah, I mean it's interesting.

I think it could get more attention because obviously a constitutional amendment to abolish the Electoral College isn't gonna happen anytime soon because- - Right.

That's what it would take.

- Well, there's two ways.

It could take that, which would mean two thirds of the Congress and three quarters of the states.

That hasn't happened in a very long time.

Or there's an end round around this, which is the national popular vote compact basically, where states that get to 270 electoral votes sign onto this interstate compact, and they pledge to appoint their winners of their state to the winner of the popular vote nationwide.

That is at 209 electoral votes.

So that's only 61 votes to 270.

Now, who knows if they'll get to 270, who knows what the Supreme Court would say about this.

But the fact is, that's a lot closer than a constitutional amendment.

So I think we should be talking- - We would be in litigation, Ari, for years over this- - Sure - Wouldn't we?

- Sure, but there is at least a plausible mechanism to getting there.

- So let me talk about some other things that come up in this book that fall under the heading of nullification of the will of the people.

How about gerrymandering?

Gerrymandering is something we've talked about in this country for a long time.

You know, politicians pick their voters as opposed to voters picking their politicians.

This is a feature of our system that is clearly deciding the outcomes of elections.

And on issues.

When you poll on issues, if you did it on the basis of what everybody in a state said, they gonna go one way.

But if a legislature is made up of districts that are elected through gerrymandering, they may not actually have to observe the will of those people.

- Well we just look at Texas, where we are right now.

- Yeah.

- Case in point.

I mean, the legislature is dramatically out of step with the state, both in terms of the representation of it.

- Yeah.

- The composition of it.

It's much whiter and more conservative.

- Meaning it's unrepresented of the demographics.

- Yes, exactly.

- Older, whiter, and maler.

- And much more conservative than the state as a whole.

And so you talk about, and then policies.

- Right.

- Things like expanding Medicaid, right?

- Yeah.

Marijuana reform.

- Marijuana reform.

- Gambling.

- Reasonable gun control laws.

Majority, a women's right to choose.

- So if you look at the poll numbers.

- Majority of Republicans.

- The poll numbers don't necessarily square with the actual outcome, the byproducts of their work.

- They don't, I mean, a majority of Texans support all these policies and they're not reflected by the legislature.

- So that's gerrymandering.

And we think that what happens with gerrymandering is that people really focus on the primary rather than on the general election because all they have to do is win a primary in a non-competitive district to win the seat.

- They do and that's another thing that warps it, even in a state like Texas, almost all the Republican elections are decided in the primary.

- Right.

- Right?

Because there's so few competitive elections in the general.

So that just keeps happening.

The state just keeps getting pushed further and further to the right.

And an extreme minority faction has basically hijacked the entire politics of the state.

- But of course, you know, in the political science classes, they tell us, well, all we have to do is take the process of drawing those districts out of the hands of politicians and give them to a computer program, right?

Someone once said to me, taking the politics out of redistricting is like taking the calories out of fried chicken.

(Ari laughs) Right?

You really can't do it and have it be the same.

- Well, I happen to like fried chicken a lot, but I will- - But you don't like gerrymandering.

- I will make an argument for eating it without the skin on it to save calories when it comes to drawing the districts.

And the fact is, states have done this.

You look at Michigan.

Michigan was a state that had very gerrymandered districts where Republicans got a minority of votes, but a majority of seats.

They passed a ballot initiative so that a citizens' commission would draw the districts.

And after a citizens' commission drew the districts, the party that got the most seats got the most votes.

And Democrats flipped control of the legislature.

And I write about this in my book and I talked to the reformers, who were many cases, non-partisan and independent.

And I said, "Are you happy about this?

That Democrats took back the legislature?"

They said, "We're happy that the results followed the will of the people for the first time in over a decade."

So there is a way to do this.

There's a way to do this either through ballot initiatives or other measures or courts or the federal government stepping in and outlying partisan or racial gerrymandering.

I think it would have a dramatic difference in some of these states that are under one party rule right now, like Texas, where the politics of the state are dramatically out of step with the people and the demographics.

- But of course, you know that the whole process of getting a ballot initiative before the voters is itself dependent on which state you're in.

- Yeah.

- That's one of the ways in which they kind of stop that progress, people who wish to keep the voters from being represented.

- Well, half the states in the country have an option for ballot initiatives.

- Yeah.

- So for half the country, it's an option.

For other states, it's gonna take something different.

Remember, there was litigation before the Supreme Court to ban partisan gerrymandering.

They declined to do it, but the court could do that.

