Terms of Engagement— How Does Our Civil Rights History Shape the Future of American Democracy?

Archon Fung: Hey, everyone, you’re listening to Terms of Engagement, Episode 29. And this is Black History Month. We’re going to be talking about the legacy of the civil rights movement and its lessons for American democracy today. I’m Archon Fung. I’m a professor at the Kennedy School and Director of the Ash Center for Democratic Governance and Innovation.

Stephen Richer: And I’m Stephen Richer. I’m the former elected Maricopa County recorder, and I’m now a senior fellow at the Ash Center.

Archon Fung: And Terms of Engagement is a weekly live conversation about American politics. So we welcome your thoughts in the comments and chat. We try to address as much as we can live in real time. And send email to info at ash.harvard.edu.

Stephen Richer: And we have got a great guest for today, and so we don’t want to hog him all to ourselves. We really do welcome those comments. And as always, Archon and I are speaking on behalf of ourselves, as is Professor Brooks. We are not speaking on behalf of Harvard University or the Harvard Kennedy School.

Archon Fung: Great. So, uh, right before we get to Cornell, Stephen, are you going to watch the State of the Union and are you looking for any particular announcements that you’d love to see tonight from the President of the United States, Donald Trump?

Stephen Richer: So I’ll probably watch, although if I give, if I’m given a better offer, I might not watch, you know, if I, you know, if I had a basketball game tonight or something like that, I’d certainly be doing that instead. But, uh, I’ll likely watch. If the president wants to give me a new tax cut or something, I’m all ears.

Archon Fung: Just for your tax bracket.

Stephen Richer: Or a nice regulatory cut, then I’d love to hear about that. But I think it will probably focus on some other stuff just because the One Big Beautiful Bill hasn’t been as much in the… public spotlight as much as, say, ICE activity or Venezuela or cost of living or the Supreme Court’s decision. I think he’s going to have some words to say about that. But I’ll be particularly listening for any comments about the 2026 midterm and about election administration specifically, just because that’s obviously my area of expertise and where I do most of my commentary.

Archon Fung: Yeah, great.

Stephen Richer: What about you? You looking for anything in particular?

Archon Fung: So I’m really hoping that he’ll announce that he’s changed course on how he feels about elite American universities. And he really recognizes the essential contribution that we make to American knowledge and American greatness. So that’s one. I hope he stays away from the midterms, actually, and election administration, but he might go there. I guess I expect him to pivot to the economy because there have been some positive developments in the economy and as well as some negative ones. And I know that a lot of people on both the left and the right really care about those issues. So we’ll see.

Stephen Richer: Okay, so let’s bet. Will higher ed be mentioned?

Archon Fung: I’m thinking no, because it seems to have receded somewhat as an issue, but we’ll see. Oh, Stephen, I think you froze just for a second. So I’m thinking it won’t be because it seems to have receded on the administration agenda, but we’ll see. We’ll see.

Stephen Richer: Okay. All right. Well, we’ll both be watching.

Archon Fung: All right.

Stephen Richer: Who’s our guest for today?

Archon Fung: Okay, it’s a real honor and pleasure to introduce my good friend and colleague, Cornell William Brooks. He is a leader whose career serves as a master class in law, social justice, faith and democracy. He’s a former president of the NAACP, a distinguished professor at the Harvard Kennedy School, and an ordained minister of the African Methodist Episcopal Church. He joins us today to help bridge our understanding between our democratic ideals and lived realities, especially in light of the lessons of the Civil Rights Movement, maybe some rollbacks that some people have perceived. and how we should move forward. So with that, Cornell, welcome to Terms of Engagement.

Cornell William Brooks: It’s good to be with you both. Thanks for having me. And it’s an honor to be a part of this discussion.

Stephen Richer: All right. Great, great, great. So, Archon, you want to kick us off? I know that you had some questions there planned.

Archon Fung: Yeah, sure. So, Cornell, you’ve been in the democracy business a long time, in some ways longer than both me and Stephen. And you’ve paid a lot of attention to civil rights over that time. So of the many potential threats on the horizon that people have identified, threats to free and fair elections in ’26 and ’28, from a civil rights perspective and a legal perspective, what are you most concerned about in the next year and a half going forward?

