The Right Not to Vote

Summary

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Amicus With Dahlia Lithwick: "The Right Not to Vote"

Date: January 6, 2018

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Episode Overview

This episode explores the complexities and legal debates surrounding voter purges in the United States, centering on the Supreme Court case regarding Ohio’s voter roll maintenance practices (Houston v. Philip Randolph Institute). Host Dahlia Lithwick guides listeners through both the technical statutory questions and the real-world impacts, featuring personal stories and expert legal analysis from Joseph Helly (Mayor of Oak Harbor, Ohio) and Dale Ho (Director, ACLU Voting Rights Project).

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Key Discussion Points & Insights

1. Personal Story: Being Purged from the Rolls

• Guest: Joseph Helly, Mayor of Oak Harbor, Ohio

• Segment: [03:28]–[13:45]

  • Helly recounts being purged from the voter rolls after returning from Army service due to “inactivity.” Despite being a registered, civically engaged citizen, he was unaware until arriving at the polls that he could no longer vote.
  • His experience highlights the confusion, emotional toll, and unintended consequences for voters—especially servicemembers and those away from home.

  Notable Quote:

  “They told me that I wasn’t registered to vote anymore. And I said, well, how can that be? You know, I just got back from the army and they said, well, we removed you due to inactivity. Tears started coming out of my eyes being told I wasn’t able to vote.”
  — Joseph Helly [00:09]

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2. Ohio’s Voter Purge System

• Explanation: In Ohio, failure to vote in a two-year period triggers a confirmation notice. If the voter doesn’t reply and doesn’t vote in the next four years, they are removed from the rolls. Hundreds of thousands were affected in 2015 alone.
• The Supreme Court Case: The practice is challenged as violating federal protections, given the potential to disenfranchise eligible—but inactive—voters.

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3. The Principle of Voting as a Right—Not an Obligation

• Joseph Helly’s Perspective:
  Choosing not to vote is itself a valid form of political expression, and the state shouldn’t punish inactivity with disenfranchisement.

  Notable Quote:

  “To me, the right to not vote is as much of a voice of what you see best for our country as the right to vote.”
  — Joseph Helly [09:47]

• Mail Notification Issues: Helly never received notices, which is common, raising questions about the reliability of the method.

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4. Expert Analysis: Why Don’t Americans Vote?

• Guest: Dale Ho, ACLU Voting Rights Project

• Segment: [15:13]–[57:10]

  • Barriers to Voting: The U.S. places the burden of registration on voters, and frequent, decentralized elections make participation confusing and difficult. In recent years, more barriers have been erected rather than removed.
  • Decentralization: Rules vary dramatically by state and even locality, leading to a confusing patchwork that can suppress turnout, especially among marginalized groups.
  • Political Incentives: Incumbents may lack motivation to change systems that helped them win; additionally, a partisan divide has emerged, with some politicians believing low-turnout benefits their party.

  Notable Quote:

  “We have one of the lowest turnout rates amongst eligible and registered voters in the Western world... In the last, you know, six or seven years, we’ve been, in spite of this record, erecting more barriers to registration and voting in a lot of parts of the country.”
  — Dale Ho [15:47]

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5. Ohio—An Outlier, but Part of a Pattern

• Ohio’s Uniqueness: Only six other states use non-voting as a proxy for having moved; Ohio uses the shortest inactivity period before initiating a purge ([21:29]–[23:06]).
• Legal Basis:
  • Two Statutes at Issue:
    • National Voter Registration Act of 1993 (NVRA): Designed to standardize registration and protect against arbitrary purging.
    • Help America Vote Act of 2002 (HAVA): Centralizes voter rolls, further protecting registrants.
  • Argument: Once registered, eligible voters shouldn’t be removed for not voting or not responding to mail.
• Court Path:
  • The trial court sided with Ohio, but the Sixth Circuit reversed, saying purging for inactivity violates NVRA ([29:29]–[30:27]).

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6. Partisan and Demographic Effects

• Purges disproportionately affect minorities and Democratic-leaning constituencies due to historically lower turnout rates in midterms.
• Data Point: Reuters study found African-American voters more frequently purged than white voters ([32:10]).

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7. Broader Constitutional & Philosophical Debate

• Meritocratic Voting Philosophy: Some defenders of purges believe only “committed” participants should vote, often privileging the well-off or better-informed.

  Notable Quote:

  “We actually want it to be quite hard because then we’ll only get the people who really care about it, whose voices really ought to matter.”
  — Dale Ho [34:07]

• Disenfranchisement as Privilege: Many don’t have the luxury to wait hours in line or be hypervigilant about election mail.

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8. Policy Alternatives & Modernization

• States can maintain accurate rolls without relying on non-voting: by using postal change-of-address data, tax, and driver’s records, and interstate databases like ERIC ([37:22]–[37:55]).

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9. Statutory Construction & Supreme Court Arguments

• Legal Tools:
  • Interpretation starts with statutory text.
  • NVRA lays out explicit, limited reasons for removal from rolls.
  • Ohio focuses narrowly on technical compliance with confirmation notice procedure (Section 8D), but plaintiffs argue the entire structure prohibits using non-voting as cause for removal ([44:29]–[49:05]).
• Supreme Court’s Role: Must resolve whether the NVRA and HAVA prevent purging for inactivity.

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10. Potential Impact of the Supreme Court’s Decision

• Best-Case Scenario: Purge practice is permanently ended in Ohio and similar states, reinforcing protections for registered voters.

• Worst-Case Scenario: A ruling for Ohio could greenlight more aggressive and covert vote purges nationwide, threatening participation—especially for disenfranchised groups ([49:44]–[52:31]).

  Notable Quote:

  “I am concerned if states have too much discretion to monkey around with voter lists, then you get the real specter of people getting knocked off the rolls... and being told, sorry, you’re not on the list, cast this provisional ballot, which ultimately is not going to get counted because the person’s not registered.”
  — Dale Ho [56:05]

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11. Voter Purges vs. Gerrymandering

• Foundational Issue: Dale Ho emphasizes that access to the ballot is even more fundamental than issues like gerrymandering; without it, other reforms are moot ([54:01]–[54:23]).
• Challenge with List Maintenance: Administrative purges often occur quietly, below public awareness or legislative debate, making them especially dangerous and hard to monitor ([56:40]).

