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 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.

Transformations

While on sabbatical this spring, in addition to beginning my book project, I had the opportunity to work on two papers regarding race and voting in the outgrowth of the 2016 election. While these papers take different methodological approaches, they both address the problems of race in politics in the Era of Trump and how race come to shape political considerations in twenty-first century America.

We live in an era that aspires to put the Jim Crow legacy behind us, and yet racial discrimination continues to dominate our political, legal, and cultural conversations. Recognizing that legacy and thinking seriously about how to end it is the dominant theme of these two papers.

Our doctrines mandating antidiscrimination in the law of politics are designed to protect the minority from domination by a racial majority. While this concept is easy to state, the hard questions arise when politicians improperly consider race in politics, as they have in the wake of Shelby County v. Holder. Race consciousness is impossible to avoid in tasks like calibrating voting qualifications and drawing electoral districts, but courts are currently having to determine when the act of drawing the rules of voting is an act that places an impermissible disadvantage on a racial minority in order to maintain one’s political advantage. This problem lies at the heart of my paper, When Political Domination Becomes Racial Discrimination: NAACP v. McCrory and the Inextricable Problem of Race in Politics. Where doctrine has grappled with political racial domination, with the election of Donald Trump, American politics seems to have entered an era of the open re-emergence of white identity politics. But this centering of whiteness is nothing new, and its enduring power comes in part from the fact that its justifications and subordinations are often explained away. And thus, in the words of Sara Ahmed (who’s article prompted the CUNY Law Review’s publication of the collection in which my article appears) racial domination is explained away as “something else.” In Normalizing Domination, I bring this insight to bear in the law of politics.

Article Abstracts and Full-Text Links


South Carolina Law Review logoWhen Political Domination Becomes Racial Discrimination: NAACP v. McCrory and the Inextricable Problem of Race in Politics
, South Carolina Law Review Vol. 68 (2017).
In North Carolina State Conference of the NAACP v. McCrory, the United States Court of Appeals for the Fourth Circuit struck down North Carolina’s 2013 omnibus voting law due to its discriminatory effect and the fact it was passed with an intent to abridge the ability of African Americans to vote. This decision represents a landmark victory for voting rights advocates against strict voter identification laws and other similar regulations that foster voter suppression. It also represents a remarkable and extraordinary use of the Arlington Heights doctrine to address the race or politics problem in election law. This Article examines the McCrory decision with an eye towards parsing out how the court arrived at this due care approach. It then confronts the uncertain future of McCrory considering the difficulties in distinguishing impermissible racial motives and permissible political motives, the uncertain judicial future of the post-Shelby County Voting Rights Act, and the academic literature disfavoring race-conscious remedies. The Article concludes optimistically by noting that whether McCrory represents a momentary victory in the larger attack against the Voting Rights Act or whether it stands as good law for the foreseeable future, the opinion offers a well-reasoned approach that accomplishes the ends of the Constitution and  the Voting Rights Act through offering a race-conscious intersectional approach grounded in the reality of voter suppression in North Carolina.

City University of New York Law Review logo
Normalizing Domination
, CUNY Law Review Vol. 20: Iss. 20 (2017).
In the 2016 election, a sufficient majority of white voters in key battleground states elected Donald Trump president. In voting for Trump, these voters, as part of the minority of voters that supported Trump, had to, through their vote, either embrace or ignore his racist, sexist, xenophobic, and homophobic rhetoric. Though it is impossible to know which, their votes nonetheless served to “normalize domination”—that is, their act of legitimizing Trump’s rhetoric made the absurd or incendiary commonplace and acceptable. Even before the 2016 election, institutions and individuals have normalized of the ideology of white supremacy by camouflaging it with other normative values while at the same time allowing it to flourish and reinvent itself. It asserts an epistemology of failing to know racism–a key component of what scholars know as post-racialism – as a means of achieving colorblindness. The late great Derrick Bell recognized how the underlying structure of American politics is defined by domination that embraces white identity politics as central. Thus, the institutions that continue American democracy seek to organize the American political and legal structure to protect such domination. This short essay focuses on this problem through a brief examination of the American law of politics and argues for a new race consciousness can be used as a compass to understand the structure of political domination and thus subvert such domination to create an egalitarian society.

Teaching Dred Scott in the Era of Trump

I taught Dred Scott v. Sanford this week. As a teacher and scholar of civil rights, it’s my job to teach the constitutional canon and how Dred Scott, and cases fairly called its progeny, misshaped our idea of equality. And while it is unsurprising to teach this canon in a course at Marquette Law on “Contemporary Perspectives on Civil Rights,” or in any civil rights or constitutional law course, what was different this time is that I taught Dred Scott for the first time in the Era of Trump.

Of course, I’ve taught the case before in first-year Property, in my Race Racism & American Law seminar, in public lectures at WVU Law, and in seminars on three different continents. I’ve written about Dred Scott in articulating my view of “tiered personhood” and blogged about its contemporary relevance. And it is fair to say that, after teaching for over 10 years, on some level, I was used to rehearsing the case often called “pure constitutional evil.”

But this time was different.

I walked into class, ready with my practiced confrontation of this intellectual monument to Chief Justice Roger Tawny. And after answering follow-up questions from last class about a case that enforced the racial classification system on which slavery depended, I began Dred Scott by reminding my students that we were studying the origin story of American white supremacy.

