12/15/00 10:35 a.m.
Distinctions with a Difference
Blacks aren’t the monolith Jesse Jackson pretends they are.

he Reverend Jesse Jackson, never quiet, has turned up the volume in the last week. His subject is, of course, Florida. Unhappy about the final ballot tally there, he has promised "massive, nonviolent demonstrations" — a "civil rights explosion" — aimed at "a systematic plan to disenfranchise black voters" and "a clear pattern of voter suppression." He adds, "A right-wing Supreme Court has subsidized this illegitimacy."

To be sure, parsing what Jackson has to say may strike some as a silly exercise — rather like looking for grammatical errors on the Jerry Springer show. And asking Jesse to make distinctions, fine or otherwise, may seem to be a particularly futile enterprise. But there are some distinctions that ought to be made by Jackson or anyone else who is analyzing and critiquing Florida's recent voting procedures.

Wealth versus race. Poorer counties apparently had more antiquated methods (for instance, Votomatic machines) while richer counties had state-of-the-art technology (for instance, laptop computers tied in with a central databank of voter names, which facilitated voting). Is this racist? Of course not. The likelier explanation is that the poorer counties made an entirely rational decision to devote their scarce resources elsewhere. Is it fair that voters in poorer counties were more likely to be stymied in their voting? Maybe not, and maybe Florida should try to ensure that there is greater uniformity in voting technology around the state. But it is wrong to accuse anyone of being racist because the rich can buy more than the poor.

To a great extent, the Democrats were a victim of their own success, as even the Washington Post concluded. They succeeded in dramatically increasing the number of voters in many areas, but in doing so they overwhelmed the capabilities of the local voting precincts. Added to this is the fact that many of the new voters had never voted before and probably contained a disproportionately high number of illiterates. (According to data cited by Holman W. Jenkins Jr. in the Wall Street Journal, 49 percent of the adult population in the black neighborhoods of Miami-Dade and Broward Counties is "functionally illiterate.") This, not racism, is what accounts for many black ballots being improperly marked and thrown out.

Politics versus race. Republicans will try to get as many of their voters as possible to register and vote, and so will Democrats. While both sides know that it is wrong to obstruct anyone who legally wants to register and vote, they will avoid doing anything that helps the other side's voters. The trouble is that the line between "not helping" and "obstructing" can blur. Worse, if the other side's efforts will result in some people who aren't legal voters voting — by registering convicts or illegal aliens, for example — then there is nothing wrong with challenging those efforts, and then the line between what is legal and illegal really starts to get fuzzy.

And, making matters really worse, is the role that race will play. Both sides know being black is a good proxy for voting Democratic (Gore got 93 percent of the black votes in Florida, and 90 percent nationwide). That's why Democrats target black neighborhoods for their "knock and drag" efforts on Election Day. That's why the Democrats love it when the NAACP and Jesse Jackson urge blacks to register to vote and then vote, even when they don't say for whom. And keeping this proxy valid is why Democrats work so hard to paint Republicans as racist. That's unfair and wrong, just as it is likewise unfair and wrong if some Republicans have been especially aggressive in challenging the credentials of black voters.

We can take some solace in the fact, however, that no one — Democrat or Republican — has any objection anymore to African Americans voting on account of their race. Just a generation ago, it was irrelevant how a black intended to vote in many parts of the country; they weren't supposed to vote at all. Now, how they vote is of critical importance. If a southern black is thought to be a Republican voter, then Republicans will not only not object to his voting, they will drive him to the polls, put him on the podium, recruit him as a party leader. Race per se doesn't matter at all. But this is not something that Jesse Jackson or the NAACP like to admit.

Intent versus impact. There is a big difference between intentionally choosing technology, setting qualifications, or applying rules so that they will exclude blacks from voting, on the one hand, and choosing technology and setting qualifications for legitimate reasons, applying the rules evenhandedly, and having them turn out to have the unintended result of a disproportionate impact on blacks, on the other. This is what lawyers call "disparate treatment" versus "disparate impact." The former is discrimination; the latter really isn't.

