Private: Voter Identification, Ideology and the Voter Fraud Meme

by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law. Follow Professor Ellis on Twitter @atibaellis

The debate over voter identification laws in this election season has shown once again that the voter fraud debate has shaped the right to vote over the last decade.  Recently, voter identification laws in Wisconsin, North Carolina and Texas – passed on the belief that the integrity of elections must be defended against the imminent threat of voters who will impersonate other voters and otherwise commit fraud—has spurred substantial litigation and, most recently, generated a hotly contested denial of a stay of the Texas voter ID law over a scathing dissent from Justice Ruth Bader Ginsburg. 

Scholars like Lorraine Minnite, Richard Hasen, Justin Levitt and others, have shown that this voter fraud claim is a myth. Yet, right-leaning pundits like Hans von Spakofsky and Mona Charen have argued that voter fraud will likely occur in the 2014 election. Thus, some pundits, politicians and grassroots organizations like True the Vote see rampant voter fraud as real and looming, despite all research to the contrary.

This voter fraud claim is often seen as partisan-motivated propaganda or a means perpetuating racial subordination – some call it the return of Jim Crow. Yet, as I argue in an article recently published in the Catholic University Law Review, these claims must be connected to the long saga of voter suppression in the United States. In The Meme of Voter Fraud (also available here), I explain that the voter fraud myth is the latest step in the evolution of the American ideology of exclusion – the belief that “unworthy” citizens should be excluded from the electorate. 

A meme (an idea based on evolutionary theory) is any idea, belief, concept or behavior that spreads and replicates in the culture. Memes replicate through, among other ways, the sharing of narratives, teaching, or posting on the Internet (think cat videos!). Memes are appealing because they play into a person’s experiences, and on some level people identify with them. This fact prompts a person to share the idea, and the most attractive memes spread virally. As a meme spreads, people often modify it to attract a broader audience.  The new recipients will in turn transform the meme again and replicate it, causing it to evolve (and the changes that fail cause that particular meme to die off). A meme’s appeal and its ability to meet our psychological needs – for instance, for political or social power – causes people to spread memes, not the truth or falsity of the meme.

People can connect one meme with other memes to develop a complex set of ideas – an ideology – which we use to view the world. And, as scholar J.M. Balkin has observed, ideologies that spur us to action to subjugate the rights of others inevitably result in injustice. Memes can enable power plays, and those most invested in maintaining that power maintain the meme to this end, despite any oppression that might occur.

In the voter fraud context, the memetic account begins from the premise that voting represents control of the body politic. Only certain persons of the correct status are worthy to govern. At the beginning of the republic, white men of property were deemed the only persons worthy to govern.  Over time (and with the gaining of citizenship by women and minorities), the idea that “unworthy” voters threaten the body politic gained ground. This unworthy status was given to women, people of color and the poor. Thus named a threat, women and minorities were denied full voting rights by direct statutory bans prior to the mid-1800s, and then, after constitutional amendment, through indirect mechanisms like poll taxes. The Voting Rights Act of 1965 ended this legalized racial discrimination. 

The unworthy voter meme did not go away with the civil rights movement. It simply evolved. Rather than explicit exclusion, or burdensome regulation like poll taxes, the modern narrative relies on the idea that there are fraud perpetrators who are motivated by a desire to pollute the political process through letting noncitizens vote, or citizens who seek to impersonate other voters or vote multiple times, or voters who are too incompetent to gain a driver’s license or other ID, and therefore are too incompetent to vote. The unworthy voter meme has evolved into the voter fraud meme. 

Based on this meme, voter identification laws that disproportionately affect minorities (or at least dissuade minorities from voting) are passed, voting vigilantes are policing the vote, and the political parties are now geared up to insure (or prevent) voter identification laws from affecting the Election Day result. The irony is that voter identification laws are highly popular when seen through the lens of election integrity. Yet, when these laws are read against their exclusionary effects, that is, their disproportionate effect in driving minorities and the poor away from voting, they are unpopular. The difference between the two positions is exposing the meme for what it is – a means to shape how we view our assumptions about voters, particularly minority and poor voters, as threats to our democracy.

The result of the meme’s work is that it distorts elections by forcing governments to police non-existent fraud, distracting election law policy from solving the real problems of the political system, and, most importantly, disproportionately discriminating against minority voters.  It leaves our law with the presumption that any given voter is a criminal unless they can prove otherwise.  This expressive harm may do more to damage our belief in the integrity of elections than the supposed fraud that is prevented.

How do we get past the meme of voter fraud? The power of a meme comes from the fact that they short-circuit reason. A cat video can make you laugh, make you feel happy and you pass it on without thinking about the consequences of posting it (though they are usually benign). This same ignoring of consequences happens when we, through law reform based on rhetoric, pass along the belief that some voters (especially voters of color) are a threat, but with real consequences to real voters and the democratic process. 

This suggests that our election laws must do more to force reason by demanding proof. Courts should force legislators to show the facts behind their claims of threats to election integrity to justify the increased regulation that voter identification represents, especially given the mounting evidence that these laws appear exclusionary. For example, Section Five of the Voting Rights Act forced a hard look at the data supporting election law changes to insure that discrimination was prevented.  In a sense, it served as a fire break between our discriminatory memes and our actions, a firebreak that has been curtailed due to the Shelby County decision. 

In another, broader sense, we should pursue another ideology – that of inclusion. The Voting Rights Act represents this highest democratic value, and efforts to restore that firebreak should be pursued by the next Congress. That effort should be based on a conception of the right to vote that includes all citizens who wish to vote, and not just the citizens who can withstand the accusation they are criminals. Voting rights laws that do not have this as their end goal do a disservice to our democracy.

Democracy and Elections, Supreme Court, Voting Rights