[00:00:00] This is Democracy and Destiny. With Ciara Torres Spelliscy I have the per curiam opinion and judgment to announce on behalf of the court. In Buckley against Valeo. We have a cancer within close to the presidency's growing. In case 0 8 2 0 5, Citizens United versus the FEC, Justice Kennedy has the opinion of the court.

The First Amendment's core purpose is to foster a vibrant political system full of robust discussion and debate. There is no right more basic in our democracy than the right to participate in electing our political leaders. With fear for our democracy. I, along with Justices Kagan and Jackson dissent.

Ciara Torres-Spelliscy: Welcome to the show. I'm Ciara Torres-Spelliscy. I'm a law professor at Stetson Law [00:01:00] School in Florida, and I'm a fellow at the Brennan Center for Justice at NYU School of Law. I work on the intersection of election law and corporate law. This show was inspired by my third book, Corporatocracy: How to Protect Democracy From Dark Money and Corrupt Politicians, published by NYU Press election day 2024. I realize in today's busy world, reading a 300-page book, is not on everyone's to-do list. But even I as a law professor, have time to listen to radio shows and podcasts when I'm commuting to campus or walking my dog. So here we are. This is “Democracy and Destiny.”

Today's episode is about Civil Death, and I will be joined in a few minutes with my guest, Professor Atiba Ellis from Case Western Reserve Law School, who will talk about race, law, and voting rights. But first, let's start with pay to play today.[00:02:00]

The term pay to play comes from the radio payola scandals. From the 1950s and 1960s, record companies would pay radio stations to play their music, hence it was literally pay to play. Today the phrase pay to play is shorthand for all kinds of political corruption, especially when government contractors or others with business pending in front of the government.

Pay bribes to public officials to get a private benefit, like a lucrative, no bid contract or approval of a corporate merger. One of the things I learned while writing my book, Corporatocracy, is that political corruption is prosecuted frequently, but the media just doesn't report on it as often as other things like celebrity news.

That leaves the best impression with the public, that corrupt politicians or shady government contractors are always getting away with crimes. So I swore to myself if I ever had a news generating platform, I would highlight that [00:03:00] political corruption can be met with serious legal consequences, including fines and jail time.

So our example of pay to play today is from Florida. This is the story of the ghost candidates. Frank Artiles was accused of offering $50,000 to Alex Rodriguez, the so-called ghost candidate, to run for office in the Florida legislature in 2020, and to cause the Democratic incumbent to lose the election by siphoning votes away from the Democrat.

Rodriguez was given $25,000 before the election and $25,000 afterwards. The following is a statement from. Florida State Attorney for Miami-Dade County, Catherine Fernandez Rundel for the guilty verdict. In the Frank Artiles trial, it is clear that the jury understood the state's evidence, which is complex in this public corruption prosecution, [00:04:00] and determined that Frank Artiles was not only the mastermind of the Ghost candidate scandal, but also violated Florida's campaign finance and election laws in order to do so.

These third degree felony convictions show that the jurors agreed that we cannot tolerate the violation of our laws just to gain a political advantage. They weighed all the evidence, heard all the testimony, and decided that Frank Artiles was guilty, and there's an update. In this case, former Florida Senator Frank Artiles, who was convicted of three charges of election conspiracy was sentenced to five years probation and 60 days in Miami Dade County Jail Circuit, Judge de la O ordered the sentence for campaign contributions in excess of a thousand dollars. Campaign contribution, conspiracy, and ethics code, false swearing to an oath. Artiles was found not [00:05:00] guilty of the falsification of a voter registration form.

Our next segment is Corruption Junction. I've been writing about money and politics for two decades. I was inspired to write my book, Corporatocracy, because of the events on January 6th at the US Capitol. One way to think about this book is it's the Supreme Court's horrible Citizens United decision meets the horrifying events on January 6th.

So that we are literally on the same page. Let me read a short excerpt from Corporatocracy. [Reading from Chapter 3 of Corporatocracy].

 [00:25:00]

Now we get to the heart of the matter, which is the problem of political corruption. My guest Professor Atiba Ellis writes on voting rights and the myth of voter fraud, which has been used as an excuse to pass laws that make it harder for voters to vote. He's been published in the Denver University Law Review, Catholic University Law Review and Michigan State Law Review, among other outlets. I'm so glad to have you here today to talk about the state of American democracy. Welcome to Corruption Junction.

Atiba Ellis: Thank you.

