Why Is This Happening? Mapping out where we go now with Sherrilyn Ifill: podcast and transcript

Chris Hayes speaks with president of the NAACP Legal Defense Fund Sherrilyn Ifill to discuss the continued push for progress and her dogged work fighting for voting rights.
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By Why Is This Happening?

What are you prepared to dismantle? What are you prepared to build? As we witness this nationwide reckoning on racial disparities in America, these are the questions Sherrilyn Ifill, president of the NAACP Legal Defense Fund, wants us to ask ourselves.

In her work, she sees how the strength of each movement is built atop the ones that have come before. It’s slow and painstaking work, but to be a participant in this country means that you must figure out your role in making change. Sherrilyn Ifill joins Chris to discuss the continued push for progress and her dogged work fighting for voting rights.

Note: This is a rough transcript — please excuse any typos.

SHERRILYN IFILL:

If you are an active, responsible citizen who is justice minded in a society that is deeply unequal and unjust, then you should have enough.

CHRIS HAYES:

Hello, welcome to "Why is This Happening?" with me, your host, Chris Hayes, back here in the quarantine closet for yet another week here on with pod. Today is June 19th, also known as Juneteenth, which is not a national holiday, although I would be willing to bet that it will be soon, if things go the way they're going right now and on this Juneteenth, we're in the midst of I think one of the most remarkable moments of racial reckoning the country's had in my adult lifetime, you've had the longest and most widespread sustained protest for racial equity and against police brutality and for racial justice that I've ever seen in my lifetime, the crowds that have been in the streets have been coming out despite a pandemic, which has been nerve wracking for many, including myself. Although a lot of them have been masked, early reports seem to indicate that the testing shows that there hasn't been a super spreader event so far as we know, but of course they've been on the streets in the wake of the murder of George Floyd, and there's these intersecting crises in the country.

There is of course the pandemic and the health crisis, which has, as we get more and more data, disproportionately affected black and brown Americans, particularly African Americans, as well as indigenous communities. The data on this is just pretty nuts in terms of death rates, infection rates, hospitalization rates, how much it's decimated black America. If you look at a city like Montgomery, Alabama, 90 percent of the folks that are hospitalized there are African American. We've got an economic crisis that's born of the pandemic and the efforts to fight it, which has also disproportionately fallen on the bottom quarter of workers, essentially, which is another category of Americans that's disproportionately black and brown. And then of course we have the crisis of police brutality, which of course is inextricably bound up with race.

All of these things are happening at the same time, all of them kind of like sinking the ax wedge into the central cleavage in American history and cracking open a lot. And there's also, of course, the person at the top, Donald Trump, who, as I'm speaking to you today, is preparing a rally in Tulsa, Oklahoma, who is a bigot and probably the most openly flagrantly racist president that we've had since maybe Woodrow Wilson, I would say. I think that's probably fair.

So all of this is happening the same time and I thought I really wanted to speak to someone who has been fighting a legal battle on many of these fronts, but is also one of the wisest and most searing thinkers and critics on racial hegemony, racial justice and the rule of law in an America that has been so tainted and poisoned by racism. Sherrilyn Ifill, who's the head of the NAACP Legal Defense Fund, and who has been a frequent guest on our program, luckily, and it's great to have you Sherrilyn, how are you?

SHERRILYN IFILL:

I'm doing well. How are you, Chris?

CHRIS HAYES:

I'm good. I thought maybe we'd start with Juneteenth. And I'm curious to hear your thoughts, reflections on the... It is striking to me that there are so many directions the energy and the streets have gone in the wake of George Floyd's murder towards demands for police accountability, the demands for police reform, demands for changes to budgets, to statues being pulled down, to companies giving people Juneteenth off. It's interesting to watch the forcing mechanism of public agitation, activism, organizing movement be channeled through the different institutions of American life and find ourselves at this Juneteenth that I think is being highlighted and celebrated in a way that has never happened in white America in my lifetime.

SHERRILYN IFILL:

I think that's true. I'm not sure that Juneteenth has ever been as celebrated in the black community as it is this year. It really has just taken hold and has become a kind of a rallying moment after these weeks and weeks of protest. I'm wary of the things that are offered in this moment to quickly, folks giving their employees Juneteenth off. There are real demands that go to structural racism in this country, and I think it's great to acknowledge and support our people in recognizing this important holiday, in part because returning us back to the centrality of our history of slavery and the delayed promise of emancipation seems the absolutely right message that needs to be sent and that we need to be talking about at this moment, but we also need to leave with some real structural change that will transform the injustices that we've been seeing in this moment. And so I just hope that everyone understands that the symbolic gestures actually are important, but they do not end the conversation.

CHRIS HAYES:

Yeah, I've been thinking a lot about this symbolism versus structural reform and the ways in which... The American conversation on this or the American political discourse on this tends to get pulled towards symbols very quickly, partly because I think we're such a self-mythologizing people. I don't think it's the case that Swedes go around being like, Because we are so self-mythologizing, the conversations do get pulled in both symbolic and very inner psychological ways, and I worry they do get pulled away from the basic material facts, which is that decade after decade, the disparities between black and white America have not gotten better and you can tick through every single statistic from health to wealth to incarceration, and they are right there in front of your face. And that's the core of the problem.

