Voter Fraud as an Epistemic Crisis for the Right to Vote

• Publication year: 2020

Voter Fraud as an Epistemic Crisis for the Right to Vote

Atiba R. Ellis

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Voter Fraud as an Epistemic Crisis for the Right to Vote

by Atiba R. Ellis^*

I. Introduction

Despite the antidiscrimination frameworks contained in the constitutional¹ and statutory² protections for the right to vote, access to the American ballot box is generally perceived as heavily contested. More precisely, many right-to-vote advocates (and their popular supporters) believe that the right to vote is in a crisis of exclusion so

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extreme that it represents a resurgence of Jim Crow racial exclusion from the franchise.³ Advocates for election integrity initiatives and their supporters claim that because of impending threats by "illegal voters" who will distort election results,⁴ initiatives like voter identification laws,⁵ proof of citizenship laws,⁶ and voter purges⁷ are necessary, else the integrity of the electoral process will be destroyed.

These views are diametrically opposed and suggest that what we know about the status of the right to vote itself is at stake. One view is premised on seeing the ecosystem of democracy as replicating intersecting racial and class-driven exclusion. The other sees the world as dominated by the threat of illegal voters and supposes that the threat of voter fraud is an existential threat to American election integrity. That such divergent views exist on exactly what the crisis of voting rights is, suggests that there is a fault in the way we obtain and order our knowledge regarding American democratic practices. Our knowledge about how to understand the right to vote is a contested issue.

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These differing states of knowledge raise a question around what we know, and thus, how we decide questions about the right to vote, which the Supreme Court of the United States has repeatedly called "preservative of all other rights."⁸ In related contexts, such problems of distorted or misleading knowledge have been called an "epistemic crisis,"⁹ driven by information age tactics which use propaganda and echo chambers to create partisan dichotomies and worldviews concerning practices in American politics.¹⁰ While not using the terms, Anthony Gaughan in his Article, Illiberal Democracy: the Toxic Mix of Fake News, Hyperpolarization, and partisan Election Administration, illustrates how "fake news" compounds hyperpolarization in the American public and partisan election administration to defeat public confidence in election integrity and spurs voter suppression.¹¹ Similarly, Heather Gerkin has questioned reasoning about election law in the absence of data and warned against the consequences of ill-shaped policy and the destruction of democratic institutions and the right to vote itself.¹² But the problem of the epistemic crisis—one of not just an

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absence of data, or even a refusal to accept data; it is the substitution of a belief in what is false in lieu of understanding policies that are grounded in objective fact—this is the concern of this Article.¹³

Specifically, the crisis of election integrity spurred by the supposed interference by "illegal voters" creates a particular epistemic crisis for the right to vote. This rhetoric is a specific case of the confluence of the rise of the information age with heavily contested, hyper-partisan elections that leads to the diminishing of the right to vote and the legitimacy of election administration. This rhetoric of "illegal voters" from thought leaders from the President of the United States to influencers on the Internet, and its underlying premise of the existence of mass voter fraud, has been a justification for mostly conservative states to move towards heightened regulation of the voting process. There is no proof of this mass voter fraud conspiracy. Yet such conspiratorial thinking continues to be repeated, believed, and used to form a basis for voting rights policy. I have called this cycle of rhetoric and belief the "meme of voter fraud."¹⁴ I argued that this "meme" is a rhetorical device¹⁵ (based on propaganda rather than evidence) that seeks to persuade policy makers, judges, and the public at large that certain groups of unworthy should be considered to be threats to the political process.¹⁶

In the years since this argument, the meme of voter fraud has been amplified¹⁷ and augmented in the far more dense (and self-selecting) political ecosystem that is Internet-driven American political discourse. The meme has served as justification for not only voting rights policy changes, like voter identification laws, but also to connect the threat of so-called "illegal voters" to issues ranging from proof of citizenship

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requirements, to felon disenfranchisement, the census, and the Electoral College. The evolved, weaponized, amplified voter fraud meme has created an epistemic crisis—a crisis of how we know—for the law of democracy.

