Jon Wiener: From The Nation magazine, this is Start Making Sense. I’m Jon Wiener. Later in the show: The blue state attorneys general have succeeded in blocking the efforts of Trump’s allies at Paramount-Skydance from taking over Warners-Discovery, at least for now, but their lawsuit followed months of protests organized by, among others, Jane Fonda’s Committee for the First Amendment. Rashad Robinson has our analysis. But first: the Supreme Court’s ruling on voting by mail – David Cole will explain, in a minute.
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The big news this week is that on Monday night, the Supreme Court blocked Trump from enlisting the Post Office in restricting voting by mail. For comment and analysis, we turn to David Cole. Of course he’s the former national legal director of the ACLU, and now teaches law at Georgetown. He also writes for The New York Times, The Washington Post, and The New York Review. And he’s The Nation’s legal affairs correspondent. David, welcome back.
David Cole: Thanks for having me, Jon.
JW: Tell us about Monday night’s ruling.
DC: Well, the court, by a vote of, apparently, 7 to 2, rejected the effort by the Trump administration to essentially interpose the Postal Service in the way in which mail-in ballots are transferred and assessed by the states. The court did not give elaborate reasons for its decision. It said that the Trump administration was unlikely to succeed on the merits – that was its principal contention, and I think for good reason. I mean, this is a situation in which elections are to be governed by the states – unless Congress takes action to regulate elections; it has the power to do so. But absent it taking that action, it’s up to the states.
The Postal Service has never been in the position of regulating elections, even though it does deliver the mail. But Trump sought to use the Postal Service without congressional authorization to interfere with mail-in ballots. And, I think very likely. the justification for many of the justices, certainly for Justice Kavanaugh, who concurred, was simply, whatever you think of the merits here, it is too late in the day to impose a brand new system on the nation as a whole — that requires specific envelopes with specific barcodes for each voter, and specific logos, and the like. And, the likelihood that that could be implemented, number one by the states and number two, by the Postal Service, which — I don’t know about you, but in my experience — is not the fastest entity known to mankind, was basically zero. And so, what it was designed to do was just throw a wrench in the works of mail-in ballots.
JW: 7 to 2. That’s a pretty devastating.
DC: Yeah. And all three Trump appointees voted against him, which caused him to have another conniption fit. This time he didn’t call a press conference, as he did after the tariff decision, to lambast the justices who he appointed. But he did lambast them on his social media feed, suggesting that these are not the people he interviewed and that they personally betrayed him – just illustrating that President Trump doesn’t understand how the system works. Justices are not there to do the president’s bidding. Whoever the president is that appointed them, they are there to apply the law. And here they did that in a case where the law was very strongly against the president, and they blocked him from seeking to interfere with the results of the midterms. He will continue to seek to do so because he realizes that the midterm results don’t look good for him. But the Supreme Court is, at least thus far, not helping him on that account.
JW: The background bigger issue here is that Trump wants to create a national list of approved voters, and he wanted the Post Office to then send mail ballots only to the people on his list. And what the Supreme Court ruled on Monday night was that it’s too close to the election to do that. As you say, they said he was likely to lose on the merits. But this ruling was not based on the merits. It was just two paragraphs long. Do you think they will ever rule on the merits of whether the Postal Service can mail ballots only to people on a national list approved by the president?
DC: Well, I think probably yes, because it is likely that the Trump administration will continue this fight. They have lost it for the midterms. But we have two years to the presidential election, and they are on a campaign against mail-in ballots. And this is one of the tools that they have sought to use.
There was another one last term in the Supreme Court. Trump supported an argument that the law governing elections and requiring elections to be — the national election — to be on a particular day, precluded states from counting ballots that were filled out and mailed by the date of the election but received thereafter. And the Trump administration said, “no, they have to be received on that day or you can’t count them.” And again, the court ruled against him.
