This op-ed in The Washington Post, by John C. Ackerman, an Illinois county clerk, argues that calling the new state laws that cut back on voting opportunities “21st century Jim Crow” is a “vilification campaign” aiming “to smear Republicans and keep Democratic voters angry and motivated.” While that rhetoric is harsher than I would employ, and there are details in the piece with which I disagree, I do think there’s an important point here. What is currently going on in states like Georgia and Texas, as objectionable and retrogressive as it may be relative to voting procedures used for the pandemic general election of November 2020, is not the functional or moral equivalent of America’s version of apartheid that existed from the death of Reconstruction until the Civil Rights Era. Having written in Ballot Battles about the electoral terrorism that existed in the South at the hands of the white supremacist “Redeemers” in their tragically successful effort to negate the implementation of the Fifteenth Amendment–including the horrific Colfax Massacre in the fight over the 1872 election–I think we should calibrate our critique of the present moment to the severity of the current conditions. There is no doubt in my mind that we are dangerously in a period of backsliding, relative to the gains of the Civil Rights Era of the 1960s, but I personally think it a mistake to call the current degree of backsliding “21st century Jim Crow”; thankfully, I don’t think we have backslid that far (at least not yet), and I think there’s a danger of being the proverbial boy who cried wolf if we call the current situation a new version of Jim Crow.

Perhaps more significantly, I also think using the Jim Crow label to describe what’s happening right now presents a risk of invoking the less apt historical analogy and thus misdiagnosing the nature and severity of the current threat. “Electoral McCarthyism” is how I characterize Trump’s Big Lie and the effect it is currently having on our capacity to conduct free and fair elections, including the slew of state legislation that potentially threatens this capacity. I call it “Electoral McCarthyism” because the fabrication of disinformation about vote tallies seems comparable to McCarthy’s fabricated claims about Communists in the State Department and Army. (Giuliani’s press conferences last fall in particular seemed analogous to McCarthy’s false claim to have a list of State Department names). Trump’s charismatic demagoguery and the GOP’s incapacity to resist it also seems similar to the GOP’s incapacity to counter McCarthy at the heights of his charismatic demagoguery. “Red Scare” McCarthyism lasted four years, until McCarthy self-destructed in the Army hearings. When will “Electoral McCarthyism” end and what will be its downfall? Gabe Sterling’s “someone will get killed” speech on December 1 did not end this Electoral McCarthyism. In fact, not even the deaths at the January 6 insurrection did. The last six months tell me that the virulence of Electoral McCarthyism has only gotten worse and collectively we haven’t yet figured out how to defeat it.

Moreover, my historical research causes me to believe that this Electoral McCarthyism is an unprecedented threat to American democracy, never before experienced in our history, neither before nor since the Civil War. “21st century Jim Crow” suggests that we are just reverting to a place we’ve been before. But in all the electoral disputes I studied for Ballot Battles, there was nothing like the Electoral McCarthyism of Trump’s Big Lie. Yes, we’ve had terrible fighting over electoral outcomes, including the Hayes-Tilden debacle. But to my knowledge, we’ve never had the sheer fabrication of an alternate electoral reality that is Trump’s claim of having been robbed of a victory that was rightly his (with his supporters still believing that fabricated alternative reality, or actually non-reality). Richard Hofstadter famously wrote about McCarthyism in The Paranoid Style in American Politics, making the point that periodically America has succumbed to this kind of collective paranoia–McCarthyism was not the first. But my point is that Electoral McCarthyism is the first time that this kind of paranoia has affected ballot counting, and that seems to me a uniquely dangerous condition for our democracy.

If this analysis is correct, it’s not good enough just to have a reinvigorated Voting Rights Act, as important that is. Because the current situation is not Jim Crow 2.0, our remedy must be something other than (or in addition to) a VRA 2.0. Because Electoral McCarthyism is unprecedented, the remedy also may need to be a historically first-of-its-kind (perhaps including, for example, impartial electoral tribunals of the kind that exist in other democracies, but not in the U.S.).