Ciara Torres-Spelliscy: Where did you grow up?

Atiba Ellis: I grew up in a little town in Eastern North Carolina called Havelock. My dad was a minister in the A.M.E. Zion Church and big business in Havelock is Cherry Point Marine Corps Air Station.

Ciara Torres-Spelliscy: How did you get inspired to become a lawyer?

Atiba Ellis: It hit me. [00:26:00] Being a lawyer will actually let me be a scholar and a thinker and make a difference for people. And the very next day after I had that realization, I went and put in the paperwork to apply to law school.

Ciara Torres-Spelliscy: What made you interested in election law in particular?

Atiba Ellis: I ended up applying and getting into a program at Duke that let me get a law degree and get a concurrent master's in history. The very first history course that I took was Alex Keyssar 's class. And those of you who follow democracy stuff recognize Alex Keyssar 's name because he wrote the seminal Right to Vote, the first sort of modern history of voting rights and election law.

He put me on to Harper versus Virginia, which election law nerds know is the case where the US Supreme Court struck down poll taxes. [00:27:00] In state elections, obviously it had been abolished in federal elections by the 24th Amendment, and it manifested when I was in law practice when my firm was doing pro bono work, helping an activist group file objections under the then- Section Five of the Voting Rights Act regarding Georgia's voter ID law. I was like, whoa, this is a poll tax. It took me all the way back to Harper and it took me back to my master's thesis. One time I got to visit the Supreme Court happened to be the day that Crawford versus Marion County Election Board was handed down, and I thought: “This is Destiny!” This is me being called to be an election law scholar because my first article in the Denver University Law Review was making the argument that voter ID laws are analogous to poll taxes, and as much as they both [00:28:00] create an indirect cost to the vote.

Ciara Torres-Spelliscy: How are you keeping sane during this trying time?

Atiba Ellis: Most recently, my household has taken up watching Andor the Star Wars spinoff series, which if you've watched it, you know that it is about the Rebel Alliance in its early days, resisting the trying times of The Empire.

Ciara Torres-Spelliscy: The chapter from Corporatocracy that we're discussing is about Civil Death. What happens to most felons voting rights when they are convicted?

Atiba Ellis: Maine, and Vermont, and the District of Columbia, where nothing happens to your voting rights. And indeed, in these three jurisdictions, people convicted of felonies actually get to vote in jail. But in most other states, at least during your incarceration, you can't vote. You're disqualified. Oftentimes, this begins with the definition of being an eligible elector or [00:29:00] voter, which is usually contained in the state constitution, and if not there, then by statute or judicial ruling, disqualified people who have a record of felony conviction.

Ciara Torres-Spelliscy: What about when an individual is done with their time in incarceration? Are there rights automatically restored

Atiba Ellis: to varying degrees depending on the state. A number of states will only disqualify someone during their period of incarceration. Once they are released, usually under some form of supervision by the state, if their rights get restored and they may reregister or vote. There's a second set of states that prevent restoration during the period of state supervision. Think: either probation or parole, depending on the nature of the conviction. Or it's sometimes called supervised release. Some states [00:30:00] don't let you register until that period has ended, and oftentimes there might also be requirements for restitution being completed: so paying back fines, paying back other incidents of the conviction. There's a third category. Oftentimes there's, there's restoration upon request. So you complete your incarceration, complete supervised release. You're a free citizen, but then you might have to ask for permission for your rights to be restored, and that might also come with proof that you've paid your fines, your penalties, your restitution.

Some states require, so depending on the state, it might be as easy as you're released. Or as difficult as going through a whole administrative process after release in order to get your voting rights restored.

Ciara Torres-Spelliscy: What [00:31:00] happens to returning citizens in Ohio?

Atiba Ellis: Well, according to the Secretary of State's office, voting rights are restored upon release. But one has to reregister to vote, and Ohio falls in that category where people on parole or probation can actually reregister to vote. There may be challenges for people who are caught in the criminal justice system short of having been convicted because truth be told: so you have to plead guilty or be found guilty by a jury to suffer felon disenfranchisement. But one of the challenges that persons in jail who are awaiting their trial oftentimes have difficulties trying to vote. Oftentimes jails are run by sheriff's departments. Communicating the fact that these folks have not had their rights taken away yet becomes challenging, and [00:32:00] law enforcement doesn't necessarily go out of its way to guarantee the right to vote to persons who are in jail pending trial. With more and more problems around the bail system and the stronger reliance on cash bail, those who can't afford release pending trial oftentimes get incidentally disenfranchised

