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: SEALS 2017 Tropical Storm Edition

First of all—I’m happy to be back on the blog and sharing my work. I’ve taken time away from sabbatical, and over the next few weeks I’ll be sharing big events and projects coming up. But I wanted to kick off this post-sabbatical post by sharing what I’m up to at the Southeastern Association of Law Schools 2017 Annual Conference (SEALS).

So, I’m writing this from 30,000 feet as I look out of the window over the Florida coastline. I can see ocean, beach, and clouds, and my first reaction is—sun, shore, and scholarship—three of my favorite things.

My second thought: I’m flying into a tropical storm!

The delays caused by the storm have been minor, the storm should cross over today and move out tomorrow, so I’m hoping it will not dampen what promises to be an exciting conference. (And frankly, after attending these for years, I thought it only a matter of time before hurricane season caught up with a conference usually held in Florida in August!)

I wanted to highlight specifically the discussion groups and panels I’ll be involved in—if you can make it through the rain, stop by and dry off.

My SEALS Conference Schedule, In Brief

Monday, July 31

  • 3:00 PM: Beyond the Socratic Method in Trusts and Estates

Thursday, August 3

  • 9:00 AM: Reforming the Presidential Selection Process
  • 1:00 PM: Inside the Mind of the Outside Reviewer

Saturday, August 5

  • Book Projects and Publication in Election Law

SEALS: The Details

Today – Monday, July 31 – at 3:00 PM, I will be participating in a discussion group on teaching innovation in Trusts & Estates Law. In particular, I hope to discuss my work regarding how I have used social media and outside-the-box teaching materials to enliven my intro Trusts & Estates class. Here’s the abstract:

Discussion Group: Beyond the Socratic Method in Trusts and Estates

Many trusts and estates courses have historically focused their teaching techniques on the traditional Socratic method, and much of trusts and estates scholarship has focused on the development of doctrine within the field itself. This discussion group will explore pedagogy that is expanding the ways of teaching and studying trusts and estates and related doctrines. The discussion group will address: 1) innovations in teaching, including both skills and doctrine; and 2) incorporating concepts from Elder Law, Family Law, Property, and Professional Responsibility into Trusts and Estates — and vice versa.

I will be presenting at two events on Thursday, August 3:

First, at 9:00 AM, I will be discussing my proposal for a National Primary Day (to unify all primaries on one day) as a means to improve the presidential nomination and selection process. This is part of the Constitutional Law Workshop sponsored by SEALS:

Discussion Group: Reforming the Presidential Nomination Process

This panel discusses the nature of the presidential nomination process and how it might be changed, improved, or reformed. Presidential candidates are winnowed though party primaries, and this winnowing process is controlled by the two major political parties, receiving little influence from ordinary voters and citizens. The timing of our presidential primaries, how our party primaries are conducted, how party convention delegates are chosen, and how the votes of delegates are counted are all issues that parties decide on their own. This panel examines the presidential nomination process, how it unfolds, the role that political parties play in it, and how American citizens might have more of an influence over it going forward.

Second, at 1:00 PM, I will be discussing the Promotion and Tenure process on a panel entitled “Inside the Mind of the Outside Reviewer.” The goal of our workshop is to give attendees a perspective on the process of and importance of the external review process to the overall process of gaining tenure and promotion. Read more in the abstract:

Inside the Mind of the Outside Reviewer

In the promotion and tenure process, mentors stress to junior faculty the need to create a scholarly agenda, to find an original niche in their field, and to place their work well. However, what is not often discussed is one very important data point in the tenure decision, the external reviewer. This panel will discuss the role of the external reviewer in the tenure process, the expectations that external reviewers have, and the strategies that pre-tenure faculty can implement early on to succeed in this critical part of the tenure evaluation process.

Saturday, August 5 at 1:00 PM, I’ll be moderating a discussion group on current book projects in the Election Law field. (I will be presenting my book proposal on voter fraud ideology and American democracy).

Book Projects and Publication in Election Law
As the recent election cycle has shown, issues surrounding election law remain germane to the public concerning the American political process. Election law, as a field, has continued to address these issues through not only scholarship and public intellectual engagement, but also through historical and contemporary book-length works that have examined key cases and issues in the field. This discussion group explores the development of this branch of book-length election law scholarship and provide an opportunity for election law scholars currently working on book-length projects to discuss their current work.

And in the coming days and weeks, I’ll write more about my book and other ongoing projects (including my Boden Visiting Professorship at Marquette University and [new addition] my upcoming TEDx talk this November. Stay tuned!

Keeping Up with Atiba: February Edition

Spring Semester: Sabbatical!

For this post, I want to announce my latest endeavor—sabbatical!

I am on leave from the West Virginia University College of Law this semester, and though I’ve been traveling last month, I am now living Durham, NC for the rest of the semester.

Specifically, I am spending this semester as a visiting scholar at the Duke University School of Law. I will use this time to work on a number of projects, including

  • starting a long-term project on the theory (-ies) regarding race conscious remedies in modern civil rights law and their interrelationship with American democracy;
  • starting a project to amplify public engagement by law professors in this important time for issues of constitutional and civil rights law; and

I am appreciative to Duke Law, and in particular, Dean David Levi, Associate Dean for Faculty and Research Guy-Uriel Charles, Academic Affairs Assistant Elizabeth Brooks, and the staff of the Law School and the J. Michael Goodson Law Library for accommodating me.

My office is cozy but useful. And in case you’re worried that I’m off and about without supervision, know that I’ll be under the watchful eye of President Richard Nixon (or at least his portrait).

painting of Richard Nixon hung on the wall outside Atiba Ellis's research carrel

Summer & Fall: Conferences and A Visiting Professorship

As you can see, I’ll be busy in Durham this spring (when not watching basketball!). As publishable products from these projects emerge, I will share them here. And to the extent I have additional engagements on voting rights issues, race and the law issues, and other matters of general interest, I’ll share them here too. So, stay tuned.

One last note: planning for my summer and fall has already started. I’m looking ahead to several conferences this summer and fall (including the Law & Society International Meeting; the Southeastern Association of Law Schools 2017 annual meeting, and LatCrit 2017).

Most important—this fall of 2017 I will be the Boden Visiting Professor of Law at the Marquette University School of Law. This will offer further opportunities for public engagement and teaching that you may find interesting. More on this later.