SHERRILYN IFILL:

That's right. And what are you going to do about that? What is your role in addressing that? And so I just want to make sure that... Juneteenth is something that I think also it is precious and special to our community and we need the space to be able to have these moments of uplift and recognition. And so I don't in any way mean to minimize that, but I do mean to say to the broader institutional actors in white America, who claim they want to try to do something in this moment that the something that they do has to be addressed to the, as you say, glaring and ongoing and very real and serious problems that are created out of institutional practices and policies.

What are you prepared to dismantle, is my question. What are you prepared to build? And I think every... And I say this to my own profession, I say this to the legal profession, what are you prepared to dismantle and prepare to build? I think it's great if a law firm gives their staff Juneteenth off, but I'd actually like to know in their practice, in their engagement with their clients and in their work, what do they intend to do that will address these glaring inequalities that can't be sustained in this country?

CHRIS HAYES:

Well, that question, which haunts all of this conversation, I think the sheer scope of that question is partly what sends people retreating back into symbolism and psychology.

SHERRILYN IFILL:

True, true.

CHRIS HAYES:

It's like, "Well, what can I do?" And it's like, "Well, I can go to a march and I can hang this Black Lives Matter sign, and I can maybe make this contribution because the vastness of a crude history and racial hegemony in this country is just so overwhelming in its scope and in its effects that it feels that you're stabbing a dragon with a toothpick, if you do anything.

And I would get this question when I wrote my last book, what should I do? And I would say all the time, you can get involved in local prosecutors races, you can show up in your school board meeting, you can be the white person in the room who was like, "Yes, we should desegregate our schools." Or you should be the person at the zoning meeting who is like, "Yes, we should build better housing for women seeking shelter in our neighborhood. Those are the things to me. But again, they still seem small, right? So then the question is, what are you prepared to build and what are you prepared to dismantle? What is the right, if there is a right answer, what's the answer to that?

SHERRILYN IFILL:

Well, it all depends. It's so funny because I do get asked that question all the time. And I actually think increasingly that it's a way of putting the work back on me. I just don't accept, you know?

CHRIS HAYES:

Right.

SHERRILYN IFILL:

I just don't accept that some captain of industry or someone who runs a theater or a business, or is a movie director, or doesn't know or at least couldn't know if they did some work, what might be the ways in which they could contribute to addressing this problem? And so instead, people ask me incessantly, what's the plan? What's the strategy? What's the website? Okay, well, I'm here. I've been doing this work forever. And you can go to my website. No, I don't mean that. I mean, I-No, no, I-... I try to be helpful, but I do think in a way, there is a sense in which the responsibility for figuring out how you as a citizen, especially as a leader in our society, the responsibility of figuring out how you contribute to making this democracy equal and just, that that is my responsibility to explain to you, I think it's actually the first problem with citizenship in this country. But what you described as a small thing is not a small thing. I've been challenging people.

CHRIS HAYES:

Yeah, [inaudible]

SHERRILYN IFILL:

I've been challenged to know every race on the ballot this year, that when you walk into the polling place in November, or if we're doing an election this summer, a special election, that you actually know why you're voting for the school board candidate that you're voting for... why you're voting for the school board candidate that you're voting for.

CHRIS HAYES:

That's great.

SHERRILYN IFILL:

Did you actually know why you would pick that sheriff candidate over that sheriff candidate? Did you why, when it says pick three judges, which are the three judges you would pick and why? And that's actually not a small thing. It's a lot of work.

CHRIS HAYES:

No.

SHERRILYN IFILL:

It's a work that most people don't do.

CHRIS HAYES:

No, and again, that is in the ballpark of what my answer, which is about how you are as a local citizen in your local world, because, the upsetting truth is that there are big macro trends in federal policy that have enforced segregation and oppression and disparate impact, but there's a million small town meetings and community board meetings where people are saying yes or no about whatever someone's going to build this thing, or your kids are going to go to this school, where lots of people with quote unquote good politics, are like, "Well, obviously I believe in desegregation, but I just think this is an unworkable plan, because then the kids are going to have..." And don't be that person. That's one affirmative way to do it.

CHRIS HAYES:

But then I think, what ends up happening, again with the conversation is symbolism, and then there's this whole psychological aspect of allyship and whiteness and all this stuff, and I don't know if it's just the repressed Irish Catholic in me who's just like, "I just don't want to hear..." Just go to the school board meeting and be the voice for desegregation in your school board and then just save everything else about how you feel about it all.

SHERRILYN IFILL:

Yeah. I do think also that when people become awakened to the issues of injustice and race, very often people feel overwhelmed, and so what they're looking for when they ask you what to do is the thing that will solve it and take the knot out of their stomach, but there's a knot in my stomach every day and has been since I was 22 years old, so I don't know how to take the knot out of your stomach and that's not my job, and actually, if you are an active, responsible citizen who is justice minded in a society that is deeply unequal and unjust, then you should have enough.

CHRIS HAYES:

You're going to have a knot in your stomach. That is the price.

SHERRILYN IFILL:

I can't help you with that.

CHRIS HAYES:

It's the price of consciousness.

SHERRILYN IFILL:

That's exactly right, and people want me to make them feel better, and the only thing I can make them feel better about is that progress is being made and has been made, but that the work is deep and slow and painstaking and has to be consistent, and that the good news for them is that there are people who do this work 24 hours a day, like the staff of the legal defense fund, and I'm not asking everyone to be a 24 hour a day, civil rights lawyer, or a 24 hour a day, civil rights activists like the movement for black lives. I'm not saying that, but what I am saying is that to be a citizen of a country in which you take responsibility for your citizenship means that, as you say, you have to be conscious and you have to figure out what is your part, what is your role? And I hope that out of this moment comes a stronger sense of that, that the citizenship that most of us have been exercising is simply inadequate to the needs of this country.

