current events – Atiba Ellis

Join Me in NYC for Two Talks on November 4

I have the privilege of participating in two panels in New York City this Monday, November 4. The first is a lunchtime event sponsored by NYU Law Review and the Center on Race, Inequality, and the Law on “Race and an Exclusionary Democracy.”

The second is an evening event on the impeachment proceedings against Donald Trump and the their implications for the future of our democracy. It’s sponsored by the Sorensen Center for International Peace and Justice and the CUNY Law Office of Student Affairs.

Both events are open to the public, but require an RSVP. The details and registration links for each event are below. If you in the city Monday, I hope you will join me.

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NYU Law Review Lunchtime Series on The Anatomy of Racism and Inequality: Race and an Exclusionary American Democracy

November 4, 2019, 12:30 to 2:00 pm, Lester Pollack Colloquium
Event details
RSVP

This panel will explore how racial identity has colored American democracy and political participation. Panelists will discuss how racism, xenophobia, and religious intolerance have impacted public conceptions of who is an American, and therefore who has the right to vote and otherwise participate in the nation’s political life. The panelists will also consider contemporary efforts to expand and restrict active engagement in the democratic process including discriminatory redistricting efforts, voter ID laws, and felon disenfranchisement.

Panelists:

Khaled Beydoun, University of Detroit Mercy School of Law

Atiba Ellis, Marquette University Law School

Ryan Haygood, New Jersey Institute of Social Justice

Danielle Lang, Campaign Legal Center

Myrna Perez, Brennan Center for Justice

Moderated by Vincent Southerland, Center on Race, Inequality, and the Law, NYU School of Law.

cuny

Critical Voices: Impeachment and Beyond

November 4 ,2019, 5:00 pm – 6:30 pm
CUNY School of Law, 2 Ct Square W, Long Island City, NY 11101
Event details
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Join the Sorensen Center for International Peace and Justice and the CUNY Law Office of Student Affairs for a panel discussion with Atiba Ellis, Ruthann Robson, and B.J. Steiner on the impeachment inquiry against President Trump and its wider implications for democracy. Natalie Gomez-Velez will preside.

Atiba Ellis is a Professor of Law at Marquette University Law School who writes on democracy, voting, and race. Ruthann Robson is a Professor of Law and University Distinguished Professor at CUNY Law who is a frequent commentator on constitutional issues. B.J. Steiner is a third-year CUNY Law student who served as a Legal Fellow at Common Cause during this past summer where he co-wrote an accountability report on the case for an impeachment inquiry of President Trump with Karen Hobert Flynn and Paul Seamus Ryan. Natalie Gomez-Velez is a Professor of Law at CUNY Law who teaches Constitutional Law and directs the Center on Latino/a Rights and Equality.

On the Alabama Special Senate Election: Meme of Voter Fraud Edition

Late Wednesday night, the campaign to elect Judge Roy Moore to the vacant Alabama Senate seat sought to enjoin the Secretary of State for Alabama from certifying the result of the December 14, 2017 special election where Moore lost to Doug Jones. The basis: allegations of rampant voter fraud apparently among and related to African American voters that need to be investigated. Fortunately for us, an Alabama judge denied the motion to enjoin the certification and dismissed the complaint with prejudice.

It is easy to write this off as a last-ditch attempt of a disgraced candidate to stop the inevitable. But we should reflect on the larger context. Once again, the meme of voter fraud — the rampant supposition without proof that illegal voters (largely voters of color) are distorting our elections through voter impersonation — rears its head again as a direct weapon to suppress the votes for Jones. This use of the specter of voter fraud as weapon against the word of voters, particularly minority voters, is nothing new. And it’s the new normal in the post-Trump world.

As you know, Jones defeated Moore largely due to the significant turnout of the Black vote and anemic moderate Republican vote. The day after the election, I argued that this happened despite voter suppression laws seemingly designed to stymie the transformative power that a fully enabled and mobilized African-American vote would represent.

Yet, the day after the election the meme of voter fraud emerged. In this case, the meme apparently starts publicly here, when Bill Mitchell (@mitchellvii), who is, apparently, “a famously outspoken Trump supporter,” tweeted this:

Bill Mitchell's tweet alleging voter fraud in the Alabama Senate special election

And there’s the meme of voter fraud in one tweet — the explanation for the higher turnout that swung the election was not lack of enthusiasm for a candidate who allegedly sought sexual relations with teenage girls, or the Alabaman African-American turnout that rivaled 2012 or 2016 turnout (coupled with lagging moderate white conservative turnout). It was voter impersonation — Mississippian voters impersonating Alabaman voters. The comments to this tweet included accusations of election rigging by outsiders, a “mysterious convoy of black buses,” and something completely random about the War on Christmas.

