Here's the Bush idea of electoral reform: Cancel the election. The Florida legislature's move to choose the state's electors and declare George W. Bush the next President is only the latest of Bush's attempts to short-circuit electoral due process, raising the stakes in the Florida recount far beyond the interests and limitations of Al Gore. Bush's premature declaration of victory, the bare-knuckle tactics employed by his camp through the initial recount and now the legislature's attempt to pre-empt voters altogether have laid down a chilling marker: Bush is trying unilaterally to make his presidency a fact, rendering irrelevant both the legal system and a credible counting of Florida's votes.
To keep those voters' legally cast ballots from being counted, Bush, James Baker and Dick Cheney orchestrated a Big Lie campaign at an extraordinary level. New York Governor George Pataki insisted, "We've now had a count, a recount, a recount of the recount." In fact, at least 10,000 Miami-Dade ballots recorded no presidential vote, suggesting they were never counted properly in the first place. According to the New York Times, antiquated and error-prone Votomatic machines prevalent in the same county's black precincts may have cost Gore as many as 7,000 votes. Bob Dole hammered away at Gore for "disenfranchising" the military. The substance of those allegations vanished so quickly that the Bush campaign withdrew its lawsuit. Bush himself denounced Florida's hand counts, saying they were able to produce "no fair or accurate result." In fact, as US District Judge Donald Middlebrooks pointedly noted in rejecting Bush's case, Florida's hand-recount procedures are studiously "neutral," and Bush had as much right to request hand counts or to challenge certification as Gore. Hand recounts are routine in virtually every election jurisdiction in the country.
Curiously, the Republicans and Democrats seem to share the same central premise, which is that if enough votes get counted Gore will win--hence a GOP strategy based on impeding recounts at any cost. This strategy found near-perfect expression in that pre-Thanksgiving hecklers' veto of the Miami-Dade recount by a screaming crowd of Republican Congressional staffers flown in for the occasion. With thousands of Miami-Dade and Palm Beach votes still to be counted in Gore's post-certification contests, the legislature is now going to the next logical step: Why have an election at all when you can have a coronation?
To back up his effort to crown himself over the heads of Florida's voters, Bush is playing one of the hoariest cards in the right-wing deck: resentment of the judiciary. When Bush, in his "I'm in charge here" speech, denounced the Florida Supreme Court for "rewriting the law," he knowingly stirred regional and racist resentment. His lawyers, led by Ken Starr crony Ted Olson, continued on the same tack with the US Supreme Court, in their brief charging the Florida high court with "judicial legislation" for extending the state's certification deadline in a routine bit of legal interpretation. As political strategy, this effort to delegitimize the judiciary harks back to the impeach earl warren bumper stickers of 1960s segregationists and the Reagan-era attacks on civil-libertarian state judges like California's Rose Bird. As legal theory, Bush's Supreme Court argument has even more profound implications than the election itself. As Laurence Tribe and Gore's legal team correctly noted in their reply, Bush "would undermine the authority of the judiciary to decide the meaning of law."
An election is supposed to represent the direct line connecting people to power. The Bush strategy of impeding the vote counting does the opposite, drawing into the whirlwind every branch and level of government; each new escalation pulls the election's outcome a step further from the voters. The conventional wisdom of the moment is that Gore should give up for the sake of closure, and the Democrats should return to fight another day. But the legitimacy of votes and the legitimacy of the judiciary in protecting voters' rights are principles too fundamental to abandon without the most exhaustive political and legal battle. Whatever you think of Al Gore, this is terrain that is essential to fight for to the bitter end. Settling for less is a false closure not worth contemplating.
PALM BEACH STORY
With challenges to vote counts flying furiously throughout Florida, we presume to advise an attorney for one group of complainants--those voters in Palm Beach County who were misled by the infamous "butterfly ballot." A total of 19,120 ballots were disqualified in the county because they recorded votes for two different candidates. A later sample count by the canvassing board showed a majority of the double votes were for Gore and Buchanan, lending credence to the theory that folks were misled into voting for Pat. A Florida barrister with the Dickensian name of Henry Handler is representing dozens of Palm Beach County voters who sued because their votes weren't counted. On behalf of his clients, Handler asked for a revote, but on November 20 Judge Jorge LaBarga of the Palm Beach County Court rejected the revote remedy on the ground that the Constitution clearly states that presidential elections have to be held on a single day. The case is now on appeal, and we offer Mr. Handler a suggestion: Instead of asking the court for a new election, ask it to disqualify the tainted ballots in the election districts (EDs) in question--a practice with which Florida courts in particular are familiar--and simultaneously invite all aggrieved voters in these same EDs to come forward with affidavits stating, under penalty of perjury, whom they really meant to vote for. Thus, they would not be voting on a day other than Election Day, but simply reaffirming their vote under oath. And they would be cleansed of the sin of voting for Buchanan.