CHRIS HAYES:

You just said something about progress that I think is interesting, and I've been thinking a lot about in the context of criminal justice and policing, because there are two stories that I can tell myself about that, about race and mass incarceration and policing in America. One is kind of a hopeful story because the incarceration rate in America is actually declining. The country is actually decarcerating. The decarceration is happening actually fairly quickly in certain parts of the country. The political movement to decarcerate the country is strong and winning a lot of victories. It's won a lot of unexpected victories at the local level. It's channeled energy in the last four or five years into these prosecutor's races, which no one was talking about. No one in the universe was organizing around prosecutor's races seven or eight years ago, as far as I can tell.

CHRIS HAYES:

It has sort of sees people. Obviously local leaders have, but a kind of idea of a national grassroots movement, so there's all these ways in which there's been progress. And then at the same time there's been progress, you can also just tell a story of, we're seeing the same shit. It's the same videos and it's the same police and people's experience of the police, and go talk to black residents on the Southwest side of Chicago and say, "Is it different under Lori Lightfoot, the out black female mayor of Chicago, than Richard Daley?" "I don't know, man." Those two facts about progress or lack thereof are battling in my mind at all times.

SHERRILYN IFILL:

Yeah. I think though that I'm hardwired to see progress, but I also see those issues that have resulted in retrenchment. So I just accept that that is a cycle, and that's why the fight has to be consistent. If I take just the last five years, the officer who we watched take the breath of Eric Garner was never indicted and was only fired from the New York police department last August.

CHRIS HAYES:

Five years later.

SHERRILYN IFILL:

Yeah. So if I compare that to Minneapolis where all four officers were fired immediately and officer Chauvin was charged and the other's charged as well, or if I take that to Rayshard Brooks in Atlanta, and because I've seen this issue my whole lifetime, I've never seen anything like this. I've never seen the quick and almost immediate understanding that something had to happen to those officers. Now, the story's not finished, because I don't know if these offices get convicted of anything. I understand that, but that's not a small thing and so that's one piece, but the second piece is even almost more important, which is where the conversation starts today as compared to where it started five years ago, and this is where you see the Republicans are playing a rear guard game.

CHRIS HAYES:

It is amazing, isn't it?

SHERRILYN IFILL:

And the train has already left the station. Senator Scott, with all due respect, we're really not talking about training anymore, okay? Not that training's not important. Not that we don't want data collection. I'm a lawyer, so I always want the data, but we are on accountability now and we're serious about it, and so the fact that the conversation now is about police budgets and is about union contracts, these were issues. We couldn't get any traction years ago. We started examining police union contracts four years ago. I started talking about re-imagining public safety in 2015.

SHERRILYN IFILL:

So honestly the fact that that's where the conversation is started, that's the core of the conversation this time, it's almost more important than anything else because it tells us that we have now moved past the, "Do you think he really meant to do it? Or, "Is he really racist?" I can't tell you how many man hours I spent in interviews with people asking me those kinds of questions, and so I think moving the conversation to a place where people understand something has to be done and that there must be accountability, I think about police unions who routinely immediately, no matter what the video looked like, protected their own. I think about the way the union responded to the video of Eric Garner being killed and the way unions all over are responding to the video of officer Chauvin, even the PBA called it murder. That's not what they did.

CHRIS HAYES:

That's such a good point.

SHERRILYN IFILL:

Everybody knows something's going to happen, and now they're trying to figure out how they can minimize what it is.

CHRIS HAYES:

It's funny you talk about the rear guard, because I think it's a great point. I came into adult political writing in the era of 9/11, and so I know what a defensive crouch on an issue looks like, because it was basically Democrats on everything and Democrats and large parts of the left on everything having to do with the war, peace and terror, and when you got that defensive...A politician who's like, "Oh Jesus, I got to deal with this somehow. This is not in my wheelhouse, but I'm going to try to swing at it," that's the way the Republican party looks on all this stuff right now, In a way, that is really wild to me because I will be the first to admit, and I was texting with a whole bunch of people, black and white, when the uprising and the street protest and the burning down of the third precinct happened. And there was this thing in me of like, "Oh man, white backlash is a powerful force in American politics. It got us Trump. I was scared the demons would be unleashed," and it just never showed up, and I think it has people... It's wild. It's wild what's happened to public opinion.

SHERRILYN IFILL:

As I said, they're reading the polls too. That's why Trump tried to do that little pageant in the Rose garden that was utterly meaningless. They understand that they don't have the American public with them on this. That video of officer Chauvin killing George Floyd is so devastating and so overwhelming, even to those of us who do this work and have seen far too many videos, and I think these are moments that things shift, and people said, "Where did this all come from?" It's not unrelated to what started in 2014. Movements build. Just because it doesn't produce the same result after Eric Garner was killed or after Akai Gurley he was killed in New York, after Mike Brown was killed in Ferguson, just because Baltimore didn't produce a 50 state uprising after Freddie Gray was killed, just because seeing Walter Scott killed in that park and chased and shot like that didn't have the same effect, doesn't mean that when we back to back see Ahmaud Arbery chased by these three vigilantes and killed, and then see George Floyd killed that way, that they're not all connected, but it's enough is enough, and then you take, it's true that you take a hundred thousand people dead, many of them black and brown, you take the COVID pandemic, the president's terrible response, the almost systematic abuse of those daily press conferences that the president would have about... I really feel like that we were suffering under that, so I think that's all of a piece, that when you see this movement, it's like people have had it.

