Will the Midterms Be Fair? Michael G. Miller on How the Supreme Court Broke the Voting Rights Act
“We have to be willing to lose elections. That is the very essence of a democracy.” — Michael G. Miller
Will the midterms be free and fair? With only six days to go, these are now the questions about American democracy that we most fear. But much of this nervousness might be misplaced. Rather than militiamen in balaclavas, the real damage to American democracy was done quietly, thirteen years ago, by five Supreme Court justices.
That, at least, is the view of Michael G. Miller, a Barnard political science professor. With the Brennan Center’s Kevin T. Morris, Miller has written An American Problem, a book accusing John Roberts’ 2013 Supreme Court of breaking Lyndon Johnson’s 1965 Voting Rights Act. The book title is LBJ’s, from the speech he gave a week after Selma, when he told Congress that denying the vote was neither a Northern problem nor a Southern one. The law Johnson got is, according to Miller, the most effective Congress has ever passed. Its sword was section two, which let citizens sue if their voting rights were compromised. Its shield was something called “preclearance,” which meant that local authorities required the Federal government’s explicit permission before tampering with any kind of electoral logistics.
The 2013 Supreme Court decision Shelby County v. Holder took away this shield. Without preclearance, Miller argues, local authorities started tampering again — closing polling places, redrawing wards, purging rolls. Often there was no evil intent — but it impacted Black voters anyway. He and Morris built a national voter file running back to 2008 and found that in the counties that lost preclearance, the gap between white and Black turnout widened sharply after the ruling. That means hundreds of thousands of Black votes were never cast. John Roberts’ Supreme Court broke LBJ’s Voting Rights Act, Michael Miller says. Forget martial law. With Shelby County v. Holder, five Supreme Court justices created the most existential threat to American democracy.
FURTHER READING
• An American Problem: How the Country Built — and the Supreme Court Broke — the Voting Rights Act (Princeton University Press, October 2026), by Michael G. Miller and Kevin T. Morris.
• Shelby County v. Holder (2013) — the 5–4 ruling that ended preclearance, with Roberts’s majority and Ginsburg’s dissent.
• Johnson’s “American Problem” address to Congress, 15 March 1965, delivered a week after Selma and the source of the book’s title.
• Kevin T. Morris is a senior research fellow at the Brennan Center, where much of the underlying voter-file work lives.
ABOUT THE GUEST
Michael G. Miller is associate professor of political science at Barnard College, where he has taught since 2014, and works on election law, election administration and political behavior. An American Problem is written with Kevin T. Morris of the Brennan Center for Justice.
ABOUT KEEN ON AMERICA
Nobody asks more awkward questions than the Anglo-American writer and filmmaker Andrew Keen. With 3,000 episodes since the show launched on TechCrunch in 2010, Keen On America is a daily conversation about the ideas, books and arguments shaping the United States. New episodes every day.
00:00 - Intro
00:32 - Six days to the midterms
01:31 - Not direct interference — the boring administrative changes
02:17 - What the Voting Rights Act of 1965 actually was
02:43 - Ninety years after the Fifteenth Amendment
03:30 - Tests and devices, and counties with no Black voters at all
04:40 - Black veterans home from fighting fascism
05:11 - Selma, the Edmund Pettus Bridge, and Johnson’s speech
06:00 - Section two: the sword
06:45 - Sections four and five: the shield, and the preclearance list
07:54 - “So you can’t just do it?”
07:55 - Hundreds of submissions a month, and where the burden of proof sat
08:50 - The segregated town that switches to at-large elections
09:54 - Why doesn’t it still exist? Shelby County v. Holder
10:40 - Shelby’s argument, and the two lower courts that rejected it
11:20 - Roberts, the Reagan DOJ, and a 5–4 ruling
11:50 - Ginsburg’s umbrella
12:58 - Is there anything credible on the other side?
13:57 - Equal sovereignty — and why Posner doubts it
15:30 - Weighing unequal states against disenfranchised voters
16:26 - Are you saying Black Americans lose the vote?
