Frederica Freyberg:

Our next guest is a law professor at Marquette University. His expertise: voting rights law and exclusion of voters on the margins. Atiba Ellis joins us now. Professor, thanks for being here.

Atiba Ellis:

Thank you for having me.

Frederica Freyberg:

Your work focuses on disenfranchisement of voters on the margins. What do you make of the Trump campaign selecting Wisconsin’s two largest counties with the highest populations of people of color for recount?

Atiba Ellis:

Well, I think it echoes sort of the worst days of racial discrimination that we saw a century ago. During the Jim Crow era, we often see cases where the structures of elections were shifted in order to disenfranchise African-Americans and that structures were manipulated to either disenfranchise entirely or marginalize the voting voice of people of color. This has disturbing echoes of that pattern by targeting the counties where the largest populations of people of color are in this state. With the hoax of overturning an election, you’re effectively nullifying those votes. At least that’s how it can be seen. I realize that intention is often an issue when it comes to these sorts of concerns, but all too often the way the law asks these questions is what’s the effect? And it would look like the effect of excluding voters in Dane and Milwaukee County might be to target people of color specifically.

Frederica Freyberg:

Now, the kinds of ballots the Trump campaign sought to throw out included those describing themselves as “indefinitely confined,” whereby a voter ID was not required. What’s the campaign’s message here, in your mind?

Atiba Ellis:

Well, I think that the campaign is trying to in essence argue after the fact that the rules ought to be changed. I mean, part of the background here is that the Republican Legislature and the Wisconsin Elections Commission basically agreed to this form of interpretation and was certainly the form of interpretation in 2016 and they’ve proceeded in the same way in 2020. So it seems disingenuous to say the least to suddenly change the rules because the result that you liked in 2016 isn’t the result that you like in 2020.

Frederica Freyberg:

How has the voter ID law itself impacted voting in marginalized communities?

Atiba Ellis:

Well, I think it puts them at risk. Often the litigation around voter ID is about whether communities of color, African-American, Latinx communities have ID in the same proportion as the majority community. And so that runs the risk of disenfranchising. And certainly there was even a 2016 study in Milwaukee that pointed to the fact that people perceived the voter ID law as having a disenfranchising effect. And that affected their behavior. It’s hard to find the hard numbers, but with that message out there, it risks disenfranchisement.

Frederica Freyberg:

As to the recount, Wisconsin election officials say there were few if any irregularities. What in your mind is the end game for the Trump campaign now that the transition to President-elect Biden is in progress?

Atiba Ellis:

The transition is in progress. The other states that were closely contested have been certifying their election results. I mean it’s hard to see a win here, first of all, given the narrowness and arguable doubt that these legal theories have. I mean, looking at the record, the Trump legal team has basically lost almost all of its litigation based on similar theories. It may well be about sending a message about democracy. And I fear that this message comes with sowing distrust in the work that the Elections Commission has done and that all the hard working elections administrators do in Wisconsin. And that mistrust can have consequences going forward.

Frederica Freyberg:

Yeah. Absolutely. Because I was going to ask, what kind of taste does all of this leave in the mouths of voters in the aftermath of all of this alleged widespread fraud as we look toward the future?

Atiba Ellis:

Well, I think that there is going to be a memory of doubt being sown. I think that this talk about voter fraud, which used to be fringe and used to be left up to the courts to dismiss, is now in the public’s mind. And I think that that is going to make people doubt and certainly even surveys are showing that doubt about this result is based on who do you believe. But the objective facts are that this election has been secure and it has been effective despite the challenges posed by the laws and by the pandemic.

Frederica Freyberg:

All right. We leave it there. We really appreciate your expertise, Professor Ellis. Thank you.

Atiba Ellis:

Thank you very much.