CHRIS HAYES:

Enough.

SHERRILYN IFILL:

Enough.

CHRIS HAYES:

The point about movements, I think, is so-

CHRIS HAYES:

So the point about movement, I think is so important. The metaphor I've used before is that it's not, social change is not like painting a fence where you know exactly how much you've painted and how much you have left to paint. It's like when you're prying a lid off a jar and you're there, like, "Oh, will you try it? Will you try it?" And it doesn't move. And then boom! It pops off. You're like, "Oh wow. The whole time, all that effort was doing something. It was loosening the jar." But you don't predict when it pops off. And that's, I think these moments are unpredictable for that reason. But I do think that you can look back at all the effort and we've interviewed a lot of people.

CHRIS HAYES:

We've interviewed a lot of people who have been sort of instrumental in that. You feel that way? Right? All of the effort, when you talk about working 24 hours a day on this, which you do and what your staff does, it does feel like there's a relationship between that work and these moments.

SHERRILYN IFILL:

Oh, yeah. The thing is you don't know when the moment's coming, but when it comes, you have to be ready to ride it, which is why, LDF is working on policing issues forever. Thurgood Marshall was working on them. We litigated Tennessee vs Garner on behalf of the father of the 15 year old that was shot in the back by Memphis police officers as he tried to run away and climb over a fence. And that's the case from which the Supreme Court really developed the doctrine of whether officers can shoot a fleeing suspect.

CHRIS HAYES:

Wait, just to put a light on that, that case is the case where, for the first time, the Supreme Court says, "No, police cannot shoot a fleeing suspect."

SHERRILYN IFILL:

That is correct. That is correct. But what they say is unless the suspect is a threat to them or a threat to others. And then the subsequent case says it has to be a reasonable test. A reasonable officer has to think that. Now, of course, that is, as I have said before, packed in with notions of race and who constitutes a threat and who doesn't constitute a threat. But the point is that we've been doing this work forever, and ever, and ever. And moments come where there's a wave and you have to ride it. That's what you wait for.

SHERRILYN IFILL:

And the wave comes because of grassroots activism, because of people on the ground saying, "Enough." So we have to credit the activists who have stuck with this so that they could really just be ready at that moment. It's not like we were all saying, "Oh my gosh, this terrible video has happened." What should we be saying about policing? We've been working on it, even when there've been no videos. And that allows people to move in that moment. And then there's tremendous pressure of just knowing. You know that the moment, the wave won't last forever, but you know that you have to get as much out of it as you can. And so how do you sustain it and how do you get concrete things out of it? It's really important.

CHRIS HAYES:

You've done a lot of work on voting rights. And I wanted to talk to you a little bit. I want to talk about rights because, right now, to me, that's basically the big disaster scenario, which I feel like we're watching happen in slow motion in the same way I felt like we were watching the pandemic disaster happen in slow motion for weeks as I watched it. And then said, "Guys, guys, this is going to be a disaster." But before we're going to get that, I want to talk about how you understand representation and Black political power in this country at a moment like this, because it is striking to me that when you look at those disparities that I was talking about before, the one place where there has been real marked progress is Black elected officials serving in representative governments.

CHRIS HAYES:

And at all different levels, there really is an enormous spike that happens, post Civil Rights and Voting Rights Act. And you've got these cities like New Orleans and Atlanta crucially, where Rayshard Brooks was killed, that are, there's a lot of Black political power. And yet that power is still enmeshed in the institutional prerogatives of the city and the police department. And I'm just curious when you look at Washington D.C. and the way the cops dealt with protesters there, or you look at Atlanta or New Orleans, how you think about what Black political power means in the context of these places?

SHERRILYN IFILL:

Well, this is really an important question, Chris. And obviously, I've spent so much time in or near Baltimore. And when Freddie Gray was killed, we had a Black mayor, a Black comptroller, a Black police chief, a Black district attorney, Black city council president. So lots of Black electoral success. And I guess what I would say is when I was a first and a young LDF lawyer, so this is 25 or so years ago, I was being really supervised and mentored by Lani Guinier, the great Civil Rights scholar and who had herself been a Voting Rights litigator at LDF. And she really taught me so much about Voting Rights litigation. And she wrote some wonderful scholarship over the years for which Republicans excoriated her years later when she was nominated to head the Civil Rights division and President Clinton ultimately caved and withdrew her nomination.

SHERRILYN IFILL:

But one of the things that I love about her scholarship is that she leaned right into this question and she wrote a piece about Black electoral success and how that had become a shorthand for the success of the Voting Rights movement and the Civil Rights movement. But what she reminds us is that those who were fighting for Black political participation, for the ability participate in the political process, the Fannie Lou Hamers, and Unita Blackwells. And John Lewises, and all of those people in SNCC, but really, especially the people in the south who risked their lives and their livelihoods to be part of that Voting Rights movement at a time it was very, very dangerous for them and their families. They did it because they believed that unlocking political power was the way to change the material conditions of their lives.

