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Excerpted From: Atiba R. Ellis, “This Lawsuit Smacks of Racism”: Disinformation, Racial Coding, and the 2020 Election, 82 Louisiana Law Review 453 (Winter, 2022) (126 Footnotes) (Full Document)


AtibaREllisAn epistemic crisis--a crisis of knowledge on which we make our decisions in the world the legitimacy of the 2020 presidential election, and the results of this crisis are yet to be fully known. The root of this crisis is the belief in the existence of unfounded claims of fraud, conspiracies, and corruption as clear and present threats to the American democratic process. This particular conspiracy theory supposes that rampant fraud by voters, election administrators, builders of voting machines, and others all coincided to somehow “steal” the 2020 election from now former President Donald J. Trump.

This belief--which is what it is, given that there is no evidence to support these claims--has served to substantiate pre- and post-election litigation around varied issues concerning the administration of elections (in a patent effort to overturn the election), as well as to question the validity of the election itself. Moreover, and maybe most importantly, the belief around the so-called “Big Steal” lead to a protest at the United States Capitol on January 6, 2021, the date required by the U.S. Constitution for Congress to certify the outcome of the Electoral College. This protest turned into a riot, which this Essay will refer to as the “Capitol Insurrection.” To the date of the drafting of this Essay, the Capitol Insurrection has led to over 500 criminal charges.

Regardless of his culpability for the Capitol Insurrection, it is clear that former President Trump fueled this broad propaganda attack on the legitimacy of the 2020 vote. He repeatedly and without basis attacked the credibility of the electoral process throughout the 2020 election campaign. He specifically attacked mail-in voting despite the evidence of it being a sound, effective mechanism for casting votes, particularly in light of the COVID-19 pandemic that was and still is ravaging the United States, and, as of the time of this writing, has infected over 53 million people and inflicted over 820,000 deaths in the United States. He, his agents, and his allies litigated the results of the 2020 election at length, and this litigation was largely based on the aforementioned baseless belief of a vast conspiracy regarding voter fraud.

But was this conduct--by President Trump, by those who brought the varied and different forms of electoral litigation, by the perpetrators of the Capitol Insurrection--racist? And if it was, should there be a remedy under federal or state election law for this type of expressive racist conduct that was clearly directed at interfering with an election, even if it did not affect the result of said election?

This Essay seeks to pose this question and to suggest that our way of thinking about racist conduct within the context of the law of democracy is ill suited to the twenty-first century's problems of race and democracy. Indeed, the problem this Essay seeks to expose is really several interrelated problems. As I suggested at the outset, the problem we confront is one of an epistemic crisis regarding how we think about the right to vote. In this sense, the propaganda around the “reality” of voter fraud serves as a heuristic for understanding, among other things, the validity of the political process. This is an important lesson in and of itself about the events that led to the Capitol Insurrection and its aftermath.

But it also asks questions about how we know and understand racist conduct and its effects within the context of the administration of the political process. The aforementioned rhetoric and litigation were directed at states and particularly cities where the voting strength of people of color ultimately shifted the historical outcome that would favor Republicans to an outcome that favored Democrats. Particularly, in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin, the rhetoric of voter fraud charged the litigation around the results of the 2020 presidential ballot but was read quite publicly as a racist attack against the political process.

For example, Justice Jill Karofsky of the Wisconsin Supreme Court argued from the bench that the litigation brought by the Trump Campaign was a racist attack against the election outcome. She alleged that “[t]wo counties ... are targeted because of their diverse populations. Because they're urban. I presume because they vote Democratic.” In addressing President Trump's attorney Jim Troupis, Justice Karofsky claimed that “this lawsuit ... smacks of racism.”

The expressive message of directing a lawsuit against the two urban areas in a state, that is, the two areas that have the highest concentrations of people of color, as an effort to overturn the presidential election seems to clearly underscore Justice Karofsky's suggestion. It may well be easy to leave Justice Karofsky's suggestion--and the optics of the Trump Campaign's litigation--as merely rhetoric of two different types in a hyperpartisan environment.

