E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Donald
Trump lies. He lies about many things. But most recently he has been lying
about the 2020 election. He claims that if it weren’t for “fraud” associated
with mail-in ballots in Pennsylvania, Georgia, Wisconsin, Michigan, and
Arizona, he would have won the election. There is, of course, no evidence of
systemic fraud. The only incidents of fraud identified in Pennsylvania were of
a Trump voter trying to register another vote for Trump from his dead mother.
And yet, surveys show that millions of Americans — almost all self-identified
Republicans — believe that there was fraud, that mail-in ballots are
fraudulent, and that but for this fraud, Donald Trump would have won
reelection. Many elected Republican leaders have either actively supported
these baseless claims or remained silent.
Scholars
have probed the social, political, and technological aspects of misinformation,
including its development, its spread, and its effect on democracy. I would
like to discuss the Republican Party’s misinformation campaign about the 2020
election as a weapon of systemic racism, and its reflection of broader
political and legal arguments in defense of white supremacy and traditional
hierarchies of power.
Consider
the targets of the Trump’s campaign’s allegations of fraud. The counties the
campaign has targeted with lawsuits have the highest Black or Latinx
populations in their states. In Pennsylvania, it was Philadelphia, Montgomery,
Delaware, Allegheny, Chester, Centre, and Northampton counties. That group
includes four of the state’s counties with the highest percentage of Black
residents and the largest numbers of Black residents. Together, they account
for 74% of the state’s Black population. The campaign did not focus on Lehigh
or Lackawanna counties, even though both voted for Joe Biden; those counties
are predominantly white. In Michigan, Trump targeted Wayne County. The
Republican chair of the county Board of Canvassers even said that she would be
willing to certify the results for the county if those results excluded
Detroit, Michigan’s Blackest city. And yet, Trump did not target nearby Oakland
County, which went for Biden. That county is 13% Black; Wayne is 40% Black. In
Wisconsin, Trump asked for recounts in Milwaukee and Dane counties. Milwaukee
has the state’s largest percentage of Black and Latinx population. Dane County
has the state’s fourth highest Black population. Together, they account for
nearly 75% of the state’s Black population. In Georgia, the same. Republicans
targeted Clayton County, which is 72.8% Black. The Georgia lawsuits targeted
counties that included nearly 50% of the entire state’s Black population.
Black
populations and other persons of color were also targeted with misinformation
campaigns before the election. But
the campaign of misinformation about electoral fraud is squarely an attack on
the integrity of Black voters and of jurisdictions with Black leadership, in
addition to majority Indigenous and Latinx jurisdictions. And the campaign
didn’t even try to hide this, a common refrain for a politician no different
than other Republicans other than he says the quiet parts out loud. In short,
misinformation may be a technical issue and a sociological issue that can
mislead and manipulate everyone. But the Trump campaign, its supporters, and
the silent-cum-complicit Republican Party apparatus have used it to target
Black people.
The
arguments are also notable. Much has been made about the lawsuits’ outlandish
claims and campaign lawyers’ inability to offer any proof in court of actual
fraud. But less has been said about the rhetoric of misinformation itself. The
discourse is situated in victimhood. Trump claims he is a victim of electoral
fraud. His campaign surrogates and supporters say the same. The subtexts of the
lawsuits targeting majority-minority counties is that white voters are victims
of Black corruption. They even go so far as to say that democracy is the victim
simply because their candidate didn’t win. More precisely, their vision of a
white supremacist democracy is the victim of Black voter.
Misinformation
is essential to the conservative discourse of victimhood because neither they
nor the voices they represent are actual victims. Conservatives claim they are
victims of anti-conservative bias at online social networks. There is no
evidence of such bias; indeed, there is evidence of anti-progressive bias!
Conservatives claim they are victims of political correctness, “cancel
culture,” and progressive silencing of conservative voices. Again, there is no
evidence of anything systematic. Conservatives claim there is a “War on
Christmas.” Supreme Court Justice Samuel Alito claims that conservatives are
victims in a world of equality under the law. Conservatives claim that they are
victims because the businesses they run are asked to bake wedding cakes for
queer couples.
The
discourse of victimhood is essential to conservatives’ larger attack on the
progressive vision of the law. Victimhood allows powerful, conservative forces
to bastardize legal tools that are supposed to protect the marginalized and the
powerless and transform them into weapons of entrenching their power. This is
happening across legal fields: labor law, antitrust law, constitutional law,
tort law, contract law, and so forth. But the belief that those who benefit from
traditional structures of power are victims is essential to the message.
Electoral
misinformation that claims that the supposed will of white voters is the victim
of imagined Black corruption is just another in a long line of lies about
conservative victimhood. And this is one important reason why statements of
electoral fraud stick with large swaths of the Republican electorate even
without a shred of evidence to back it up: The concept of white victimhood in
the 2020 election fits a narrative conservative leaders have been feeding their
voters for decades, amplified by mouthpieces on the radio, television, and
especially online.
Ari Ezra Waldman is a professor of law and computer science at Northeastern University.