So, he’s looking for any opportunity he can find to interfere with the right of people to vote by mail. One third of the country votes by mail. But he wants to frustrate people’s ability to vote. And again, thus far, the Supreme Court has not facilitated this effort to undermine our democratic process. Only Justices Alito and Thomas, who apparently will vote for anything that President Trump wants to do, voted with him.
JW: So, there is this project that still seems to be underway to create this national portal, which will list every eligible voter. The Department of Homeland Security was supposed to get this up on what? September 3rd or something like that? It still hasn’t been posted online. The “state citizenship list portal,” that was not discussed by the Supreme Court in this decision. But there’s also litigation about whether that is constitutional. There is a case underway right now that argues against what the government is trying to do, which is to combine data from different federal agencies into a single citizenship list, and then all states would be required to get their voter list to comply with the names on the national citizenship list. The District Court of D.C. ruled this was a violation of the right to privacy in June of this year. The plaintiffs are Democracy Forward, CREW, Citizens for Responsibility and Ethics in Washington, the Fair Election Center. that’s been appealed to the Supreme Court. So that’s yet another another battlefront. What do you think is going to happen with that litigation?
DC: I haven’t studied that one closely, so I don’t know. But the basic rule with respect to elections is that it is up to the states to make determinations about elections. And the president and the executive branch generally has no authority over elections. Congress could enact a law that required a national list, I suppose. But it hasn’t. And so, the president can’t, I don’t think, unilaterally exercise that authority.
And it’s inevitable that a list like that is going to be incomplete. And so, people who are citizens are not going to be able to vote if that list becomes the trademark. It is permissible for states to require that voters show that they are eligible to vote, and they often do. And as long as it’s not too onerous a requirement — like you can’t require that everyone have a passport, because I think most Americans actually don’t have a passport, even if they’re citizens. But again, this is something that states regulate routinely. The federal government does not need to get involved. Congress has not authorized the federal government to get involved. And so, it shouldn’t be.
JW: Now, my understanding is this ruling is limited to the blue states that were the plaintiffs in the case in Boston, who said that it was unconstitutional to require them to comply with this rule. It didn’t say anything about the red states, which many of which have already agreed to submit their voter lists and to coordinate with the Homeland Security in eliminating people who DHS says are not eligible to vote. And that seems to be proceeding.
I’ve looked into this a bit. There’s 20 states that the feds did not sue for refusing to cooperate, but only 12 of those have fully complied, at this point, anyway, with the demand that they hand over all of the private data they have on voters. And not all of those have signed the accompanying agreement that they will remove the people who DHS says don’t belong on the list. And some have said they’ll think it over. Alaska and Texas are the only states that have signed an agreement that they will comply with the DHS list of names when it is published. And even Alaska says there’ll be a process by which people who disagree about their names being cut from the list will be able to contest that. Do you think this will pass muster if a state wants to get federal government’s help in purging its voting lists? Is that acceptable? Is that constitutional?
DC: I think states have the discretion to choose to do that. If it does not threaten to disenfranchise eligible voters. You know, depending on how the list is constructed, it may very well pose a risk of disenfranchizing eligible voters, in which case the states don’t have the authority to do that — so that it’ll it’ll depend on the details of what sort of information, you know, did Alaska provide? Did Texas provide? How fulsome was that information? What are the sources that DHS is using to ascertain whether individuals are in fact, citizens or not? What are the measures that people whose eligibility is challenged can pursue? You mentioned that Alaska has set forth those procedures. If those procedures are too onerous, that can be a problem.
So, what the Supreme Court has said is that states do have the right to undertake measures to ensure that people who are voting are eligible to vote. They can require ID as long as the obligation, the requirement is not too onerous. And so, courts have struck down a number of voter ID initiatives on the ground that they are too onerous and that they disqualify many eligible voters. But that really depends on the details of how the state sets up that process.
