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The Right Not to Vote - Amicus With Dahlia Lithwick | Law, justice, and the courts | Wave AI Podcast Notes

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The Right Not to Vote

Amicus With Dahlia Lithwick | Law, justice, and the courts

Sat Jan 06 2018

SCOTUS will weigh whether Ohio had the right to purge more than a million voters who sat out elections.

Summary

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

Date: January 6, 2018

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).

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]

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.

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.

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]

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]).

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]).

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.

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]).

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.

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]

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]).

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])

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]

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.

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.

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Transcript

A (0:09)

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 (0:26)

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 (0:46)

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.

B (23:39)

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.

B (38:45)

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.

B (44:29)

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.

B (54:02)

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.