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Memorable Quotes with Timestamps

• Helly on disenfranchisement by surprise:
  “Tears started coming out of my eyes being told I wasn’t able to vote.” ([00:09])
• Helly on non-voting:
  "The right to not vote is as much of a voice...as the right to vote." ([09:47])
• Ho on turnout:
  "We have one of the lowest turnout rates...in the Western world." ([15:47])
• Ho on meritocratic voting arguments:
  "We actually want it to be quite hard because then we'll only get the people who really care about it, whose voices really ought to matter." ([34:07])
• Ho on the risk of administrative purges:
  "If states have too much discretion to monkey around with voter lists, then you get the real specter of people getting knocked off the rolls...So these list maintenance practices...are very dangerous because it’s so hard to know exactly what's happening." ([56:05])

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Key Timestamps

• Personal story, emotional impact of purge: [00:09]–[13:45]
• Technical explanation of Ohio’s system: [21:29]–[23:06]
• Statutory debate - NVRA & HAVA: [23:39]–[30:27], [44:29]–[49:05]
• Demographic and partisan consequences: [32:10]–[38:45]
• Discussion of possible Supreme Court outcomes: [49:44]–[52:31]
• Voter purges vs. gerrymandering & fundamental threats to democracy: [54:01]–[57:10]

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Tone & Approach

Dahlia Lithwick brings candor and clarity, mixing legal analysis with personal narrative to humanize a technical topic. Guests’ perspectives emphasize urgency, empathy, and the need for vigilance in defending democratic rights.

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For Listeners

This episode pulls back the curtain on the intricate, often overlooked mechanics of voting rights, illustrating how legal minutiae directly shape American democracy. The Supreme Court’s decision in this case will reverberate beyond Ohio, potentially affecting millions, and highlighting the quiet hazards of voter list maintenance practices.

For those who haven’t listened, this episode is both a primer on the legal stakes and a moving reminder of what’s at stake when voting rights are threatened—not by lawlessness, but by bureaucratic routine.

Transcript

[A]

They told me that I wasn't registered to vote anymore. And I said, well, how can that be? You know, I just got back from the army and they said, well, we removed you due to inactivity. Tears started coming out of my eyes being told I wasn't able to vote.

[B]

If you can't vote at all in the first place, then how the lines are drawn and how the votes are allocated may not matter that much. So, you know, I think of whether or not people can actually access the polls as sort of the bedrock first issue that's gotta be resolved before the district lines and gerrymandering issues come into play.

[C]

Hi, and welcome back to Amicus Slate's podcast about the law and the courts and the U.S. supreme Court. 2018 is off to a rollicking start as the President tweets in inchoate threats at the Justice Department and at unstable nuclear powers abroad. But, and I've said this before, I'm saying it again, the 2018 and 2020 elections are only as sure and certain as your right to vote. And guess what? Voting is not as easy as you may think it is in this country, thanks to gerrymandering and vote suppression and vote purges and all the kinds of things that are really, really hard to understand. And, and we have not talked about enough on this show. But guess what? Next week the US Supreme Court will hear a case about a purge of the Ohio voter rolls, which is, please trust me, a morass wrapped in a thicket of gooey statutory interpretation questions. But that is why we are here on this show. We are going to help the handful of middle school civics classes who listen to the show and all the rest of us who are not, in fact, voting rights lawyers to understand why, why sometimes this technical legal stuff is the path to really crucial constitutional rights and to make certain that the technical stuff is crystal clear. At the end of this show, we're going to talk to the wonderful Dale Ho, he's director of the ACLU's Voting Rights Project, about what's at stake in next week's case called Houston vs. Philip Randolph Institute, in which the court is going to have to pit federal voting laws against the state's rights to maintain the integrity of their own voter registration roll. Now, at issue in Houston is a voter roll purge that has taken place in Ohio. That state decided that if a registered voter there doesn't vote for a two year period, the state can just send her a confirmation notice. And if she doesn't respond to that notice and doesn't vote in the next four years, Ohio will just bump her from the list of registered voters and require her to register again. In 2015 alone, hundreds of thousands of voters were removed pursuant to this practice. A group of civil rights protection advoc sued the state of Ohio. They lost in federal district court, but then they won before a three judge panel at the 6th Circuit. And right before the 2016 election, about 7,500 extra Ohioans were then able to cast votes because of this decision. Our first guest this week is Joseph Helly. He's the mayor of Oak Harbor, Ohio and he's one of the people who showed up to vote and his name was not on the rolls. So Mayor Helly, welcome to Amicus.

[A]

Thank you for having me.

[C]

And I'm going to call you Joe because you told me to. But tell us a little bit about your journey to becoming the mayor of Oak Harbor, Ohio.

[A]

Well, like a lot of young men and women, I decided to sign up to serve my country. I joined the army when I was 18, went through infantry school and airborne school, ended up serving out of Alaska where I served the duration of my of my time. I did go to Iraq and during the surge in 2006-2007 and again to Afghanistan in 2009. So probably about 19 months of combined overseas service in combat zone. And when I came back, I had some medical issues I needed to take care of. And then I discharged from the army like a lot of folks at discharge and went back to my home of record here in Oak harbor and bought a house and did the family life and got a letter in the mail one day that said parking in front of my house was going to be banned. I said, well, what the heck's this about? So I went to the administrator's office and said, you know, what's this letter about? And they told me councilwoman at the time, her brother's sister in law was upset that Snow wouldn't get plowed in front of her house because of her neighbor's car being parked on the street. So they were just gonna ban parking on the widest street in town. And I said, that's not how this is supposed to work. So I went to all my neighbors and all of them said that's silly. And I went back to a meeting and eventually had the issue thrown out and parking wasn't banned. And that got me interested in local government and the fact that it just wasn't working. So I went to meetings, saw issues, saw a lot of issues, was going to run for council and Then I just over time saw that the issue was leadership of the community as a whole. So I decided to run for mayor, where I was elected at the end of 2015.

[C]

Joe, talk about why it is that you found yourself seeking to vote and purged from the rolls. Can you tell that story? It sounds to me as though you're the sort of guy who votes.

[A]

Yeah, well, I was the sort of guy who was, quite honestly, pretty busy while I was deployed and while I was serving. So it wasn't exactly the easiest thing to vote while I was gone, but when I came back home.

[C]

But you had registered, right? You had registered to vote before you when you were 18, is that right?