Cornell William Brooks: Well, I wish I could come up with something novel or analytically exotic, but I’m most concerned about the threshold assault on the ballot box and the right to vote. And what I mean by that is that in the wake of the Shelby v. Holder Supreme Court decision, the weakening of the Voting Rights Act, what I would call this Machiavellian frenzy of voter disenfranchisement that has been supercharged, if you will, under the Trump presidency and these multitudinous threats to our democracy via autocracy. And here’s what I mean by that. So we have seen all across the country polling places shut down, moved off of college campuses, just widespread efforts to gerrymander, widespread efforts to make it more difficult to vote. But then in addition to that, we have a militarization, if you will, of law enforcement and immigration enforcement, both of which could converge at the ballot box in ways that make the midterm elections anything but certain. Namely, there’s nothing to say that in the same way that you can threaten to bring ice to the Super Bowl, you can threaten to bring ice to the ballot box, right? And literally inject fear and anxiety into those who are endeavoring to vote. We are literally in a moment where we have the President of the United States threatening to federalize voting, not via Congress, right, in terms of the federal government using incentives to improve voter turnout or to standardize voting in ways that maximize democracy. But we have the president of the United States literally threatening to commandeer the ballot box, to commandeer the polling place. And so this is a very, very serious moment in our country where you have no small fraction of the country wondering aloud whether or not the midterm elections will take place or will they take place in a way like anything we’ve ever seen before.

Stephen Richer: So as a table setting issue item, I’m fascinated. So of all the issues that are going on right now, you say that your greatest concern is over the administration of a fair and lawful voting process for the 2026 midterm elections. Because I live in that world and sometimes I think I’m a little bit of a victim of my bubble where everyone around me is talking about election administration and everyone knows that when a new executive order is going to come out as far as election administration, they know when President Trump said we’re going to Nash-federalize maybe fifteen places, et cetera, et cetera. You’ve worked in a lot of different fields of the civil rights movements, and still you would say this over, say, just encounters with ICE in the streets or with, you know, strikes on Venezuelan boats, or whatever else we’ve, or the cost of living for average American, you would say the 2026 midterm election is what you were thinking the most about.

Cornell William Brooks: Not quite. OK, let me … the threats that you mentioned are among the most prominent. I don’t, I wouldn’t necessarily say they are the most profound threat to democracy. Meaning ICE kidnapping people off the street is a threat to democracy. Bombing Venezuelan boats or shipping people off to a supermax prison in El Salvador. All these things are threats to our democracy. The ignoring of due process. But our check against those things happening would be the ballot box and the right to vote. And distinction number two, I’m not merely talking about the administration of elections, right? This is bigger than simply the technocratic and efficient and effective administration of the midterm elections. It’s everything that goes into the midterm elections in terms of the culture of democracy, the belief that people have in the efficacy of voting and the capacity of our democracy to respond to the citizens. So my point is, all of that is being threatened in this moment. And how do we know this? Because when we have members of Congress and the president essentially, in recurring fashion, pushing for the so-called SAVE Act to address an infinitesimally small number of non-citizens who have voted going back to 1980, like less than one hundred. OK, as opposed to the massive number, massively more significant number of people whose votes have been suppressed, whose votes have been purged, who have been discouraged from voting. This we know empirically, demonstrably. And so my point being is the fact that we have the president and many members of the GOP supporting the SAVE Act as opposed to addressing a real threat to democracy, it implies two things. One, it suggests a kind of asymmetry of sincerity. These people are not serious and they’re not sincere about addressing real threats to democracy, right? Point one. And number two, our ability to literally right the wrongs that we’ve endured for the last year have everything to do with our ability to vote. We got to be very clear about this so we can respond piecemeal to these various threats.

Stephen Richer: OK.

Cornell William Brooks: But we need to do much more than that.

Stephen Richer: Okay, so yeah, go ahead, Archon.

Archon Fung: Do you think that there’s a chance that these efforts on the part of the administration, whether it’s the SAVE Act or the president’s posts about nationalizing elections, that they could have the opposite of the effect that he intends? That is, that more people will mobilize and make sure that their votes are counted in ’26 and ’28 because they’re angry at what they perceive to be disenfranchisement. I think I don’t know the case well enough, but I think something similar happened in … was it Arizona, Stephen, around SB when noises around disenfranchising Hispanic people in the Southwest? And it turned out that a couple of years after that, turnout rates were up because it really fired people up in a way that was unintended.

Stephen Richer: So the two examples I can think of that you’re maybe referencing are one, the most recent example is the Georgia peep example that I want to talk with Cornell about, which was SB202, which president Biden said among others was the reinstatement of Jim Crow. And then we saw it in the 2022 midterm elections, there was actually quite high participation in Georgia, all racial groups included. And then in, around in 2010, Arizona had what was famously called like the show us your papers laws. This was very much, I think, revolved around Sheriff Joe Arpaio at the time. And then a lot of people point to that as the rise of a more significant Latino political movement, a Latino voting bloc in Arizona. So I think that’s a valid hypothesis. Cornell, what do you make of it?