SHERRILYN IFILL:

They didn't do it so they could count up how many Black people were running the city, or so they could say, "This is the first Black mayor." They believed that Black political power was the key to unlocking change in the material conditions of their life. Thurgood Marshall, the first director counsel of the Legal Defense Fund, our founder, when he talked about his most important cases, always talked about Smith versus Allwright. Everyone expects him just to talk about Brown, but Smith versus Allwright, was the case that he won four years after the Legal Defense Fund was created in 1944.

SHERRILYN IFILL:

And it was a case that he won in which the Supreme Court agreed with his position and struck down the practice of the all White primary in the south. So in the south, it was then controlled only by one party, the Democrats. And they would hold Whites only primaries because the primary election decided everything. So whoever won the primary was the winner. And they took the position that, "The party is not actually the state, it's like our own private thing. So we could whatever we want and exclude whoever we want and we choose to exclude Black people." And we had to litigate that case all the way up to the Supreme Court. And in 1944, Thurgood Marshall wins that case. And it's the one people skip over. So when I talk about how long we've been at challenging voter suppression, it's back to 1944, right? So that case is so powerful and so important that it begins to open up the political power. And Marshall cites it as one of his most important cases because he believed as well that Black political power, unlocking the key to the Black vote was so key to Black people having autonomy and control over their lives and communities.

SHERRILYN IFILL:

And sometimes I think we have forgotten that. We get very excited about the first this and the first that. And that's great, and it's important to hit those milestones. But what I'm hoping where we're entering into, Chris, is a time of real accountability. And what is it that we expect of the people that we elect, actually of any race? But certainly when we talk about what Black political power means. And I think the move around progressive district attorneys is part of that, where people start to lean into what is the power of this office and how are you going to use the power of that office to be transformative for our communities?

SHERRILYN IFILL:

And I think to the extent we've stopped asking that question or stopped making that demand, then it becomes really problematic. And then you have this figure that looks like success, but you don't have the transformation that connects with it. And then the second thing, of course, is even Black political leaders who are trying their very best, who are committed, are operating within a system that they don't have the full power to dismantle. And so they are inheriting structures and ways of doing things and economic systems. And they're trying to throw elbows and work for their community within that larger structural system. And that's where our allies need to come in and be clear about the structural system that may be working for them, but that ultimately is unjust.

CHRIS HAYES:

You've been doing a lot on voting rights. The LDF has been litigating on that for a long time. And I want to talk about where that battle is right now here in 2020, when it's, I think as important as it's ever been right after we take this quick break.

CHRIS HAYES:

Your organization has been fighting against efforts to restrict and suppress the vote for decades. We have seen all kinds of different incarnations of it throughout the years, throughout American history, since basically Reconstruction. It's taken many different forms recently. And then now we've got this added craziness, which is the pandemic, which is the fact that craziness, which is the pandemic, which is the fact that people are worried about their safety. We don't know what it's going to look like, particularly in the fall. We've seen two elections that were kind of disasters, one in Wisconsin, one in Georgia. How are you thinking about voting rights and access to the franchise amidst this pandemic in this moment?

SHERRILYN IFILL:

I got to tell you that for us Wisconsin was a game changer. That was just such a failure. And to see that black voters in particular, who were suffering such terrible catastrophic rates of infection, and hospitalization, and death from COVID failed by the state legislature, the governor made a valiant attempt to postpone the primary, failed by the state Supreme Court, and then ultimately failed by the United States Supreme Court, who refused to uphold the very modest adjustment that a federal district court made to the date when absentee ballots could return.

SHERRILYN IFILL:

And then watching just folks standing on those lines with masks on trying to participate and exercise their right to vote, knowing that they were risking their health and lives... I just can't express to you what was steeled in me seeing that.

SHERRILYN IFILL:

And our staff really just went to work. And so we filed case after case: Arkansas, Alabama, Louisiana, South Carolina. We have a hearing in Louisiana, in fact this next week, challenging absentee ballot restrictions that make it difficult for people to cast absentee ballots, and make it difficult for those absentee ballots to be counted.

SHERRILYN IFILL:

Many black voters are actually reticent about voting absentee because our ballots are most often regarded as spoiled, that is not counted because there's some deficiency in them.

CHRIS HAYES:

Right.

SHERRILYN IFILL:

But the deficiencies are largely because of these crazy rules; in Alabama to file an absentee ballot, you have to file the absentee ballot and have the signature of two third party witnesses, or have it notarized.

CHRIS HAYES:

Come on!

SHERRILYN IFILL:

And, I'm sorry, and send it in with a copy of your government-issued photo ID. And we have the Secretary of State of Alabama who just admitted, who said, "Well, they just have to go to Kinko's or something."

SHERRILYN IFILL:

So here we are in a pandemic, you have elderly black people, we have black people suffering from emphysema, from lupus, from preexisting conditions, and you're telling them they have to interact with two people to get to witness signatures, or you're telling them they got to go find a notary. And you're telling them that unless they have a means of copying their government-issued photo ID in their home, they should go to Kinko's. It's insane. And so-

CHRIS HAYES:

Wait a second. But this is my favorite part of this, or my least favorite part, you filed the suit, am I crazy that the department of justice, for no reason-

SHERRILYN IFILL:

Yeah.

CHRIS HAYES:

Fought, like literally it has nothing to with them-

SHERRILYN IFILL:

We're not in litigation.

CHRIS HAYES:

They're not in the litigation.