THE REAL LEADERS
Although the word "leadership" was bruited about ad nauseam in the late campaign, we emerged no wiser about what it consists of. The Advocacy Institute, a Washington public interest group co-directed by Michael Pertschuk, a contributor to this magazine, has undertaken a project in partnership with the Ford Foundation and the Robert F. Wagner Graduate School of Public Service at New York University that should reinject some content into a term that was filled with hot air. It's called Leadership for a Changing World, and the objective is to recognize community leaders or leadership teams who have been tackling social problems with noteworthy success. Over the course of six years the program will give sixty leaders and leadership teams $100,000 each to advance their work, plus $30,000 for supporting activities. You are invited to nominate someone who has shown superior leadership talent in a local community or field. Nominations will be accepted through January 5, 2001. First, you'd better obtain a nomination brochure, setting rules and criteria. It may be had by going to www.leadershipforchange.org or by writing the Advocacy Institute, 1629 K Street NW, Suite 200, Washington, DC 20006.
READERSHIP SURVEY (CONT.)
Watchers of this space may recall we published a "Readership Survey" that provided mock descriptions of the typical readers of various publications. Since then we have received some additional examples: "The Congressional Record is read by those who hope (and some pray) that no one is running the country" (Don Slagel). "The Financial Times is read by people who don't care about the country but want to run the world" (Robert C. Sommer). "National Review is read by people who think liberals are running the country" (Suzanne Prichard). "The Washington Times is read by people who wish the country were being run by editorial writers at the Wall Street Journal" (Morton Paulson). And this from the erudite Washington columnist Lars-Erik Nelson, sadly, not long before he died: "The New York Daily News is not only read by people who are not too sure who is running the country, it is also written by people (e.g., me) who are not too sure who is running the country. I maintain this is the only intellectually defensible position." Finally, an anonymous entry we rather liked: "The Nation is read by people who think the country should be run by the powerless."
NEWS OF THE WEAK IN REVIEW
Media monopoly update: The American Antitrust Institute called for the breakup of the Voter News Service--the polling group serving all the major TV news organizations and the AP. The AAI attributed the erroneous calls by these media on election night to lack of competition among their exit pollsters.
It took George W. Bush a matter of days--if not hours--to prove that he doesn't believe his own different-kind-of-Republican rhetoric and that he is leading a squad as loaded with partisan hacks as the other team. He doesn't trust the people--at least, the people of the recount counties who want to make sure every chad counts. (The Bush-league spin that manual recounts are less accurate than Ouija boards was demolished by computer scientists and voting-machine experts, who maintain that well-managed hand counts are without question more accurate than machine feeds.)
Bush also shows his promise to be a unifier, not a divider, to be counterfeit. Relying on the impression created by the networks' false projection of him as the victor--a call first made by his cousin the vote projector at Fox News--Bush and his lieutenants portray every move that works against them in Florida as part of a conspiracy to "steal" the election from the rightful winner. This is the way to foster unity and healing? The Bush camp then played an ugly card by accusing Democrats, who were following the traditional practice of carefully vetting overseas absentee ballots, of seeking to disfranchise the men and women of the armed forces. What of the men and women who serve as firefighters, inner-city teachers and ER nurses in the disputed counties--did the Republicans care about registering their votes?
Al Gore was pegged as the candidate who would say or do anything to win, but clearly Bush is willing to do whatever it takes to score in Florida. Yes, the Democrats assaulted Florida Secretary of State Katherine Harris, but imagine the fury of Republican spinmeisters if a Democratic state official tied to the Gore campaign had voided a Bush-requested recount.
Given the closeness of the election and the rampant problems with vote-counting in Florida and elsewhere, neither Bush nor Gore can be a clear winner. A system of counting 100 million votes cannot be expected to be accurate to within 0.001 percent. But beware the drawers of lessons, those voices from on high who pronounce this split decision a mandate for centrism. Both candidates ran toward the center, and neither achieved a majority. (If one combines the Ralph Nader and Al Gore vote, there's a 52 percent center-left majority; but given the differences between Goreism and Naderism, could that be a workable majority?) Moreover, campaign centrism again failed to inspire most Americans. Nonvoters outnumbered Gore or Bush voters. Under such circumstances, a pundit-approved mandate would be a figment of the political class's imagination. With roughly half of Americans choosing not to choose, the winner can claim only slightly less than one-quarter support. Had Bush or Gore won by 5 percentage points, he still wouldn't have a popular mandate.