[A]

Oh, absolutely. Just like a lot of kids when they're seniors in high school, they turn 18, they can register right there in their school. I did. So I believe I even voted before I left in a May special election. And I went off the service and when I came back again, right back to my home of record here in my hometown, went to try to vote in an August special election. And they told me my name wasn't on the rolls, but I could file a provisional ballot. And they said, don't worry about it, it's probably just a mistake. So I filed a provisional ballot, make nothing out of it, and then go on about my way. And then I go to try to vote in the November general election and again told that my name's not on the rolls, fill out a provisional ballot, but this time go to the Board of Elections to see what's going on. So they told me that I wasn't registered to vote anymore. And I said, well, how can that be? You know, I just got back from the army and they said, well, we removed you due to inactivity. And I remember just stopping right there and I started crying. My wife at the time, you know, she just had to come over and put her arm around me because tears started coming out of my eyes being told I wasn't able to vote.

[C]

And what year was that, Jo?

[A]

That was in 2011.

[C]

And tell me what you did subsequently. I'm guessing that you re registered and you are now eligible, right?

[A]

Yeah. The Board of Elections folks were very compassionate to the cause. They thought it was very unfortunate, but their hands were tied. So they helped me re register. They told me I couldn't vote that day. So I got registered and I've been voting here ever since because it's convenient for me. Now I'm able to drive down the street and do it versus file an absentee ballot from 8,000 miles away. And so ever since I've been performing.

[C]

That civic duty, I'm guessing it sounds from what you've just recounted that you certainly didn't know that vote purging was going on or that, you know, this, this whole process was, was operative. I'm wondering a little bit about how people find out that. Is there a way to find out before you show up to vote and are told that you're not eligible to vote? I mean, I think that the, the standard procedure is to send out a mailing, right?

[A]

Yeah, there's, there's evidently a mechanism in place here in the state that's obviously failing. I believe the current standard is if you don't vote within two years, the Board of Elections sends or either the State of the Secretary of State or the Board of Elections sends you a notice saying you hadn't voted. If you don't vote within the next two years or something, we'll remove you. That letter never showed up to me. It never showed up in my mail being forwarded to me and it never showed up at my home of record where my parents lived to be forwarded to me. And there was no record of them actually sending such letter from the Board of Elections or the Secretary of State.

[C]

So I'm going to ask you a question that's maybe going to sound unfair, but I want you to reckon with what I'm saying. And that is I saw that you voted for neither Donald Trump nor Hillary Clinton in the last election. I think a full third of the population doesn't see fit to regularly vote. And so I think that this argument, that on the one hand you can argue so passionately and forcefully for the right to vote and then not exercise your right to vote is where I think people get stuck in this analysis. And I want to be super clear. Part of the reason you didn't vote was because you were serving the country, for which I thank you. But what do you say to people who are just like, eh, I just didn't like the candidates or eh, you know, I just couldn't be bothered or it was inconvenient, who still want to stay on the rolls is there, does that change the analysis somewhat? Jo so many people just don't vote because they don't care, but they want to be eligible to vote. I think that the argument on the other side is use it or lose it, baby.

[A]

Again, I think that that's also a terrible concept. For instance, I didn't vote for either presidential candidate because I thought neither of them were the right fit for our country. And to me, the right to not vote is as much of a voice of what you see best for our country as the right to vote. If you see someone that you don't think should receive your vote or whatnot, then why should you have to go to the poll and check a box? Why do you go and you feel obligated because there's three names in front of you that you have to pick one when you don't like any of them. Furthermore, some issues are more emotional or down to home for people than others. Schools, for instance, when a school puts a levy on, a lot of people only vote because they want to see the best come out of schools. They won't go vote in local elections or anything like that, but they want to see levies put on because they believe in supporting the school district. So I believe allowing that right is important to just allow people, if they choose to, to be able to do so. And it shouldn't be taken away because they don't use it when the state sees fit, which is exactly what it is.

[C]

Joe, how closely are you following this particular litig as it makes its way up to the US Supreme Court next week?

[A]

I've been following it for some time. About 10 months ago I left a comment on some random Facebook post and that's what really kind of got me into the activism part of this Ohio aclu, Progress, Ohio America Votes, and a bunch of other organizations reached out to get my story and whatnot. And then the AP here, which is probably how you guys heard my name in the last two weeks, requesting an interview with me. Now I've got interviews with MSNBC next week and some other organizations to talk to about it. So I'm following it really, really close because it's something I take to heart because I was directly affected by it.

[C]

And I know that this case gets super mired in kind of deep dives on statutory interpretation and various federal laws and how we think about reading words in incredibly arcane voting rights statutes. If you have to, I'm guessing talk above all that at some level that isn't granular and technical, but really communicates the urgency. I think the tendency at the court argument is going to be to just, you know, be flattened by jargon and by very, very complicated statutory construction arguments. How do you make this make sense when you explain it to your family or your friends or to voters in Oak harbor who maybe aren't really read into all the details of the laws at issue, but there's something else going on. What do you say that transcends all the technical stuff?

[A]

Well, first I like to try to understand some of the technical stuff so I don't sound silly when I'm talking to folks. I'm certainly not a Supreme Court justice or an attorney, but when I talk to people, I tell them my story and I tell them what happened to me. And I don't like to flaunt my military service by any means, but talking about that and saying, hey, look, they took my right to vote because I was off serving my country. People I think kind of grab onto that concept more than I just chose not to vote for a while. That's kind of how I explain it. I don't know if that's unfair to the non veterans out there, but the people I know, that's the best way that I can get them knowledgeable about the issue and tell them kind of what's going on.

[C]

In the meantime, Joseph Helly is the mayor of Oak Harbor, Ohio. We thank you so much, Joe, for your service and for joining us this week on amicus.

[A]

Hey, thank you so much for having me and letting me share my story.