Ciara Torres-Spelliscy: In my state of Florida, before 2018, it was essentially a lifetime of disenfranchisement for those with a felony conviction. And then in 2018, the voters of Florida amended our state constitution, and I think the spirit of that amendment was: that we wanted to restore the voting rights of most ex-felons. But then, of course, the Florida legislature had to stick its nose in it. They passed a law shortly after that constitutional amendment was passed which said [00:33:00] you have to pay your fees and fines before you get your rights restored. There were many different challenges to this, but one argument was that it was a poll tax. A district court in Florida got it right: that it was a poll tax and thus unconstitutional. Sadly, the 11th Circuit reversed and they reversed right on the eve of the 2020 election, which meant that lots of people were in limbo. They thought they had their rights restored, and suddenly their rights were not restored, right before that key election. And Florida has also gotten into the business of creating a voter fraud squad, and

Atiba Ellis: Mm-hmm.

Ciara Torres-Spelliscy: They have been arresting people who misinterpreted this very confusing set of circumstances. A few individuals who were not eligible to vote but had been given voter registration cards by Florida, then later get arrested for voting. I mean, it's such, it's so Kafkaesque over here.

Atiba Ellis: Yeah.

Ciara Torres-Spelliscy: Yeah. What are [00:34:00] you gonna do? It's Florida.

Atiba Ellis: I remember that litigation very clearly because I, along with a number of other election law scholars, signed an amicus brief for that 11th Circuit case arguing that this was effectively a poll tax that should not allow this to go forward. But yeah, it's Kafkaesque then with the rise of these voter fraud squads, as you talk about in your book, oftentimes it's an issue of technical compliance. You get caught with the wrong paperwork or you can't track down how much fees, fines, and restitution you owe. And then by not complying, but trying to register, you then commit a felony, and then, you're back at the bottom of the system to begin with. Yeah, it's crazy.

Ciara Torres-Spelliscy: I'm not sure I was aware of your background as a historian, but now it all makes sense. What is the exception in the 13th Amendment? Or maybe we should start with what does the 13th Amendment say?

Atiba Ellis: [00:35:00] Let's talk about the history and if you think about it, the 13th, [and] 14th Amendment together we're designed to remedy the sort of political problem of slavery. Right after the Civil War ended, the first thing that had to be done was to abolish slavery. And it had created a kind of political economy, if you will, in the sense of political power was based on slavery as an economic system that relied basically on defining people of African descent as purely labor and that that labor could be owned by others.

The 13th Amendment abolishes slavery. The goal is to restore people to their equal dignity with all other people within the United States. Slavery is abolished by the 13th Amendment, except when it comes [00:36:00] to punishment for the commission of crime, or to quote the language, “neither slavery nor involuntary servitude, except as a punishment for crime where whereof the parties shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.”

One cannot be enslaved. One has to be paid for one's labor, except if you've been convicted of a crime, and then during your term of punishment, you may be enslaved. So that's the exception.

Ciara Torres-Spelliscy: What is the Penalty Clause of the 14th Amendment?

Atiba Ellis: The radical Republicans in the Reconstruction era realized that the 13th Amendment in and of itself wasn't going to be enough to guarantee rights to formally enslaved people, so they ultimately pass a 14th Amendment section one [which] guarantees things we're familiar with today, like [00:37:00] equal protection, due process of law, something which remarkably is a big deal these days. And as well, lesser thought of provisions like birthright citizenship. I say with all irony. But remember, this is in the service of equalizing the status of formerly-enslaved people in American society. But to protect those rights, the Reconstruction Congress in section two of the 14th Amendment decided that there needed to be a penalty for people who disenfranchise.

Section two basically says, if the right to vote is abridged or denied in any federal election or any state for state office elections, that that state will lose representation in proportion to the amount of disenfranchisement that happens, except--here's the except clause-- for participation in rebellion or other [00:38:00] crime.

In essence, section two of the 14th Amendment says we won't countenance disenfranchisement, except if you're disenfranchising people who have participated in rebellion, who have committed some other crime, and in essence, there is a license for states to disenfranchise if they so choose on the basis of a crime. Not a requirement, but an ability to do so. This is really about the United States having the guarantees of enfranchisement in section one of the 14th Amendment, the implication that all citizens can participate in the political life of the United States, that all persons get equal protection. This is the stick: If you disenfranchise, states, you'll be penalized. The Reconstruction Congress realized when its political fortunes [00:39:00] were at stake because they depended largely on the votes of free black men to keep control of Congress that they needed to make even more explicit [with] the goal of protecting formally enslaved person's right to vote. And with that comes the 15th Amendment. You wanna read more about this? Read Franita Tolson’s work about section two of the 14th Amendment.

