Election Law 101

One of the big issues today are voter ID laws. Can you explain why they are so contentious?

In terms of voter ID laws, proponents tend to argue the need for election integrity. They analogize these laws to getting on an airplane or getting into a courthouse, where the need for security is high. For opponents, the objective is to protect minority citizens from anything that would harm their access to the vote. They see such laws as unnecessary barriers targeting minorities, the elderly and the poor.

So you have these ideas about security versus participation and the need for laws to allow one of those to be more important than the other. On one level you can say the process is there for everyone to participate and everyone gets an equal opportunity, but one of the key premises of my work is that that opportunity doesn’t really exist for everyone.

One of your arguments has been that voter ID laws are basically the same as the poll taxes of the 19th century, laws once put in place in a number of states that required voters to pay to register to vote. Can you explain that?

I argue that there is a certain level of socioeconomic wherewithal for one to have in order to participate in a political process like this. You have to understand how to work with a highly complex electoral system, and you have to have time and money to do things like prove your citizenship, travel to a DMV and purchase an ID to successfully express your mandate.

When you construct socioeconomic barriers to participation — things like voter ID laws, proof of citizenship laws — you certainly make the process more secure, but you also make it more likely legitimate citizens will be dissuaded from, if not unable to, complete the requirements. And the people for whom the process is harder, those on the outside of the political system, are frequently those who’ve been discriminated against historically — immigrants, African Americans and those of low socioeconomic status. The question is what is it about the law that still supports this kind of discrimination and what can we do about it?

Tell me about your research. How do you navigate such complex legal and constitutional territory and digest that for an audience?

Late nights and coffee! (Or early mornings and Darjeeling tea. It’s hard to tell the difference sometimes.) It’s easy enough to look at our doctrinal structures   and see the policies, assumptions and forces behind them, and there’s a rich literature out there that does a great job at exactly that. My own work, however, has tried to show that these issues are driven by (often false) assumptions we have. And whether it's the doctrine itself or the assumptions, it is more accessible for an audience if you illustrate the point with pop culture.

For instance, in my paper, “The Meme of Voter Fraud,” I argue that voter fraud, the idea that there’s a threat of rampant manipulation of elections, is a meme. And to be clear, a meme is an image, idea or behavior that is transmitted from person to person. In this context, however, such memes can and do persuade people to act — often regardless of the evidence or lack of evidence.

By way of example, you have certain powerful political figures, like Kris Kobach, Kansas secretary of state, and pundits like Hans von Spakovsky, John Fund and others, who’ve helped promote myths about undocumented immigrants and other “outsider” groups overwhelming elections to skew the vote. Currently, there is no evidence that this type of voter fraud ever happened. But the story still circulates. It’s been brought up in the recent presidential campaign. These stories evoke and spread fear, and fear persuades people to act before they get the facts. We’ve seen this time and again throughout history.

The fear invoked after 9/11 developed into the desire to crack down on immigration. This has since bled into conversations about banning immigrants from countries associated with ISIS or terrorism and then also into building walls. People want to conflate actors who actually pose threats with an entire religious and racial group generally.

These memes have the tendency to drive us towards legislation and regulation that seeks to control the “other.” In this context, the “other” is often a group you see as outside your socioeconomic, cultural or national identity. These two examples of memes — voter fraud and dangerous immigrants — spread the fear that those we see as different may also be a threat. even when there is no evidence that any one group of people is more dangerous than another.

You argue in your research that racial biases are another example of this. Can you explain?

That is one argument I make in both my research and the race and the law course I teach. In both, I draw on critical race theory, which articulates that racial biases are also part of this received tradition of wanting to find an “other” against which one can define oneself. This ideology creates a worldview that defines boundaries based on perceptions of race and then rationalizes those boundaries as assumptions change. These biases develop into the fear of losing power or the desire to accumulate and keep power in order to protect one’s self and one’s identity — and they often occur at the expense of the “other.”

These issues come to bear when the history of racial segregation, the economic disadvantage that affects these communities and the incentives to create a political base predisposed for one party come together. These things create structures of vulnerability of which politicians making voting rules attempt to take advantage by creating added burdens and segregated districts to channel the political process. This is why I argue that we must pay particular attention to such marginalized communities in which people are often put into the role of “other.” The vulnerabilities combined with the addition of restrictive rules to the voting process, cause people in these communities to be dissuaded from participating in the political process and thus get locked out of the democratic process.

My work tries to situate the right to vote in this context. My work tries to point to this history as actually current; the old biases and historic legacies of racism, sexism and poverty in the United States continue to dominate both the law of politics and the politics of law.

What, if anything, does the constitution say about these issues? Do you see an opportunity for change?

The original constitutional text left all these issues to the states to solve. Then   again, in 1789, slavery was legal throughout the country, women were considered property, and “citizenship” was limited to a few. Of course, our Constitution evolved (over the objection of folks who believe in a state-centered approach) as our concepts of personhood and equality evolved. Thus, text of the Constitution was amended to prohibit discrimination on the basis of race and sex and age (over 18) when it comes to voting. The Constitution also commands that persons receive “the equal protection of the laws” when it comes to voting and to all the things that we think of as fundamental rights today.

Thus, in 2016, we have competing approaches and interpretations of how to read the constitutional text. It’s one thing to analyze the physical text and the intent of the constitution through a historical lens, whether that is the political theories of 1789 or 1870 or 1965 or today, and base your arguments on that.

Or you can raise the question of what the political theory of the Constitution ought to be. What should the Constitution and this command for equality mean tomorrow? Who is included, who is excluded and is that right? What is the ideal relationship between the government and its citizens given the premise that, within our chosen republican form of government, we believe  all citizens ought to have oversight over their government? Ultimately, we have the power to make that change.  

When I think about this, I think about the scene in “The West Wing” when Amy Gardner is giving a speech to a political group. She says that it is one of the wonders of our government that we can have a revolution every four years. To me, that’s what voting is. That’s what the electoral process is. That’s why it’s so important for  everyone to have a voice.

We the people get to change our entire government without having to fire a gun —without having massive social disruption. We get to debate our most controversial issues and bring our most important values to light through the political process. In fact, it’s our expectation as citizens that we get to make the choice  collectively as to who represents us and who runs the government.