JW: We’ve been focusing thus far, and the Supreme Court has been focusing, on the voter lists: What are the requirements for states to comply with federal rules about whose names are on the voter list? But a lot of our friends are worried about efforts to intimidate qualified voters from voting on November 3rd in the midterms. And there’s a fascinating case that just went to court last Thursday, where the city of Denver asked a federal judge to bar armed ICE agents from approaching polling sites during the midterm elections. Their argument was, there is this federal law dating from Reconstruction that bans military personnel or other armed agents from being at “any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States.” Now, this, of course, is what a lot of our friends are worried about, and Denver is already going to court to get an injunction to prevent it. What do you think are the chances that this legal strategy will succeed?
DC: Well, again, I haven’t had a chance to study the law or the case, but the notion that the federal government should be sending armed agents, particularly ICE agents, to polling places, is really disturbing. Its obvious purpose is to try to dissuade people from voting. And that’s just not a permissible purpose. So, if there’s a law in the books from the Reconstruction era that prohibits that, all the better. And I certainly hope that that lawsuit succeeds, and that other cities and other states will do the same. Because every indication is that President Trump is very worried about the midterms. He is very worried that his party will do poorly in the midterms. And so, rather than try to do a better job by trying to appeal to people, he is instead seeking to suppress the vote. That is not how a democracy is supposed to work.
JW: Last question: How confident are you that voting in the midterms will be free and fair?
DC: Look, we’ve had a democracy for 250 years. There have been serious challenges to that process over the last two and a half centuries. But we have generally had free and fair elections. I think there’s a commitment to that among the populace, generally, and among the courts. There is a commitment to undermine that, unfortunately, from the White House. And I can’t really predict what will ultimately come of it. But I think we should all be vigilant. We should all be supporting the groups that are out there fighting to ensure that our elections are free and fair, because, sadly, the White House is afraid of free and fair elections.
JW: David Cole, former legal director of the ACLU. David, thanks for talking with us today.
DC: Thanks for having me. Jon.
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JW: How to take on the fights that matter, and how to win: Rashad Robinson has been thinking about that for a while now. He’s been a key leader and strategist of social justice movements. He led the group Color of Change for 14 years, where he hosted their podcast, Voting While Black, where he interviewed people like Bernie Sanders, Pete Buttigieg, and Elizabeth Warren. Before that, he worked as director of media programs for GLAAD, the Gay and Lesbian Alliance Against Defamation. He’s written for or been featured in The New York Times, The Guardian, CNN, NPR, and The Nation. And his new book is From Presence to Power. It’s a national bestseller. Rashad Robinson, welcome to the program.
Rashad Robinson: Thanks for having me.
JW: I want to start with the proposed Paramount-Warner Brothers merger, which you wrote about recently for The Nation. For a lot of people, it seems remote from their daily lives and problems, a hundred-billion-dollar deal between two massive media conglomerates. It’s not about paying for rent or gas or groceries, but you think nevertheless, it’s important for ordinary people whether Paramount takes over Warners. Please explain why.
RR: Whether or not we have enough information to understand what’s happening with our gas or our groceries or data centers really depends on the type of information that we get. Who controls the airwaves and the tubes, the sort of freedom of expression, the ability to be able to have various communities and ideas represented. This is all what’s at stake when we think about these big mergers, and having a billionaire family that has pledged allegiance to Trump and being able to own more things, to do what they’ve done to CBS, to CNN, to be able to shrink the number of programs and pieces of content that come into our world. That is really setting the terms of the discussion and the conversation. And in the op-ed piece, what I did was I compared it to gerrymandering, because I think it’s actually really important that we understand the larger strategy here, right? As the country changes, as demographics change, as we see progressive values and issues more and more popular with everyday Americans our opponents have to actually set the terms of the debate because they can’t win the actual argument on the issues. And so, they have to control what we see. They have to control the lines around how we vote in order to actually prevent sort of the fair representation of — of our voices, our votes, and everything else.
