Voting Rights Special with Demos and the ACLU

Ken Harbaugh: Burn the Boats is proud to support VoteVets, the nation’s largest and most impactful progressive veterans organization. To learn more, or to join their mission, go to VoteVets.org.

Ben Guess: Voting is foundational to our democracy. It's what our Constitution, our system of government, is built upon. Is that every eligible person has one vote. And that's how ultimately our leaders are elected and how important decisions are made. So we should want everyone to vote.

KH: I’m Ken Harbaugh, and this is Burn the Boats, a podcast about big decisions. On Burn the Boats, I interview political leaders and other history makers about choices they confront when failure is not an option.

This is a big week here in Ohio, where Burn the Boats is produced. It’s our primary election, and voters in each party will select a presidential candidate that they want to represent them in the November general election. But voting for your preferred candidate isn’t always as simple as it should be. How can we be sure that our votes are being counted fairly and accurately?

Today, I talk to two people who are trying to make sure that they are. Naila Awan and Ben Guess both work to fight voter suppression and ensure that all Americans have the right to vote.

Naila is senior counsel at Demos, a progressive think tank based in New York City. Demos’ mission is to “power the movement for a just, inclusive, multiracial democracy” and they do that in part through litigation, campaigning, and policy research. Naila joined me to discuss Demos’ work fighting for voting rights.

Naila Awan, you're a civil rights lawyer and human rights lawyer and now senior counsel at Demos, a progressive think tank based in New York. Would love to start by asking a little bit about Demos and the work you're doing there, because you really are, now, at the forefront of protecting our democracy, and not just in a passive sense, but against what feels like an all out assault on the foundational right to vote. What is your role in that?

Naila Awan: Sure. So, our organization is actually kind of this dynamic think-and-do-tank that works for a just inclusive and multiracial democracy, and we do that by employing different functions. So I sit on the legal team. We also have a campaigns team, a research team, and a communications team who all work on democratic justice and democratic participation issues. Our legal docket includes a number of different issues around voting rights and includes trying to ensure that people have access to voter registration, that eligible voters are not purged from the registration rolls, that individuals who are limited English proficient have the access to voting materials that they can use, and that individuals are not unlawfully disenfranchised when they come into contact with the criminal legal system.

KH: Can you explain for the uninitiated what voter purges are? I mean, there is a rationale, but often they're tactically employed to gain advantage. Can you try to present both sides as sort of an explanation of why the system exists as it is?

NA: Yeah. So, voter purges, and also voter list maintenance more generally, as the term is sometimes referred to, is actually it's required, some of them, under federal law. Right? Folks register to vote, but they move, they might relocate to other states. Voter purges are something that happens in order to, in some instances, try to keep the rolls up to date. Right? A lot of states use information such as information received from the national change of address system kept by the US Postal Service that indicates a person has moved to initiate a purge process. That's something actually that federal law explicitly says you can do, and it creates a safe harbor for those sorts of removals. The problems come when states kind of create other practices that sometimes have a disproportionate impact on individuals and deprive people, typically those that are traditionally marginalized, of their right to vote.

So that can happen in different ways. What we've seen in some instances, like in Ohio, there's kind of a use it or lose it quality to these purges, where if someone doesn't vote they will start a purge process. In other states you've actually seen targeted efforts in predominantly black communities where, for instance, in Sparta, Georgia sheriffs employed deputies to go and disseminate summons to individuals in predominantly black communities and tell them they had to show up in-person and prove that they still resided where they did to stay on the voter rolls, which you can imagine, like the experiences of black individuals in our country around policing, like exactly how that went over. So, you have these different sorts of purge practices, some of which are entirely legitimate and used to keep rolls up to date and accurate and others which are not using great data and are actually sometimes explicitly targeted to deprive people of color of their right to vote.

KH: Yeah. Explicitly. Meaning, it's no accident that the effects of these purges, as you put it, disproportionately affect marginalized communities. When it comes to use it or lose it in general, I thought that it was against the law to punish people for not voting. I believe there was a legal nuance to avoid that accusation. Right?