[C]

I wanted to take a moment to let you know about one of Slate's other fantastic podcasts. We're going to slide for a minute from the courts to the charts for Hit Parade. Slate's one and only pop chart analyst Chris Melanphy takes you on a fascinating journey through chart history, from the week the Beatles swept the entire top five on the Billboard charts. Did not Know that. To the unlikely reign of MC Hammer's you Can't Touch this. Hit Parade explores the people and the politics behind the songs you hear on the radio. And guess what? Hit Parade is doing a live show on January 18th at Bellhouse in Brooklyn, New York. Chris is going to be joined by very special guest Ted Leo from the band Ted Leo and the Pharmacists. So go to slate.comlive for more information on that show and check out Hit Parade everywhere you download podcasts. Joining us now in the studio is Dale Ho. Dale is the director of the ACLU's Voting Rights Project and he supervises the ACLU's Voting Rights Litigation and advocacy work nationwide. ACLU is actually in this case, along with a Philip Randolph Institute and Demos and a whole bunch of other groups. So Dale, first of all, welcome to Amicus.

[B]

Thank you. Thanks for having me on.

[C]

It's a thrill to have you here. And before we start down the road of like hava and like voting and blah blah and all this statutory stuff. Tell me why people don't vote in America, please. I mean, am I right? In 2016, the data I saw said more, more than 70 million registered voters didn't cast ballots in this election, according to the U.S. election Assistance Commission. That's like a third, little more of all registered voters. So, so this problem is exponentially worse because we live in a country where people don't vote.

[B]

We have one of the lowest turnout rates amongst eligible and registered voters in the Western world. It's a problem that we've had for a long time. Part of the problem is that we put the burden of, say, registering to vote on the voters themselves rather than on the government, which is what happens in most advanced Western democracies. Part of the problem is that I think some people have speculated that we actually vote too frequently, right? That we have these local elections, we have primary elections, we have general elections, we have off year elections. Some states have their state elections in odd numbered years. And that kind of dissipates the energy around elections a little bit. And then we also, in the last, you know, six or seven years, have been, in spite of this record, erecting more barriers to registration and voting in a lot of parts of the country rather than trying to make voting easier and increase participation.

[C]

So there's a systemic problem and then there's political, a partisan political problem. And those combined are creating a little bit of a perfect storm where voting, even when it's high stakes elections, voting just keeps going inexorably down.

[B]

I don't know if it's going inexorably down. I mean, if you look at, say, the 2008 election, turnout was higher than in 2004. So I don't think it's unidirectional. I expect we'll see higher turnout in 2018 than we saw in, say, 2014 and 2010. But overall, even with what we would consider a high turnout election, it would be pretty paltry by Western European standards.

[C]

Why is it that we are talking about going to the DMV to register? Why are we talking about things that come with junk mail? Like, it seems like this entire conversation is mired in adorable 80s mechanisms for participatory democracy. And I know that there are reasons that we know what happens when you can mail in your. I mean, we know that we can do better. Why are our systems for encouraging people to register and vote, or even for telling people they can no longer vote, why are they so bad?

[B]

I think if you ask most politicians what's a good voting system And I think this is sometimes unfortunately true across the political spectrum. They'll say, the voting system that got me elected, right. Obviously it works because it produced the best possible legislators, that is me, me, right, and my buddies. So there isn't a huge incentive for people, once they've already been successful in the existing system to try to improve it. You know, that's part of it. So that's part of a political problem. The political problem that you're referring to. There's also the fact that I think one party has decided that they tend to do better in low turnout elections, which further deincentivizes reforms that are gonna increase participation. But then we do have these kind of like long standing structural problems. The fact that we have this very decentralized election system that's administered at the 50 state level, then at the local level, that we have this patchwork of laws, right, where the rules on who can vote, when you can register, when you can vote, how you vote, they're different from place to place. It's confusing to the average citizen, particularly if you move from one place to another. I mean, you know, we laugh about motor voter and the DMV registration process, but that was an attempt to at least try to impose some kind of uniformity on the system so that you could move from one state to another and there would at least be one or two or three things that would be the same about the registration process. And unfortunately, I think now we see some efforts to undermine that in this case in what we think the presidential Commission on Election Integrity, which I can't say without doing air quotes around the word integrity.

[C]

He's doing air quotes in the studio, just confirming. And I think you're flicking at this. But let's say it explicitly. The minute you have political actors, partisan political act. Right. I mean, maybe the Secretary of State isn't the most nonpartisan person to be administering these processes. What. How did we get to a place where it was the. The least objective people in government are now in charge of appearing partisan and trying to create systems.

[B]

Well, this is another way in which we're very different from most advanced democracies. We have partisan actors who are administering elections. Right. In Florida in 2000, right. It was the chair of the Bush campaign for the state of Florida who was also calling the winner. Right. When you had the recount in 2000 with Katherine Harris as the Secretary of State. That is very bizarre. I think part of it has to do with the decentralization that I was talking about. Part of it has to do with, I think, particularly American distrust of experts and expertise and wanting to say we're going to pick who's going to do, you know, everything. Maybe we should start also electing our airline pilots. I don't know. But, you know, I think that we ought to probably trust something like that to impartial experts who are nonpartisan, like they do in most of the Western world.

[C]

So let's turn to Ohio and start by explaining because I think there's some confusion about this, whether Ohio is an outlier in terms of this vote purge that is now getting a lot of attention. But Ohio is, is not the only state purging its roles. Can you locate Ohio on spectrum? Just going into this case of how many states are doing things like this and what Ohio is doing it, that makes it maybe the most extreme manifestation?

[B]

Well, every state tries to periodically update its voting rolls by making sure that the information is accurate and by periodically removing people whom the state believes are no longer eligible to vote, maybe because they've died, maybe they've been convicted of a felony and that makes them ineligible in their state or they've moved. So purging the rolls is something that every state does to a certain degree, with the exception of North Dakota, which has no voter registration at all. What is pretty unique about Ohio is the particular way that they go about purging people, identifying people that they think have moved and using a person's failure to vote in order to do that.

[C]

And when does this start in Ohio?

[B]

So it started in the 1990s in Ohio and after the passage of the motor voter law. And what Ohio does is when it tries to find people who've moved maybe out of their county or out of state, it does two things. They look at postal service information when someone files a change of address for the US Postal Service. And a lot of states do that. That's pretty common. But the other thing they do, and this is something that only six other states do, they take a person's failure to vote as evidence that that person is no longer eligible to vote because they've moved not just say across the street, but out of their county, maybe out of the state. Ohio is one state that does it. There's six other states that do it. But Ohio is the most extreme of these states because Ohio takes failure to vote in a two year period. That's the shortest period of any of these states as an indication that you may have moved.

