Amicus With Dahlia Lithwick: “Intimidation Nation”

Date: October 29, 2016
Host: Dahlia Lithwick
Guests: Subodh Chandra (Civil Rights Attorney), Wendy Weiser (Brennan Center for Justice)

Episode Overview

This episode of Amicus dives into the crucial legal and political battles surrounding voting rights in the lead-up to the 2016 U.S. presidential election. Host Dahlia Lithwick explores controversial state laws and court rulings that may restrict ballot access, particularly for minority and vulnerable populations. The episode features an in-depth discussion of a major Ohio voting rights case with attorney Subodh Chandra, followed by a broad analysis of voter intimidation, electoral rhetoric, and the risks posed to the democratic process, with Wendy Weiser of the Brennan Center.

Key Discussion Points & Insights

[00:05] Senate Inaction & Judicial Gridlock

• Dahlia opens by highlighting continued Senate inaction on President Obama’s Supreme Court nominee, Merrick Garland, and the party-line promises regarding future nominations if Hillary Clinton were to win.
  • The shifting rhetoric of Senators John McCain, Jeff Flake, and Chuck Grassley illustrates confusion and partisan tension over appointments.

[02:34] Challenging Ohio’s Voting Restrictions – Subodh Chandra Interview

Setting the Case:

• Ohio’s 2014 voting laws are under challenge, following Shelby County v. Holder (2013), which weakened the Voting Rights Act.
  • Laws (notably Senate Bills 205 & 216) impose strict “five-field” requirements on absentee and provisional ballots (name, address, birthdate, form of ID, signature), with no margin for even the slightest error.
  • Impact: Even trivial mistakes trigger automatic disenfranchisement.

Disparate Effects on Vulnerable Populations:

• Chandra explains that these restrictions effectively target minorities, homeless individuals, those with literacy challenges, and people with mental illnesses.
  • “These particular statutes have a disproportionate impact upon minority folks, homeless folks, people who are uneducated, people who have literacy issues, people who have mental illnesses.” – Subodh Chandra [05:55]

No Evidence of Fraud:

• Chandra notes the lack of fraud justification, citing trial testimony by the Ohio Secretary of State’s representative:
  • “Even the Secretary of State’s top deputy…admitted that fraud couldn’t possibly be a rationale for this statute because…what is at issue is disenfranchising voters that the boards themselves acknowledge to be eligible, not those that they’re uncertain about.” – Subodh Chandra [07:26]
  • Example: A voter is disenfranchised for writing their name in cursive rather than print, even if it’s legible.

Sixth Circuit Court Decision & the Role of Politics:

• After a favorable trial court ruling, the plaintiffs lost in the Sixth Circuit, which carved out some minor exceptions but upheld most restrictions.
• Chandra suggests the decision feels political given the documented disparate impact and the unprecedented steps taken by the appeals panel.

Judicial Dissent and Historical Context:

• Judge Damon Keith’s passionate dissent frames the era’s voting restrictions as a racial backlash post-Obama’s election, including symbolic use of photographs of civil rights martyrs.
  • “The election of Barack Obama caused a reaction. And that’s exactly what we see happening here…” – Subodh Chandra [14:54]

Recusal Controversy:

• One appellate judge, Alice Batchelder, declined to recuse herself despite clear connections to the legislation – her husband co-sponsored the bills at issue.

Supreme Court Appeal:

• Plaintiffs hope the Supreme Court will halt the “perfect form” requirements to prevent mass disenfranchisement in 2016’s presidential election.

[19:05] The Rhetoric of Voter Fraud and Intimidation – Wendy Weiser Interview

Trump’s Call to Action & Public Response

• Lithwick plays audio of Donald Trump urging supporters to monitor polling places (“Go and vote and then go check out areas because a lot of bad things happen…” [19:20]).
• Even Ohio Secretary of State (and Trump supporter) John Husted rebuts Trump’s fraud claims:
  • “I want to reassure Donald Trump as a Republican that this is not happening across the country. He may have heard reports of it, but we need facts, and right now there are no facts that support his claims.” – John Husted [20:23]

What’s at Stake at the Polls?

• Weiser reassures listeners that catastrophic fears about election-day disruption are overblown, but underscores the importance of vigilance:
  • “Most voters should rest assured that when they go to the polling place, they’re not even going to see anything like this. So these are going to be isolated problems.” – Wendy Weiser [22:27]

Poll Watching & Laws Prohibiting Voter Intimidation [24:00]

• Trump’s calls are “rather unprecedented,” moving beyond routine poll watching and potentially encouraging disruptive behavior, especially if focused on certain jurisdictions.
• Weiser clarifies:
  • Laws forbid intimidation, threats, or coercion, but are “crafted in general terms…anything that a voter might be reasonably intimidated by could be illegal conduct.” [26:49]
  • Specific examples: shouting, following, photographing, brandishing weapons, blocking entrances.