The no-decision election of 2000 may result in sorely needed electoral reforms. But will it convince the next President and the pols to rethink the notion that the center is all? Doubtful: The sad fact is that even more than in previous years, the winner of Campaign 2000 will no doubt be fixated on his re-election as the way to legitimize his very iffy win--and re-election mania breeds caution. After this contest, it's likely that the permanent campaign will become even more permanent. The election of 2000 will very possibly not be settled until 2004.
THE BUCHANAN FACTOR
John Cavanagh of the Institute for Policy Studies posits that Pat Buchanan undermined Bush's election hopes more than Ralph Nader did Gore's. Although Buchanan collected around 450,000 votes to Nader's 2.6 million, in the four states that Bush lost by razor-thin margins Pat may have played the spoiler. In New Mexico, which Bush lost by 377, Buchanan got 1,185. In Wisconsin, where Bush was down by 5,816, Buchanan garnered 11,077. In Iowa, where Pat chalked up 6,776 votes, Bush lagged by 4,047. In Oregon Buchanan took 5,029, Bush lost by 4,186. That adds up to thirty electoral votes that Buchanan might have cost Bush. The only two states where Nader's vote surpassed Bush's margin of victory were New Hampshire and (maybe) Florida, a total of twenty-nine electoral votes. Thus, it's possible that Buchanan hurt Bush more than Nader hurt Gore. Yet Republicans aren't blaming Buchanan for Bush's current predicament.
HOW TO CHOOSE A PRESIDENT
Speaking of the electoral impasse, the Ratzan family sent us a list of possible ways to award the presidency. Among them: * Proportional Term Method. Give each candidate a term in office proportional to the percentage of the vote he won. Two years for Bush, two for Gore, one day for Nader, five minutes for Buchanan. All other candidates' presidencies depend on whether their term leaves them sufficient time to take the oath of office. * Disgruntled Roommates Method. Part 1: Use tape to make line across middle of the Oval Office: This side is mine, that side is yours. Part 2: Divide government 50-50 between Bush and Gore--by department, budget or individual government worker. * Jeopardy Quiz Method. Categories would include Name That Foreign Leader, What Legislation Have I Signed? and English Vocabulary. * Quaker Meeting Method. No President elected until everyone agrees. (For more ways to award the presidency, see email@example.com.)
PRO BONO--AND CON
Sam Nelson reports: According to Supreme Court Justice Ruth Bader Ginsburg, the noble tradition of private pro bono legal counsel, long an answer to the government's inadequate legal aid to the poor, is fast eroding as law firms choose profits over charity. In a speech delivered at Brooklyn Law School recently, Ginsburg said that only 20 percent of the need for legal services to the poor is currently being met in the United States. She noted furthermore that countries in Western Europe spend several times what the United States spends per capita on civil legal aid. The role the private bar plays in providing free legal services has therefore been a critical one. But Ginsburg highlights a disturbing trend: One hundred of the wealthiest law firms now devote one-third less time to pro bono work than they did eight years ago, while the average lawyer spends less than a half-hour a week on unbilled legal work. This is due in part to familiar job-market trends in the new economy, as large law firms increase starting salaries by an average of $25,000 to compete for talent with other lucrative corners of the private sector, like Internet start-ups. Pro bono work, says Ginsburg, "has suffered accordingly." The tradition of pro bono work began in the philanthropic movements of the late nineteenth century and reached its peak in the civil rights climate of the sixties and seventies. Thirty years ago law school graduates frequently sought out firms based on the type of pro bono work they did, said Ginsburg. "Today they don't ask anymore."
TURNING THE ELECTORS
Two politically enterprising seniors at Claremont-McKenna College in California are behind a cybermovement called Citizens for True Democracy, which is mobilizing Internet folk to persuade at least two Bush electors (assuming W. takes Florida, giving him a two-vote majority in the Electoral College) to switch their votes, throwing the election into the House of Representatives or to Gore. To this end they've put on their website--www.truedemocracy.org--contact information for 189 Bush electors in the nineteen states that have no laws requiring electors to follow the popular vote, so that people can urge them not to vote for Bush. CTD cofounder David Enrich, a former Nation intern, says that "thousands of people have visited the page with electors' contact information." Enrich emphasizes he's no fan of Al Gore. "We're focusing on Bush's electors at the moment because Gore is ahead in the popular vote, and we think the popular vote should determine the next President." Actually, he and his partner, Matt Grossmann, founded CTD in 1998 to agitate for direct presidential elections and instant-runoff voting.