JW: The Paramount-Warner proposed merger is a great example of one of the things you talk about in your book From Presence to Power. In fact, taking on Hollywood power is one of your case studies in the book. Right now, the Paramount Warner merger has been blocked, at least temporarily, by an antitrust lawsuit filed by a group of blue state attorneys general led by California Attorney General Rob Bonta. But it wasn’t Rob Bonta who made this an issue. His lawsuit was filed in mid-July. That came after months of a big protest campaign led by, among others, the Committee on the First Amendment. That’s a group organized by Jane Fonda. And you and Jane are co-chairs of the steering committee. The campaign that you organized started by focusing, I think, on the Warner shareholders and whether they wanted to accept the takeover offer. And that was back in April. And you got a thousand film and TV professionals, starting with Jane Fonda and 75 other Academy Award winners and nominees to sign an open letter opposing the deal. Tell us a little bit more about the campaign against the merger.
RR: Well, the Committee for the First Amendment, started by Jane Fonda, was really a relaunch of an effort that her father was part of during the McCarthy era to leverage the power and the voice of those in the entertainment industry to speak up for free expression and to protect the First Amendment. And Annie Leonard, who used to run Greenpeace and myself serve as the co-chairs and really support Jane and support the group of thousands of creatives all throughout Hollywood who are using their platform, using their voice, using their talents, their writing ability, their comedic talent to be able to reach more people about First Amendment issues. And so, we’ve been doing all sorts of work from protests in front of the Kennedy Center for obvious reasons, to sort of push back on Donald Trump’s takeover protecting and standing up for people who have been under attack, like Don Lemon and others. And so, there’s just been a wide range of really important work, but this merger, right, sits at the intersection of so many of the structural issues that I just talked about in terms of how we actually get to be heard and counted and visible in our democracy and our larger society. And, what’s happened is when the merger was announced, it was kind of considered like it was just going to sail through. We don’t have a lot of leverage — or any leverage at this point — at the FCC. I’ve been involved in all sorts of mergers from the push back against the Comcast merger, helped to win around the AT&T T-Mobile merger. And so, I’ve been part of these comment periods, part of this mobilization and everyone was saying the merger was just going to go through, like your best bet would be try to figure out how to make it not as bad, but I do think that the folks standing up and pushing, engaging the unions throughout Hollywood, the work to really get bold faced names and lots of everyday line creatives, people who just wake up every single day and want their industry to be fair and represent them to speak up.
I think that that puts some real energy behind the attorneys general. I think it’s great that they’re standing up. And I think that part of what we know is that our elected officials are never going to be all the way out in front part of activism and advocacy, and I talk a lot about it in my book, is that we build efforts to till the soil that we push and clear the terrain so that our elected officials can actually land there. And then we have to stand up and protect them. And I think what Rob Bonta and the other attorneys general are doing Tish James and, Keith Ellison and many others is, I think, so critically important. In this moment where we are seeing that we don’t have the power in Congress, we don’t have the power at the FTC, we don’t have the power at the FCC. And seeing these attorneys general stand up and push back, I think is incredibly important. And where we’re at now where the Ellisons and the folks behind this merger have sort of moved on from trying to argue the importance of this merger and have really moved to attacking the people who are trying to stop it.
JW: Yeah. The most recent development in this is that Mark Ruffalo, who has been one of the leading voices in opposing this, has come under some very intense attack. Tell us about that and where we stand right now with Mark.