[C]

Okay, now I've set you up completely in the first segment of the show by saying we're going to ask Dale the really technical statutory questions that are going to make, you know, listeners eyes cross, but they're actually not technical statutory things. Can you just really lay the groundwork? There are two federal statutes at issue here. We've got the National Voter Registration act of 1993. We've got help America Vote Act. Can you, before we plunge into statutory interpretation, can you tell us, standing on one foot, what these two federal statutes do and how they're implicated in this?

[B]

Sure. So first we start with the National Voter Registration act of 1993, sometimes called the Motor Voter Law because of its most famous provision requiring states to provide voter registration at dmvs. What motor voter tried to do was address this problem of low participation in America by creating some level of standardization amongst the states in terms of how you can register, where you can register, and what states can do with you once you've registered to vote. And it's that last piece that's implicated here. One of the concerns that Congress had when they passed the National Voter Registration act in 1993 was to make sure that if an eligible person got on the rolls, that person stayed on the rolls, didn't get kicked off because they didn't respond to a piece of mail, didn't get kicked off because they didn't vote. Those were pretty common practices up until the early 1990s. Congress wanted to eliminate that. So that's the first law that's at issue here, the nvra and the principle that once you register to vote, you can't be removed unless you become ineligible or you ask to be removed. Second law, the Help America Vote act of 2002 was passed after the debacle of the 2000 election, which we talked about earlier, and particularly the punch card ballots and other kinds of inaccurate voting machines, which were, when you think about it, I mean, they were routinely losing like 5% of votes. I mean, it's crazy that we would tolerate that level of disenfranchisement of people who were casting ballots. You know, I mean, we have already have low turnout, low registration, low people showing up to vote on election day. And then we're just like throwing out, you know, huge swaths of those ballots. So Help America Vote act is designed to update states voting machines. Part of what Congress event addresses in that legislation is also how you maintain voter rolls. And it required states to centralize those voter rolls. You know, instead of having, you know, potentially dozens of different lists at one at each county in a state, let's have one single statewide computerized voter Registration list. And when Congress said that, they had to say something again about the NVRA's requirement of once you get on a list, you know, how do you get removed? And so in the Help America Vote act, there's some language that gets added to the NVRA about voter list maintenance.

[C]

Okay, now, the Ohio side of this case says this is really easy. The elections clause says time, place of manner of holding elections is prescribed by the states, and that states have always been left to their own devices to do this. And then you all with your crazy laws with their acronyms came in and mucked it all up. So they're in effect, I think just saying all these things that you've described, Dale, may or may not be lovely. Not the prerogative of the federal government to be telling states what to do. Am I mischaracterizing?

[B]

No, I think that's part of their frame of this case. That this is really how we maintain voter rolls has historically been, and this is true, has historically been the province of the states. And states should get a lot of latitude. And, okay, the federal government's passed some laws about voter registration, but those should be interpreted to be relatively liberal in terms of the latitude that states get. I mean, they're backing up from the NVRA and the Help America Vote Act. I mean, we start with two basic constitutional provisions. You have the qualifications clause, which gives states essentially unlimited authority to determine who gets to vote in elections. Now, there are some limitations on that in various constitutional amendments, but generally speaking, states get to decide what the qualifications are for voting. They tend to be, you're a resident, you're 18, and you're a citizen. Right. But then you have the time, place, and manner elections clause, which says that as a general matter, this is up to the states, but the federal government can override states when it comes to the time, place, and manner of federal elections. And the Supreme Court has interpreted that clause to encompass voter registration for federal elections.

[C]

So. So let's talk a little bit about what happens in Ohio and what the federal district court in Ohio says in Houston, because that's, I think, the core issue that goes up to then to the sixth Circuit and up to the Supreme Court. So help us understand what the ruling there was. And let's be clear. You lost.

[B]

Yes.

[C]

Okay.

[B]

Okay. So in the run up to the 2016 election, our side filed the case and then filed a motion for preliminary injunction to try to get this purge process blocked before the presidential election. The district court, the trial court, ruled against our side and Said, look, there's language in the National Voter Registration act which says you can't knock people off the rolls for failing to vote. But what Ohio is doing here is they are identifying you for failing to vote, then they're sending you a card. If you don't return that card and then don't vote again in the next two federal election cycles, then we knock you off. So in the district court's view, Ohio wasn't knocking people off just for failing to vote, it was knocking them off for failing to vote and failing to return. And the district court looked at, you know, beyond the National Voter Registration act, looked at that second law that, you know, the one that we talked about, Help America vote act from 2002, and there's this language in that law that talks about not removing people solely for failure to vote. And the district court said, look, this is not removing people solely for failing to vote must be kosher.

[C]

And the 6th Circuit disagrees, right?

[B]

6Th Circuit disagreed. 6th Circuit says, look, the national voter.

[C]

Registration, 2 to 1 margin.

[B]

2 to 1, right. There's a descent, right? So we didn't, we didn't win unanimously, but we won just the same. Right? And what the 6th Circuit held was that, look, the National Voter Registration act says that you can't remove people from the rolls for failing to vote. That doesn't make. Failing to vote, doesn't make you ineligible. That's what the National Voter Registration act permits. Remove people when they're ineligible to vote. Failing to vote is not in itself makes someone ineligible to vote. And, and that's essentially what Ohio does here because it identifies you for removal from the rolls based on your failure to vote. And yes, there's this card that gets sent to you, but in the 6th Circuit's view, that didn't really change anything. Once you fail to vote, if you did nothing else at that point, you don't open your mail, you don't return your card, you don't vote again, you get knocked off, that's being removed for failure to vote.

[C]

And so really, in a strange sense, whether this receiving of mail, opening mail acknowledging that you got it and correcting it, that's the circuit breaker here, right? That's the thing that says, oh no, you're not being tossed off willy nilly, you're being given an opportunity to, you know, we've got a circuit breaker in place. And that's the thing that the Supreme Court is going to have to analyze.