There aren't many gracious fighters--especially in the shouting-head world of Washington journalism. But Lars-Erik Nelson, who reported from the capital for the past three decades, was such a person. He recently died at age 59 as he was watching television at home. Nelson, a columnist for the New York Daily News, combined political passion--that is, a thirst for justice--with a hard-edged reporter's desire to unearth facts ignored, overlooked or neglected by others. Throughout the Monica Lewinsky scandal he was one of the few reporters who kept his head while all around him were losing theirs and distinguished between spin and substance. We were fortunate to count him as a contributor (see "Reno: Getting It From All Sides," June 26). The scoundrels, secret-keepers and hypocrites of Washington and the political class are slightly safer with Nelson gone. Our condolences to his family, friends and readers.
NEWS OF THE WEAK IN REVIEW
We have long suspected that the two major parties have become like brand names competing for market share. Now it turns out that a study by a marketing research company called FCB Worldwide actually rated the Democrat and GOP names along with sixty other product brands in terms of the intensity of consumers' relationship with them. FCB used fourteen criteria, which it says were developed with marriage counselors and psychologists and included "chemistry, affection, trust and reciprocity." Judged by these standards, the two parties ranked at the bottom, below well-known names like Nike, Oreos and Clorox. FCB's director, Janet Pines, told the New York Times, "It's scary, yes, but I think it's also easy to see that a bottle of bleach is less likely to betray you than a politician."
Patricia Williams's column does not appear in this issue. She will return in two weeks.
That year there were disputes over the presidential returns in South
Carolina, Louisinana, Oregon and Florida.
This essay, from the December 12, 1969, issue of The Nation, is a special selection from The Nation Digital Archive. If you want to read everything The Nation has ever published on war and human rights abuses, click here
for information on how to acquire individual access to the Archive--an electronic database of every Nation article since 1865.
When you read this, George W. Bush may be President, which will most likely mean that his lawyers, his brother Jeb and his Florida campaign co-chair and ambassadorial wannabe Katherine Harris succeeded in short-circuiting the manual recounts in Florida that had Al Gore's total edging upward. Or Gore--who, as we went to press, said he would abide by the results of a limited or, if Bush preferred, statewide hand recount--may have wrested victory from the jaws of premature concession because the hand-counted chads were hanging his way.
The bromide "every vote must count" has oft been uttered, but the Florida election ripped the veil off the many ways votes can be made not to count. Such as: Secretary of State Harris's refusal to redress blunders like the mysteriously unrecorded 6,600 presidential-line votes in Broward County; her selective tolerance of a 5 percent error rate in Florida's voting-card machines in an election with a far narrower margin; improprieties in the handling of GOP absentee ballots in Seminole County; closings of polling places in certain black precincts while voters were still waiting in line; and denial of requests for Creole interpreters.
In tandem with these ward-heeler power plays went the Bush forces' relentless stealth attack on democracy--the strategy seemed to be to sow confusion and doubt about the counting process. Leading the spinners was the pompous ex-Secretary of State James Baker, whose phalanx of lawyers sought an injunction in federal court--never mind the hypocrisy of champions of states' rights trying to overturn state elections laws. Federal judge Donald Middlebrooks gave these ploys short shrift and underscored that recounts are not aberrations in our system but routine occurrences, which a body of state and local law exists to handle.
The polls showed that a majority of Americans approved of the idea that the votes be fully and fairly counted; it was mainly the conservative punditocracy and academic talking heads who called for Gore to fall on his sword. We were reminded of the run-up to impeachment, when some of these same tribunes were hectoring President Clinton to resign rather than "put the country through" a period of instability threatening to undermine democracy and the Free World. Such warnings were dusted off for Baker's PR drive, enlivened with dire threats that the market would go south if a recount continued (upon which the market, driven by its inner neuroses, went up). Conveniently forgotten was the fact that there's a President on the job until January 20.
As the legal/political maneuvers unfolded we were struck by the relevance of what contributors to this issue, among them Lani Guinier, Theodore Lowi and William Greider, are saying from different angles: First, that democracy is messy and unpredictable--something the elites abhor--and all the more reason to insure that every vote is duly counted; and second, that over the long term the aftermath of this election may be more important than the question of which contender wins the race--if it galvanizes citizens to take a fresh look at the American way of voting. Right now we live in a drafty old house, and our contributors propose some practical ways to fix the roof and shore up the foundation. As Americans have learned throughout history, our rights periodically have to be wrested back from elites trying to take them away--as the Bush team was caught doing in Florida.