Cornell William Brooks: Um, it, it’s a great hypothesis. Um, but I would note this, the courage and determination of the citizenry does not necessarily negate the efficacy of the voter suppression machine in this country. So let us look at Stacey Abrams’ race for governor, her race for governor. And when we look at the efforts to literally purge votes in Georgia, we look at the efforts to suppress the vote in Georgia. Under Governor Brian Kemp, they were very effective, right? And so the point being here is the fact that we have any number of legislative initiatives in which we have heightened turnout, juxtaposing that to literally, I would argue, successful efforts to suppress the vote side by side.

Archon Fung: At the same time.

Cornell William Brooks: At the same time. And I’ll go back to, I recall meeting, having a meeting with President Obama in the White House in which we discussed this very same thing. We talked about how turnout actually can go up when there’s a widely perceived threat to people’s ability to cast their ballots. And it could be instrumentalized, right? In other words, you can talk about the fact that the other side doesn’t want you to vote and you can mobilize people to vote. But there are real legislative efforts to suppress the vote. Let me give you a concrete example. In North Carolina, as we speak at North Carolina A&T, we have college students who want to vote. Their polling place, which had been on the campus of this HBCU, has been removed. And an important election has been scheduled during their spring break. So notwithstanding their enthusiasm, notwithstanding their organization, voter suppression is real. And so we can’t allow the virtue of the citizens to excuse the sins of the politicians, right?

Archon Fung: Yes, well put.

Stephen Richer: So I probably will at some point push back a little bit on sort of what constitutes voter disenfranchisement. But just so we keep sort of everything up on the board, as far as the threats to the 2026 midterm elections, you mentioned redistricting, you mentioned the Save Act, you mentioned President Trump’s comments about federalizing elections, you mentioned the DOJ’s involvement. And so we’ve got a lot of things on the board that pertain specifically to this administration. But you started with the Shelby County v. Holder case which predates President Trump in his time in office. In fact, the litigation is maybe before President, maybe it might have been while President Trump was still a Democrat that the litigation was originally filed. The Supreme Court ruled on it in 2013. And so I have often felt, and though maybe you disagree with this, that the trajectory of American elections over the past thirty years specifically has been towards, largely speaking, maybe some dips towards more secure and accurate elections and more accessible elections. Do you, is that a premise that you think is valid or, you know, do you think that that is a much bumpier process? Maybe as a result, you would point to stuff like Shelby County over the last thirty years.

Archon Fung: Right. And Stephen, just to well, Cornell, you should explain Shelby County. But Stephen, what you have in mind, I think, is the more widespread availability of vote by mail and early voting and automatic voter registration, those kinds of things spreading out across many states.

Stephen Richer: For instance, very few states had online voter registration thirty years ago. That lowers the barriers, that lowers the cost for doing it. Very few states had no excuse mail voting thirty years ago. Now the vast majority of states have no excuse mail voting and on and on and on. And then very few states had even post-election audits, even ten years ago, using paper ballots. Now the vast majority do. And so developments like that, as a former election administrator, I say, have we had some detours? Yes, but the general direction of both of those paths has been positive.

Archon Fung: And barrier-lowering, yeah.

Cornell William Brooks: Yes, but … I would agree with much of that. I want to make a couple of distinctions though, right? So in other words, where we have the expansion of the franchise in terms of the ability and the places and the means by which people can cast their ballot, right? By mail, expanded hours, expanded calendar, yes. But where we see these expansions of the opportunities related to the franchise circumscribed based upon race. Right. And in the wake of the Shelby v. Holden Supreme Court decision, which largely gutted the preclearance provision, the ability of government and federal judges to act proactively, preemptively to prevent the worst impacts of voter suppression. To the degree that that’s been curtailed, it’s meant less protection for those most vulnerable with respect to voter suppression. So in other words, there may be an upward trajectory in terms of the franchise, but we need to be very clear about this. When it comes to the franchise, our progress is not rolled in on the wheels of inevitability, as Martin Luther King said. There have been a great many lawsuits filed over the last thirty years to make sure that these kinds of expanded opportunities have occurred. And let us note this, where we have seen expanded hours and conditions for the vote being extended to the public, we’ve literally seen rollbacks depending on the degree to which young people and black and brown people use them. So souls to the polls, expanded voting hours and days, more convenient ways of casting the ballot. Where we have seen black and young people and brown people use these tools, we’ve seen discrimination with respect to their availability.