SHERRILYN IFILL:

No, they just wanted the court to know. That they don't think [crosstalk 00:03:05]-

CHRIS HAYES:

Right, tell what did Barr's DOJ do-

SHERRILYN IFILL:

So they filed what they've done in a number of cases in which they've had no role. Let me just give you a little bit of the backup. They did this in Chicago, when the State of Illinois sued the City of Chicago police department, and they were preparing to negotiate and complete the filing of that consent decree, the Department of Justice, then under Sessions, filed a statement of interest saying they didn't think this consent decree was necessary. They weren't in the litigation. This is between the State of Illinois-

CHRIS HAYES:

So wild.

SHERRILYN IFILL:

... and the City of Chicago.Harvard Affirmative Action Case, government is not a party, once again they filed a statement of interest wanting to let the judge know that they think that the Affirmative Action Program at Harvard discriminates against Asian Americans.

SHERRILYN IFILL:

And so, yeah, they filed a statement of interest to let the court know that even though they're not a party in the case, they want to weigh in on the side... Just imagine who you are as the Department of Justice, think about the history of the Department of Justice in the civil rights movement, weighing in the side of the state that has the most notorious record of voter suppression, that is the cradle of where the voting rights movement was born and fought, the place where the Edmund Pettus Bridge is, that you weigh in on the side of Alabama to say, "No, I don't think it's an unreasonable burden to expect black people and disabled voters to have to jump through all of these hoops to vote."

SHERRILYN IFILL:

But that surely is what they did. Fortunately we prevailed anyway. And the Federal District Court said, "Yeah, actually it is onerous, and they don't have to get these witness signatures." And the court also said, because the Secretary of State also prohibited local jurisdictions that wanted to have drop-off boxes for absentee ballots, prohibited them from doing so. And the court also said that that also violated the law.

SHERRILYN IFILL:

And of course we can always count on the Secretary of State of Alabama to appeal the case. And so now it's in the 11th Circuit. We won in South Carolina where the court said, "Yes, the witness requirement actually does impose a significant burden particularly on black voters who are trying to avoid COVID infection and death."

SHERRILYN IFILL:

And then of course, as I said, we have a hearing in Louisiana in the coming week. So we'll have to re-up this. This is just for the primary elections, right? This is for the Alabama runoff, the Senate runoff, that Sessions will be in, of course, the Louisiana primary that had been postponed. We'll have to do all of the full trial on all of this for November. It's really quite astonishing. I think so many people thought, "Well, maybe there'll be something that pulls this country together." Not even a global pandemic can whet the appetite..

CHRIS HAYES:

So one of the craziest things to me, Sherrilyn, about this moment in the kind of voting battles and voter suppression, voter access is that there's a kind of Frankenstein's monster quality to this. And here's what I mean by that. You have had the GOP for years now attempting to, at the margin, make it harder for people of color to vote and not just people of color, students, too, right? That there's this sort of two groups that they can fairly consistently know will not be voting for them in large numbers. And you've seen voter suppression efforts, voter ID, New Hampshire's Republican Party went through this totally insane thing with college students where they were doing everything in their power to stop the college students from voting. And all of it is really gross, offensive to representative democracy, but sort of cynically understandable. There are constituencies they think aren't going to vote for them. They don't want to have them vote.

CHRIS HAYES:

Now you've got this vote by mail assault that the president is leading, that has rallies of people in Michigan, conservatives burning their absentee ballot applications. Voting by mail, it's not like a polling location on a college campus where you can guess what the votes are going to be. Voting by mail is used by Republicans and Democrats, liberals and conservatives alike. It's so insane to me they are undertaking this. I honestly think it could come back to really haunt them just as a pure... morality aside, a pure tactical play. What do you think?

SHERRILYN IFILL:

Well, I lead a nonpartisan organization and so I can't really comment on how this will fare for the Republicans. What I can say is if ever there was a sign that we are in something approaching a kind of national cult, it is the willingness of people to believe that methods of voting that have been used for years, that almost all our members of the military use, that business people use, that travelers use. Most people have used it sometime or another, somehow has taken on a partisan slant and is regarded as some kind of nefarious plot to harm Donald Trump. When in fact, the voters who most often vote absentee are Republicans, actually the figures. And yet it is whatever he says, well, might not work for him now has become tainted with some, or become controversial.

SHERRILYN IFILL:

I can just tell you in my conversations with Facebook around the refusal to take down President Trump's two tweets, one about California and one about Michigan, both of which contain misinformation about absentee votes and both of which are voter suppressive. And the conversation was about absentee voting as a new and controversial method of voting. And I was just like, "No, it's not. Where did you get that idea?" Simply because Trump says it, it becomes something that now is controversial. It's like wearing a mask is now not a sign that you're trying to protect yourself against a deadly global pandemic, but a sign that you want to thumb your nose at the president.

SHERRILYN IFILL:

So this absentee ballot thing is crazy. And so we have been in this litigation in all of these states. We've been bringing the cases that we've been bringing on behalf of black voters and disabled voters who also should not be compelled to have to go out and have two witnesses sign their absentee ballot and get it notarized and get a copy of their government issued photo ID. The whole point is that they don't want to go out and they shouldn't have to go out.

CHRIS HAYES:

It's also one of these places where it's like, I have no idea. I literally don't know the answer to quote unquote which side it would benefit if we had everyone in the country voting by mail in the midst of a pandemic or everyone who wants to able to do that. But we should do that. I don't, I mean, maybe that would be, I don't know. Maybe [inaudible] at the Republican, I don't care. That is just a first principle belief. It's like everyone should be able to vote safely. That's it, I don't care. Let the chips fall where they may.