17:11 - “Not most. But some.”
17:25 - Chapter five: building a national voter file
18:40 - Following turnout through covered and uncovered counties
19:20 - The racial turnout gap, and the megaphone pattern
20:00 - Hundreds of thousands of uncashed votes
20:29 - Martial law, Axios, and the grand-conspiracy question
21:15 - No evidence either party gains when turnout moves
21:51 - Anger, or hopelessness?
22:25 - Apathy does the disenfranchiser’s job for him
23:10 - The antidote: neighbors, organizing, local work
23:45 - Trump, and what he actually says about voting
24:20 - Playing the hits: alleged noncitizen voting
25:29 - The New Jersey rolls, and why voting as a noncitizen would be insane
26:26 - Both sides: Ohio in 2004 and the voting-machine talk
27:45 - Every incentive in the academy is to find fraud — and they can’t
28:50 - “We have to be willing to lose elections”
30:02 - Has history been unfair to LBJ?
30:41 - A white southern president on the phone to Martin Luther King
31:36 - Losing the South, and knowing it in advance
32:09 - Nixon’s Southern strategy
32:42 - The act grew stronger under Nixon, against his will
33:23 - The legacy of the Roberts court
34:08 - “I actually am a fan of Roberts”
35:34 - What to do
36:15 - The branch nobody mentions
37:46 - Punditry, and a determined nonpartisanship
00:00:32 Andrew Keen: Hello, everybody. It's only a few days till the midterm elections in the United States on November 3. A lot of anticipation, a lot of excitement, and for some people, a lot of fear about whether these are gonna be fair and free elections, particularly in association, I think, with the Voting Rights Act of 1965, which in some people's mind is being challenged, maybe even undermined. My guest today on the show is the coauthor of an important new book, a Princeton University Press book, An American Problem: How the Country Built—and the Supreme Court Broke—the Voting Rights Act. Michael G. Miller teaches at Barnard College and is talking to us from his home in Montclair in New Jersey. Michael, congratulations on the new book. Are you one of these people who are rather nervous about these upcoming elections?
00:01:31 Michael G. Miller: I'm not nervous per se about, I think, a lot of the things that people worry about direct interference. But I think, you know, given the way that the Supreme Court has treated the Voting Rights Act lately and the way that Congress has refused to really put any teeth back into it, I think when we think about downstream effects of these decisions and the more— for lack of a better term— boring electoral changes that have manifested since several important Supreme Court rulings. I think we have reason to wonder whether the administrative environment will be such that it will be harder to vote for some people.
00:02:17 Andrew Keen: So let's just remind us, Michael, of what exactly this Voting Rights Act of 1965 is. Of course, it was passed by a certain Lyndon B. Johnson, whose term, "an American problem," I think, you use— you borrow his words to entitle your book. What exactly was this act?
00:02:43 Michael G. Miller: Well, the Voting Rights Act comes about after the ninety-year period between the Civil War and the so-called Reconstruction Amendments. [ed.: i.e., the ninety years following the Civil War and the Reconstruction Amendments] And the Reconstruction Amendments, for those who need a refresher, are the fourteenth— thirteenth, fourteenth, and fifteenth amendments. The Fifteenth Amendment is the really important one for our story. It's the one that disallows any kind of voting bans on account of race. So, you know, Congress— neither Congress nor the states is allowed to directly disenfranchise someone based on the color of their skin. What's also important in there is the second section of this amendment. It's the one that probably is not taught in school and a lot less discussed, which gives Congress the power to act when states or municipalities infringe on people's voting rights on account of their race. The problem is that for a ninety-year period after the Fifteenth Amendment is enacted, the Supreme Court is not a partner in enforcing it. Indeed, it explicitly says that this is really only going to bind federal actions and it really puts individuals or the state beyond the reach of federal action. And so as a result of early Supreme Court decisions in the Reconstruction period, we see that the ninety-year Jim Crow period of elections where states are using so-called tests and devices. That is, you know, something like a literacy test that is administered one way for white voters and one way for— a much more stringent way for Black voters and such that it's often practically impossible for Black voters to even register to vote. And during this period, you know, through the 1920s, thirties, forties, you see some counties in the South where there aren't any, there aren't enough Black voters registered to even have any kind of power in the election. Sometimes we see no Black voting at all, no voting by Black Americans. This begins to change with the civil rights movement after the civil war [ed.: Second World War], where people, you know, veterans, Black veterans are returning from fighting fascism and saying to themselves, we've just defeated this. Now we're coming home, and they're taking away our right to vote in the—
00:05:09 Andrew Keen: It was a good argument, wasn't it?