The federal government could also step in and ban partisan gerrymandering for federal elections.

Just like the federal government passed the Voting Rights Act in 1965, which got rid of the literacy test and the poll taxes.

One of the main parts of the Freedom to Vote Act, which narrowly failed in the last Congress, was that it would've banned partisan gerrymandering for federal elections.

So the federal government and the courts have the power to do this if states can't do it on their own.

- Yeah, so I'm thinking about the different things that are unreformed that I read about in your book and was reminded about, you know, gerrymandering is unreformed.

Well, the Supreme Court is unreformed, and until recently, we didn't think that we needed to reform it.

Like all of a sudden now we're having a serious conversation about whether we need to expand the court or we have to reform ethics laws.

- Yeah.

- For members of the Supreme Court.

I mean, I feel like we live long enough, we see everything.

- Well, I would say unreformed and out of control, and I would say dramatically out of step with the American people as well.

- And you also believe, thematically, very much part of thwarting the will of the people.

- It is, because the Supreme Court is part of an undemocratic structure.

It's part of an undemocratic way we elect our presidents through the Electoral College.

- Yeah.

- Where you can elect people who get a minority of votes nationwide who can become president.

And the undemocratic way we choose senators, where states get the same number of senators regardless of population, which dramatically disadvantages a state like Texas.

- So again, back to Vermont, Vermont gets the same two votes that Texas gets.

- And the funny thing is that when the framers were drafting the Constitution, some of the leading founders, people like James Madison, were very opposed to this idea.

They wanted the Senate to be based on proportional representation because they believed that would give it legitimacy.

And what happened was small states, like Delaware, basically said, we're gonna leave the union if you don't give us the same level of power.

We're gonna join France, which is about the worst thing you could say in 1787.

(audience laughs) - And honestly, it doesn't sound so bad now actually.

- Exactly.

(audience laughs) And Madison said, "This is going to allow," in 1787, Madison said, "This is gonna allow a more trifling minority than ever to control the federal government."

So what happens is, the way we choose presidents is undemocratic.

The way we choose senators is undemocratic.

- Yep.

- That leads to an undemocratic court because for the first time in American history, five of six conservative justices on the court were appointed by Republican presidents who initially lost the popular vote and senators who were elected by minority Americans.

- So you tie it all back to the Electoral College?

- And the Senate.

And then of course, it's also what they've done since then.

They've made the system more undemocratic by doing things like gutting the Voting Rights Act.

They've made the system less majoritarian by doing things like overturning Roe v Wade.

And they are increasingly acting like they're above the law.

The actions of Clarence Thomas, Samuel Alito, taking trips with billionaires that have cases before the courts, flying insurrectionist flags.

This kind of stuff, I think, would make Earl Warren and the justices of yore be rolling over in their graves right now.

- So you mentioned the Senate, I want to ask about the filibuster.

Yet another thing that is unreformed, or at least at the moment, might be re-reformed at some point, but there doesn't seem to be a lot of stomach for that, right?

We have a situation in which the requirement to get a certain number of votes to bring something up is too high a hurdle to clear.

- Yeah.

- And you think, you write about it in this book that the filibuster is one of those problems that we're having.

- Well, again, it empowers small minority factions.

You have 41 Republican senators representing only 21% of Americans able to block policies that are supported by a huge majority of Americans.

So you see 80% of Americans support common sense gun reform.

Huge majority of Americans support ending gerrymandering.

- Yeah.

- Doing something to restore abortion rights.

And over and over again, these are things that are dying because of the filibuster.

And so I think people understand that not only is the Senate undemocratic, but then the mechanisms, the rules of the Senate, make it even more skewed.

And the interesting thing is, I think this is one thing that's changing.

You heard, for example, recently, Chuck Schumer, the Senate majority leader, say, if Kamala Harris wins and we have democratic majorities, we're gonna change the filibuster to pass voting rights legislation.

- It wouldn't take the filibuster threshold to reform the filibuster.

- That's the exact thing.

- Right.

- You only need- - All we need to do is take the majority.

- And what happened in the last Congress when Joe Biden was in charge and there was a Democratic Congress, they came two votes short.

Joe Manchin- - It was Manchin and Kyrsten Sinema.

- And neither of them are gonna be in the Senate.

- Who said we will not support reforming the filibuster.

- Exactly, and neither of 'em are Democrats anymore, and neither of 'em are gonna be in the Senate anymore.

And the idea is that Democrats would have the votes if they kept their majority- - Yeah.

- To do this, and not just for voting rights, but probably for abortion rights and other issues as well.