Now, to be sure, the Voting Rights Act does prohibit procedures with a disparate impact, too, but only if there is no legitimate basis for those procedures. And checking people's qualifications to vote, saving money by making do with less than the latest voting technology, and so forth all have entirely legitimate justifications.

Correctable versus uncorrectable. No matter how hard we try, some unfair things will happen on Election Day. Nothing that involves millions of people, amateur officials, and passion will be perfect. Some people will not be able to figure out how to vote properly. The standards for requiring identification will not be completely uniform. Sometimes officials will act with partisan or even racial motives. And sometimes people will perceive bias even when none exists.

This is not to say that unfairness is no big deal and that we shouldn't try to make the system as perfect as possible. But grownups know that this isn't a perfect world. Grownups don't says things like, "As long as Americans' right to vote has been in any way inhibited or denied, there are foreign particles of undemocracy in the wound," as Jackson did. And grownups will take a step back and ask, are the imperfections great enough and widespread enough to justify, say, a statement like Jackson's that "All that we bled for and suffered for the last 25 years is now in the balance here today." Miami-Dade is not Selma, and it is disgraceful to suggest that it is.

Prospective relief versus retrospective relief. Let us suppose further investigation — now under way by the NAACP, U.S. Civil Rights Division, and U.S. Commission on Civil Rights — turns up some instances in which voting procedures were either unfair or illegal, whether on the basis of race or otherwise. It is altogether appropriate to take steps that will ensure these abuses won't happen in the future. But that doesn't mean that there will be anything that can be done to undo the past election — and that also makes it wrong to claim that the past election ought to be treated as illegitimate.

For instance, the Miami Herald has concluded that perhaps several thousand felons voted in Florida, even though it was illegal for them to do so. (For some reason, Jackson and the NAACP have not complained about this.) There is, unfortunately, nothing that can be done about felons' voting except to try to make sure it doesn't happen again. There is no way to know for sure how the felons voted, and it would be silly to ask them. If they lied, and their votes were then subtracted from the opponent's column, then they'd have been effectively awarded not just one vote, but two!

Conversely, Jackson asserts that police roadblocks kept some black voters from voting. USA Today's investigation has thrown cold water on this claim, but even if it were shown to be true, and even if were shown that the roadblocks had some improper intent, there is nothing that can be done about it now except to keep it from happening again. There is simply no way to identify reliably which voters were kept from voting and how they would have voted.

And the same is true of the allegations being made by the NAACP in its lawsuits, namely of voter intimidation, polling sites being moved without timely notice or closed early, and the disproportionate purging of voters in predominantly black precincts. We cannot ask now who was intimidated and how they would have voted; or who would have voted, and how, had the site not been moved or closed; let alone how many white voters should have also been purged, too, and how they would have voted (legitimately purged black voters cannot, of course, be allowed to vote).

Legitimate protest versus irresponsible demagoguery. If people were wrongly kept from voting in Florida, then there is nothing wrong with protesting to bring attention to this fact and to bring pressure to bear on the powers that be to correct these abuses. But it is demagoguery to call people racist and to accuse them of discrimination when race played no role in what they did — even if the standards they set and enforced happened to have disqualified more African American voters than white voters.

And to take to the streets to assert the "illegitimacy" of a national election that has been carefully scrutinized and ultimately upheld by the nation's highest court gets very close to "the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance," which is how my dictionary defines treason. Sure, the Reverend Jackson promises only "massive, nonviolent demonstrations" in his "civil rights explosion," but he is deliberately playing with fire and hoping to influence policy by intimidating policymakers with the threat of racial violence.

Conservatives were not happy when, in their view, the legal process was abused by Bill Clinton and yet he escaped impeachment. But they did not threaten to take to the streets to vent their frustration. Instead, they shook their heads, shrugged, and went on with their national life. The time has come for Jesse Jackson, the NAACP, and their allies to do the same and accept the election of George W. Bush.