00:05:11 Michael G. Miller: It was. It was a good argument. And you see this carried through the civil rights movement to the march at Selma where, you know, John Lewis and several hundred other folks are stopped on the Edmund Pettus Bridge and attacked by Alabama state troopers and deputized county marshals. And that— the images of that are really the impetus for the speech you just referenced that Johnson gives to Congress where he says, this isn't a Northern problem or a Southern problem. This is an American problem. And he calls on Congress to do something. And their solution, working with Johnson, is the Voting Rights Act, which I tell my students is the most, I think, effective law that Congress has ever passed. And it's got several sections. For our purposes, I think the two most important sections are section two and section five. We refer to section two as the sword of the VRA, and that's because it empowers people when they believe their rights have been infringed. If a state has created a law that is going to stop them from voting because of their race, section two allows them to seek legal action. They can sue the state. They can drag them into federal court and assert their rights that way. But other groups can do it on their behalf as well. And so we see over time this so-called right to private action where it really— it does fall on citizens, and they become able to assert their rights this way. The second part, the shield of the VRA, and that's the focus of our book, was sections four and five. And what happens there in 1965 when the law is created, Congress creates a list of jurisdictions. Sometimes it's full states, but sometimes they're picking counties that have been problematic. And they say, if in 1965 you have ever used one of these tests to disenfranchise people and you have a low rate of participation by Black voters in your jurisdiction, we're putting you on what is called a preclearance list. And what that means is any change that you wanna make in the future to your election administration, no matter how small— it could be as small as deciding that you wanna keep a polling place open for one more hour. Any change that you have to make, you have to send it to the federal government ahead of time for review, for preclearance. So before this can be enacted, it has— you have to get permission from the federal government.
00:07:54 Andrew Keen: So you can't just do it?
00:07:55 Michael G. Miller: You can't just do it. So the federal government, the Department of Justice would get hundreds of these a month from these covered jurisdictions, and they would have to vet them all. And they would do it with the disposition that the jurisdiction was trying to disenfranchise voters. So the burden of proof is really on the jurisdiction to show that this change that we wanna make is actually race neutral and will not have the effect of disenfranchising people of color. And so that's— that becomes really important because these jurisdictions know that everything that they do is going to be examined. There's somebody looking over their shoulder. And the tricks of the trade in racial voter disenfranchisement had always been creating a policy that could be sold as being race— racially neutral. But its effects are really, you know, where the action is in their view. An example— people always ask for an example, and a good one is, a town that might have segregated neighborhoods. Right? And this is pretty common, especially in the North these days. And if you imagine a town like that, that might have neighborhood wards in its city council, you're naturally gonna draw lines around, you know, these neighborhoods. And so, a heavily minority neighborhood is probably going to elect a minority councilor into that town council. But if the majority of the voters in the town at large are still white, what a town might do is get away from these neighborhood districts and just say all of our councilors will be elected at large. Now, of course, this has the effect if voting is racially polarized of wiping out that one minority councilor. So this is an example of a policy that the DOJ would look at and the jurisdiction would have to prove would not result in diluted representation.