[B]

Right? Ohio's position in this case is that it's not removing people for Failing to vote. People fail to vote. They don't return a card, and then they don't. They fail to vote again. And really, the reason why people are being removed, the most important reason in Ohio's view is you didn't return the card. If you just returned the card, we'd keep you on the rolls. Now, I think there's. If you go back to the Congressional record, there's a lot of concern in 1993 when Congress passed the NVRA about knocking people off because they don't return mail. I mean, people don't open their mail from elections offices, state agencies all the time. Right. I mean, I don't know about you, but, like, you know, when I get home and I see that, you know, mailer from the state Board of Elections, I don't, like, rip it open, you know, just ignore my children and just, you know, what's in here. Right. I can't wait to see what this is. Right. But leave all that aside. Right. I think it's. It doesn't make a whole lot of sense to say that failure to vote isn't the reason why people are being removed. It's the first strike and the third strike before someone's out. Ohio wants to say it's only the second strike that matters, your failure to return the card. It seems pretty clear to me that failure to vote is the reason why these people are getting knocked off.

[C]

And here's where we're obligated to say that every study, I think, shows that vast disproportionate impact on Democratic voters in Democratic jurisdictions. Right. That. That's. That was how this manifests.

[B]

Well, if you look at turnout rates and break them down by demographic groups, the demographic groups that tend to vote for the Democratic Party tend to have lower turnout, particularly in midterm elections. And remember, Ohio knocks you off or starts the process of knocking you off if you don't vote in a single midterm election. So because this is a statutory construction case where we're only focused on what do the words of the statute mean, not what is the practical effect of this. Is it fair in practice? We didn't do a whole lot of discovery. We don't have a complete record as to the full number of people that Ohio is purged and whether there's disproportionality there. But there's a lot of, you know, evidence out there, including a study by Reuters which, you know, indic. Seems to suggest that African American voters tend to be purged more frequently, for instance, than white voters. Because of lower turnout rates, particularly in midterms.

[C]

So, Dale, I need you to now address the thing that has nothing to do with statutory construction, which is this problem of. And I think it's an abstraction, that there is a push in this country, particularly on the part of folks who are inclined to circumscribe the vote, to say, like, we only really want good voters, like, we want really smart, you know, well educated landowning. Like, we want that guy and that other voters. And I don't want to say it's per se about color or minority status or gender or age, although I think there's some correlation, but that we want our voters to be the kind of people who get home and they're saying something in the mail from the board of elections and they rip it open because that mail is awesome. Am I wrong that there is just undergirding so much of this, this idea that, like, people should have to earn it, they should have to fight for the right to vote and that we don't really want people who don't vote for six years?

[B]

No, I mean, I think you hear that sentiment expressed explicitly from time to time, and it does underlie, I think, a lot of the sentiments in support of these new restrictions on voting, that we don't want to make voting easier. We actually want it to be quite hard because then we'll only get the people who really care about it, whose voices really ought to matter. I mean, I remember a conversation after the 2012 election that I was having with a friend on the other side of the aisle, and Obama gave that famous victory speech where he was talking about the people who were still waiting in line while he was giving his victory. You know, whether it was your first time or you waited a long time, by the way, we gotta fix that, right? And the ABA Election Law Committee started talking about maybe we should do a white paper on long times to vote. I had a friend, you know, who's, you know, have a different, you know, view on things. He said, you know, people will wait all night for the next iPhone, for the newest iPhone, because it matters to them. And if voting matters to you, you'll do what's necessary to have your voice heard. Not only do I think that that's a pretty warped conception of whose voices matter, but it's incredibly. It comes from an incredible place of privilege, right? Because not everyone can wait five hours on a weekday in line to cast a vote. Right? And I think a lot of people would be hard pressed to do that. But for some people it's an impossibility.

[C]

That leads me to ask you to talk a little bit about the amicus briefs in this case because there's really interesting briefing, I think on both sides. But one of the things that is interesting is that a lot of the briefing on your side of the case comes from people who are like, here's some reasons why it's hard to vote. Are there briefs that are particularly salient or that you think are going to be most impactful?

[B]

I think the briefs that you're alluding to from some civil rights organizations, I hope they make an impact. Right. That the fact that someone doesn't vote in a two year period doesn't mean that voting doesn't matter to them, doesn't mean that they're voice should count any less in future elections. That in fact, you know, a lot of people can't vote on election day for a whole litany of reasons, you know, family obligations, work obligations and the like. And I hope that that contextualizes this issue a little bit. There's also, you know, I think an issue that we get asked well, you know, if states can't do this, how can they maintain accurate voting rolls? And there's a brief from different states that have been filed on our side, led by New York that sort of details different ways that states can keep their voter lists accurate without having to, you know, use this failure to vote, use failure to vote as a proxy for having moved.

[A]

Right.

[B]

States can look not at just at the postal service information. They can look at tax records, they can look at driver's license records. They can share information with each other. There's a system of voter registration sharing a database called the ERIC system that was started by the Pew center where states can compare their voter lists and identify people who have moved to another state and registered. So there are a lot of different ways that states can keep their voter rolls up to date. And I hope that brief helps bring that home.

[C]

And yet, and yet, she says with a sigh, it's also undisputed that the 12 states that filed briefs on your side tend to be the Democratic leaning states and the 17 states that filed on the other side tend to be Republican states. I know you've hinted at the reason that we have this absolute stark division between R and D on this issue and it just has to do with who tends to win you elections. But is there a way to think about this outside of this language of Republicans want to purge their voter rolls and Democrats want to expand the franchise because that's the only way they can win. It's such a depressing way to walk into this argument.

[B]

I share your depression about what seems to be a partisan divide, over which over an issue that I think should be nonpartisan. Right. We ought to be trying to make voting easier. We ought to be bringing more people into the system. If there are more people voting, the party should be competing for those people's votes rather than trying to tamp down their participation. I mean, if you go back a decade ago when George W. Bush signed a reauthorization of the Voting Rights act in 2006, that bill passed 98 to nothing in the Senate, 393 to 30 in the House. Right. And then George W. Bush signed it into law. I mean, the previous reauthorization was signed by Ronald Reagan. Right. Obviously, there was some partisan fighting over the National Voter Registration Act. George Bush Sr. Vetoed the first version of it, and then Bill Clinton signed it into law as one of his first acts as president. But for most of the past 40 or 50 years, pretty much dating back to the passage of the Voting Rights act itself in 1965, there was largely, not universally, but largely a consensus that everyone ought to be able to vote and we ought to be facilitating that. We ought to be making voting easier, not harder. Something's changed in this decade, in the 2010s, and what used to be largely a consensus about this issue has broken down along partisan lines. I find it hard to not trace that to the 2008 election. Right. Because the breakdown happens after that, and the huge demographic shifts in the electorate that occurred then. People of color constituted a quarter of the electorate in a presidential election. For the first time, young people turned out at a higher rate than they had since 1992. And it's only after that happens that you start hearing this loud drumbeat of fraud on the other side. It's almost as if there are folks who look at the results of the 2008 election and just can't conceive that it was legitimate. They look at that different electorate that's different from previous ones, and they think that can't be a proper American electorate. There's something wrong here, and we've got to tighten things up, and I think that's a shame.