NA: Yeah. The issue with Ohio and practices like it, which exists in some other states, is the state uses a voter's failure to vote in a set number of years, in Ohio that's two years, as an indicator that that person has likely moved. Then folks get sent a single sheet notice that if they don't respond to that and don't vote in the subsequent four years, they are purged from the registration rolls. So, the Supreme Court essentially held that folks are not being removed from the rolls unlawfully under a federal law, known as the National Voter Registration Act for not voting if states provide individuals with notice. But it does have to be sufficient notice, and the specifics of what that notice needs to look like are actually set out in great detail under the National Voter Registration Act. The reason that there is still relief in Ohio for voters who were purged under the use it or lose it policy known as the supplemental process, is actually because there was a second claim in the lawsuit that involved the notice itself not informing people that they would, in fact, be purged if they didn't respond. And we were able to settle that second claim even after a Supreme Court loss to secure relief for purged Ohio voters.

KH: In theory, is there a problem with the idea of a voter purging or voter registration management, in principle? Is that an appropriate thing to do? Is it just the application of it for political end goals that Demos has a problem with?

NA: Yeah, I think that that's exactly right. We would not dispute the fact that the voter list should be up to date and accurate and that states should be able to figure out how many people are living within their jurisdiction and how many people have moved out of it in order to deploy resources efficiently and make sure that there is enough resources at polling locations and precincts. That is not something that we dispute should happen or is appropriate. It is, in fact, when the way that the purges are employed results in the removal of individuals who are still eligible from the voter roll.

KH: Are there other cases working their way through the system that might be tangential to the the case you referenced, that was decided by the the US Supreme Court, that will affect the practice of voter purges? Are there things we should be looking out for?

NA: I mean, there are a number of voter purge cases. They happen in a number of different ways. There's currently a case that will be decided by the Wisconsin Court of Appeals around purges that were kind of initiated or pushed by a more conservative group in the state. There are similar efforts to challenge purge practices and jurisdictions by other groups who, in fact, use the same piece of law that we used in Ohio to try to get states to more aggressively purge their registration rolls. There is an ongoing lawsuit in Indiana around the use of cross check, which can identify individuals, predominantly people of color, erroneously as having moved and result in their removals from the registration rolls. And there're like a number of other cases that are kind of percolating in the system, as well as ones that are looking at whether data on things like citizenship or things like felony conviction is actually accurate or resulting in the removal of eligible voters from the rolls.

KH: What is the argument being made by those groups pushing for this aggressive voter list maintenance, pushing for the purges? You said there were conservative groups in particular advocating for that. What's their claim? Because, surely, it's not that it gives them a political advantage.

NA: So, it is, essentially, and obviously with these different cases there are certain nuances to it, but that's the National Voter Registration Act actually requires, and this is, in fact, true. It does require that states conduct list maintenance and that they remove individuals who have become ineligible for certain reasons, such as if people become disqualified for felony conviction in a state, as a result of having moved, or because they have affirmatively requested to be removed from the registration rolls. And a lot of where you see some of the what I would say might be like the mushiness in some of these cases, is around what is the efficient in terms of identifying people who have moved out of a jurisdiction and how you go about removing those individuals. That's where federal laws says using the US Postal Services information is in fact, in itself, sufficient and states don't have to go beyond that. But there are numerous instances where folks are saying you have too many people on your voter rolls and some of these people must have moved out of the jurisdiction, and you need to more aggressively purge people from the registration roll.

KH: Beyond your efforts at Demos around challenging these voter purges, what else are you engaged with, especially with an election right around the corner?

NA: Yeah. I mean, we have a number of cases, one that's being considered by the Sixth Circuit Court of Appeals next week that deals with the ability of Ohio voters who are detained in jail in the days preceding an election to be able to access and cast an absentee ballot. That is something that the District Court actually held in our favor and found in favor of our clients and the class that they represent, that the law violates basic principles of equal protection under the US Constitution. The state has now appealed that, and it will be decided by a three judge panel at the Sixth Circuit.

KH: And this addresses cases in which the voter has not even been convicted. We're talking about people who were simply being detained, being denied the right to vote. Is that right?

NA: That is correct. A lot of these individuals, these are people who are detained in the days preceding an election. A lot of them are in jail because they are being detained pre-trial and cannot afford the price of bail. And in fact, like you said, they have not been convicted because they are being detained pre-trial. One of our clients, in fact, had the charges against him dismissed, but because he was being held in jail and unable to afford bail, he wouldn't have been able to participate in an election when he had been planning to go to the polls on Election Day and in fact to cast a ballot.