00:09:54 Andrew Keen: So this seems like a commonsense bill by a very commonsense president who knew he was in some ways perhaps undermining his party's electoral alliance majority [unclear] for the future in terms of this bill. So why doesn't it still exist, Michael? Well, why is it— well, I mean, it probably— I mean, some people would [unclear] it still exists in a sense. But how has the Supreme Court now broken the Voting Rights Act? And, originally, it built it. What's the centrality of Shelby County v. Holder, this 1965 [as spoken: 2013] decision. Is this the landmark decision that determines the bill?
00:10:40 Michael G. Miller: Yes. With respect to section four. Yes. And that's really what the focus of our book is. In 2013, Shelby County, Alabama challenged its inclusion on the preclearance list and said— we were placed on this list fifty years ago. These sorts of things that were going on when the Voting Rights Act was passed are no longer going on. We don't really think it's fair that we have to get permission from the federal government to change our elections when so many other jurisdictions in the country don't. We've created two buckets really of regulation. That's the thrust of their argument, and it goes before the Supreme Court in 2013. Two lower courts, it's important to note, had not gone along with Shelby's argument. They'd upheld the VRA, but the Supreme Court was much more hostile to it. It's led by John Roberts who'd made a career since the early 1980s in the Reagan DOJ of really these positions that seek to chip away at the VRA. He writes the majority opinion. It's a 5–4 ruling. And he says a lot of things in there that I think are directly testable, and that's really the premise of our book. He says things have changed dramatically in the South. And when we look at rates of racial turnout, you know, the rate of turnout among Black voters, Hispanic voters, white voters these days, we see a much narrower gap than we did in 1965. And so, therefore, we question whether we do need to treat counties differently. Of course, as Ruth Bader Ginsburg pointed out in her dissent, this is like throwing out your umbrella when it's raining because you're not getting wet. The retort to this position is the reason why you see better outcomes in 2013 is because the VRA is working. And so we wondered in this book if you take the VR— or that part of the VRA away, which the Supreme Court did in rendering Shelby: preclearance is now a dead letter, so these counties are free to do whatever they want. What will they do? And that's what we take up in—
00:12:58 Andrew Keen: This is obviously a complicated— legally complicated, I guess, morally complex issue, very controversial in many ways. What's the argument on the other side? You're clearly not sympathetic to the Roberts court. Is the Roberts argument that race— I mean, you touched on this earlier, that race is no longer relevant and that this is— or was a feature of Jim Crow America, which no longer exists? Is there any— anything credible about what they're arguing? I mean, and in your view, I mean, it's hard to figure some of these people out, especially Roberts, who's been quite critical of Trump in some ways. I mean, are they doing it because they wanna take the vote away from African Americans? Are they doing it because perhaps it benefits the Republican Party? What's the reasoning here politically?
00:13:57 Michael G. Miller: Well, I don't know if it's a political reason. I mean, I'm certainly not one of these people that says that Supreme Court justices are these lawgiving oracles that are completely apolitical creatures. If we take the court at its word in Shelby County, there's really an overarching premise here, which is that Congress has had a lot of opportunities since 1965 to reconfigure this coverage formula. And, indeed, the way that the VRA works is it's not just a law that sits on the books. It has had to be reauthorized at several intervals. Every time that it was reauthorized, there was one in 1970, one in the early 1980s, one in 2006. And every single time that Congress touches it, it makes it stronger, actually. It brings in more jurisdictions. A lot of people are surprised to know that New York City was a covered jurisdiction. And so it's growing, but Roberts takes issue with the fact that the formula for being on this list has never really changed, and it's very hard to get off of the list once you're on it. And so the court in this decision creates a doctrine that people have referred to as equal sovereignty, and it refers to this doctrine. And it says, there's this interest that we have as the court in making sure that states are treated fairly by the federal government. And in creating these two buckets, we have this— these jurisdictions that are subject to more regulation, and we're uncomfortable with that. Now it's worth noting that a lot of scholars, legal scholars, including some conservative legal scholars, Richard Posner among them, who's a kind of a high-profile conservative legal scholar, has really questioned the legitimacy of this doctrine. It did not really exist, for all intents and purposes before Shelby County. But this is the argument that they're giving. So they're not creating it out of thin air. I think they legitimately are uncomfortable with the way that these states were treated. But what they have to do is weigh unequal treatment of states versus what's happening to voters in those states. And I think that's what I take issue with is they did not accurately weigh the risks of their action.