As I have shown in prior work, and as the ultimate aftermath of the 2020 election teaches us, rhetoric can lead to action that damages the democratic process. I have called the aforementioned vast conspiracy around invalidity of the voting apparatus based upon voter interference the “meme of voter fraud.” I have argued that the meme of voter fraud has served as a heuristic for understanding the legitimacy of certain voters. I have also argued that, as illustrated in election of 2020 and the aftermath of legislation passed in 2021, the meme distorts the legitimacy of the democratic process itself. Such rhetorically motivated attacks certainly include the direct attack on the election that we saw in the 2020 cycle, but as I argue in this Essay, they also include attacks on the voting structure in the sense that the voter fraud crisis necessitates narrowing the right to vote for those who are deemed threats to the political process. As the logic goes, this necessitates stricter voter-qualification laws, more limited access to the franchise, and ultimately, an electorate based on some (ever-shifting) measure of the legitimacy of the voter. Arguably, this is the driver of voter suppression. And as of this writing, this logic is playing out in a number of state legislatures across the country.

Modern election law focuses--rightly--on effects, rather than rhetoric. This is certainly true of the Voting Rights Act of 1965, which at its heart relies on the “effects test” to measure the wrongfulness of racial discrimination in how states administer all aspects of voting rights. But is this the right question in light of the rhetoric of voter fraud and the disinformation campaign that led to the clearest threat to the legitimacy of an elected official since the Civil War? The events of the 2020 presidential election illustrate how disinformation in the service of governmental usurpation can have the effect of coming close to undoing a validly conducted election.

This brief Essay seeks to offer some preliminary thoughts on this question in Part I. It will continue in Part II by offering a more detailed consideration of the events of the 2020 presidential election and the prevalence of the voter fraud myth. It will pay particular attention to the conduct many have alleged as “racist,” so that the remainder of this Essay can then contemplate the questions set forth above. Part III will consider two heuristics for considering this question--voting rights realism and racial code--as ways of thinking about the validity (and limits) of arguing that the conduct of the 2020 election was racist. Voting rights realism, a concept articulated by Professor Gilda Daniels, would make central the permanence of racism as the grounding assumption of a race-conscious approach to voting rights law. Racial code is a long-established scholarly heuristic for interpreting rhetoric that appears neutral but evokes and signals racist connotations. Coded racial language's apparent neutrality often serves to mask the arguably racist intent, and thus allows it to escape antidiscrimination analysis. Part III will describe these approaches in more detail and analyze the events around the 2020 election's disinformation epidemic and subsequent litigation through those lenses.

Part IV returns to the animating question of this Essay--even if one would consider this conduct racist, ought that, in and of itself, provide a remedy against suppressive voting policies or the lawsuits themselves? It will discuss how a disjuncture exists between the courts, which largely rejected the mass-voter-fraud-myth litigation after the 2020 election, and the further aftermath of the 2020 election where legislatures, who perceive a crisis in confidence in elections based on the baseless meme that the election was “stolen,” have proceeded to make elections stricter, arguably pushing forward an exclusionary effect that was avoided during the election itself.

If the beliefs that drive these laws are racial code for exclusion on the basis of race, and there is no remedy for the effects that follow until the laws are implemented, this poses a quandary for the administration of the right to vote and points precisely to the epistemic crisis and how it will continue for years and even decades to come. But to appreciate the depth of this crisis, we must begin by appreciating in detail what happened in the 2020 presidential election.

[. . .]

The heuristics we use to understand racism matter, particularly in the context of promoting a right to vote free of racial animus. This Essay has offered an examination of the 2020 election as a case study in how coded racial rhetoric can distort the right to vote yet evade review under extant law. At the same time, it examined how the courts and their ability to examine and dismiss baseless claims for want of evidence was preservative of the outcome of the 2020 election, and thus protected the interests of the nearly 150 million voters who exercised the franchise. Ultimately, the commitment to both evidence-based understanding of transformation of our laws coupled with a moral constitutional commitment to a truly universal right to vote will be what is ultimately preservative of the franchise against the storms of racially coded disinformation to come.

Professor of Law, Marquette University Law School.

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