- So you're the National Voting Rights Correspondent for "Mother Jones."

So you know voting rights better than almost any of us who could be here today or watching.

Voter suppression and election subversion, which are two halves of the same whole or sides of the same coin.

That's another other, other piece of this.

- Yeah, and voter suppression's been going on for a long time.

Election subversion is relatively recent.

- Relatively new.

- And a direct result of Trump's effort to try to overturn the election and his attempt to try to institutionalize the insurrection after that.

So for example, in key states like Texas and Georgia, they're changing voting laws to make it harder to vote in the first place.

But then on the back end, they're changing who's in charge of counting the votes and administering elections.

So Texas did something extraordinary.

They changed election administration only in one county in the state, Harris County, Texas, which just happens to be the largest blue county in Texas.

- Right.

- They said- - 4.6 million people.

- They said every other county can run elections the way that they want to, but we're gonna oversee the process only in Harris County.

I mean, that's extraordinary for them to do that.

- Right, but don't you take as good news the fact that all the attempts to overturn the election, notwithstanding some number of federal court cases and all that, there was no provable fraud.

The courts did not side with the idea that the election should be overturned and here we are.

- We dodged a bullet, but like I say, the gun is being reloaded and I think it's being reloaded in a more organized fashion because in 2020- - Right.

- It was the Four Season Total Landscaping form of trying to overturn the election.

I mean, it was Rudy Giuliani with his hair dye going over his face.

Now look, they've put people on the election boards who they believe will not- - You think this is more serious?

- It's way more serious.

The election (indistinct) movement is so much more organized than it was.

They're on the inside in many of these places.

They've taken over County Board of Elections.

They've taken over State Board of Elections in critical swing states.

Now, I don't believe it's going to succeed again.

I believe if they refuse to certify an election, there will be officials, including Republican officials, that will force 'em to certify an election.

But I think that if you have counties in Georgia, for example- - Yeah.

- That choose not to certify an election if Kamala Harris wins the state, that's gonna lead to a tremendous amount of misinformation, disinformation, chaos.

The last time we had a contested election in which the votes were counted, we had an insurrection at the Capitol.

So we have no idea.

It'll be completely unprecedented if counties choose not to certify the vote.

- It would not be the first unprecedented thing this election cycle.

Let's just acknowledge that, right?

- Well, everything's unprecedented.

The very fact that we're talking about overturning elections, as if it's normal- - We're shrugging our shoulders.

- Is deeply abnormal.

- Yeah.

- This was not a thing we talked about- - It's the new abnormal.

- Before.

Yes, exactly.

- Can I observe in the minutes we have left, it seems to me race is a through line or the through line in a lot of what we've talked about today.

- I do, I think the through line in all of these newer anti-democratic tactics that we're talking about is a fear of a majority minority future, a fear of the changing demographics of the country in which white people will no longer be the majority.

That's already happened in Texas and we've already seen the responses to it.

So Texas is a preview of the fights that are gonna happen all across the country, which is the minority, the majority becomes the minority, and then the white minority does everything they can to try to cling on to power.

- And the reality is that, as we've talked about immigration and the border in this country over the last couple of years, particularly more recently, this is all out in the open.

I mean, this is not sub rosa.

There's a discussion about what happens if the population changes, right?

- Yeah, and people are saying- - It's the othering of America.

- I mean, there was, you know, Kristi Noem, the governor of .

.

.

- North Dakota.

- North Dakota, I'm trying to figure out which Dakota it was.

The governor of North Dakota said, they asked her about, why are people concerned about undocumented immigration?

She said they're concerned about the demographics of the country.

- Yeah.

- So it's not about law and order, it's about that the country's becoming less white and people are looking for a scapegoat.

And now what they're doing is they're fusing the anti-immigration sentiment with the voter fraud sentiment and they're making it seem like not only are undocumented immigrants coming to take your job, but they're coming to take your vote, which is completely untrue.

The last thing on the minds of a migrant with horrible conditions coming to the country is to vote in an American election.

But this is yet another dog whistle to try to scare people.

- Well, in fact, there's an attempt right now as we sit here today in Congress to pass legislation that would outlaw something that, to the best of my knowledge, is already outlawed.

- Yeah, to make it, yeah.

They're trying to make it illegal for non-citizens to vote in American elections.

It's already illegal.

We already know it's not happening.

But then you're seeing things like in Texas where 87-year-old women are being woken up at six in the morning by SWAT teams with AK-47s, searching for voter fraud.