On December 13, Twitter responded with sarcastic comments like this:

Asia Chloe Brown's tweet responding to Bill Mitchell

But with the December 27 complaint by the Moore campaign, the meme is once again elevated to a last-ditch adversarial tool with the apparent end to subvert the will of the people. Yet the campaign’s complaint basically makes the same argument uttered in the tweets and comments. (1) irregular high turnout by black voters raises suspicion of voter fraud; (2) rumors of voter impersonation voter fraud by outsider voters raise concern; (3) outside partisan involvement (what other people call “politics”) raises suspicion; and (4) statistical analyses by election fraud experts raise suspicion. Moreover, in a quite-odd paragraph 22 of the complaint, we also see the Moore campaign seeking vindication of the truthfulness of their candidate in relation to the allegations that he sought sexual relations with teenage girls:

Paragraph 2 of Roy Moore's complaint

This, somehow, bolsters Judge Moore’s credibility.

Clearly this is a last-ditch effort to forestall the conclusion reached by the Alabama Secretary of State, the Republican Party, President Trump, and, in at least this instance, an Alabama judge — that Jones beat Moore fair and square.

And yet, these allegations should be situated in the larger context of the evolution of the meme of voter fraud into a political weapon designed to distort elections, which started as long ago as 2000 in the hotly contested race between then-Senator John Ashcroft of Missouri and the late governor of Missouri, Mel Carnahan. In the face of a loss to a dead man, the Ashcroft camp argued that dead voters in Missouri tipped the balance. Nothing came of this as Ashcroft went on to be Attorney General and, through investigations by his Department of Justice, put in-person voter impersonation voter fraud on the map. And this leant credence to the movement for voter identification laws.

More famously and recently, President Trump argued via Twitter that the participation of “illegal voters” (read, illegal immigrants) were the reason why he lost the popular vote by nearly three million votes. A year later, President Trump has offered nothing in the way of proof to support this allegation. Also, in the election of 2016, Pat McCrory, who lost the governor’s office in North Carolina to then-Attorney General Roy Cooper, alleged a mass conspiracy of voter fraud denied him the election. Like Moore, McCrory filed objections and when those objections were denied, he sought a recount. The recount, and a subsequent audit by the North Carolina Board of Elections showed few irregularities, including several hundred miscast votes by former felons, some double voting, and one — ONE — vote out of the 4.5 million cast in the North Carolina 2016 gubernatorial race that could have been forestalled by voter identification laws. Voting errors are to be expected, and in North Carolina, those errors certainly did not amount to a grand conspiracy by the Democrats — what McCrory alleged — to steal the election.

Moore’s post-election litigation in the face of the door closing on his campaign fits this same pattern. And, true to form, a judge has declined to equate rumor and innuendo with proof — or even concern — sufficient to stop the mechanisms of democracy from working. The influence of political outsiders, the rumors of black votes being bussed in from Mississippi, and higher than expected African American turnout in predominantly African American counties (which, by the way, was at the same rate as for Clinton last year, as I noted earlier) does not equate to a mass conspiracy of voter fraud.

Alleging a mass conspiracy of voter fraud with nothing but rumor is a bad play. No major state or national election has been reversed because of the meme of voter fraud. Yet it persists because it is a political statement. It is a politics that exists around the idea that the meme is real, and therefore such subversion ought to be opposed. This kind of paranoia can motivate voters. And so, it becomes the equivalent of a party line.

On another level, this use of the meme of voter fraud to attempt to thwart an election is really another battle in the war over American identity. In Alabama, we saw the power of the black vote met with unbelievable conspiracy theories. To make such a claim of voter fraud without tangible proof is to engage in identity politics of the worse kind. It is to delegitimize the votes of citizens because of a set presumption against their citizens’ worthiness through complaining about their votes’ validity. This parrots our too tragic history of violence against minority voting by legislative means.

But it is also the old tactics of voter suppression coming into their own in the era of Trump. This won’t be the last you will hear of the meme of voter fraud.