SHERRILYN IFILL:

But this is why I keep saying that I grow increasingly distressed by us talking about voter suppression in partisan terms. Because when we talk about whose votes are the low hanging fruit for suppression, we are almost always talking about black voters. So conveniently talking about this, using the overlay of Democrats and Republicans, annoys the hell out of me because when we talk about it in pure racial terms then you can see how terrible it is. And when you talk about it in partisan terms, people just say, "Oh, well this partisan politics." I just told you the story of Smith v. Allwright, in which it was the Democratic Party running the all white primaries in the south to hold onto power, to keep people from voting. So voters said that through line of voter suppression is racism. And when we talk about it in these partisan terms, we kind of lose how truly grotesque it is that there can be a faction of what constitutes a legitimate political party in this country that is trying to keep people from being able to exercise the franchise.

SHERRILYN IFILL:

These are the same people who then are upset when people are out protesting, they're upset when someone takes a knee. I mean, there's been almost no form of democratic expression that they approve of for black people when they are trying to improve their condition, protest against current conditions and so forth. So I just think we have to make sure that we don't lose in the conversation about Republicans and Democrats. And I'm not saying that the Republicans have not fully aligned themselves with voter suppression. I just want to be clear that whose votes are we talking about suppressing?

CHRIS HAYES:

No, the only way that, the way for that it's unavoidably partisan is that there's only one party that tries to do it, right? So it just is not the case. You would just never see a Democrat... it just is not a-

SHERRILYN IFILL:

Well, wait, wait, wait, wait, Chris, though, because I told you we have a hearing in Louisiana next week. The governor of Louisiana is a Democrat who we are suing about these absentee ballot provisions. So I-

CHRIS HAYES:

That's a good point.

SHERRILYN IFILL:

But there's no question that it is, for the most part, the Republicans who are doing this, but I just always hold out the possibility. I agree with what the real politic is in the moment, but it's just I've been at this long enough. One of my first voting rights cases was, that I participated in, I think it was the first case in which I did a direct examination at trial was Jeffers v. Clinton. It was an Arkansas voting rights case and who was the Clinton? So I just, over the arc of time, things may shift. And that's why I just think that while there's no question about what Republicans have done and how they have aligned themselves and how in many ways I think the Democrats have been valiant in their fight against voter suppression. The reality is, while we think about whose votes are being suppressed, this is at its core, a race issue, and we should never lose sight of that.

CHRIS HAYES:

Do you think, I mean, so to me, there's two issues that I worry about in terms of this election. So there's access, right? There's just making sure people can safely vote and that just basically people can safely vote. And then there's Election Day itself and legitimacy and questions of... and that to me is, I have, we were talking about a knot in your stomach before, this is a knot in my stomach because I think, A, it's clear, we've seen it in Wisconsin and Georgia that results will take a while. There's New York primary on Tuesday. My brother happens to be managing the campaign of a congressional candidate, Jamaal Bowman who's, who's challenging Eliot Engel, the incumbent Congressman in the district we grew up in, my brother and I.

CHRIS HAYES:

And we were talking about when they'll know. And they don't expect they're going to know who wins that night. It's probably going to be a bunch of days. There's a ton of absentee ballots to count. That's probably going to be the case in November. Very well could take them a bunch of time. And that's a lot of time for the president or anyone to sort of create mischief and to sort of call into question the legitimacy and I wonder if you share those concerns, if you think about that.

SHERRILYN IFILL:

I do. I do. I think this is going to be an election that it really will test us in this way. So it will test your colleagues, the media, right. I constantly say Decision 2020 and the show with theme music, that has nothing... That's not in the Constitution. That's just what it would be nice on the night of an election to have show where everybody stays up and we know who the winner is because that's what we've gotten used to. But it's not necessary. Well that's why it's great. We've had some dry runs. Listen, the world went on every day and it was quite calm. And we didn't know for more than a week who the mayor of Baltimore was. So we just had an election. Right. And the count started and it took a week. It took a week and it was kind of an upset, but life went on. People were not rioting in the streets. So I mean, so I do think that there are these dry runs that we should be using just like the election you're talking about in New York. This is an opportunity for us to educate the public of, "This is okay." Right. It doesn't mean that something nefarious has gone on. We're counting the votes. Every vote should be counted, right? We've encouraged people to vote absentee who don't want to risk COVID and therefore we should wait to count those votes.

SHERRILYN IFILL:

But we have to begin to inculcate that now, so that when someone tries to rile the public up into thinking of the mere fact that we don't know who the winner is on election night is a sign of something going wrong that that is in fact not true. And so we have to begin that preparation. But do we expect shenanigans from this president? I mean, this president put the S in shenanigans, this is what he does. And so we know that that's going to happen. So the fact that we know is what's supposed to prepare us, and there are a number of groups by the way, who are in scenario planning and in conversations about what this might look like. And, but the most important thing is that we prepare the public so the public is not freaking out. So we don't have the Brooks Brothers riot saying [inaudible] count. But you're right to be concerned and I am as well.