[C]

I want to give you an opportunity to reflect on the fact that one other really remarkable part of this case is the Justice Department. JEFF Sessions, Justice Department switching sides because it's emblematic of exactly the thing you're describing, which is the Justice Department was pretty much on the other side and then this summer said, in this case, in this case. And then this Summer said, oh, wait, gave it a little thought, going to side with Ohio. Now, what does that. Is that just more evidence of what you've just described, what's going on there?

[B]

I mean, I think that's right. I think it's also evidence of the Trump administration, in particular its hostility on civil rights and voting rights, generally speaking. It's one of a number of reversals that the Trump administration has made on voting rights, including supporting Texas's voter ID law, which the Fifth Circuit had previously struck down. Now they want to say it's okay and it's modified form the Department of Justice engaging in an inquiry into states purging practices. A wide ranging information request last year that got a lot of attention, which suggested that DOJ is going to be looking to thin the voter rolls rather than add voters and make voting easier. I mean, since the National Voter Registration act was passed, the Department of Justice, which is tasked with enforcing that statute, has consistently told states that, do things like Ohio, you're violating the NVRA. When Georgia talked about doing it in the early 1990s, DOJ sent them a letter, said, don't do that. Right. If you do that, you're going to violate the nvra. When it learned that South Dakota and Alaska had practices like the one that Ohio's doing here, it sent them letters saying, we're going to see you if you don't do something about it. Alaska and South Dakota changed their laws in the 2000s during the bush administration, there was a settlement agreement. When DOJ discovered that a county in New Mexico, Cibola county, was purging voters, it entered into an agreement that prohibited Cibola county from using failure to vote as a basis for removing voters. So we have more than two decades of consistent enforcement of the NVRA along the lines that we're seeking to enforce it in in this case and in this case, DOJ in 2016 filed a brief on our side saying plaintiffs are right, Ohio can't kick people off for failing to vote. And then this year, Trump administration comes in and files a brief on the other side, says that Ohio's purge process is actually lawful.

[C]

We're now at the part of the show that I know you've been looking forward to where we're going to talk about statutory concerns. Okay, you ready?

[B]

Yeah.

[C]

Everything you and I have talked about is super interesting and important, but it's not what the justices are going to be doing next week. Talk about, and I'm Saying this fliply, but this is incredibly important. This is why we go to law school. Talk about the toolkit that you bring in when you're trying to persuade on either side, the justices to read HAVA and the NVRA the way you are construing it. And what do those tools look like for listeners at home who think this is just about flipping open the dictionary?

[B]

Well, you know, I mean, that is where we start, right? I mean, we start with the language of a statute, and section 8 of the statute is the provision that governs list maintenance. Start with section 8A, right, which sets forth five reasons for why people can be removed from the death, change in residence, criminal conviction, mental incapacity, or at the voter's request. So four bases of becoming ineligible to vote, and one completely separate thing when a voter requests to be removed. Since those are the only reasons that the statute permits people to be removed from the rolls, we have to ask first, does Ohio's practice fit into any of these five reasons? Answer. Failing to vote isn't one of these reasons. Failing to respond to a postcard isn't one of these reasons. The only thing it could potentially be is evidence that someone has moved. Okay, so that's, you know, we start with section 8A, but then we go to section 8B. Section 8B says people can't be removed because of failure to vote. It prohibits any list maintenance practice which results in a person's removal due to their failure to vote with an exception. Right. Set forth later in the statute. But start with that basic premise, right? So then we look at the exception that's in 8d of the statute, which provides that if someone's changed address, they can be removed from the roles if they confirm in writing that they have in fact change their address, or if they don't respond to a confirmation mailing and then fail to vote in the next two federal election cycles. Now, you know, we look at this and we think, look, it's clearly not. Doesn't fall into A, it's not. It's prohibited by B, and it doesn't fall into the exception under D. And you have to read these provisions harmoniously. Ohio looks at this and focuses only on D and says, look, D says you don't respond to a mailing and you don't vote in two elections, then you're out. You're out, right? So they try to situate their practice within that particular subsection of the statute. But one of the basic principles of statutory construction is you have to try to read provisions of A statute harmoniously in a way that makes sense. Well, it doesn't make a whole lot of sense to treat the 8D process as a standalone process. It's described as something to confirm someone's change of address. Well, if Section 8B says you can't treat failure to vote as a basis for removing someone, then 8D doesn't make sense as a standalone procedure where if someone just fails to vote, you then try to confirm that they've moved. When 8B says you can't treat failure to vote as a basis for believing that someone has moved in the first place. So when you look at the statute as a whole, it seems what, like what Congress is trying to say is that someone's failure to vote can be the conclusion of removing someone from the process, but not something that triggers or initiates the removal of someone from the process. And you know, Ohio says, you know, that doesn't make sense. And to the extent there's ambiguity here, there's a canon of construction that favors state prerogatives. So there's a sort of presumption that the federal government doesn't seek to displace state regulations that should be applied here. So if there's any kind of ambiguity or confusion, we should apply that canon. We come back and say, well, when the Constitution expressly delegates authority to Congress, as it does here with respect to the time, place and manner of federal elections, then there's no such presumption that applies. And interestingly, the justice who we cite on that is Justice Scalia in what is my favorite opinion of his, a 2013 opinion in a case coming out of Arizona also about the motor voter law, where, you know, there was this question of do states have to accept the federal voter registration form? And there are some questions about, well, is the motor voter law ambiguous on this point? Maybe it should be construed against the federal government in favor of the states. And Scalia said there is no such canon that's applicable where the federal government has express authority under the Constitution.

[C]

Here in studio, there are harps and angels right now at citing Justice Scalia and the canons of interpretation. Dale, I can't let you go without asking you about the scope, the implications of a ruling on either side here. And I know that's wildly speculative, but Ohio says, look, this is just about Ohio. It's just, you know, there's a couple guys. I think your view is that this could in fact fling open the doors for a lot of vote suppressive behavior. Can you give me some read on kind of the worst case, best case scenario going forward?