Stephen Richer: So discrimination, is it intent or is it impact?

Cornell William Brooks: Well, let’s think about this. Give me a concrete example. Intent and impact. Where you have a historically black university known as such and you remove the polling places from the HBCU. Or in the case of Texas, where we remove the polling place from an HBCU and eliminate the bus route between the college campus and the polling place, I would suggest where the voters are primarily Black and the people making the laws know that, that’s both intent and effect or impact.

Stephen Richer: Right. So I just want to distinguish for anyone who’s sort of tracking the different… I guess, concerns that, and I don’t know those two particular instances that well, but there it seems the intent or the purpose is discriminatory in nature. Whereas if you roll back or if you cut the number of days of early voting, it could manifest in a way that has a disparate impact on certain racial groups, but doesn’t necessarily mean that that was the intent of the legislation or of the policy change. And so I just wanted to parse those two out.

Archon Fung: Yeah. Oh, just one more distinction here on the conversation is I think, Steve, you guys, at least in the first part, are in agreement, I think, that opportunities for voting kind of in the median or on the whole have expanded and barriers have lowered. But, Cornell, you’re making an additional point that at the same time, you know, general opportunities may be expanding and the average may be increasing, there may be, I think you believe that there are populations for which it is decreasing, like, you know, your case of students at the HBCU, right?

Cornell William Brooks: Absolutely. And here’s the other thing I think we should consider here, right? So there’s the architecture for the vote, the kind of civic architecture in terms of hours, polling places, the number of polling places, that kind of thing, right? There’s the administration of the vote. But then there’s also the attitude that undergirds voting. So what we saw in the last presidential election, right, was many scholars and public intellectuals and practitioners assert a effort to discourage people from voting, to call into question the efficacy of voting, and as such, reduce the turnout. Now, you could say that this is a tool to be used in terms of partisan advantage, but where those tools were deployed against particular ethnic groups, is that discriminatory? It is certainly racially consequential, right? And in the wake of a history of voter suppression, voter denial, and I have to say this here, voter intimidation and violence, right? So I led the NAACP where we had martyrs, Harry and Harriette Moore, who were voting rights activists who in the state of Florida had their house blown up on Christmas Day, their wedding anniversary. So my point is we can’t talk about voting rights in this racially antiseptic way divorced from the history.

Stephen Richer: Yeah. Okay. So speaking of antiseptic, I will tell you that one of my bugaboos of recent years is the invocation of the civil rights movement, the invocation of especially Jim Crow to criticize legislation, policy decisions that the critic feels are rolling back voting rights. And for me, those two are just, for instance, President Biden said this in the context of Georgia, because I think that Georgia law put more restrictions on mail voting. It put restrictions on what you could do in line for the polling place. But at the same time, it enshrined ballot drop boxes, expanded the number of ballot drop boxes. But regardless, I found that to be so incongruent with the history of Jim Crow that I thought it was insulting and I thought it was apocalyptic to the point of being sort of almost sullying the whole debate on the policy change. How do you receive those types of comments as somebody who has worked more in those areas, knows that history far better than the average American? Do you say, you know, this isn’t the real deal or it is appropriate to invoke that because that brings people up to the – impresses upon them the level of seriousness which they should take this?

Cornell William Brooks: Sure, sure.

Archon Fung: It may be – I mean your worry is that it cheapens what Jim Crow really was, right?

Cornell William Brooks: Well, here’s the thing. So – I believe that if you engage in hyperbole, histrionic, ahistorical arguments related to Jim Crow, you do a disservice to actual martyrs, right? So in other words, when I was president of the NAACP, when I walked into the building every day, I walked past a bust of Medgar Evers, who was killed literally less than a mile from where my in-laws lived in Jackson, Mississippi. So I kind of take your point very, very seriously. But where the history is right. So let’s go to Georgia. So where we have a match, a name match program implemented by the former governor that essentially said, if your name on the voting rolls matches the name of someone who is imprisoned in Georgia, that you have to go and prove that you’re not the person who’s incarcerated, not the person who is ineligible to vote, and you have to do that serially. It’s your responsibility as a voter. Now, That seems onerous, it seems unfair, but it is like Jim Crow. How so? Where we had a convict leasing system, where we had laws passed all across the South to disenfranchise voters based upon criminal convictions, based upon the assumptions of legislators, who assumed that certain convictions were related to race. So in other words, there were states where if you stole a horse, you could continue to vote. But if you stole a pig, you couldn’t vote. Why? Because pig stealing was assumed to be the kind of crime Black people committed. This is the real history. And so my point being here is where the history is accurate, where there is a precise analogy, where you’re not exaggerating, it’s not doing a disservice to the history. It’s, in fact, amplifying the history in ways that helps the present. So I would agree with you. Don’t misuse the history. But I would also say don’t understate the history.