Give Us the Ballot: On the Alabama Special Senate Election, Voter Suppression, and the Black Vote

In May 1957, Martin Luther King, Jr. gave a landmark speech in Washington, DC. This address, entitled, “Give Us the Ballot” was King’s vision about how Black voting power could transform the apartheid South. In particular, he said: “Give us the ballot, and we will fill our legislative halls with men of goodwill and send … Continue reading “Give Us the Ballot: On the Alabama Special Senate Election, Voter Suppression, and the Black Vote”

“Give us the ballot, and we will fill our legislative halls with men of goodwill and send to the sacred halls of Congress men who will not sign a ‘Southern Manifesto’ because of their devotion to the manifesto of justice.”

Maybe we had a foretaste of King’s foresight as we watched the African American vote defeat Judge Roy Moore and elect Doug Jones to the U.S. Senate from Alabama, a state at the heart of Trump conservatism. And maybe we also saw a glimpse of how an empowered Black vote can be a threat to establishments that rely on their marginalization.

But let me confess up front that I predicted Moore would win—and win outside of the margin of error–because of how Alabama had been dominated by Trump in the 2016 election and how Alabamans had elected Moore twice to statewide office (after he had been removed once and suspended once from his judgeship for violating the U.S. Constitution).

And I also knew that Alabama’s strict voter identification law, its efforts to make such identification less available, and its efforts to modulate (but not eradicate) the collateral consequences of criminal convictions that bar voting all made Alabama a focal point of the voter suppression wars.

Thus, this election was both a referendum on the divisive gender and racial politics of Donald Trump and a test of the ability of the Black community to surmount the effects of voter suppression. And I was a pessimist about both.

In a world absent the allegations that Moore had romantically pursued teenage girls while a District Attorney, absent his Islamophobic stances, and absent the prominence given to various reactionary claims, e.g., all the amendments after the Tenth are “problematic,” I probably would have been right. But all this came to light, and it demobilized white voters and energized Black voters. And that cost Moore the election.

Exit polls reveal that Black voters overwhelmingly voted for Jones and white voters voted overwhelming for Moore. Here’s the data as summarized by the Washington Post:

Roy Moore Doug Jones Alabama senate election exit poll chart from the Washington Post

This was a perfect storm to cause the defeat of Trump’s chosen candidate in the heart of the Trump campaign’s base.

But the data makes two key points: first, the base of white Republican voters voted overwhelmingly for Moore despite the rhetoric and the accusations. This echoes the outcome of the 2016 election. However, fewer moderate Republicans voted for Moore; they instead supported Jones. Had there been more Republican party unity, or a more respectable candidate, the Republicans would probably have won. And presumably, in the next election cycle, Alabama Republicans will unite behind a more respectable candidate.

But this is not to deny the strength of Black voting power. African American voters were consistent with their performance in 2016 in opposing the Trump-Moore politics. This to me is a glimmer of King’s prophesy of how African Americans would use the vote to oppose white supremacy in the name of justice. They compared Moore to Jones and selected the person who they thought was “a man of goodwill.”

This happened despite the post-Shelby County, Alabama v. Holder era of voter suppression to use voter ID laws, racial gerrymandering, and structural efforts to make it more difficult for poor black Alabaman voters. I have previously discussed Alabama’s voter identification laws and the strong risk that such IDs would be unavailable to poor black voters due to DMV closings in the Black Belt (the counties in Alabama which are over 80% black and where there is high poverty). In a recent academic paper, I extend these arguments to talk about how there is a little-discussed structural problem when it comes to failing to prioritize the right to vote—and that structural misgiving can have voter suppression consequences. I have also discussed the Supreme Court’s ruling on the Alabama legislature’s effort to racially gerrymander state districts to pack black voters and preserve white Republican political power.

In short, Alabama is a front line of the post-Shelby County voter suppression wars.

Black voters turned out despite the barriers, and the efforts of civil rights groups to overcome the barriers deserve praise. Between that and the white voters who damned him by few votes, Moore lost.

It is tempting to argue that Black voters’ ability to organize and vote despite voter suppression means voter suppression claims are overblown. That reasoning is faulty. Being able to surmount an illegitimate difficulty doesn’t make the difficulty any less illegitimate. Moreover, numerous federal courts have used the Voting Rights Act of 1965 to strike down voter identification laws because of their potentially disparate discriminatory impact.