00:16:26 Andrew Keen: There's obviously enormous sensitivity on this issue, particularly amongst African Americans given the history of Jim Crow. But what I don't understand, Richard [as spoken: Michael], and this probably reflects me rather than the situation, is what you're writing in An American Problem, what you're warning about in this new book and maybe in the upcoming election, we're not talking about a return to Jim Crow. Are you really suggesting that the Roberts court has behaved in a way or passed law or not passed laws in ways that will take away most Black Americans' right to vote. How exactly is that gonna work?
00:17:11 Michael G. Miller: We don't argue that it— that they're taking away most African American voting rights, but we do show that they're taking away some.
00:17:21 Andrew Keen: Well, when we say some, well, can you be a bit more concrete?
00:17:25 Michael G. Miller: Well, sure. In chapter five, we do an analysis where— so the central concern that I had starting this work was that you— when you look around at— just after an election is a time when states often change their election laws. And you'll see these Texas, Georgia, these big omnibus laws. They always get attention. Reporters are there. They're covering. You know, a lot of people are familiar with the Georgia law a few years ago where they made it illegal to give water to people in line for voting. Things like that. They get attention. But what I'm concerned about is the small towns in rural America that change their districts in the way I already described or close their polling places or small counties in West Texas that decide they're gonna purge their voters. We know that media is eroding all over rural America and everywhere in America. And with fewer and fewer people to look over the shoulders of officials who are making these changes, they may even be well-meaning. They may not intend to disenfranchise people, and their actions may have the effect of diluting minority representation or fall harder on voters of color anyway. And so we had to come up with a method to find the effects of Shelby County without knowing about all of these various changes. The way that we did it was— we just constructed a national voter file, and we did it in every election going back to 2008 through, you know, years after Shelby County. So we can follow the turnout rates of Black and white voters through time in the covered jurisdictions and noncovered jurisdictions before and after Shelby County. And this statistically allows us to point to Shelby County as a causal mechanism for these changes. And what we find is in the years after Shelby County, in the jurisdictions that were formerly covered by preclearance, you see an explosion in what political scientists call the racial turnout gap. That is the difference in turnout between white and Black voters. When that goes up, it means more white voters are voting relative to minority voters. And after Shelby County, we see a megaphone pattern emerge. When you do back-of-the-envelope math on the effects that we find, it's hundreds of thousands of votes that have gone uncashed by minority voters in the twelve years after Shelby County. So I think the argument is yes. In— if we track the effects of a policy in one of these little towns, maybe it's 20 voters disenfranchised. Maybe it's 200. That's a small number. Fine. But when you add them all up within a state and over time, it's a lot of people, enough to potentially affect the outcome of a lot of races.
00:20:29 Andrew Keen: Lots of pieces in the days coming up to November 3 on the ways in which some people fear the Trump administration could interfere with the midterms, even talk about some sort of declaration of martial law. That's according to Axios, which is a very credible publication. Is this a concerted effort, Richard [as spoken: Michael]? Are you suggesting in your book and in your research that all these small counties have Republicans who are somehow joining ranks to use the changes in the law to make it harder for Black Americans to vote?
00:21:15 Michael G. Miller: I don't know if there's a grand conspiracy to keep people out of the polls. I do think there's a belief among— I think politicians of both camps actually that if you make it harder for people to vote, it'll benefit Republicans. There's just no evidence that that's the case, that one party or the other benefits as turnout goes up and down. Will there be any kind of centralized efforts? Who can say? I mean, there— it's anyone's guess at this point what will happen.
00:21:51 Andrew Keen: And in terms of the consequences, I'm guessing, if your argument is right, that there's a great deal of anger amongst African Americans who, given the history of America, are obviously particularly sensitive to a return, if not to Jim Crow, to some aspects of Jim Crow. So is that one of your fears? I mean, a lot of people are talking about some sort of violence on July— on November 3. Is there a great deal of anger in your research amongst African Americans that they're having their votes taken away from them?
