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.