Archon Fung: Yeah, good. So we got a couple of comments in the chat that echo the worry that the discussion we’re having is amplifying fears of bad things that might happen in ’26 or ’28 without much evidentiary basis. And so I wanted to return to the SAVE Act. There’s a lot of discussion about the SAVE Act and the disenfranchisement that that might cause. But it seems to have pretty low probability of actually happening, right? I mean, the Republicans just don’t have sixty votes in the Senate to overcome a filibuster. So why is there all this discussion about the SAVE Act and how worried do we really need to be about it?

Stephen Richer: Yeah, I will real quickly, I think it’s gotten all out of proportion as if it’s the most impactful sort of legislation. Well, maybe, maybe Cornell disagrees. But for me, like sort of … the impact is is likely to be pretty muted in terms of non-citizens voting, just because even if it does pass, but then also sort of the likelihood. So it’s almost become sort of this representation, this Gollum like thing that we talk about more than that stands in for so many other things than just what the legislation has itself. But that’s just my perspective.

Cornell William Brooks: So, you know, here’s the thing I would love. to have a cup of chamomile tea and put myself at ease. But I unfortunately read history too well. And here’s what I mean. What we have seen with respect to voting rights is the, how can I say, the normalization of arguments even when the threats are not imminent. And here’s what I mean. We have a whole set of arguments put forward justifying the SAVE Act, right? We have to pass this piece of legislation in order to prevent non-citizens from voting. When we look at the actual numbers, going back to the 1980s, less than one hundred people have cast a ballot who were not citizens. Meanwhile, real voter suppression, real voter suppression is not being addressed. The John Lewis Act has not passed, right? The restoration of the Voting Rights Act has not passed. And so my point being here is the reason why the SAVE Act is is a problem is not because of the viability of the threat in the near term, but the fact that the underlying arguments are being normalized. In other words, we’re accepting it’s okay to spend — I say to all my fiscal conservatives, it’s okay to spend a lot of government money, to literally burn government money, to go after a problem that doesn’t really exist. What’s self-respecting fiscal conservative is saying, you know what? Let’s create a whole new federal architecture, uh let’s, you know, demand that regular people have to have a driver’s license, a Real Id, and a passport presented in person to cast a ballot right, let’s do that. Here’s the problem. These arguments get normalized and other bad things happen. At our own institution, at Harvard, right, Supreme Court says you can’t consider race in terms of admission. Okay, so stipulated. I disagree with that. I think it’s an ahistorical reading in the Fourteenth Amendment, but so stipulated. But all of a sudden, we get from that diversity with respect to veterans. Members of the LGBTQ community, Jewish students, Muslim students, any kind of diversity, any kind of discussion of diversity is a bad thing. Here’s my point. There’s a way in which we conflate arguments, we normalize arguments that have no empirical basis and they’re presented as true, as though they’re law, as though they’re based in history. And I, for one, as a lawyer, as a civil rights leader and someone who at least appreciates great historians, I’m not for like supporting things that have no basis.

Archon Fung: So, I mean, I think that I would rather be talking about the SAVE Act the way that you just talked about it, which is pretty good. Look, it’s all of this energy directed to solving a non-problem. And why are we direct – why is that the discussion? That isn’t the narrative that is accurate and it’s not the discussion we should be having. I think that’s a more constructive way to talk about the SAVE Act than the particulars and the way that Stephen raised it, which I think is the way that most people are talking about is, oh, it’s a huge threat. This piece of legislation is a huge threat, and that’s what we have to be worried about qua public policy. But you’re saying, no, it’s not exactly the policy, it’s the whole narrative and assumptions behind it.