A proposed 14.2 percent postage increase for periodicals was swept aside by the Postal Rate Commission in a recommendation issued on November 13. The five-member presidentially appointed commission approved increases that average just under 10 percent. In our view that's just about 10 percent too much, given that the Postal Service is--the Internet notwithstanding--the circulatory system of our democracy. The Nation was among the witnesses cited in the commission's 1,000-page opinion who warned about the potentially destructive impact of the proposed rate hikes on journals of opinion.We were pleased that the commission recognized these magazines as a category worthy of separate consideration, but next time we hope to persuade them that it's as wrong to tax ideas through postal-rate increases as it was to tax tea in colonial times.
Katha Pollitt is not writing a column this week; she will be back in two weeks.
HEARING THE OTHER SIDE
At a time when Israeli opinion has hardened against peace efforts, 120 Palestinian academics and activists published an "urgent statement to the Israeli public" as a paid ad in Israeli newspapers on November 10. The statement called for "a final historic reconciliation that would enable our two peoples to live in peace, human dignity and neighborly relations." The signers argued that the Oslo accords have been used to camouflage expansion of settlements and the continuing expropriation of Palestinian land. It said that freedom of movement for Palestinians has been severely curtailed while settler violence against Palestinian communities continues. Resolving current inequities within the framework of the Oslo agreements with exclusive American "brokerage" was now impossible. Four principles were declared to be essential to a just peace agreement: Ending the occupation of the territories captured in 1967; Palestinian sovereignty over East Jerusalem and recognition of the city as the capital of two states; Israel's acknowledgment of its responsibility in the creation of Palestinian refugees in 1948; and mutual respect for spiritual and historical sites.
What if they held a presidential election and neither guy won? Or a dead man from Missouri defeated an incumbent Republican senator?
When the history of this year's presidential campaign is written, the addiction of both Bush and Gore to the obsolete politics of capital punishment will rank high in the annals of moral insensibility and cowardice. In the final debate they fell all over each other agreeing that the death penalty serves as a deterrent to murder. Never mind the polls showing a steadily eroding public support for it and growing alarm about tainted convictions. Even Janet Reno admitted a few months ago that "I have inquired for most of my adult life about studies that might show the death penalty is a deterrent, and I have not seen any research that would substantiate that point."
Just how remote the capital-punishment rhetoric of this campaign is from reality is suggested by a ruling from the Court of Appeals for the Fifth Circuit in the case of Calvin Burdine, who sits on death row in Huntsville, Texas. Burdine's court-appointed lawyer, Joe Cannon, slept through long stretches of his trial, a practice frequently ratified by Texas courts [see Bruce Shapiro, "Sleeping Lawyer Syndrome," April 7, 1997]. Federal District Judge David Hittner threw out Burdine's conviction, but on October 27 a Fifth Circuit appellate panel reinstated it. The two-judge majority--including Judge Edith Jones, a favorite Republican prospect for the Supreme Court--claimed that the record failed to show whether the lawyer's naps came during "critical" phases of the life-or-death proceeding. The panel's lone dissenter, Judge Fortunato Benavides, wrote that the circumstance of Burdine's trial "shocks the conscience."
What is conscience-shocking is not just Sleeping Joe Cannon but the entire capital-justice apparatus. Recently the Quixote Center of Maryland released a dramatic study documenting sixteen people executed in six states, despite late-appearing evidence questioning their guilt or the exposure of massively unfair proceedings. A typical case in the report is that of Brian Baldwin, executed in Alabama in June 1999, even though his confession was coerced, his court-appointed lawyer never conducted an investigation, a co-defendant later confessed and exonerated Baldwin, and an Alabama court found that the prosecutor routinely practiced "deliberate racial discrimination."
Clearly, we need a national timeout on executions. Thirty-five cities nationwide--most recently Greensboro and five other municipalities in conservative North Carolina--have endorsed such a moratorium. As legal scholar Anthony Amsterdam said in October in his keynote address to the American Bar Association's annual convention, the system is "fatally unjust and prone to error." And that also applies to the federal court system, in which a recent study showed widespread racial bias in death sentences. The first federal execution since the Kennedy years is set for December unless President Clinton intervenes, as he certainly should. Senators Carl Levin and Russ Feingold and Representative Jesse Jackson Jr. have introduced legislation that, in varying ways, would put executions on hold. Their bills deserve vigorous support.
A postscript to the Bush-Gore deterrence theory: According to the FBI's Uniform Crime Reports, released in October, while violent crime is declining nationwide, it is up in the execution capital of the country, