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.

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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.

Diversity Week Events at WVU

This edition of “Keeping Up with Atiba” highlights my participation in West Virginia University Diversity Week Events. The entire schedule is available online, and my speaking roles are listed below.

Concerned Latinx Students: Suggesting Solutions

Monday, October 10 at 5:30 pm
Rhododendron Room, Mountainlair
Recently, an open letter to President Gee from a Latinx student went viral. The letter detailed the harassment and issues a Latinx freshman faced in their first weeks at WVU. Culturas WVU is taking this letter as a call to action, to find what institutional changes need to take place at WVU to better support underrepresented students. Join us and discuss what issues you see, and what solutions you might suggest.

In particular, I hope to stress my ideas for institutional change in light of my experiences as a faculty member (and the reflections of students and colleagues I know). More importantly, I hope to be an ally to the Latinx community and learn from their views about the environment at WVU.

Voices Behind the Bars

Monday, October 10 at 7 pm
Room 154
This event, hosted by the West Virginia College of Law, is a dramatic reading of four stories from Bryan Stevenson’s Just Mercy: A Story of Justice and Redemption followed by discussion. The program is part of WVU’s 2016-17 Campus Read of Just Mercy, in which just-mercyStevenson explores the moral implications of the American justice system.

The readers for “Voices Behind the Bars” will be graduate fellows Imani Berry, Oluremi Famodu, Quinn Jones and Phillip Zapkin with honors student Emma Harrison and first-year law student Stephen Scott.

Following each reading, there will be a discussion of race and wrongful incarceration, mental illness, gender and incarcerated minors. The conversation will be led by WVU law professors Valena Beety, Atiba Ellis and Kirsha Trychta, and attorney Aaron Moss, a 2015 WVU Law graduate who is working on prison reform.

In particular, I will be discussing how race frames and connects numerous issues in relation to the criminal justice system. I will emphasize on how recent shootings of persons of color, legal limitations regarding criminal procedure, and the collateral consequences of convictions are part of the larger problems of structural racism.

White Privilege

Wednesday, October 12 at 7:00 pm
Ballrooms, Mountainlair
This talk will be led by Brandon Webb and Speak Out, Reach Out leadership members, discussing what White privilege is in general and how it plays out on campus. Professor Atiba Ellis of the WVU College of Law will discuss voting rights suppression and how White privilege is perpetuating this.

In particular, I hope to discuss the problem of white privilege from two perspectives sparked by this political season. First, I will discuss the political rhetoric of this campaign season and how it reveals the enduring and evolving ideology of white supremacy in the twenty-first century despite claims of a post-racial turn American political discourse. Second, I will discuss how this same ideology influences the structure of the law of the political process as revealed by the recent race-based controversies in voting rights.

The Link to the National Constitution Center Debate on Voter Identification Laws

I want to thank the Center, the Federalist Society, the American Constitution Society, and all those involved in putting this event together. I have some thoughts about the substance of this debate that I will share soon, so stay tuned for further follow ups from the debate. You can watch the debate below or directly on YouTube.

National Constitution Society Debate

This special edition of Keeping Up With Atiba provides the details for my debate with Hans von Spakovsky of the Heritage Foundation. The debate held at the Chicago Cultural Center on Wednesday (from 6:00 to 8:00 PM Central Time) will consider the constitutional case debate posterfor and against state voter identification laws. The debate is being sponsored by the National Constitution Center, the Federalist Society, and the American Constitution Society.

Voter identification laws, particularly those that strictly enforce a requirement that a voter use their government-issued photo ID as the near exclusive means of identifying oneself to register and to vote, have been controversial since they were first introduced over a decade years ago. While proponents of these laws argue that they are necessary to insure the integrity of elections and prevent voter fraud, opponents of voter identification laws argue that they unduly and unconstitutionally burden the right to vote. And while the Supreme Court has upheld Indiana’s voter identification laws as facially neutral, litigation regarding these laws continues under both the Fourteenth Amendment and the Voting Rights Act of 1965. The question of the ultimate impact these laws have on poor, elderly, and minority voters (and the constitutional import of that impact) continues to be litigated.

If you are going to be in the Chicago area on Wednesday, you can attend the event by registering here. If you cannot attend the live event, you can watch the archived recording on the National Constitution Center website. It should be available the next day, and I will put up the link as soon as it is available.

 

Keeping Up With Atiba: Late September & Early October Edition

Welcome to the first installment of “Keeping Up With Atiba.” At the start of each month, and periodically to highlight special events, I will post an update on all my ongoing projects, publications, and speaking engagements.

Current and Upcoming Speaking Engagements

In addition to my activities at John Marshall Law School now and this weekend, I will be leading an audience discussion after the Sunday, October 2 2:00 p.m. matinee performance of David Mamet’s Race at West Virginia University (see below for details) and participating in a National Constitution Center Debate on voting rights in Chicago on October 5 at 6 p.m, which will be open to the public. (stay tuned for an upcoming post detailing this event).

Breaking-In and Staying-In the Law School Community, Chicago

I participated in this program at John Marshall Law School, sponsored by the Society of American Law Teachers. It was designed to give perspective for students and attorneys who are contemplating entering into teaching, whether as a full-time faculty member, an adjunct, or an administrator. You can check out my tweets from the meeting here.