00:22:25 Michael G. Miller: Well, we don't do any kind of qualitative research with voters in this book, but we— since it's been published, we've been talking about it a lot. And one of the things that we have heard from advocates in this space, people who are dealing with voters on a day-to-day basis is it— it's not so much anger as there's a feeling of almost hopelessness. There's a feeling that sets in that, you know, we've had this fight. We believe it was won. Now we're having it again. What can we do to secure voting rights once and for all? And I think that's a— this kind of hopelessness can almost feed apathy, which, you know, if you're trying to disenfranchise somebody is really just as good. If you keep them away because they don't believe they can actually have a say in elections, you've done your job if that was your goal. And so I think voters really need to be on guard for that, these sorts of feelings. The antidote, I think, is a focused effort to sustain communities and to keep up organizing at the local level, making sure that people are talking to their neighbors about voting and helping them overcome any obstacles that they encounter.
00:23:45 Andrew Keen: Lots of reports as well in these few days coming up to the election about Trump's attack on voting raising the concerns. He'll try and challenge the midterm results. Presumably, he— he's more than happy about these changes to the Voting Rights Act. What other areas will Trump pick on when it comes to voting? I mean, is— has Trump articulated much on the Voting Rights Act of 1965? Of course, he's not a legal scholar, but, presumably, he's against the act.
00:24:20 Michael G. Miller: Well, I've never heard talk about it. I don't know if he could tell us about— much about the VRA. I think Trump in this space is much more of a gut-based politician. I think he has calculated that he can benefit politically by even sowing doubt about the outcome of elections. I think that's certainly something that we'll expect. If Republicans don't do well on election night, we certainly can expect allegations of fraud or rigging or, you know, whatever. I think a lot of this rhetoric will certainly— I mean, Trump likes to play the hits in this space, and the thing that he has always really talked about has been noncitizen voting, alleged noncitizen voting. I think we'll see quite a bit of rhetoric on that. We'll see in the run-up to the elections [unclear] very late to try to pull this off. So I highly doubt anything like this will be successful. But these efforts in California and other states—
00:25:28 Andrew Keen: Yeah.
00:25:29 Michael G. Miller: To go after the voting rules. And I'll just say as somebody who works in this space a lot and thinks about these issues, there's very little basis for any idea that noncitizens are voting in numbers. When you see them, there's a famous example that got quite a lot of attention a few months ago here in New Jersey where the governor discovered a number of noncitizens on the voting rolls, and they were placed there by an administrative error. It's not some kind of conspiracy by noncitizens. In fact, when you think about it from their perspective, it would be borderline insane to try to vote as a noncitizen. That's a highly physical act, and there's a good chance that you're going to be caught, and it's a felony. And then you're deported after doing it. So—
00:26:24 Andrew Keen: Mhmm.
00:26:25 Michael G. Miller: We just go—
00:26:26 Andrew Keen: Maybe the only people that do that, people wanna be thrown out and they don't like it here. You're a behavioral political scientist, Michael. Trump, of course, anytime he ever loses election, blames the system, says there was fraud, foreigners, whatever, dogs, cats, he'll always figure out some solution. I'm not trying to equate you with Trump, but is there a danger more broadly in America now that anytime any side loses an election, they blame the system and they simply don't accept the fact that maybe some laws have changed when it comes to who can and can't vote, but you have to accept the outcome of an election. So if in this upcoming midterms, the Democrats don't do quite as well as they thought they would and the Senate or the House doesn't— they don't win power in the Senate or the House, and people start reading your book and saying, well, if only the Voting Rights Act of 1965 hadn't been tampered with by the court, everything would have been different. I'm not suggesting you're wrong, but is there a danger more broadly that all Americans of all political stripes need to accept the rules even if they don't like those rules?