This short Article will consider this crisis. The Article will argue that the meme has evolved providing an "alternative facts" explanation for voting threats to the creation of a worldview that underscores an ideology of exclusion of those unworthy to exercise the franchise by expanding the narrative of the persons and communities who pose a threat to American elections. The Article will turn next to explaining my claims about the voter fraud meme and connect that to how it consolidates political power. It will then examine how the meme has evolved and amplified in recent years and consider its ramifications for upcoming election cycles. And then the Article will end by considering the larger, epistemological threat that such meme-driven thinking poses to our democracy, and how the law of democracy is ill-suited to address such problems. But to adequately explain this point, I must first draw on my prior research to explain the sense in which I mean a "meme" and how it relates to voter fraud talk.

II. Memes as Rhetorical Political Construct

A. What is a Meme—Beyond Cat Pictures on the Internet

The rhetoric around the existence of present (and possible future) hordes of persons disrupting elections by committing voter fraud can be thought of as a meme, or, as an idea or a narrative that replicates and evolves because of its persuasive power, without regard for its truthfulness.¹⁸ Memes in popular culture are considered creatures of the Internet, but that is a limited sense of the meaning of a meme. A meme is a piece of culture that in itself can replicate, transmit, and evolve.¹⁹

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By replication, I mean that the idea repeats and alters and thus, spreads from person to person.²⁰ Each time the voter fraud meme is transmitted and then sticks to another person, the meme replicates. And then when that person repeats it—or a variation on it—it then replicates again. Thus, it spreads. In this sense, this rhetoric can be analogized to a virus that inhabits a host and then uses that host to spread to other potential hosts.²¹ Or it can be analogized to propaganda that spreads with strong persuasive force throughout a culture.²²

A meme also survives through connection with other memes, thus forming a "memeplex"—or a worldview—to aid in replication.²³ As such, the particular memes survive or evolve because of their appeal to a worldview and their ability to empower believers of the worldview through re-enforcing the core beliefs.²⁴ In this sense, memes take the appearance of truth without needing to be true to replicate.²⁵ And because it fits and re-enforces the worldview of those who become invested in it, it galvanizes extreme responses in line with the meme—not the truth—and that runs the risk of leading people to endanger rights.²⁶

Meme-driven thinking has the potential to cause people to reason on the basis that the meme is true when the meme is patently false. Thus, analyses based on the meme are prone to ignore issues which might come to light if a critical approach were taken to analyze a question. Such willful ignorance can then lead to the actions that may, in a constitutional rights context, override concerns of deference to or preservation of fundamental rights.

B. The Meme of Voter Fraud as a Political Consolidation Device

Despite the lack of evidence for the meme of voter fraud, the idea that there is a rampant, voter-driven conspiracy to infiltrate elections nonetheless has persuaded some policymakers and the public of its existence.²⁷ The claim supports the conclusion that elections should be more stringently regulated in order to maintain electoral integrity, despite the evidence that voter-impersonation voter fraud is virtually

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non-existent.²⁸ This leads to a heightened risk of exclusion under such more stringent laws.

This propaganda of rampant voter fraud spreads as largely as appeals to a political base. Voter fraud meme replication serves a number of political interests, and thus creates incentives for certain actors to replicate the meme. First, the idea that voter fraud (or the threat of massive voter fraud) currently exists demands immediate action to fix the problem.²⁹ This imperative becomes an impetus for legislation and regulation, as evidenced by the passage of voter identification laws, the curtailment of early voting, and other tactics that some call "voter suppression."³⁰

Second, voter fraud allegations consolidate political bases.³¹ Proponents of the voter fraud meme frame it as a primary issue for their political party and rally support based on belief in the meme.³² Also, politicians use the meme to gain ground in key electoral battles over time.³³ In this sense, the problem of voter fraud is an instrument to gain political power at the cost of distorting the actual scope of the problem. Conversely, opponents of the meme consider it a tool of political discrimination and suggest that supporters use the meme discussion to attack the opposing political party.³⁴ Both parties gain from the use of the meme, and accordingly both parties continue to...