KH: What are your biggest fears as you anticipate the election around the corner? Obviously, the responsible maintenance of the voter list is something you're engaged in and the enfranchisement of those who are being denied the right to vote. But when you hear some of the gross intimidation, frankly coming from the very, very top, do you think that is filtering down? What are you seeing on the ground?

NA: Yeah. So, I mean, speaking as someone at an organization that works in multiple space but obviously is still a national organization, what I can say is that what we saw between 2016 and 2020 is that some states have actually increased access to voting, right? New York increased access to early voting, Maryland and Maine also improved voting procedures to allow people to register even on Election Day by adopting same day registration. But then, we're also seeing these new restrictions to voter ID laws such as those that have been put in place in Arkansas,North Carolina and Iowa, as well as increased restrictions, or hurdles to early voting or absentee voting, which has happened in Arizona, Indiana, Montana, and Texas. One of the things that I think is particularly alarming is things like what we heard from folks in South Dakota, which was that there was actually a sheriff who was standing outside of a voting location on a Native American reservation with a gun. And I mean, that's a clear intimidation tactic, right? So, you're seeing these restrictions that are impacting voters at large. You're also seeing ones that are more directed and I think that that's deeply alarming, that's deeply concerning. It's something that we could potentially expect, again, especially considering in 2016, President Trump kind of encouraged people to essentially intimidate individuals at the polls.

KH: Well, yeah. He said, "After you vote, go check out these other areas because we know bad stuff is going on." I'm paraphrasing, but barely. I mean, it was essentially a command to the faithful to go out and stalk those neighborhood polling places that Trump didn't want people voting in.

NA: Yeah. No, absolutely. And so I think that kind of an increased resurgence in those sorts of calls and people feeling empowered to act upon them, as well as these new restrictions that have been put in place, actually means people have to be quite vigilant. Right? in terms of voter purges, oftentimes people aren't aware that they're not on the rolls until they show up to the polls to try to cast the ballot and find that their names have been stripped from the registration rolls. I think folks need to really be vigilant and need to be checking their registration status, need to be aware of what the laws in their states are, because folks just oftentimes don't know the particularities of their state's election laws.

KH: Is one potential solution to the challenge you outlined of voters realizing too late that they have been purged or that their polling place has been moved, or something like that, is same day registration an issue Demos is promoting?

NA: Yeah. We've actually worked on campaigns for same day registration in the past and in our policy books very much advocate for that. I think that that is actually the best cure all for purges, because if someone isn't registered they can register right there and still vote. So, obviously if someone's trying to cast a ballot and requesting an absentee ballot be sent to them, timing might actually still prove slightly challenging, but generally same day registration I think is the best remedy for erroneous voter purges.

KH: And what do you make of the specter of massive voter fraud resulting from initiatives like that?

NA: I mean, it's interesting because folks raise the specter of voter fraud but can't actually present that many instances of voter fraud actually occurring. And one thing that I'll actually point to is a lawsuit that I worked while I was in Ohio, which was challenging the elimination of the same day registration period as well as early voting opportunities. And while the state said that they were concerned about voter fraud in terms of the same day registration period, all of the instances that they pointed to that they found troubling were actually instances where they identified that the person was maybe a snowbird and located in two places and might be potentially able to cast two ballots and had actually identified that and prevented both votes from being counted. So, there was never an actual instance that we saw in that case of double voting. Now, there might have been some instances somewhere, I'm not going to say that it never happens, but I'm saying that is not what folks try to make it out to be.

KH: Probably safe to say that the proportion of voter fraud cases to those being denied the franchise is extraordinarily lopsided. Hundreds to one.

NA: That seems like that would be a very accurate statement to me.

KH: In your job at Demos, have you ever personally felt the brunt of that intimidation you've talked about? Has it ever taken a personal toll?

NA: For me, personally, I would say that I probably stand in a much more privileged space in the fact that I have a lot of access to knowledge about these laws, and also have never had problems accessing something like an ID or getting registered or knowing when the registration deadline is. And obviously these cases are challenging because when you have individual clients who've been denied their right to vote that becomes very personal. But it's more in that respect.