The evidence brought in court included academic studies, the documentation of the intent to suppress minority votes, and the statistical risk of disparate effects. It all supports the claim that strict voter identification laws, arbitrary and last-minute changes in the timing of voting, and arbitrary enforcement have been used in concert to unnecessarily intimidate and unduly burden the right to vote (rather than making voting more efficient or secure). This battle continues in Alabama and elsewhere to secure the legacy of the right to vote.

King foresaw what that legacy could be. He knew that the African American electorate could transform the South if voter suppression barriers were removed and African Americans brought the vote to bear. Roy Moore’s defeat by African American voters gave us a glimpse of this transformative power. But it’s also a reminder that the voter suppression war can still be lost.

And it also forces us to wonder anew if this new era of voter suppression exists because of fear of the Black ballot.

Cross-posted on Race and the Law Prof Blog.

Keeping Up With Atiba: MAPOC Edition

I am presenting today and tomorrow at the twenty-second Mid-Atlantic People of Color Legal Scholarship Conference. It is being held at the George Washington University Law School in Washington, DC, and the theme of the conference is “Legal and Political Change During the Obama Era.”

Today at 2:00 PM, I commented on a work-in-progress by Professor Khaled Beyhoun of the University of Detroit-Mercy School of Law. His work is entitled “Acting Muslim.” Professor Beyhoun already has a tremendous national and international profile as an expert commentator on Islamophobia, critical theory, and religious freedom. His work in progress promises to be a substantial contribution to the literature on the intersectional nature of racialized religious discrimination, and an important intellectual and litigation tool in the post-Obama era.

Trump tweet on investigating voter fraud

Tomorrow at 3:15 PM, I will be speaking on the fourth and final plenary panel of the conference, “Election 2016: Revelation sand Responses.” I will address what has become an extremely timely topic, “Voter Fraud as Nemesis: Fragility, Distortion, and the 2016 Election.” In this talk, I will discuss the President’s ongoing propaganda campaign asserting the existence of voter fraud by “illegal” voters (notwithstanding any evidence to support his claims) and its interrelationship with the identity politics of post-racialism. This, read through the larger dynamic of voter suppression illustrated by recent voter identification cases like NAACP v. McCrory and Veasey v. Abbott, illustrates a new era of racialized and class-focused political domination. Like others who have commented on Trump’s motives and the endgame of these voter fraud claims, e.g., Professor Erika Wilson’s commentary in yesterday’s Washington Post, I will draw out how this narrative serves to enable voter suppression. However, unlike other recent commentators, I will frame this discussion through the lens of meme theory (an approach I developed in my paper, The Meme of Voter Fraud), to further develop an account of the intersectional nature of this deployment of the voter fraud meme in the post-Shelby County era of voting rights recalibration.

“A Divided Nation” Talk Show on U92 FM (WWVU)

Yesterday, I appeared on the news-talk show Feedback on U92 FM with WVU professors Patrick Hickey (Political Science) and Jesse Wozniak (Sociology). Our topic was “A Divided Nation,” and we explored the nature of the divisions and challenges that face American society, including race, politics, the 2016 presidential election, social media, and the impoverishment of discourse in society. You can hear the Soundcloud recording of the broadcast here.

Trump, the Meme of Voter Fraud, and the Risk to American Democracy

To claim that our elections are rigged by saying without proof that rightful votes are illegitimate is to harken back to the racist, sexist vicious voter narrative.

Despite losing the popular election by somewhere around two million votes, Donald Trump nonetheless won the Electoral College. He is the President-Elect. Yet, in a tweet storm yesterday that was the opposite of being presidential, Trump claimed that if one deducts the votes of millions who voted illegally, he did not lose the popular vote. He even went on to announce real voter fraud in Virginia, New Hampshire, and California (with no evidence).

What Trump has done repeatedly is to use the meme of voter fraud to impugn elections and voters in this country. His rhetoric is Internet trolling at its best, but the consequence may be to once again distort policy, endanger political minorities, and imperil democracy.

In an article called The Meme of Voter Fraud, I define a meme is an idea or narrative that replicates and evolves without regard for its truthfulness. A meme appeals and spreads because it empowers the believer. It takes on the appearance of truth but it doesn’t need to be true to replicate. And as it fits the worldview of those who become invested in it, it galvanizes extreme responses in line with the meme—not the truth—and that runs the risk of leading people to endanger rights.

