If It’s Not Jim Crow, What Is It? 1

Georgia’s new voting law has to be understood in its own peculiar historical context.

The laws that disenfranchised Black Americans in the South and established Jim Crow did not actually say they were disenfranchising Black Americans and creating a one-party racist state.

I raise this because of a debate among politicians and partisans on whether Georgia’s new election law — rushed through last month by the state’s Republican legislature and signed by Gov. Brian Kemp, a Republican — is a throwback to the Jim Crow restrictions of the 20th century.

Democrats say yes. “This is Jim Crow in the 21st century. It must end,” President Biden said in a statement. Republicans and conservative media personalities say no. “You know what voter suppression is?” Ben Shapiro said on his very popular podcast. “Voter suppression is when you don’t get to vote.”

The problem with the “no” argument here is that it mistakes both the nature and the operation of Jim Crow voting laws. There was no statute that said, “Black people cannot vote.” Instead, Southern lawmakers spun a web of restrictions and regulations meant to catch most Blacks (as well as many whites) and keep them out of the electorate. It is true that the “yes” argument of President Biden and other Democrats overstates similarities and greatly understates key differences — chief among them the violence that undergirded the Jim Crow racial order. But the “no” argument of conservatives and Republicans asks us to ignore context and extend good faith to lawmakers who overhauled their state’s election laws because their party lost an election.

Southern lawmakers at the turn of the 20th century weren’t shy about their motives — “Whenever there were political questions involved, of course, we looked to the interests of the party, because they are the interests of the State,” one Democratic delegate to the 1898 Louisiana constitutional convention, which sharply restricted the franchise, said at the time — but their laws had to be more circumspect. “Those who sought to prune the Southern electorate were hampered by various constitutional restrictions,” the historian J. Morgan Kousser explained in his 1974 book, “The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910.”

Between the 15th Amendment, which prohibited overt discrimination on the basis of “race, color, or previous condition of servitude,” and the 14th Amendment, which allowed Congress to slash the representation of states that disenfranchised adult males for any reason other than crime or rebellion, Southern lawmakers could not just write Black voters out of the electorate. “The disenfranchisers were forced to contrive devious means to accomplish their purposes,” Kousser writes.

According to Kousser, the first wave of suffrage restriction after Reconstruction relied primarily on laws and practices that “decreased the influence of opposition voters but did not actually prohibit them from exercising the franchise.” Some states, for example, took the right to name their local officials away from voters and granted it to governors and state legislatures, a practice that “guaranteed that white Democrats would rule even in Republican areas.”

Other Southern states embraced changes like voter registration, which had a stark and negative effect on turnout, made worse by the discretion given to registrars.

Here’s Kousser:

According to the North Carolina law of 1889, for instance, registrars, appointed indirectly by the Democratic legislature, could require that a voter prove “as near as may be” his “age, occupation, place of birth and place of residency … by such testimony, under oath, as may be satisfactory to the registrar.”

Democrats, he notes, “employed this law to deny the vote to white and Black Republicans and Populists in the early 1890s.” Louisiana lawmakers passed a registration law in 1896. That year, 95.6 percent of Black adult males appeared on the voter rolls. Two years later, at which point voters were required to have reregistered, 9.5 percent of Blacks were listed.

In addition to registration requirements, there were the now-infamous literacy tests. In Virginia, a potential voter had to read a section of the state or federal constitution — and persuade the registrar that he understood the words — in order to qualify to vote. Mississippi’s similar requirement came with an “understanding clause” that allowed a would-be voter to cast a ballot only if he could understand the text read to him.

A recently published paper by the political scientists Luke Keele, William Cubbison and Ismail White on the use of the understanding clause in Louisiana during the 1950s underscores the impact of voting laws that rely on discretion for their effect. “These results highlight that voting restrictions that give local officials greater authority to deny the franchise may be particularly susceptible to discriminatory outcomes,” they note.

Rounding out these legal restrictions on the right to vote were poll taxes. On their own, they may not have had the decisive impact that critics at the time attributed to them, but in conjunction with other measures, they worked to discourage many Southern men, Black and white, from even trying to vote. “Although the $1 to $2 levies did not seem high to middle-class convention delegates and legislators,” Kousser writes, “they represented a significant charge to many inhabitants of the nation’s economic backwater region.”