SALT/LatCrit Junior Faculty Development Workshop, Chicago

September 28, 2016
John Marshall Law School, Chicago, IL

Yesterday I participated with Professor Melinda Molina of Capital Law School (Columbus, OH) in a discussion of tips for success for recently hired full-time faculty members at law schools. This was part of the Faculty Development Workshop sponsored by the Society of American Law Teachers and the Latino and Latina Critical Legal Theory, Inc. organizations. The workshop itself is designed to help persons who are interested in interviewing for full-time faculty positions as well as persons who are in the probationary (e.g., pre-tenure) phase of their full-time faculty positions. The workshop focused on how to thrive and survive while developing a critical and progressive agenda. It in particular is designed to support a diversity of persons and perspectives in the legal academy.

Society of American Law Teachers Teaching Conference, Chicago

September 29 – October 1
John Marshall Law School, Chicago, IL

I will be attending this conference this weekend, I hope you will be able to attend one of my talks. I have the pleasure of speaking on two panels this year. The details are below.

Social Media as a Platform for Critical and Progressive Teaching, Praxis and Activism
Friday, September 30, 1:00 p.m. – 2:10 p.m
Room: P-300

Atiba Ellis, West Virginia University College of Law
César Cuauhtémoc García Hernández, University of Denver, Sturm College of Law
Saru Matambanadzo, Tulane University School of Law
Jorge Roig, Charleston School of Law

The roundtable discussion will focus on various approaches and strategies to use the various platforms on social media to foster discussion, community, and action regarding progressive legal and social causes. The group includes a number of professors who have used various approaches (e.g., blogging, Facebook, and Twitter) to help forward important critical theory debates. We have, in various ways, also used the platforms for teaching and research.

In particular, I will discuss my experiences as a co-editor of the Race Law Prof Blog and my efforts at fostering dialogue through both the shared platform of Race Law Prof as well as my own personal social media platforms. I will also likely discuss this very blog as the newest phase of my social media efforts.

Teaching Social Justice By Not Talking About It
Saturday, October 1, 9:00 a.m. – 10:10 a.m.
Room: S-528

Deirdre M. Bowen, Seattle University School of Law
Colin Crawford, Tulane University Law School
Atiba R. Ellis, West Virginia University College of Law
Becky L. Jacobs, University of Tennessee College of Law

This panel proceeds from a worry that we share as law professors on the political left. Specifically, we worry that the use of phrases like “social justice” and explicit endorsements of this and similar ideas may, in the classroom, alienate large swaths of the students whose sympathies lie somewhere more to the right on the political spectrum. Therefore, we suggest faculty consider adopting tactics and strategies that force students to examine critically the effect of different policies, doctrines and legal responses, prodding them to think about the kind of society they—and we—want rather than characterizing it for them. To that end, in this panel we will outline methods we have used in various doctrinal classes, from property and constitutional law to family and private international law.

I specifically will be talking about the methods of confronting legal structure and its effects within the context of asking students to use their own experiences and knowledge to make concrete the explicit and implicit barriers to participation within both the Trusts and Estates context and the Voting Rights context.

Post-Performance Audience discussion of David Mamet’s Race

mamet-race Sunday, October 2, 2:00 p.m.
Creative Arts Center’s Gladys Davis Theatre, West Virginia University
Tickets are available on ticketmaster.com, by calling 304-293-SHOW, or by visiting the CAC or Mountainlair Box Offices.

Below is the description of the play’s post-show discussion series of which I am a part. The performance is sure to inspire a lively discussion and I hope to see many of my WVU friends and colleagues there on Sunday afternoon.

Join the School of Theatre and Dance for a post-show discussion of Race a play by David Mamet. These discussions will feature a panel made up of the production’s director, cast members, as well as representatives from the School of Law, English Department, Office of Diversity Equity and Inclusion, School of Social Work, and the Black Graduate Student Association. This panel of experts on race relations within our society will continue a conversation on the issues within the play, and how they tie into currents events across the country. Race was produced on Broadway in 2009 to critical acclaim and controversy; the playwright Mamet states, his “intended theme is Race and the lies we tell each other on the subject.” We welcome our audience to participate in an open dialogue about race relations, cultural bias, and the subsequent affects that they have on justice, truth, and alleged criminal acts. The running time of the play is approximately 80 minutes, immediately followed by comments from the panel and questions from the audience to open up further discussion. The Play runs September 23, 24, 27, 28, 29, 30 at 7:30 and Sunday Matinees on 9/25 and 10/2 at 2:00, and the special panel discussions will be held after the performance on the 29th and the 2nd. The play is performed in the Creative Arts Center’s Gladys Davis Theatre.

Recent Speaking Engagements

Race, Racism and American Law Manuscript Conference

I just returned from the Race, Racism and American Law Manuscript Conference at UCLA. This event is part of the project to revision Derrick Bell’s foundational textbook, Race, Racism and American Law, for the 21st Century. Four colleagues (Audrey McFarlane, Erika Wilson, Ian Haney-López, and Russell Robinson) and I spoke at the opening reception with one of the textbook’s co-authors, Cheryl I. Harris. The event is best summarized in the formal description:

Derrick Bell’s Seminal textbook, Race, Racism and American Law, first issued in 1972, was a groundbreaking intervention that challenged the dominant view of legal pedagogy as a race-neutral process and product. Unlike other casebooks that adopted “perspectivelessness” as the mark of objectivity, Bell pursued a complex, more accurate vision, rooted in history and inspired by a black radical tradition. Its impact was felt throughout the legal academy and resonates still.

I am honored to be part of this project, and the next day I also had the privilege to speak (along with Guy Uriel-Charles of Duke University) about how to re-envision Bell’s chapter on Voting Rights and Democratic Domination. Specifically, I spoke about how the chapter’s focus on “majoritarian domination” ought to be expanded to include considerations of modern post-Shelby County strategies of voter suppression, and of the ideological drivers of these laws (which I discuss in my paper, “The Meme of Voter Fraud”).