Like many before him, Trump’s tweet storm relies on the fallacious belief that elections remain under threat because of a mass (invisible, unproven) conspiracy of unworthy voters. Some scholars and policy makers have argued for over a decade (one example here) that this threat is real and present (despite the absence of evidence) to justify stricter regulations for voting. This claim has supported strict voter identification laws, the curtailment of early voting, and proof of citizenship laws.

During the campaign Trump used the meme of voter fraud to suggest his supporters should engage in voter intimidation, violence, and subversion of the rule of law. Recall that Trump claimed that fraud by millions of wrongful voters would thwart his candidacy. Both he and now Vice President-elect Mike Pence called for their supporters to monitor polls and challenge voters they suspect. And in that final debate, apparently because of his belief that the election was going to be rigged, Trump said he would keep us in suspense about whether he would accept the result of this election. His claim of yesterday closed the loop on this campaign-long narrative.

To claim a conspiracy of massive voter fraud, especially after one actually won the election, is preposterous. One famous recent study shows that credible in-person voter impersonation has happened only 31 times out of one billion votes cast this century. And professional election scholars agree that a vast voter fraud conspiracy to overthrow a national election a myth.

Trump’s narrative is in apparent response to the recount efforts spearheaded by the Green Party and their candidate Jill Stein. The Green Party is initiating recounts in key battleground states because of claims made by some experts of discrepancies between the electronic vote count and the paper vote count. And while some point out that any such recount would be pointless, others argue that thousands of Trump votes were padded, though neither the Clinton campaign nor the White House have claimed that there has been evidence of mass voter-caused voter fraud.

But Trump’s voter fraud argument does something far more dangerous than trigger a (likely needless) recount. It seeks to rig our thinking about democracy. Because a meme persuades through appeal and not logic, makes facts completely irrelevant when the story is too good. This doesn’t matter much with cat videos, but Mr. Trump’s rigged election meme are dangerous because they detach us from facts as our basis for making real-world decisions.

To believe that millions of certain voters are illegitimate simply because someone says so is to trade in an ideology of exclusion. America did this for the majority of its history with the effect of excluding women, African Americans, and naturalized immigrants in favor of property-holding white men. Court decisions, constitutional amendments, and the Voting Rights Act of 1965 democratized voting and made clear that just because of one’s identity, one was not a fraudulent voter.

To make that rigged election claim today is harken back to this racist, sexist vicious voter narrative. We saw this in Trump’s claims for voter vigilantes, in his claim of ready defiance to the election results, and now in his lie that he’s more of a winner than he actually is.

If history teaches us anything, it is that his rhetoric will serve as excuse to vilify the people he deems his enemies and the institutions designed to serve all the people. This rhetoric will continue to paint a target on his political opponents generally (since apparently all the alleged illegitimate votes were cast by his opponents). The rhetoric will reinforce the racist, sexist ideology of exclusion, thus compounding the doubt minority voters and other who have suffered historical disenfranchisement suffer.

His claim of voter fraud in the millions also suggests that election structures that validate and tabulate our elections have no legitimacy. This suggests that thousands of election officers across this country either were duped or were in on the scheme. And this rhetoric demeans the already-imperiled Voting Rights Act and other laws that make our elections democratic. Why support the VRA and other inclusivity promoting measures if they allegedly lead to polluted election results?

These are the consequences of this baseless rhetoric.

To make specious allegations of fraud undermines the legitimacy of our political institutions and, ironically, the legitimacy of Trump’s own election. It tears down the political system purely to pursue apparent pettiness. And like any meme, this rigged election rhetoric seeks detaches us from facts and enables those who wish to resort to racialized and gendered violence to exclude the “vicious voter.” This is not—and should not be—the American way.

Election Law Open Class November 9, 2016: Post-Election Discussion

The following video is from my Election Law and Policy class meeting on November 9, 2016. I opened the class to an extended question and answer session to address the aftermath of the presidential election. It was open to the community at the West Virginia University College of Law and to my social media networks. To date, it has received nearly 1,000 views.

The discussion covered topics including the pros and cons of the Electoral College, the challenges the political system continues to face after this election, and the possibilities and limits of the rule of law in the Trump era. Probably the highlight of this discussion is the discussion between two of my students – a white male and a African American female – about her feelings of racial threat in this “era of Trump” and his view that the rule of law will be sufficient to protect her and other minorities.

The discussion is provocative, informative, and a useful tool for reflecting on the election. And to the extent you found this discussion useful, please let me know, and let me know whether you’d like more live chats and/or podcasts facilitated by me to have more conversations in this new political era.