Stephen Richer: I think that the conversation has largely split into: non-citizens voting is a huge problem and we need to address it versus the SAVE Act will have a large disenfranchising effect on a large number of people. And then there are a few weirdos like me who are like, hey, federalism still matters and shouldn’t we be delegating, shouldn’t we be leaving the authority to administer elections to the states? I have yet to see a significant conversation about the costs of the implementation of SAVE and whether it’s sort of cost-benefit to Cornell’s point makes sense. Although whether or not cost-benefit analysis matters to the federal government anymore is sort of like a whole big thing and is maybe a little bit of a sore point with me. But OK, so on the legal front, we have a question from Joe. And he wants to know about what other legal challenges do you foresee happening vis-a-vis election rights? So there was a lawsuit following the president’s executive order from March 2025, and that’s largely been enjoined in the federal courts. There is litigation between the Department of Justice and I think twenty six different states as far as possession of the voting rolls. There is litigation right now in the number of localized matters, whether that’s in Fulton County regarding the FBI seizure of the ballot boxes, whether that’s in North Carolina. But do you, do you foresee any sort of offensive litigation, or do you think it will be reacting to whatever the president and the administration does next?

Archon Fung: Great. And just one more is, in the rearview mirror now is the gerrymandering decisions in the Supreme Court. So the Supreme Court allowed Texas gerrymandering, but they also allowed California midterm gerrymandering. But sorry, Cornell, go ahead. What do you think? It’s a great question.

Cornell William Brooks: No, I think it’s an excellent question. I would say that the lawyers are, across the country and civil rights organizations, have essentially been circumstantially, historically, if you will, given this unfair task of defending voting rights without the Department of Justice. Right? So in other words, the Department of Justice, notwithstanding a hobbled Voting Rights Act, does have a voting rights division. It is not in the business of vindicating voting rights. And so literally lawyers have the responsibility now of engaging in this kind of multi-front war or multi-front battle to defend the ballot box. I don’t know if there is a massive, if there is a coherent, affirmative strategy being waged by everyone, just given the state of the law, given voting in this country, right? The fact that voting is in large measure governed by the states. So I don’t think there’s like some meta strategy here. And I think ultimately what this really, depends on is the degree to which literally we can get through the midterm elections and we can write this democracy legislatively. I think at the end of the day, that’s where we are because the victories because of the law are not going to come from the courts for a couple of reasons. One, given the way we vote in this country. But the other part of that is this, that the court’s ability to prevent harms when it comes to elections is severely limited. And with the gutting of Section 5 of the Voting Rights Act, even more so. And so, the constitutional optimist in me would love for there to be an affirmative grand strategy. But the pragmatist, the realist in me says that can’t happen litigatorily. It has to be legislatively. And it will have to be after this presidency.

Archon Fung: Right. So following up on that and moving a little bit to the Black History Month theme. A signature, maybe the signature achievement of the Civil Rights Movement in public policy for American democracy was the Voting Rights Act. Many observers think that the important planks of the Voting Rights Act are being yanked out one by one, by court decisions, plea clearance, but also Baranovich. And there may not be, some people think there’s very little of it left right now. There may not be much left in the future. And I think, hence, that’s your turn to it’s got to be legislation that shores up American democracy in the next two years, in the next six years, et cetera. What do you think? What would you like the spiritual legacy of the civil rights movement to be going forward, given that the literal legacy of the Voting Rights Act is barely there anymore? What should you and other people who carry the legacy of the Civil Rights Movement for democracy be seeking to build to strengthen American democracy moving forward?

Cornell William Brooks: Yeah, yeah. Well, first of all, let me just say this. Happy Black History Month.

Stephen Richer: Is happy the right?