KH: Yeah. Well, that's actually what I'm getting at. I'm setting up the last question which we ask everyone, which is what's the toughest, bravest decision you've ever been a part of?

NA: I would say that maybe some of the most difficult things are, we do a lot of work around disenfranchisement in the criminal legal system and it's making sure that clients are also not being intimidated. There's sometimes tactics that states will deploy to basically try to not only intimidate your clients but embarrass them. It's sometimes difficult to think about like what you're actually asking people to do. And even if you go about explaining it all on the front end and explaining what could happen, but it's still a different reality for them when things actually transpire and they're actually being asked questions in depositions that go into things that aren't related to the case at hand, but are trying to go into personal life. Or when folks are trying to intrude into their personal lives in ways that just aren't relevant to the case. And so I think that that's oftentimes the challenge and wanting to make sure that you're not subjecting someone to intimidation in that way for trying to simply gain access to the ballot and exercise their fundamental right to vote.

KH: Well, thank you so much, Naila, for coming on. Been a pleasure having you.

NA: Thank you. It's been a pleasure.

KH: Naila walked through some of the major obstacles to voting rights nationally, including things like the use-it-or-lose-it voter purge in Ohio. One organization at the forefront of fighting that particular purge was the ACLU of Ohio led by our next guest, Ben Guess. The ACLU of Ohio is also part of a coalition effort right now supporting a ballot initiative to modernize Ohio elections. The measure includes provisions for automatic voter registration, same day registration, timely absentee ballots for military voters, equal ballot access for voters with disabilities, and more. This interview was recorded early last month. After my conversation with Ben, we’ll get an update on where that ballot initiative stands today.

Ben Guess, thank you so much for coming on the show. You've been an activist for civil liberties for many years now and for the last three, the executive director of the ACLU of Ohio. We were talking on the way in about the origin story because you're coming up on the hundred year anniversary. It's born out of when you hear civil liberties in the context of the ACLU, it's really about the foundational civil Liberty, the First Amendment and the right for assembly and free speech. That's what it's from.

BG: That's right. The ACLU was founded in 1920 at a time of some hysteria in our country against in the time of World War I. And many people who were protesting the war found themselves being arrested for distributing pamphlets and other information that was contrary to the war effort or seen as contrary to the war effort. The ACLU represents the Constitution and the Bill of Rights and ensures that we promote fundamental fairness for everyone in this country. We know that the Constitution was written in a time of slavery. It was written at a time in which women were treated as second even third class citizens in our country. We've known that we've always had to fight to expand civil rights and civil liberties so that they pertain to more and more people. And so that's the foundation of the origins of the ACLU. But we continue that fight today with new battles.

KH: And you've clearly expanded the universe of people whose rights you are defending and protecting. But you've also expanded the mission beyond the First Amendment and one of the front lines today is the battle to protect voter rights. And that's especially salient now that we are in the election year. It's 2020, not just the hundredth anniversary of the ACLU, but arguably one of, if not the most important election of our lifetimes coming up. Tell me a little bit about what the ACLU is doing to gear up.

BG: Well the ACLU is a part of a coalition called Ohioans for Secure and Fair Elections, a group that is coming together to bring recognition to the fact that while Ohio is seen as this national barometer at a time of national elections, Ohio actually has the lowest voter participation rate in the entire Midwest. In 2018 when we had one of the most expensive governor's races in Ohio history, all of the state offices were on the ballot, we had really hotly contested congressional races, we just barely reached above 50% of eligible voters participating. And we only had 22% of young voters participating. Compare that to 47% in Wisconsin. So it's embarrassing, but it's not because Ohioans are anymore apathetic than any other people that live in other states. It's that we have a system of registration in Ohio that is one of the most restrictive and we're out to educate people about that and also to bring a measure to the ballot that would expand voting rights in Ohio.

KH: Talk to me about the restrictive nature of the registration regime, and then about how this initiative might help to address that.