RR: I’ve seen this time and time again, Jon. So basically, when you begin to win right against a big corporation, but they start off in the process by trying to buy you off or trying to discredit you, or trying to put out a lot of lies about the argument. But then they get to a point where then they start throwing out attacks that are meant to change the subject, are meant to move us away from the actual argument and these arguments that somehow the people behind pushing back against a billionaire family owning more media properties who’s like pledged allegiance to an authoritarian president, saying that that’s not something that we want that all of a sudden, that we must be doing it because we’re anti-Semitic. And that, without ever arguing for why this merger will be good for the industry, why this merger will be good for free expression, why in an era where we should be doing more and more to protect against monopolistic power, that we should be comfortable with this merger. They’re not arguing for the merger and they’re just trying to attack the opponents. And that’s, I think, how we know that the arguments are in our favor, that the actual information behind this merger is in our favor. And that, I think is important for us because it’s a sign that we have to keep going. We have to keep pushing. And this is, I think, part of a larger thing that I talk about in the book, throughout the book is the role of corporate power and the importance for progressive, for those who care about racial justice, to both recognize the role of corporate power and to push back and also to recognize the role of racial justice, which, I weave throughout the book, not as a moral argument, not as a thing that you do because you want to help Black and Brown people.
Although I think that would be great if it was for the moral reason, but because it’s a strategic lever in our work, right? The rules that helped us protect against some of these mergers in the past really were rules that also allowed for diversity in media ownership. And as those rules began to break down and we perhaps didn’t have the energy to protect them, we’ve lost some of the levers to actually protect against some of the mergers. And we’re seeing the same thing with voting rights, right? Like part of the attack on voting rights and Black political power is not just about decreasing the number of Black representatives, a number of, or the voice of Black people. But you actually don’t save the climate if you don’t have Black people voting and you don’t have Black representation, you’re not going to protect your gay marriage if you don’t have Black people engaged in voting. The numbers and the math just don’t work out. All you have to look at is who’s on the Supreme Court and who got there through Black political power versus who got there through folks that Black people overwhelmingly didn’t support. You don’t have to support these issues because you’re like, ‘I’m standing up for Black people.’ You could support these issues because at the end of the day, it’s not charity around racial justice. It’s strategy for all the progressive things that you actually care about.
JW: You know, we’ve all become experts on Trump, but one of the most fascinating parts of your book is the story of how, at Color of Change, you were one of the first people to identify Trump as a problem. Trump’s show “The Apprentice” started on NBC in 2004. Obama, you remember, was elected in 2008, and in 2011, Trump began arguing that Obama had been born in Kenya and thus couldn’t be president. We called it “the birther lie.” And you guys launched a campaign against Trump, back in like 2011, when a lot of us just thought he was a joke. Remind us about your early work to alert us to the problem of Trump.
RR: Well, one of the things I really try to center in the book is the role of culture and the power of culture in shaping what we get and where, what happens next for us. And I have been a cultural strategist for years. I worked at GLAAD at the time where we put hospital visitation episodes on every hospital show. Meaning like episodes on hospital TV shows that showed a gay couple being denied being able to see their partner way more powerful than an op-ed piece describing the issue. You know, working to protect the, putting gay teenagers on a show like Glee, right, where it was not. That might not seem controversial now, because you probably wouldn’t imagine a show about high schoolers that didn’t have a gay or queer or trans young person on it, but at the time, we had to really fight.
So, recognizing the role of culture, when I got to Color of Change and I’m leading a racial justice organization. I’m looking at the TV landscape and how do you make these issues real and salient for people? Well, you’ve got this very highly rated show on NBC where the host is on once a week as a smart, capable businessman. And the rest of the week, he’s running around the country with a racist lie about the president.
Some things have to be unacceptable in our society to make other things possible. There has to be a floor, and there has to be a ceiling. And part of what I recognized was that we had to make that unacceptable. The same way at GLAAD when I got to GLAAD in 2005, what you could say in the media or at the workplace about gay and lesbian people dramatically changed between 2005 and 2011 when I left. So, when I got to Color of Change, I was looking at the landscape of what was happening around race. And if you have this show that’s on prime time and the host is openly racist, that’s in so much, so many signals. But people told me, they said, “what do you know?” I talk about it in the book, “doesn’t Color of Change have better things to work on? This guy’s a joke.” And what the show did and what we’ve learned now and what so much ink has been put to it is how much The Celebrity Apprentice rehabilitated him, how much it created a narrative and a story that people ate up about his capabilities and whether or not we could trust him to run important things.