Ciara Torres-Spelliscy: Yeah. One of the ways that I explain it to my students is: [if] you have the universe of voters in your state and a state decides to disenfranchise a quarter of them. Then the penalty is supposed to be that you also lose a quarter of your seats in Congress. Now, this has never actually happened, even though there has been rampant disenfranchisement in several states over our history.

Atiba Ellis: Yeah.

Ciara Torres-Spelliscy: What, what has the Supreme Court said about felony disenfranchisement?

Atiba Ellis: Disenfranchisement becomes coded in large part. You have an era of poll [00:40:00] taxes and, which you now know as my first academic love, but other things that get coded as neutrality. But then you have the felon disenfranchisement practices, which clearly are about affecting voters of color, especially in this legacy of slavery. Whether it's explicit or implicit. We all know what's going on. This comes before the Supreme Court, nearly a century later in a case called Richardson versus Ramirez, where formerly incarcerated people are complaining that California's felon disenfranchisement provisions limit their right to vote and create an Equal Protection problem.

Now, the Supreme Court says, in essence, the implication from section two of the 14th Amendment that states may disenfranchise those convicted of a [00:41:00] felony means that this practice is exempt from what would otherwise be an equal protection problem, but there's an exception to that exception if the intent of the statute was explicitly [to] disenfranchise on the basis of race. If the statute was founded with a racist motivation that is clear on the record, then it would be unconstitutional under Equal Protection doctrine. The Court, a decade later in a case called Hunter v Underwood, when the 1901 Alabama felon disenfranchisement statute was at issue, and the record was replete with the evidence that felon disenfranchisement in Alabama was meant to target Black citizens, and to basically [00:42:00] create status crimes that would then put those citizens into the Carceral state and have them, in effect, be enslaved again, given the other crimes exception of the 14th Amendment. And then once they were free, then they could not vote and weigh in as citizens can on the propriety of having “Slavery by Another Name” to quote one book that is describing the practice. What's interesting here is that this reasoning that felon disenfranchisement is legal, if the law is facially neutral, but it is illegal if we find an explicit intent of racist motivations that is clearly stated. This line of reasoning has gone on to shift not only constitutional law, but voting rights law.

The Voting Rights Act has been [00:43:00] interpreted by a number of circuit courts, notably the Ninth Circuit in Farrakhan v. Gregory, the Second Circuit in Hayden v. Pataki as requiring this sort of explicit intent of racist motivation in order for this to be adjudicated under section two of the Voting Rights Act, even though the Voting Rights Act in many other respects in Section two, specifically looks at the effects of laws. And oftentimes the problem of felon disenfranchisement is that it disproportionately affects brown and black people precisely because of their disproportionate representation in the criminal justice system, which most people agree is a product of structural racism.

Ciara Torres-Spelliscy: How have corporations benefited from the exception in the 13th Amendment?

Atiba Ellis: There are a number of ways that corporations have benefited [00:44:00] from this. First and foremost, there is a long history of corporations benefiting from the fact that persons who are incarcerated can work either for the state or for business entities at free to significantly reduced pay. There's a long history of this sort of replication of slavery effectively allows cheap labor. We have seen throughout the Jim Crow period to today where there are programs that allow for the production of products for incarcerated people to work at stores, and be involved in customer service and a variety of low-paid labor that benefits businesses. On this level, there is that sort of direct benefit [00:45:00] of cheap labor and certainly this history, especially during the Jim Crow era. And you do a far better job than me laying out this history of corruption in particular of the system where sheriffs, and wardens, and business people, sort of skim off the top of this labor, on top of benefiting their businesses in and of themselves.