Authorized Poll Watching vs. Vigilantism [27:41]

• Legitimate poll watchers generally must be credentialed in advance and appointed by parties or candidates; most states place strict limits on who can serve.
  • Any lack of local volunteers has stymied efforts to “flood” certain jurisdictions with outside watchers.

The Specter of Hacking & Machine Failure [29:06]

• Weiser downplays the risk of large-scale hacking affecting election outcomes:
  • Voting machines are rarely internet-connected, and the highly decentralized system provides security.
  • The greater risk: breakdowns from aging machines, which are “much more prone to breakdowns or to calibration problems…these kinds of breakdowns could be a significant cause of long lines. And long lines then could lead to lost votes.” – Wendy Weiser [29:32]

Decentralization: Blessing and Curse [31:42]

• Lithwick likens the U.S. election system to Homer Simpson’s famous beer quote, asking if patchwork rules are both the cause and solution to voting crises.
  • Weiser agrees, noting decentralization “offers a lot of security” but causes confusion and enables harmful state-specific restrictions. There’s a need for stronger baseline national voter protections.

[33:37] The Fallout of Shelby County v. Holder

• This is the first presidential election without full Voting Rights Act protections.
• After Shelby, 14 states have new restrictions, and 20 states overall have made it harder to vote since 2010.
  • “There are voting restrictions in place that are likely going to be found discriminatory, and voters are going to be voting in this presidential election with these discriminatory laws.” – Wendy Weiser [34:17]
• Court victories against restrictive measures often come too late to help voters in the affected election cycle.
• Weiser calls for “a baseline set of fair rules” and fewer last-minute changes to voting procedures.

Notable Quotes & Memorable Moments

• “It’s this elevation of form over substance. And it’s the state of Ohio very deliberately and calculatingly disenfranchising thousands of voters…” – Subodh Chandra [04:53]
• “The threat of this kind of poll watching or intimidation in and of itself could discourage people from participating.” – Wendy Weiser [25:18]
• “Decentralization offers a lot of security… it’s the main reason why voter fraud, too, is something that couldn’t conceivably lead to a stolen election.” – Wendy Weiser [32:28]
• “We are not only in the first election without the full protection of the Voting Rights Act, but we are also in the first presidential election in which 14 states… have citizens vote under rules that make it much harder for them to participate than last time.” – Wendy Weiser [34:17]
• “We want to settle on a baseline set of fair rules for how we’re going to run our elections and not have so much change…” – Wendy Weiser [37:41]

Important Segment Timestamps

• [02:34] — Subodh Chandra joins to discuss Ohio voting rights litigation
• [05:55] — Disproportionate impact on minorities and vulnerable voters
• [07:26] — Discussion on voter fraud rationale debunked
• [14:54] — Judge Damon Keith’s dissent and civil rights context
• [16:59] — Supreme Court appeal and recusal controversy
• [19:05] — Wendy Weiser joins; Trump’s poll monitoring rhetoric
• [22:27] — Weiser: Most voters should not be overly worried
• [24:00] — Trump’s rhetoric vs. typical poll watching
• [26:49] — Legal summary of voter intimidation laws
• [29:06] — Hacking concerns debunked; focus on machine failure
• [32:28] — Decentralized elections system: pros and cons
• [34:17] — Post–Shelby County problems and state voting restrictions

Tone & Language

The episode maintains a sober, analytical, and at times urgent tone, especially when discussing imminent threats to voting access and the rule of law. Dahlia Lithwick steers the conversation with probing yet accessible questions, while guests bring both expertise and personal conviction—particularly evident in Subodh Chandra’s reflection on racial history and Wendy Weiser’s measured but candid assessments.

Summary In Context

For listeners or readers who have not heard the episode:
“Intimidation Nation” offers an in-depth exploration of how recent legislative and rhetorical developments—at state and national levels—could shrink, distort, or threaten the vote in 2016 and beyond. The episode exposes the real-world consequences of “form over substance” voting laws, the challenges of patchwork electoral administration, the implications of weakened federal oversight in the post–Shelby County era, and counters alarmist narratives around fraud and hacking with fact-based, practical insights. Lithwick and her guests present not just legal developments, but also the enduring historical and civil rights context in which these struggles play out.