This Isn’t Jim Crow 2.0

Ignore the phony partisan rhetoric. Washington needs to focus on the Electoral Count Act.

Photo illustration of a voter behind a screen inscribed with the U.S. flag, the edge of a ballot, and a pair of hands leafing through a stack of ballots
Getty; The Atlantic

President Joe Biden and former President Donald Trump both say that American democracy is at risk, and that’s true—but they’re wrong about why. The problem isn’t that our elections are broken or somehow illegitimate. The problem is that politicians continue to manipulate the truth about our elections to serve their own interests, while ignoring a serious—but resolvable—legal ambiguity.

To distinguish the partisan noise from the truth, you need first to separate our electoral system into its component parts: the process of enabling Americans to vote, the process of counting those votes, and finally, the system for certifying those results in communities across America and in Washington.

Biden and the Democratic leadership claim that what they call voter-suppression laws and “Jim Crow 2.0” are the real threat. During Jim Crow, poll taxes, arbitrary literary tests, and other devious tactics were used to prevent African Americans from registering to vote and casting their ballots.

Jim Crow was a terrible injustice and remains a stain on our country, but that is not where we are today. The 2020 election had the highest voter turnout in the nation’s history, including among Black, Latino, and Asian American voters; 59.4 percent of eligible African Americans voted, compared with 65.3 percent of white Americans. And that discrepancy in the percentage of white and Black voters is partially reflective of age—white voters tend to be older, and older Americans are more likely to vote—not systematic disenfranchisement.

The voting-law changes made by state legislatures since 2020 also do not take us back to Jim Crow. Many of these laws simply return voting practices to those in effect before the pandemic. Are we really supposed to believe that the voting laws in place in 2012—when our nation’s first Black president and then–Vice President Biden were reelected—are equivalent to Jim Crow? Democrats, including Biden, who make that comparison are denying the great progress America has made in opening our electoral and political systems. Refusing to recognize this genuine progress is insulting to the legacy of courageous and persistent leaders who sacrificed so much to get us to where we are today.

Meanwhile, Trump continues to cast doubt on the second component of our electoral system, the counting of the votes, by not facing the truth about the 2020 election. There is absolutely no evidence that any of the 2020 election results were fraudulent. No inaccuracies on the margins would have changed the outcome. The former president’s assertions are groundless. As Trump’s own Department of Homeland Security stated, the 2020 election was “the most secure in American history.” The upstanding officials who have spoken the truth about this deserve our thanks and admiration. Claims that our systems for counting votes in the states need to be reformed are, like charges of widespread voter suppression, not based in reality.

Biden and the Democrats use the memory of January 6 to pretend that their preferred reforms are necessary to stave off a return to systemic, racist voter suppression; Trump and his supporters use it to pretend that he was robbed of victory. Instead of pursuing their self-interested political agendas, our representatives in Washington need to focus on fixing the part of our electoral system that really did come under attack on that day. Ambiguity in an existing law called the Electoral Count Act, written nearly a century and a half ago, led the January 6 rioters to believe that they could change the result of a free and fair election—which should worry every American. If that were the case, a sitting vice president would be able to simply anoint the ticket nominated by his or her party—which would be entirely at odds with our constitutional system of transferring power based on statewide popular votes. To end this absurd notion, the process needs to be spelled out more clearly in the statute. Thankfully, a bipartisan group of leaders is now focused on that issue.

The shame of this moment is that all the posturing on display from leaders of both parties is impugning our democratic system, which is operating according to the rule of law and worked in 2020. More people are voting than ever. Our processes for counting votes are resilient. Our courts still have the last word. Congress and leaders of both parties must stop exploiting the election of 2020 and the events of January 6 for partisan gain and start working together to fix the real problems in our system.