00:27:45 Michael G. Miller: Well, we certainly don't make an argument about that in the book. And I don't think Kevin [ed.: co-author Kevin T. Morris] or I care very much about the party of the people who are disenfranchised. We just want everybody who's a citizen to be able to vote if they want. To your question, I think it is really important to say how dangerous this kind of rhetoric is, and it does cut both ways. Trump is certainly guilty of damaging American democracy with the rhetoric surrounding '20— the 2020 [election]. And even going back to the 2016 election, you can see him setting the stage for challenging the results if he loses. If you roll back the tape even more, it was really Democrats who started this kind of talk in the 2000 and especially the 2004 election. I re— remember very clearly, people talking about voting machine problems in Ohio and other states in 2004, and that was all coming from the left. I think when we lose elections, we have to be very cognizant of the fact that people like me and people who are much smarter than me are looking at this all the time. And all of the incentives in the academy would be to find widespread voting fraud or anomalies. We would be rewarded for that, because, you know, we— because we would have found it. But we're looking, and we haven't found it. And there's very little evidence for these kinds of systematized frauds or any other problems. We have to be willing to lose elections. That is the very essence of a democracy is having two parties that are willing to lose. And I think there are a lot of social and cultural problems right now that make that very difficult. Things that you might encounter online, particularly on social media, can sound compelling until you have an expert explain to you that, no, actually, we are checking for all of these sorts of things. But, you know, as parties become a bigger sense of our identity, I understand why people wanna do this and put their bad feelings somewhere where they can blame. But it— there's just no there there when it comes to the boogeyman of election fraud.
00:30:02 Andrew Keen: Do you think— I mean, you've written this book, borrowing the language of LBJ. Do you think history has been rather unfair on him? Of course, he's a controversial figure for his own personal flaws. Clearly, he wasn't the nicest of men, although probably most presidents aren't either. He chose not to run again because of his disastrous decisions on LB— on Vietnam. But does your book and this focus on the Voting Rights Act of 1965, should it convince us that LBJ really was a great American president?
00:30:41 Michael G. Miller: Well, I think the VRA is a great American piece of legislation. I think the story of a white southern president talking almost every day with Martin Luther King Jr. to get this done, and to design an act, also working with his attorney general and other DOJ litigators who were experienced and knew how to craft the law that would have real teeth instead of just being a symbolic kind of sham that would do nothing. I think he should get real credit for that. I think it's very impressive to see a president from the Southern faction of the Democratic Party in the 1960s push this through knowing— and we have the records of this— knowing full well that in doing it, he would cause southern Democratic senators to leave his party, which is exactly what they did.
00:31:36 Andrew Keen: Yeah. I mean, what was his phrase? That there goes a majority for the next generation. [ed.: the line usually attributed to LBJ, of uncertain provenance, is "we have lost the South for a generation," said of the Civil Rights Act of 1964]
00:31:40 Michael G. Miller: Yeah. He was— I mean, he— it took a little bit more than a generation for the realignment to fully realize, but he was not wrong in that analysis. It really took Ronald Reagan in 1980 to kind of galvanize a lot of this. But he knew full well what he was doing, and he did it anyway because it's the right thing to do. And I think true leadership is that. Right? Doing the hard thing because it's the right thing.
00:32:09 Andrew Keen: And then, of course, on the other side, you had Richard Nixon rubbing his hands, and I'm not sure literally, but metaphorically on this, coming up with his Southern strategy. Do you see Nixon in particular in his Southern strategy as maybe nodding and winking to this Voting Rights Act of 1965 in his own language of being able to talk to white southerners and saying we're gonna get rid of this, maybe implicitly at least?
00:32:42 Michael G. Miller: Well, yeah, you don't have to wink very, very hard in the— in this period of American history, 1965 to 1970. Most people in the South knew what had happened and thought Nixon might restore the old way, and he did try. He was— the law was reauthorized during his first term as president, but it became clear that he just didn't have the political— he didn't have enough chips really to block it. And instead, it actually grew stronger during the Nixon presidency against his will.