BG: Ohio has a 30 day cutoff at registration. That is the longest period of any state in the country. It's the longest period allowed by federal law, and so what we're attempting to do is to bring in a suite of reforms that would bring us in line with many states. For example, we're promoting automatic voter registration, which is a measure that our own Republican Secretary of State Frank LaRose is supporting. AVR basically means when you engage with the Board of Motor Vehicles, get a driver's license, a government ID, that you're automatically registered to vote unless you opt out. Our suite of reforms also includes the ability to register anytime during the year, so it would remove that 30 day gap period. And also would enable you to register and vote on election day.

KH: What's the rationale for that gap period? What is the explanation given for those who defend it by those who defend it?

BG: I think all of us are concerned about having accurate voter rolls and so I'm sure that there would be election officials that say that by cutting off a month before the election that you are ensuring that everything is in order before ballots are cast. But that's an archaic notion. Basically when you show up on same day registration, you're able to prove first of all that you're a citizen of the country and that also you live in the precinct where you're eligible to vote. And then you're given a ballot and you are actually able to vote on that same day. And this is something that has been in existence for many, many years. 20 states plus the District of Columbia have it. States like Wyoming, Idaho, Utah, Wyoming. It's a red state, blue State, purple state provision that is becoming the wave of the future.

KH: In those States and the district that have adopted same day registration, what has the impact been on say voter participation? Has there been the flood of fraudulent voting cases that was predicted by some? What's the overall impact of those rules been?

BG: Well the reason why we have one of the lowest voter participation rates in Ohio is because we do not have automatic voter registration or same day registration. States like Minnesota have about a 14 or 15% higher participation rate and it's because they have what's known as AVR and SDR in their State. So that is really the reason. I mean, people just don't start thinking about an election until it gets close to their election time. And then they oftentimes realize that they're too late. It's already a month before the election and they haven't gotten registered. I mean we're very concerned about secure elections and we built into this ballot measure a provision for an audit for each election because we are concerned that we do have accurate voting and that there is no fraud in our elections. But at the same time, fraud is very, very, very rare. And when and if someone does vote illegally, that is already a crime. It's punishable by law. And so what we think is also not right is that we restrict so many people from voting. Ohio has the practice of purging hundreds of thousands of voters each year. People who are eligible to vote, people who do vote actually find themselves accidentally purged for a variety of reasons. A number of studies have found upwards to 20, 25% of those who are purged should not have been purged. They still live at the same address where they have, and they may have even voted in recent elections. It's really problematic that people who are eligible to vote, citizens of this country, the very foundation of our democracy, that we keep people from participating in our elections.

KH: And how does the current system of maintaining those voter rolls or purging voters disproportionately affect certain communities? Have you seen that in your work, in the cases the ACLU is pursuing?

BG: Ohio has a practice of purging voters across the state, but disproportionately in the six most urban counties in Ohio. That means that disproportionately impacts black and brown people in our country. And many a times the purges happen right before an election. So people can be purged, not know that they'd been purged, and they're already within this 30 day cut off period and not have time to be able to re-register to vote.

KH: So a philosophical question. What is the downside of a low voter participation rate? Let's say you could address the issues of unfairness and still be left with a voting public that doesn't engage. I mean, even if we do address all the unfairness in the system, Americans historically vote at lower rates than many other modern democracies. What's the downside of that?

BG: Voting is foundational to our democracy. It's what our Constitution, our system of government, is built upon, that every eligible person has one vote and that's how ultimately our leaders are elected and how important decisions are made. So we should want everyone to vote. The ACLU is nonpartisan. We're not about trying to get more votes for either party. We want everyone, urban, rural, suburban, Republican, Democrat, independent, third party voters to be able to participate in the election. And what we're doing with the secure and fair ballot initiative is first of all, ensuring that our elections are secure, that audits are there. But also that we provide provisions that will enable people to be registered and to participate at election day and even before election day through early voting. Our ballot initiative contains a suite of reforms including ensuring that military service people and people who are deployed overseas receive their ballot at least 46 days before the election to ensure that their ballot can get to them and returned and able to be counted. Also ensures the full and equal participation of people with disabilities. Ensures provisions around early voting, including 28 days prior to an election and two full weekends before each election. And also provisions around automatic voter registration at the BMV and also registration year-round, including on election day.

KH: So that is obviously a major effort for the Ohio ACLU in 2020. What are your other lines of effort heading into this monumental election?

