Constitution Day 2018 — Marquette ACS TODAY at 1:00 PM CDT Room 342

Today — September 17 — is Constitution Day, the day the United States celebrates the signing of the Constitution. As part of celebrating Constitution Day, on or about September 17 educational institutions across the country have programming that discusses the Constitution in some way, shape or form.

The right to vote is of paramount importance to our constitutional framework. us-constitutionIt is this right that makes the US a democratic form of government, it is this right that is, in the words of the Supreme Court, “preservative of all other rights.”

This week I will be presenting a series of lectures regarding the Constitution and the Right to Vote. First off, today at 1:00 PM CDT here at Marquette University Law School, I will be speaking to the American Constitution Society chapter on the Right to Vote. The talk will be in Room 342 of Eckstein Hall.

This will be the first of three talks I will be giving as part of this Constitution Day lecture tour. Stay tuned for details about my talk tomorrow, September 18 at Penn State Law (University Park) and my talk this Thursday, September 20, at the University of Puget Sound.

 

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.

Keeping Up With Atiba: New Years Edition

Happy New Year, and welcome to the first Keeping Up With Atiba installment of 2017! This month I am presenting at two conferences, and I hope you will be able to join me.

Association of American Law Schools (AALS)

This weekend I will be moderating the Minority Groups section’s panel, “Presidential Politics and the Future of the Supreme Court: Post-Election Reflections and Forecasts for the ‘Post-Racial’ Post-Obama White House” (Co-Sponsored by Constitutional Law & Election Law). This promises to be a lively and important discussion. aals-meeting-2017

Description
The 2016 presidential campaign has been characterized as one of the most contentious and surprising in history. This program explores how the landscape of presidential politics has uncovered deep divides among the American population. According to some, the gender, class, and racial representation of the presidential candidates added multidimensional complexity to the task of deciphering the contemporary effects of this divisiveness. The long battle to the White House has ignited heated national conversations on race, immigration, and counterterrorism policy, as well as debates on gun, voting, and reproductive rights. Moreover, Justice Scalia’s death at the height of the campaign season opened the door to an examination of the role of campaign and identity politics in the Supreme Court nomination process. Distinguished experts on race and the law, election law, national security, constitutional law, and immigration, among other areas, offer their reflections on the 2016 presidential election and the new administration, particularly Supreme Court nomination process and what we might expect (or hope for) under the new administration.

Location
Saturday, January 7, 10:30 am – 12:15 pm
Hilton San Francisco Union Square
Continental Ballroom 6, Ballroom Level, Hilton

Speakers
Jennifer M. Chacon, University of California, Irvine School of Law
Guy-Uriel E. Charles, Duke University School of Law
Bertrall Ross, University of California, Berkeley School of Law
Shirin Sinnar, Stanford Law School
Franita Tolson, Florida State University College of Law

Celebrating the Life and Legacy of Dr. Martin Luther King, Jr. 

For the second year in a row, I will participate in Washington and Lee University’s Martin Luther King, Jr. Day events. I will be part of a panel on voting rights entitled “The 2016 Presidential Election: Voting Rights in a ‘Post-Racial’/’Post-Civil Rights’ Era.”

Location
Monday, January 16, 12:00 pm – 1:30 pm
Millhiser Moot Courtroom, Washington and Lee University School of Law

Speakers
Chris Seaman (Moderator), Associate Professor of Law, Washington and Lee University School of Law
Atiba Ellis, Professor of Law, West Virginia University College of Law
Luis Fuentes-Rohwer, Professor of Law and Harry T. Ice Faculty Fellow, Indiana University Maurer School of Law
Mark Rush, Director of International Education and Waxberg Professor of Politics and Law, Washington and Lee University School of Law

Mid-Atlantic People of Color Legal Scholarship Conference (MAPOC)

Later this month I will participate in this year’s MAPOC conference “Legal and Political Change During the Obama Era.” I will speak as part of the panel “Election 2016: Revelations and Responses” where I am looking MAPOC Convention graphic of Obamaforward to reflecting on the open, online class discussion I held at West Virginia University the day
after the the presidential
election.

Location
Saturday, January 28, 3:00 pm to 4:30 pm
The George Washington University Law School, Washington DC

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.

slide1

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.

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.