Questions by Mikenna Pierotti
Photographed by Raymond Thompson Jr.
Despite the prevalence of those little “I voted” stickers on social media these days, actually voting is getting more complicated in this country. WVU law professor Atiba Ellis, whose research focuses on voting rights laws, explains why.
I've heard you use pop culture texts like “Monty Python” to teach your law students
about current election issues. How does that work?
On the first day of class, after they’ve read some of the traditional texts, I show
them a clip from “Monty Python.” In it, two peasants argue with King Arthur about
the basis of authority. Notice the big questions framed in that conversation. What
is the basis for choosing how we are governed? Is the threat of violence — King
Arthur kicking Dennis’ butt for questioning his rule — inherent in any system of
government? Should such violence be inherent? How do we distribute rights between
the governed and the government?
From there we start talking about election rights themselves. The American state
says legitimacy comes from a mandate from the masses, so how are the masses supposed
to express that mandate? By voting, right? Then we confront how the law says all
citizens have the same rights but not all can exercise the same access and ability
to participate in the creation or expression of that mandate. These concepts, in
the abstract, can seem quite remote and difficult. But with the Monty Python example,
my students can see we are having this same argument over the course of this class.
And that this argument has existed for hundreds if not thousands of years.
King Arthur: I am your king.
Woman: Well, I didn’t vote for you.
King Arthur: You don’t vote for kings.
Woman: Well how’d you become king then?
King Arthur: The Lady of the Lake, her arm clad in the purest shimmering samite held aloft Excalibur from the bosom of the water, signifying by divine providence that I, Arthur, was to carry Excalibur. That is why I am your king.
Dennis: Listen, strange women lyin’ in ponds distributin’ swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.
-“Monty Python and the Holy Grail,” 1975
One of the big issues today are voter ID laws. Can you explain why they are so
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
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
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.