The Political Branding of the Big Lie

This piece will argue that the Roberts Supreme Court’s protection of lying and its choice to fence government speech as outside of First Amendment analysis have created a perfect storm for a figure like President Trump to do incredible damage to voting rights specifically and trust in American democracy more generally.

In my 2019 book, Political Brands, I explored how commercial branding techniques are being used in politics to sell American voters, politicians, ideas and ideals. Branding includes the targeted repetition of messages until they are accepted as true by an audience, even if the message is a lie, a myth or fantasy.

In the months before the 2020 election, experts predicted that because of the COVID-19 pandemic, millions more voters than normal would vote by mail. These experts put out a white paper entitled “Fair Elections During a Crisis” encouraging states to process mail-in votes as early as possible so that there would not be a delay in processing overall votes total. The white paper predicted what is now known as either the Blue Shift or the Red Mirage—that if Republicans voted in person and Democrats voted by mail, that Republicans would appear to “win” on election day, but that once all ballots were processed it was possible for Democrats to actually win.

This Blue Shift/Red Mirage indeed happened in the 2020 general election for president. At 2:00 a.m. after the election, President Trump prematurely and incorrectly declared victory. Key swing states like Nevada, Georgia and Pennsylvania took days after the election to process all of their votes. It was Saturday, November 7, 2020 when Biden’s victory became clear. President Trump then spent every day since the 2020 election through Biden’s inaugural claiming that there was massive voter fraud, voting machines cannot be trusted, and Republicans legislators should appoint pro-Trump electors. His campaign filed multiple lawsuits attempting to get states to throw out certain votes and, in a particularly bold suit, his campaign attempted to get all votes from Pennsylvania to be thrown out. The courts did not indulge him or his campaign.

Trump’s failure to concede by itself likely would not cause lasting damage to the American political process. But the nonstop rhetoric during the 28 days (and counting) that his supporters should “stop the steal” of the election, while questioning whether the integrity of the 2020 election had been profoundly undermined by voter fraud or failed voting machines, Trump’s rhetoric has the potential to undermine voting rights and trust in American democracy.

The longer-term damage that could be is that Trump’s fantasy problems will be used as justifications for real voter suppression laws which make voting rules more restrictive.

a. Ciara Torres-Spelliscy holds an A.B. from Harvard University and a J.D. from Columbia University. She is a tenured Professor of Law at Stetson University College of Law and a fellow at the Brennan Center for Justice at NYU School of Law. She is the author of the books CORPORATE CITIZEN? AN ARGUMENT FOR THE SEPARATION OF CORPORATION AND STATE (2016) and POLITICAL BRANDS (2019). She would like to thank Stetson University College of Law for the scholarship grant that allowed her to write this piece. She would also like to thank her Stetson research assistants Rebecca Doloski, Hanley Gibbons, Hannah Klonowski, Alexis Thomas, and Mia Tolliver as well as librarian Sally Waters for their research assistance.

The full text of this Symposium is available to download as a PDF.