[B]

Well, the best case scenario, obviously, is that the Supreme Court upholds the Supreme Court Circuit's opinion and rules that these purges are unconstitutional, violate the National Voter Registration Act. That would end them permanently in Ohio and in the six other states that have laws that require purges of this sort. Okay, now there's going to be other kind of purging, other kinds of purging that happen, some legal and some illegal, and we'll deal with that as it comes. But that's the best case scenario. And then it maybe sends a strong signal to states not to mess around here at the other end. On the worst case scenario or the bad scenarios, I'd say there's a range of possible bad outcomes. We could lose in a narrow way where the court says, look, what Ohio is doing is fine. What these other six states are doing is fine. We're not going to opine about what other states may or not be able to do. That would be a loss. That would be bad. That would be bad in Ohio because this purge practice has affected tens of thousands of voters. Because of the ruling that we got in the 6th Circuit last year, there were 7,500 people whose ballots were counted. Otherwise those ballots would have been tossed in the trash, essentially. And what I think is remarkable, just one point on this is Ohio does not contest that any of those people are ineligible. Right. Ohio doesn't say that any of the people who were covered by this injunction, who had been purged for failure to.

[C]

Vote and were reinstated and were reinstated.

[B]

Under our ruling, are actually ineligible because they've moved. Ohio's conceded, these people still live in their county. They're eligible to vote. We just didn't want to count their ballots because they didn't vote and they didn't return a piece of mail. So I find that prop that fact pretty remarkable given that they can't point to a single instance of something on the other side of inflated roles that that have caused someone to sort of sneak in and pretend to be someone else and cast a ballot in that person's name. So even that limited bad outcome would be bad. But there are obviously possibilities here that are worse than that. The court could issue a sweeping ruling that interprets the motor voter law in a way that gives a lot of discretion to the states that weakens federal authority. And if that happens, then we could have a much bigger problem on our hands because the motor voter law has been critical since 1993 in terms of standardizing voting practices, making them easier Making them easier to understand, blocking some of the worst state barriers to registration. And if that law gets weakened, we could see a range of different kinds of practices that are designed to make it harder for people either to register or stay on the rolls.

[C]

My very last question.

[B]

Yes.

[C]

Scout's honor. I think that for folks who think everything that's wrong in America is going to get fixed in 2018, or it's going to get fixed in 2020 because we're all going to vote and everything's going to be okay, probably are daily doing the work of trying to figure out what the biggest threat to voting is, is. And there's so much going on. And it seems both obvious but arcane. Help listeners think through where you put this kind of vote purge next to the gerrymandering cases, which I know we have not gotten to talk about. And we could do six more hours on the Kris Kobach voting integrity. I'm putting that in quotation marks Commission. Where is this? The thing that keeps you awake at night is gerrymandering. I mean, I've heard an awful lot of people say, hey, after Virginia, maybe gerrymandering isn't that bad because people vote anyway. What should folks who have very limited ability to mobilize and think around very abstract voting issues be putting energy into?

[B]

Well, I don't want to minimize the impact of gerrymandering, and I don't think people should draw the wrong lesson from Virginia. I mean, you had one party that got, I think, eight points more than the other party on a statewide basis and depending upon, I guess, litigation and a coin flip.

[C]

A coin flip.

[B]

Right. We'll either get a 50, 50 share of the lower chamber in the state legislature or a bear minority. Right. So gerrymandering matters. Right. And it can take extremely wild swings in turnout on one side or voter switching allegiances to overcome a really creative gerrymander. All that being said, if you can't vote at all in the first place, then how the lines are drawn and how the votes are allocated may not matter that much. So I think of whether or not people can actually access the polls as sort of the bedrock first issue that's got to be resolved before the district lines and gerrymandering issues come into play. At the beginning of the decade, I think I mentioned is when we started seeing a lot of activity to try to make it harder for people to vote. Most of that was in the form of new state laws. We talked about how the election system is decentralized. That is a problem in a Lot of ways that makes it more inefficient, that makes it more confusing for voters, it makes it less professional, but it also makes it harder to commandeer. Right. So it's harder to come with that sort of sweeping executive order like the Muslim ban that just, you know, overturns everything because elections are administered by all 50 states and at the county levels. So that's in some ways helpful. But now what we're seeing is instead of these big statewide laws like the voter ID laws, the cutbacks on early voting, the new registration requirements, the things like that that have to go through a state legislature that you see news about that are debated, that generate a lot of public attention and a big backlash. Now we're seeing more, I think, activity about the voter lists. And that's why I'm concerned about this issue and this case in particular, because when a new voter ID law gets passed, we know about it. If it's a really bad one, we can challenge that, and hopefully we can do so in enough time before the election to put it on ice. These practices happen below the surface. They don't need legislation. They're done administratively. They're not publicized. Just figuring out what states and counties are doing with their voter lists takes a tremendous amount of work and sleuthing on our parts, and we can't keep track of of it all. So I am concerned if states have too much discretion to monkey around with voter lists, then you get the real specter of people getting knocked off the rolls. Like one of our clients in this case, not knowing it, showing up at the polls to vote and being told, sorry, you're not on the list, cast this provisional ballot, which ultimately is not going to get counted because the person's not registered. So these list maintenance practices, I don't want to say they're the most important thing when it comes to voting rights, but they're very dangerous because it's so hard to know exactly what's happening.

[C]

Dale Ho is the director of the ACLU's Voting Rights Project, and he supervises the ACLU's Voting Rights Litigation and advocacy work nationwide. Dale, thank you so much for joining us here in studio on Amicus.

[B]

Thank you so much for having me on.

[C]

And that is just about going to do it for today's episode of Amicus 2018. Our email is amicaslate.com and you can always find [e-mail] AMICUSpodcast Please keep your letters coming, even sometimes the occasional green grumpy ones. They are challenging, they are smart, and sometimes it's just really nice to hear back from you. Transcripts for our show are always available to Slate plus members, and you should be a Slate plus member anyway. Today's show was produced by Sara Burningham. Steve Lichti is our executive producer. June Thomas is managing producer of Slate Podcasts, and we will be back with you in two shorts weeks for another episode of Amethyst.