But there's another layer that's worth noting. It's sort of from this sort of profit motive, but it's a step removed. There is this phenomenon called prison gerrymandering. It's the notion that prisoners get counted in their place of domicile, i.e., where they sleep. For purposes of the Census and reapportionment, representative districts and senatorial districts get to include the populations of prisons within those districts. And that might inflate that population in a way that, for my money, given the racial [00:46:00] disparities here, is reminiscent of the way the Three-Fifths Compromise inflated the way that slave holding states got added representation in Congress. But the point is, given that inflation, there's an incentive for particular industries like private prisons, to come to rural areas, to set up business there, to support senators and representatives in those states to fund elections in those areas and the rural part of the state where big business can have outsized power due to this dynamic. But it incentivizes manipulating the criminal justice system, both in terms of who's incarcerated and where they live, and then creating jobs for people in the state, and then feeding through lobbying, opportunities to create more [00:47:00] criminal statutes, to provide more business to these prisons in order to continue the cycle.

There's profit being made from labor. Private prisons can drive economies and affect political power. All of this coming from corporate interactions of various sorts. More laws like this then feed the criminalization of voter suppression efforts, or the use of private prisons to house immigration detainees, who are not literally in the criminal justice system, but are being detained. Because from a prison's point of view, it's simply having a body there generates income. There's a bigger business issue, but then there is this sort of more direct, I think of it as democracy distortion effects that come from incentivizing these smaller [00:48:00] scale corporate issues.

Ciara Torres-Spelliscy: Where can the audience find your work?

Atiba Ellis: I have a website, atibaellis.com. That's A T-I-B, as in boy, A-E-L-L-I-S.Com, you can download unpaywalled versions of most of my work. You can also follow me on BlueSky. That is where I do most of my social media these days. I will say that my colleagues and I are working on the seventh edition of the late Derrick Bell's Race, Racism, and American Law.

Ciara Torres-Spelliscy: Thank you so much for being here today.

Atiba Ellis: Thank you very much for the invitation. This has been fun.

Ciara Torres-Spelliscy: As someone who spends her time focused on political corruption, it is easy to end up with a [00:49:00] dim view of humanity. One of the things that has kept me happy and sane over the past eight years is my 100-pound chocolate Labradoodle. Let me share my motto, which is, “loves dogs hates corruption.” We live about a 20-minute walk to the beach on the Gulf of Mexico.

We purposely bought a home up on a hill. It is a long walk down the hill and back up the hill on the way home from the beach. A few years back, a bakery opened on the beach called Pipo and Betty's. My husband wanted a coffee and he asked the owner if it would be okay if he brought our dog in and they waved him in and asked whether our dog would like a pup cup, which is a dollop of whipped cream. Ever since then, every weekend my Labradoodle and my husband go down to the coffee shop, and not only do they give him a pup cup, they often give him a pup cup with a bacon topper. My dog going [00:50:00] into this coffee shop is like Norm going into Cheers. They all know my dog and they really spoil him. This also probably contributes to his 100-pounder status. Okay, now back to business.

Now we get to our final segment: The Fix Is In. Many of the problems with our democracy seem unfixable, but that's not true. These problems were created by human beings, and they can be solved by human beings. We can improve laws and practices at the local, state, and federal level. The first step is realizing that these are not unsolvable problems. We can fix it.

The problem we talked about today was civil death. This is a concept that [00:51:00] goes all the way back to ancient Greece and Rome. The idea was if you were a criminal, then you were kicked out of Athenian or Roman democracy. In English law, there was this concept called outlawry and an outlaw could be stripped of their freedom, their property, and their title.

And in England, if you were a noble who became an outlaw, the law didn't just punish the outlaw, the law would also punish the whole family. And this was a legal concept known as a “corruption of blood.” Now, when the Founding Fathers drafted the original Constitution. One of the limits they put on Congress's power was Congress is not allowed to enact a law that would be a “corruption of blood,” even if the person that they are punishing were guilty of treason.

So I think we can take a lesson [00:52:00] from America's Founders who drafted that original Constitution and be more forgiving than we have been. For those who have a felony conviction in Florida, that impacts over a million people, nearly all of them cannot vote because of Florida's laws, but these are just laws.

We could wake up tomorrow and decide to be more like our sister states that realize that once you're done with your prison time and are out in the community, that your voting rights can and should be restored. Just remember that democracy is worth defending and that a little truth goes a long way.

Thank you to my guests for joining me today. This is a production of Ciara Torres-Spelliscy who can be found on social media as ProfCiara, [00:53:00] P-R-O-F-C-I-A-R-A. The episode was mixed by WBAI. Our logo is by Entire World. Theme Music was composed and performed by Matt Boehler. This show is based on the book Corporatocracy, published by NYU Press. This has been Democracy and Destiny with Ciara Torres-Spelliscy.