CHRIS HAYES:

I will say from my perch in the media, this was a big concern of mine. It was more of a concern of mine five months ago than it is now because of the dry run. So I think that the world of control rooms and decision desks now understand very well the timeline for this in this new world we're in. We've had a bunch of these. They understand, I think it's going to be communicated editorially in the production of the evening of election night an expectation set at the top that this is the nature of the new normal. And I think that... And it's going to be really important for everyone to do that and not to create, because then if you have this like, "Well, this is weird. We're not getting... " Remember what happened on the night of the Iowa Caucuses? Which again, if you had gone into the Iowa caucuses with the expectation it would take a while then, okay, fine. We'll find out who won the Iowa caucuses in five days. Who the F cares? No one's living or dying.But because it wasn't, and because well, they did screw up. There was an actual logistical screw up. And there were actual documented errors. It was real chaos. It felt it wobbled the legitimacy of the process. And so that, I do think the good news, I think is that that is ingrained now in us that we understand what we're going into. But it doesn't-

SHERRILYN IFILL:

But you've got to be talking about that weeks before the election. You've got to prepare the people to understand because it's also not fair to us. When they don't show up with the power cords for the voting machines and people wait for four hours in Gwinnett County, Georgia to vote and civil rights groups try to get election officials to hold the polls open later, right. Or in Harris County, Texas. Remember that night? Or just this last election in Georgia where people voted at midnight or in Nevada at 1:30 a.m. It's not helpful, right, if the media is saying, "And the winner is.. ] So I really think that also to prepare the voters weeks in advance that this becomes the mantra and the drum beat of the media, I think is going to be really important so that people have a chance to vote because also people don't think it's worth it to stay in line til 1:00 in the morning if you all have called the winner at nine. So I just think that this is a job that has to be undertaken by voting rights activists and advocates, by responsible political parties and by the media to tamp down the expectations and to grow up as a democracy. I mean, we don't have to know that night. You've got a whole, what, how many months, until two months until inauguration. It's not like the change of power happens within 48 hours.

CHRIS HAYES:

And we've already seen, we already had that experience, the other place where we had that experience, which I think again, was a useful dry run on this is 2018 where there were seven, I want to say there were seven or eight House races in California called after election night. They came in over a long period of days. The Arizona Senate race which was quite close and a lot of mail in ballots, that got called three or four or five days afterwards. And again, that was just what it is.Now remember, the president did try to, there was this accusation thrown out by the president that because of the length of time they were quote unquote stealing it. But I also think, I don't know, the audience for his BS on that stuff, I think it is what it is.

SHERRILYN IFILL:

Yeah, that's right. That's exactly right.

CHRIS HAYES:

I don't think it has a broader, normally if the president came before the nation and said, "They're stealing the election," it would be like, "They're what?"

SHERRILYN IFILL:

I don't think he's grown in credibility, shall we say. I really don't, beyond his base. And so, but that doesn't mean that it's not dangerous because it's [inaudible] dangerous. And so that's the idea is, the fear is that he would say this precisely because he think he was losing and might want to, shall we say, arouse his base. And as we've seen over the last few weeks, what does he always say when he wants to arouse his base? What did he say this morning about how protesters would be treated? What did he say yesterday about the Supreme Court decisions? It's always they're going to take your Second Amendment rights. It's always a dog whistle to those who carry weapons.

CHRIS HAYES:

Yes. It's a very-

SHERRILYN IFILL:

Very alarming, yeah.

CHRIS HAYES:

And alarming and gross. And I thought I had the exact same reaction to the tweet yesterday, which was the Supreme Court decisions are a shotgun blast in our faces. And they're going to take your Second Amendment away. It's like, that's real close to just straight up incitement. They're shooting you, it's time to shoot back is essentially the semantic meaning of that.

SHERRILYN IFILL:

Yeah. So it's very, very alarming. So that's the kind of stuff I'm worried about him saying. And it's one of the reasons I worry so much about the refusal of Facebook to address the looters and shooters comment, for example, and to take seriously those kinds of remarks. The fact that they have an exception for politicians who post misinformation means that it's not only Trump that can be saying these things, but the local sheriff running to get reelected. Imagine a sheriff, a Sheriff Arpaio, right, who might say that there are undocumented people coming to steal the vote #secondamendment, right? It's going to be a very, very perilous time. And it's going to require a lot of discipline on the part of all of us to really be steady at the till to make sure that whatever the outcome, there is a sense of safety and a sense in which we expect everyone's vote to be counted.

CHRIS HAYES:

Well, luckily, one of the steadiest at the till people in public life is Sherrilyn Ifill, who I've had the good fortune to talk to today and on the show often. And I'm obviously a tremendous admirer. And thank you so much. You have such a busy schedule. I really appreciate you making time.

SHERRILYN IFILL:

Thank you, Chris. And I would be remiss if I didn't just thank you for your coverage of the COVID pandemic. You really rang the alarm early. You were kind of a Cassandra, and it was very moving to watch those programs, terrifying, but also moving and to just thank you for being willing to step out and do that was important.

CHRIS HAYES:

Thank you. Thanks. That means a lot.

Once again my great thanks to Sherrilyn Ifill, I think you can tell what a big admirer of her’s I am and have been for a very long time. She’s the president and director council of the NAACP legal defense fund. If you want to give us feedback about this episode or another episode or suggest guest or tell us whats on your mind you can always tweet us at #withpod, email us at withpod@gmail.com "Why is This Happening" is presented by MSNBC and NBC News, produced by the "All In" team and features music by Eddie Cooper. You can see more of our work, including links to things we mentioned here by going to nbcnews.com/whyisthishappening.