BG: Well, in every election the ACLU, along with other democracy groups, works to help people understand their rights as voters. We help people with disabilities understand how they can have an accessible ballot for them. We help to educate people in the criminal justice system as to what their rights are. Many people in Ohio do not understand that if you have a felony conviction in Ohio and you have served your time, you are eligible to vote. So we try to do a lot of education around that as well. And also just helping understand registration deadlines and helping people understand how they can get registered to vote, and encouraging people to participate in our election.

KH: How is the ACLU feeling going into this election about the fairness of it, the security of it? What are your biggest fears? And obviously what are your biggest hopes beyond the ballot initiative passing for this November?

BG: Well we know that there will be much attention on this election. It's a presidential election year. All of our House seats are up for election as they are every two years. And there are important issues that will be decided. But what we are concerned at as the ACLU is ensuring that the issues that we advocate for, around issues of mass incarceration, issues of racial justice, issues of LGBTQ rights, the rights of people with disabilities, reproductive rights, that we educate people as to those issues and where candidates stand on those issues. We don't endorse candidates, but we do talk about the issues that the ACLU is passionate about. And helping people understand that elections have consequences, and so people need to vote, recognizing that the outcome of this election will determine the future of public policy.

KH: Ben, thank you so much for coming on the show.

BG: Thank you.

KH: I had this conversation with Ben early last month and since then, a ruling by the Ohio Ballot Board has forced a change in strategy. I called Ben the other day to get an update.

BG: Ohioans for Secure and Fair Elections, we were dealt with an unexpected blow by the Ohio Ballot Board, which voted along partisan lines three to two to divide up our proposed ballot measure into four separate ballot measures, which essentially meant that instead of getting 443,000 valid signatures, we would have to get 1.8 million signatures to get all four of those provisions on the ballot. The Ohio Ballot Board really has one responsibility at this phase of a constitutional amendment is to determine whether or not to the subject of the constitutional amendment is one subject matter, so that you're not putting in many different items into one ballot measure. But the Ohio Supreme Court actually ruled in 2010 that this needs to be applied very liberally and certainly every provision within our measure was related to elections and to people's ability to participate in elections and to have their vote cast and counted.

It was a political decision to try to make it difficult for us to get this measure on the ballot. So to say that we were disappointed is an understatement, but we are not deterred from moving forward. We have already presented all four of those provisions back to the attorney general, which has now certified moving forward with the four provisions. We're still taking stock in what we can do and what we'll be able to move forward with. We also filed an expedited appeal with the state supreme court and they responded very quickly that they will make an expedited decision. So it could be that the Ohio Supreme Court will overrule the ballot board and will restore the full package. We will await the Ohio Supreme Court's decision. We will also make some internal decisions about how we will move ahead.

I have to say that the stance of the ballot board was unprecedented. Never before has a single subject been exploded in such a way as to deter the will of the people to do what we have the constitutional right to do as to placing issues on the ballot. One thing that I can say very firmly as we will be moving ahead, our coalition is strong and growing every day. So we encourage people to stay in contact with us at voteoh.org. We are going to need a lot of volunteers. We're going to need a lot of people speaking with their coworkers, family and friends and community groups about the need to expand voting access in Ohio.

KH: Next episode, I’m talking with Ryan Manion. Ryan is the president of the Travis Manion Foundation and one of the authors of The Knock at the Door: Three Gold Star Families Bonded by Grief and Purpose. Ryan talks to me about losing her brother to war, about her own PTSD diagnosis, and about harnessing her brother’s memory to do good. You’ll also hear some of my own family’s story. We listen to an essay I recorded with my mom for NPR’s All Things Considered back in 2007.

Thanks to our partner, VoteVets. Their mission is to give a voice to veterans on matters of national security, veterans’ care, and issues that affect the lives of those who have served. VoteVets is backed by more than 700,000 veterans, family members, and their supporters. To learn more, go to VoteVets.org.

Burn the Boats is a production of Evergreen Podcasts. Special thanks to Evergreen executive producers Joan Andrews and Michael DeAloia. Our producer is Isabel Robertson. Audio engineer is Sean Rule-Hoffman. Our theme music is Climbing to Greatness by Cody Martin.

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I’m Ken Harbaugh and this is Burn the Boats, a podcasts about big decisions.