Cornell William Brooks: I say that for this reason, right? Namely, when we look at the legacy of the Civil Rights Movement, but also Black History Month, right? I would argue that in terms of the legacy of the Civil Rights Movement, literally everything — every American is a beneficiary, right? So, as I say to my students at the Kennedy School, if you are here from any place other than the United States, you owe a debt of gratitude to the Civil Rights Movement for the Civil Rights Act, which abolished discrimination domestically, which opened the door for the Immigration Act of 1965, which abolished discrimination with respect internationally in terms of our international immigration quota system. So literally, the Harvard that we know today exists because of the Civil Rights Movement. And Black History Month, really, in terms of Carter G. Woodson envisioning a week initially and a month commemorating the achievements of Black people, they have literally enriched all Americans in so many ways. So the Disability Rights Movement, owes a debt of gratitude to the Civil Rights Movement. Because there would be no Disability Rights Movement, as we know it, were it not for that. The LGBTQ movement, in terms of the categories of relief, the ways of understanding what is or is not discrimination, that’s a civil rights achievement. Veterans in this country, the ways in which we understand how we should recognize the service of veterans has a lot to do with the Civil Rights Movement. And so my point being, is there’s no college campus, no community, no town in the United States where veterans, that the contributions, particularly in terms of the Constitution and American law and public policy, is not predicated on the blood sacrifice of Black people in this month. And I’m saying this as a civil rights lawyer who has represented people in every part of the country and of every conceivable color, right? And I tell people, when I was at DOJ, I’m here to represent you. And you can thank people that you don’t know who made sacrifices you may not have read about for my being here. And so what I’m suggesting to you, Archon, in terms of the moral and spiritual legacy, one of the things that is a legacy of the Civil Rights Movement is multiracial, multiethnic, multi-identity, multi-regional coalitions, right? Geographic, right? The Civil Rights Movement didn’t just take place in the South, it also took place in the North and the West. So going forward, one of the things that I think is incredibly important is that we take the lessons that we gotta build back, yes, build back bigger, broader, more diverse. Right? And diversely, more diversely understood. Right? It’s not in this biracial frame from the 1950s. We’ve got to we’ve got to think a lot more broadly than that. Number two, the Civil Rights Movement was very forward thinking. Right. So we go back to the Brown versus Board of Education brief. What brief before then had social science embedded in the brief, right? So it was not just law, but social science. So what I’m saying is we think about what America looks like after the celebration of the 250th anniversary of the Declaration of Independence, we need to be thinking about how does social science influence our constitutional vision? We need to be thinking about what kind of America that represents a multiracial, multiethnic, multi-identity democracy. What new tools do we have? Do we need the electoral college as we’ve understood it? Do we need something different? Do we need to think about universal voting? My point being here is that one of the prime lessons of the Civil Rights Movement is thinking affirmatively. Last point here. We talked about the Voting Rights Act. The Voting Rights Act, pre-Shelby, was regarded as one of the most successful pieces of legislation in American history in terms of being effective and being impactful, in part because it was affirmative. And so the question I’m asking here is not going back to the past. I’m asking, how do we think about laws, a Constitution, municipal ordinances that are affirmative relative to the reality and the vision we’re trying to create. And I would argue here that calls for a lot more brilliance, yes? A lot more bravery, right?

Archon Fung: That’s fantastic.

Stephen Richer: I appreciate that. I’m going to get a little more earthly. I want to drill in on the legislative component. So you mentioned the John Lewis Voting Rights Act.

Cornell William Brooks: Mm hmm.

Stephen Richer: For the People was invoked in 2021. This was HR1 that the congressional Dems tried to pass. What do you think the hallmarks of future voter, voter rights legislation should have?

Cornell William Brooks: Mm hmm. So I’ll be earthly and practical, too. So if we think about how the Voting Rights Act came into being, it came into being, yes, as a consequence of lawyers. It also came into being as a consequence of laypeople saying what they wanted. I would argue that we need to think about ways of incentivizing more access to the ballot box. Right? We do this in a whole variety of ways, so that we don’t we don’t necessarily federalize, but we normalize and we create more uniformity in terms of access to the ballot box. We have to think about ways in which we can get the voting rights section of the Civil Rights Division back in the business of protecting people’s rights. And that means, let’s be clear about this, it’s not just race, but disability, right? When you move polling places all across town, what you’re really doing is you’re saying to people who are disabled, we’re going to make it harder for you to vote. You’re saying to people in the Indian country, we’re going to make it harder for people to vote. And so my point is, thinking about affirmative ways to maximize the vote. And so what I’m suggesting to you, that may mean more than just replicating the past. It may mean like literally thinking about why can’t we do what has been done in other countries where we have 85, 90 percent of the people vote? What is it? Do we need more holidays for voting? Do we need incentives for voting? You know, I’ll end on this point. My fifth great grandfather back in the 1870s fought to be a member of a jury. He fought to cast the ballot. He literally risked his life. My maternal grandfather ran for Congress in the 1940s under the threat of the Klan. Here’s my point. We got to be affirmative, which means we need to be brilliant, but we also need to be brave. And what I mean by that is we need a bravery of analysis and intellectual ambition, which is to say we can’t keep doing what we have done. We can’t keep looking to the people we’ve always looked to in terms of Democrats and Republicans. We need to look abroad. And so… I think there’s more that needs to be done, but it calls for virtue as well as analysis.

Archon Fung: That’s fantastic. Cornell, I just, I hadn’t, we’ve had many conversations. I hadn’t quite heard you say it that way before in that, like, I think of the legacy, many of us, I think, look back at the legacy of the Civil Rights Movement and think, oh, it feels incremental. It feels like, and of course, black people should be in this, I should be able to vote. But it was like, hella ambitious and visionary at the time that people were trying to do it. And so what you’re saying is what is a similar level of ambition and vision looking forward from today and don’t look backward and think that that was an incremental accomplishment because it just wasn’t. It was just much more than that.