00:33:23 Andrew Keen: Finally, Michael, we're gonna— we got a show coming up with someone who's written a book about the nineteenth-century Supreme Court saying that it was much more political, certainly explicitly, than twentieth or twenty-first-century Supreme Court. What does your book tell us about the legacy of the Roberts Court and of John Roberts in particular? You're obviously not a great fan of his. What's your reading? What will historians— just as LBJ is remembered ambivalently, how are we gonna remember Roberts and his contribution to this? I mean, I'm guessing that even his greatest critics would suggest [as spoken: wouldn't suggest] that he wants America to go back to Jim Crow. What's the worst critique of Roberts in all this?
00:34:08 Michael G. Miller: I actually am a fan of Roberts. I respect him a great deal as a jurist, and I think he's got a hard job. I think he's wrong here. I think his decisions on voting rights have been disastrous, and I think that the court has gone out of its way in the Roberts court at least, to ignore the kinds of evidence that social scientists have put before them about what their decisions will do to people in the realm of voting rights and, look, to a lesser extent, campaign finance. I do think that there is a more nakedly partisan character of the court today than there was when he assumed the bench. Whether that is due to him or the subsequent appointments by Presidents Bush and Trump, I can't say. I think my impression is that he has tried to fight against this in some respects and preserve the legitimacy of the court. Overall, I— I'm not sure how successful he's been given what we know about public opinion. So, yeah, I— my issue with the Roberts court is just that it has not correctly read the evidence or the politics in rendering the decisions with respect to voting rights.
00:35:34 Andrew Keen: And then finally, what to do? You said that the country built and then the Supreme Court broke the Voting Rights Act. But, presumably, they can fix it too. In your view, does this lend itself, your book and your arguments about this incredibly important issue, does it lend itself to radical reform of the Supreme Court, or do progressives— and African Americans— just need to have some patience and wait for the next presidential election for a Democratic president potentially who can change the political balance on the court, which presumably would result in challenging some of the decisions of the Roberts court.
00:36:15 Michael G. Miller: I think your question is indicative of the moment that we're in because the body that you didn't mention is Congress.
00:36:23 Andrew Keen: Mhmm.
00:36:23 Michael G. Miller: I think we have become extremely conditioned as Americans to look— actually, I think it depends on what political party you're in. I think if you're a Republican right now, you're looking to the president to give you relief or benefits or whatever it is that you think of when you think about government. And I think if you're a Democrat, you're looking at the court a lot of the times hoping that it will prevent these changes. But lost in this conversation is Congress, and Congress is supposed to be the people's branch, the first branch, the most powerful branch. And over time, particularly in the last ten years, it has completely abdicated that responsibility. What I think people need to do is talk a little bit less about court reform and think a little bit more about how we can actually get a Congress that's willing to do the things that it used to do. It was Johnson who pushed for the VRA, but it was Congress who authorized it and reauthorized it. And I think demanding a powerful Congress is step one to taking back the small-d democratic character of our government. Whether we need court reform, I'm certainly willing to have that conversation. I probably would not have been a decade ago, but I think we need to start with Congress.
00:37:46 Andrew Keen: Wise words. Mike, are you running? I'll vote for you. Actually, I can't. I'll probably get into trouble on lots of fronts. I get thrown out of the country, but I shouldn't have said that. But I know you also do some election punditry. So if you wanna hear a more partisan or provocative Michael G. Miller, what networks are you on now? What networks will you be on November 3?
00:38:10 Michael G. Miller: You will never hear me talk about anything on any network, nor will you hear me be partisan. I am nonpartisan.
00:38:21 Andrew Keen: You're a behavioral political scientist. You're the most unbiased person in the universe, Michael Miller. Fascinating conversation, really important issue, and I particularly like your remarks at the end about Congress. Congratulations on the book, and I think we can all agree on one thing that we hope these upcoming elections will be peaceful. Thank you.
00:38:41 Michael G. Miller: Thank you.