Red Fish, Blue Fish

Red Herring Feature - The Strategy DistilleryAcceptable definitions of the term red herring tend to be consistent and provide the following:

A reference that misleads or distracts from a relevant or important question asserting a logical fallacy or an insinuation that leads toward a false conclusion.

Often, when politicians are unable to present reasoned statements in favor of or in opposition to an issue, the red herring is snatched from the piscatorial briefcase as a substitute to bait audiences. Perhaps, too often, the listener is swayed, despite any facts to the contrary.

Recently, Ronna McDaniel, chair of the RNC, and Sen. Rick Scott (FL), chair of the RNC Senate campaign arm, criticized the much-discussed legislative proposals to enhance voting rights and protections as bold attempts to “federalize” elections. In response to a speech by President Biden in Georgia, Scott stated, “Our goal is maximum participation and zero fraud.  Not some fraud, we want zero fraud.” GOP opponents also claim that such federal legislation intrudes upon the “right” of states to determine and define voting rights and protections.   

GOP opponents also claim that such federal legislation intrudes upon the “right” of states to determine and define voting rights and protections. By most measures, these defenses constitute the Guinness record for red herrings.   

By most measures, these defenses compete favorably for the Guinness record for red herrings. The 2020 election turnout was itself a record-breaking one, with virtually zero data to measure fraud. Moreover, many of the state laws affecting voting in 2020 were adopted with, or even at, the approval of Republicans in state legislatures. Presumably, those protections were consistent with the Constitution. Despite the absence of fraud but in the face of a coordinated campaign attacking the election’s outcome, Republican-led states seek reformation of the laws that guided the 2020 contests.

If one assumes for the sake of argument that the proposed state legislation would ensure repetition, if not improvement, of the 2020 results, those provisions should be highlighted. For example, what improvement is expected from Georgia’s provision to make it a crime to provide drinking water to voters waiting in line? By contrast, no advocate of proposed federal legislation has cited a provision that the distribution of water at voting precincts is essential to voter participation.

Over many decades, the states have, in fact, proven that the absence of federal intervention in voting would have produced substantial inequalities and disenfranchisement, such as gerrymandered districts and Jim Crow laws spawned under state domination. This latent effect was also demonstrated when SCOTUS found provisions of the Voting Rights Act of 1965 to be unconstitutional, creating a vacuum into which states rushed with restrictive measures. Historically, state laws were federalized–by definition and consent–with the adoption of the national Constitution. Subsequently, the abolition of slavery, women’s suffrage, direct election of Senators, and suffrage for 18-year-olds were the result of federalization.      

The use of a red herring as criticism of federalism has, as the definition notes, a missing middle term or facts, i.e., failing to cite the benefit of state law reforms or existing legal authority enjoining intervention by the central government. Conservatives are fond of citing the Tenth Amendment’s reservation of powers to the states as evidence of a protected sovereignty, particularly concerning the conduct of elections. That defense suffered mortal wounds in light of the post-Civil War amendments and the introduction of the income tax in 1913.

Critical reading is unnecessary for an exegesis of Article I, Section  4 of the Constitution, which plainly provides:

The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations….  (emphasis added).

Sen. Scott implies that state initiatives with regard to voting laws are intended to eliminate fraud but failed to offer any evidence that voter fraud increased under the laws in effect in 2020. In fact, in Florida, attorneys advocating for election reform legislation have pointed to a handful of fraudulent voting instances by Republican voters in the Sunshine State to emphasize the party’s determination. The response, however, ignores the fact that existing procedures exposed the few instances while the proposed reforms advance no greater protections.

On the whole, federalization of voting laws since the adoption of the Constitution – on the face of the issue – has achieved precisely the improvements now promoted as Republican goals. It is not at all humorous that some states and the Republicans are arguing that they can and have done a better job than Washington regarding voting enhancements and protections for the nation.   

What is clear is that red herrings are not only inedible but unhealthy for the political environment. Perhaps they will become extinct. Until that moment, the creatures should be on the endangered species list.

Categories: CIVIL RIGHTS, congress, democrats, elections, Issues, legislature, National, political parties, politics, republicans, State, VOTING RIGHTS

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