And that I look back and I imagine what if we had gotten that show canceled? Yeah. What if we had gotten him replaced? What if we had stopped that before it got down the line? What would things look like today? Now, I can’t say that we wouldn’t have some other authoritarian. But Donald Trump is uniquely talented and we allowed that talent to grow and we allowed it to build audience, and we allowed it to happen on prime time once a week, all while he was doing something that should have been unacceptable to every progressive. But what we did was we kind of thought about it as a joke. We thought about it as not worth taking on, and culture, and not taking on culture and not taking on the role of culture because we don’t think it’s serious enough. I think it’s shortsighted on our side because we give the terrain away to our opponents, and we actually don’t engage sometimes in the actual conversations that everyday people are having.
JW: Last thing, right now, your book tour has taken you to Texas. You’ve been in Austin, you’ve been in Houston. We’re all pretty darn interested in Texas right now because the Democrats seem to be in amazingly good shape in a state where it’s been a long time. What can you tell us about Texas right now?
RR: There is a lot of excitement. So, I was I left Houston yesterday and Talarico was having a rally there. There were multiple rallies throughout the state. My book event was on Friday and even at my book event, I had a number of local elected officials that showed up along with some of the most progressive activists. I had the Congressman Christian Menefee show up, and Commissioner Rodney Ellis and local judges, which doesn’t always happen for a book event on like a Friday night. As well as a lot of the folks that I would expect to come to one of my book events. And then over the course of that weekend, there were just tons of events and engagements. Reverend Sharpton was in town, a lot of folks, he taped his show from Texas. There is something happening. And I do think that there’s engagement and whatever is happening, it seems like. And as someone who’s worked on electoral politics in this state, particularly helping to elect progressive district attorneys both in Dallas and Houston over time, I’m excited by this energy. I’m excited by what I hope will be long term infrastructure building. That what’s happening now will hopefully lay the groundwork for us to win more things up and down the ballot. And so yeah, no, I mean, I was really happy to come down here with the book. I’m going anywhere where people will have me and have these conversations and it’s been really exciting how different the conversations are. I’m going to be in conversation tonight with Pastor Frederick Haynes, who will soon be a member of Congress replacing the seat that Jasmine Crockett will be exiting at the end of this at the end of this term.
And, Pastor Haynes has been a long term activist and leader in the community. We’re going to be in conversation about this book as well. And we’re going to need real turnout and overperformance from a lot of the communities that are under attack, most by these attacks on voting rights, by the attacks through the economy and the attacks of ICE and the immigration policies. And that means we’re going to just need people motivated and focused and believing that they can win. And I hope if I can contribute anything in this moment, it’s that winning is possible. That part of why we’re losing is not because we’re destined to lose, but because we’ve been employing some of the wrong strategies. We’ve had some magical thinking, which I talk a lot about in the book and that once you recognize that you’re losing and why that is, like the first step on the road to winning. And that’s really the offering in the book.
And there’s exercises throughout the book, like nine exercises throughout the book that are meant for everyday people to take an inventory about their time and their energy and how they’re engaging and what they can do to engage in this moment. And so, for anyone who’s asking, “what can I do in this moment? How can I engage? How can I raise my voice? How can I be more active?” That’s sort of the offering. And that’s why I came to Texas, and that’s why I’m going to be anywhere else that I can be in this moment and through the election cycle.
JW: “On the road to winning”: Rashad Robinson. You can read his piece on the Paramount-Warner merger @thenation.com. It’s called “The Hollywood Gerrymander.” and his new book is From Presence to Power: How to Take on the Fights That Matter and Win. Rashad, thanks for all your work, and thanks for talking with us today.
RR: Thanks for having me.