Stephen Richer: Did you feel, Archon, that, you know, like, HR1 was comparatively small ball, like automatic voter registration, same day voter registration? I mean, certainly in the light of what you just mentioned that’s small ball, but I think people perceived it to be a very significant bill.

Archon Fung: Yeah. I mean, it was both/and. I guess I thought it was significant, but incremental on all of these dimensions. And it may be ironically, a more visionary proposal could attract a broader base of support across the aisle, if it, yeah, I don’t know. It feels very democratic. Right. HR1 is capitally Democratic.

Stephen Richer: And it was using the tools that we knew. We could have predicted that that would have been in the Democratic wish list if they had controlled the Congress. Oh, they’re going to ask for yada, yada, yada. This sounds more like a call for a moonshot.

Archon Fung: Yeah, moonshot, that would like, let’s get rural voting in Mississippi and everywhere else up to a 100%, something for everyone, the broader coalition that Cornell was talking about.

Cornell William Brooks: But isn’t it a mixture, right? So in other words, you had laypeople at the headquarters of the Union of Reform Judaism in DC who were saying, well, we need federal monitors. We need people protecting us, right? So that was pretty straightforward. Yeah, right, yeah. It’s pretty straightforward, right? And it harkens back to the period of Reconstruction. But the idea of having a Section 5 that was affirmative, I would argue, was fairly visionary. So my point is, there’s always this mixture of the imminently pragmatic, and that which is visionary and inspirational. And I would argue, seeding the future in ways that people hadn’t contemplated. But the other part of this is, I mean, when we think about, like, say, someone like Pauli Murray, right, who was the intellectual architect of the Brown versus Board of Education decision, who was the only woman in her class at Howard University Law School in 1944, who said to the to the male lawyers, why can’t we go after not just the discriminatory aspect of separate but let’s argue that separate is inherently unequal? At that time that was revolutionary, right? What she was doing is going from the coldly pragmatic we should have the equal number of chairs for white students as we have for black students and vice versa to saying the fact that we have people who are separate is in and of itself unequal. And then you bring in two social scientists who say, psychologically speaking, as a matter of social science, this is harmful and wrong. My only point is going forward, you need that level of intellectual ambition. Yeah. And it is not at odds with the coldly pragmatic. And last point here is, you know, when we think about voting, we would think about voting as we think about telecommunications. You know, it’s like dialing. It’s like in this country, we’re reaching back for a tin can and string when we have iPhones. We literally are trying to make voting as inconvenient as possible and in the middle of the 21st century. And we say that that’s acceptable, as opposed to asking ourselves a question: Why can’t we make voting as easy as possible, as convenient as possible?

Stephen Richer: So I will put in a plug. Archon and I did a episode on cell phone voting, the future of cell phone voting, if that’s a possibility, why election security experts like paper ballots. But I appreciate that you’re thinking big. I think thinking big is exciting. And so we really appreciate you coming here and sharing some of those thoughts. We’ve taken up more of Cornell’s time than we told him we would. But I kind of want to end on what is hopefully a more uplifting or some of this is uplifting, you know, you mentioned happy that we should be talking about this month in the happy context. But the United States won more gold medals than I believe it ever has before in the Winter Olympics. We did not win the most medals. I didn’t know that Norway was so dominant.

Archon Fung: How is that possible?

Stephen Richer: It seems like everyone in the country won a medal there. But any favorite stories from the Olympics?

Cornell William Brooks: No favorite story, but a favorite prediction. I think given the amount of snow that we have endured the last few weeks, I’m predicting four years from now we’re going to win even more medals and we may well outpace Norway.

Stephen Richer: You can be practicing the biathlon in the streets of Cambridge right now.

Archon Fung: Great. That’s right. In the chat, there’s a lot of discussion about paper ballots and security. I’m sure we’ll be coming to that before the November elections pop up. But Cornell, thank you very, very much as always. This is a fantastic discussion. I always learn so much from talking with you. It’s just a real gift.

Cornell William Brooks: Well, thank you. It’s great being with you all. And this is a great program. I look forward to recommending it more to others.

Stephen Richer: Appreciate you being on. And thanks to all of our guests for joining us. As always, if you have any ideas for future shows, please email us. That email will appear on the screen. Email us at info@ash.harvard.edu. And as always, thanks to the production team for all the work that they put into making this happen. And we will look forward to seeing you again next week, next Tuesday at noon.

Archon Fung: All right. Take care, everyone.

Cornell William Brooks: Thank you.