So there's a lot of things that are being done to have a chilling effect on American politics, a chilling effect on voter participation, to make voting seem scary, to make people believe that their votes are being stolen, and to cause alarm about the changing demographics of the country.

- So the way we do the show typically is 26 minutes.

The first 24 minutes we depress everybody.

(audience laughs) - I think we've done a good job of that today.

- And then the last two minutes, we say, "But there's an answer."

So in the last two minutes, what's the solution?

- Well, I always tell people to do three things.

One is elect pro-democracy candidates.

That does not mean electing Democrats or Republicans.

It means electing candidates who are committed to democracy.

- Well the reality is, Ari, as much as the words coming out of my mouth and into your ears would've shocked you 10 years ago, you'd vote for Liz Cheney.

- Yeah.

- You'd vote for Adam Kinzinger now.

- Absolutely.

- There was a time when you probably wouldn't- - I mean, I will say- - And you didn't agree with them on a lot of stuff.

- I am officially non-partisan.

- Right.

- So I'm not gonna tell you who I'm gonna vote for.

- Right.

- But the fact is, I believe, like Liz Cheney and Adam Kinzinger believe, that democracy trumps every other issue.

So elect pro-democracy candidates.

Get involved at the state and local level.

That's critically important.

Even in a state like Texas, where state politics seems immovable, a lot of interesting things are happening at the county level in states like Texas.

The largest urban counties in the state are changing dramatically.

There's a lot of innovation going on there.

So get involved locally.

And then third, we need to build a long-term movement for democracy reform in this country.

To have a system that truly represents the will of the people as opposed to a shrinking conservative white minority instead.

- So two questions about that before we go.

How do you do that last thing?

How do you build that movement?

- Well, I think we're seeing that already, the fact that Democrats are pledging to reform the filibuster, to pass voting rights legislation, the fact that there's been so many calls to restore Roe v Wade and to pass protections for abortion rights on the local level.

The fact that President Biden, the ultimate institutionalist, came out for reforming the Supreme Court, that starts to change the dynamics and the impossible starts to become possible.

Some of this stuff's not gonna be accomplished in the next two years.

It might take decades to do that.

But one thing I write about in my book, conservatives had a blueprint in the 1960s when they were losing the culture war, when they were losing the battle for politics.

They said, "We're gonna invest in long-term structural change.

We're gonna get the kind of Supreme Court that will overturn Roe v. Wade.

It's not gonna happen in five years, but it might happen in 40."

And they largely succeeded.

- So back to the second point you made about getting involved at the local level.

We don't have nearly enough, this is a conversation we've probably had at some point before, about the importance of local news.

- Yeah.

- We don't cover state legislatures in this country nearly enough and that is where so much of the change in laws, in policies, that affects all of our lives, that is where that stuff is often originating.

- Such a good point.

I mean, it's the most powerful bodies that nobody cover.

I mean, they're the ones that are passing the new restrictions on voting, the new restrictions on abortion, the ability to carry a gun anywhere without a permit.

And this is all coming from state legislatures.

And you know what, even in gerrymandered states, there can be incredibly close races and it doesn't take that many votes to flip a seat.

There are competitive state legislative races and competitive local races in every single state.

And people can make a lot more difference in those races.

People's votes matter a lot more in those kinda places.

Minnesota, which gave rise to the vice president.

- Yeah.

- Had a one seat majority.

And I believe the election came down to something like 300 votes.

- Yep.

- If it wasn't for that one state legislative seat, there would've been no agenda to catapult Tim Walz to the national ticket.

- Right.

- So local politics matters so much more than people realize.

And people can have so much more of an impact on the local level compared to the national level.

- All right, this has been great.

I mean, again, depressing as could be, but also amazing and so great to be with somebody who has such command of this stuff and it's a blueprint for the future, a better future.

So Ari Berman, give him a big hand.

- Thanks so much, Evan.

- Thank you very much.

That was good.

Thank you.

(audience applauds) We'd love to have you join us in the studio.

Visit our website at austinpbs.org/overheard to find invitations to interviews, Q&As with our audience, and guests and an archive of past episodes.

- They're trying to flip a place in a state like Texas or Florida that's not really on people's radar.

It's gonna be tough.

It's a very tough Senate map.

Simply holding it will be extraordinary.

But if they hold it and elect a Democratic president, they'll be able to pass everything with the vice president breaking the ties.

Support for Overheard with Evan Smith comes from Hilco Partners, a Texas government affairs consultancy.

Claire and Carl Stuart, Christine and Philip Dial and the Eller Group specializing in crisis management, litigation and public affairs communication EllerGroup.com (bright music)