But before opening the casebook, I recalled that a student suggested we frame the conversation by watching a recent viral video of Univision News journalist Ilia Calderón. I had attempted to show the video in the class prior, but due to technical difficulties, this video prefaced our discussion of Dred Scott—which was not my original plan but proved more than appropriate for discussing the case in today’s political climate.

After the video ended, I found myself dumbstruck. This Klansman and his wife had the audacity to claim his superiority based purely on the color of his skin (which echoed the race classification cases from last class). He called her a “mongrel” and a “n**ger” and threatened to burn her out of his land. And despite their claims of racial superiority, religious exceptionalism, and entitled grievance, accompanied by threats of rebellion against a government that attacks their heritage and takes their stuff, the couple claimed they are not racist and the Klan is not a hate group.

In that moment, I remembered that Dred Scott is more than precedent. It is the anti-gospel of slavery, echoed anew by this Klansman, as an effort to tell Ms. Calderón (and all of us who can imagine her situation) to keep our place or be ready to burn. My own anger welled up, and my sadness too because that Klansman’s words reminded me of the times I had been called “n**ger” by white people, or told during an internship that “deliveries were around back,” or called “Big boy” by a white senior partner in front of my peers. Watching this Klan couple’s loathing reminded me that their hearts are full of twisted grievance and their minds are the heirs of the racial hierarchy enforced by Dred Scott.

To calm myself after the video ended, I had to let silence overcome the room. As far as I could tell, the students felt some mix of anger, pity, and shock. After this pause, I explained in both legal and moral terms that the structures of racism and the ideology of white supremacy cannot be thought of in isolation. The anti-gospel of the Klan and the words of Chief Justice Tawney must be thought of as parts of a whole.

Indeed, to read Dred Scott is to read a blueprint for structural racism. American citizenship is defined to exclude all black people. Slaves are a property that can be treated with near impunity. People of color do not belong in the American political community. A black person was “so far inferior that they had no rights which the white man was bound to respect.” These are the lessons of Dred Scott, which followed through on the seeds sown in the Constitution of 1789, and which took amendment and 160 years of activism, struggle, and needless death to reverse.

And though the law has changed, the reversal is incomplete. This era—these times we live in now—echo that evil. The boundaries of personhood continue to be drawn to exclude not only race, but also gender and sexual orientation. The borders of the political community are being redrawn to wall off children who live up to the egalitarian American creed but have imperfect immigration status. The Klan and Nazis march with the impunity offered through mealy-mouthed accommodation from the White House. The structures of mass incarceration, disenfranchisement, and police brutality were built according to the same blueprint of white supremacy as Dred Scott, yet there are those who defend these still-functional monuments to slavery and Jim Crow as “law and order.”

Dred Scott and its ideological and doctrinal progeny are still with us. As much as we have moved away from being an apartheid state, as much as we have asserted through the Constitution and laws that we believe in equality, there are those of us who, by their torches, their twisted ideologies, and their policies seek to bring us back to that time. Their fire and fury—both cultural and legal—still try to burn out equality in the name of nativism and racial superiority. This is the era in which we live.

On Overstating the Case for Confederate Monuments

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

The Robert Edward Lee statue in Emancipation Park
The Robert Edward Lee statue in Emancipation Park

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.

Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, “Who’s culture is being protected by protecting these monuments?”) The consequences of the Civil War, for good and ill, linger. Moreover, history’s memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way–when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn’t confuse the two.

Who gets honored in community space ought to be a democratic conversation for each generation. Before the revolution, George III was King. After the Revolution, George III did not represent what America means anymore to the majority of Americans, so statues to him had to go. Similarly, if the representatives of the public and private will in twenty-first century America have arrived at the decision that the twentieth century images of those who committed treason and insurrection to protect nineteenth century chattel slavery no longer deserve public places of honor because those communities see themselves as dedicated to egalitarian democratic values, then it does not follow that for some sense of static history the statues should not come down. That would privilege the ideology of the nineteenth century over the reality of the voices of the twenty-first. (And, as evidence is showing, the statues at issue now went up precisely to signal the ascendancy of white supremacy, both in the 1920s at the height of Jim Crow and 1950s in mass resistance to the racial integration demanded by Brown v. Board of Education.)

One may object that the judgments of history are cruel. The vicissitudes of the future may be such that one day, Martin Luther King, Jr. memorials and street names may be arbitrarily torn down, that today’s egalitarian heroes may end up tomorrow’s villains. The people who win this argument today and see the statues torn down, the argument goes, will end up losing the argument tomorrow. That slippery-slope reasoning misses the point. To quote Hamilton the Musical, once you and I are extinct, neither of us has control over “who tells our story.” That’s just the reality. All we can do is live our lives now in a way that makes our values clear and be content to let history be the judge of that.

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

As to that, all I can say is those folks have a lot of convincing to do. I think I have made clear that I’m not persuaded by this. But, in the spirit of free speech, those who support the statues get to make the argument. And short of turning the protest to violence—which they did—they even get to light their citronella tiki-torches and march in Charlottesville, Boston, and wherever else. And those of us who disagree should do so, and peacefully point out the error of their ways. (Remember: the First Amendment may protect your right to object from state sanction, but it doesn’t protect you from the consequences of disagreement.)

But as the supporters of letting the legacy of the Confederacy continue to be central to our twenty-first century places of honor make that argument, my advice is to not overstate the claim by saying the removal of the Confederate generals’ statues erases history. That argument will likely cost you a lot of your audience. And they won’t forget.

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.

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.