For as much as Southern lawmakers were often explicit about their intentions and aims (“Discrimination!,” declared Carter Glass, who as a state senator helped write Virginia’s 1901 Constitution. “Why, that is precisely what we propose; that, exactly, is what this convention was elected for.”), they also knew that they had to mask these laws and provisions in the language of neutrality. The authors of the Mississippi Constitution of 1890 even added an addendum to this effect:

Every provision in the Mississippi Constitution applies equally, and without discrimination whatever, to both the white and Negro races. Any assumption, therefore, that the purpose of the framers of the Constitution was ulterior, and dishonest, is gratuitous and cannot be sustained.

One of Kousser’s conclusions is that Jim Crow voting restrictions were as much about partisanship as they were about race, with Southern Democrats targeting the two groups outside of plantation-dominated areas, Blacks and low-income whites, who powered their Republican and Populist opposition.

This brings us back to the Georgia law. To the extent that it plays at neutrality while placing burdens on specific groups of voters on a partisan (and inescapably racial) basis, it is, at least, Jim Crow-adjacent. And as my Times colleagues Nick Corasaniti and Reid Epstein wrote last week, there are key provisions that fit this bill.

After an election in which 1.3 million Georgians used absentee ballots — and nearly two-thirds of them voted for Biden — the Republican-led government has now cut by more than half the period during which absentee voters can request a ballot, to less than three months from six months. It has also instituted a strict new ID requirement for absentee ballots, adding steps for voters that would invalidate their votes if done incorrectly.

The new law requires each county to provide drop boxes for absentee ballots, but limits their location and the hours when they are available, as well as the number the most populous counties can have. This increases access for largely Republican-voting rural counties and decreases it for the state’s Democratic urban centers.

“For the 2020 election, there were 94 drop boxes across the four counties that make up the core of metropolitan Atlanta: Fulton, Cobb, DeKalb and Gwinnett,” Corasaniti and Epstein report. “The new law limits the same four counties to a total of, at most, 23 drop boxes, based on the latest voter registration data.”

Another part of the new law affects voters who go to the wrong precinct, a common problem after the state shuttered hundreds of polling sites following the Supreme Court’s ruling in Shelby County v. Holder, which gutted the 1965 Voting Rights Act. Rather than cast a provisional ballot, those voters will now have to go to the correct precinct. If they cannot do so before the end of voting hours in their area, they may not be able to vote at all.

The most potentially consequential change gives the Republican-controlled state legislature greater influence over the state election board, and then empowers that board to remove local election officials.

Even if these provisions didn’t directly burden Democratic voters, they may raise the cost of mobilization for Democratic-leaning groups, who will need to invest more and greater resources into assisting voters with the new barriers.

That said, we cannot evaluate this law outside the context of the last election, in which Democrats won three statewide races, breaking decades of Republican dominance in elections for federal office. Nor can we ignore the degree to which this law might empower legislators to do exactly what Donald Trump demanded after it was clear he would lose the state: directly intervene in the election and overturn the result. The incontrovertible truth is that if Trump had won Georgia, or if Republicans had held Kelly Loeffler’s and David Perdue’s seats in the Senate, this law wouldn’t exist.

With all of this in mind, it is important also to say that Jim Crow was not an overnight phenomenon. “Twentieth-century Southern politics did not spring full-grown from the heads of those who negotiated the Compromise of 1877,” Kousser writes. “What followed after Reconstruction was a period of transition, uncertainty, fluctuation that ended only with the restriction of the suffrage and the consequent stifling of anti-Democratic political parties.”

One of the lessons of the South after Reconstruction is that democratic life can flourish and then erode, expand and then contract. Democracy is not a solid state, and we should be wary of politicians who would undermine any part of it for partisan advantage.

It took three decades of struggle, and violence, before Southern elites could reclaim dominance over Southern politics. No particular restriction was decisive. The process was halting, contingent and contested, consolidating in different places at different times. It was only when the final pieces fell into place that the full picture of what took place was clear.

Put a little differently, the thing about Jim Crow is that it wasn’t “Jim Crow” until, one day, it was.

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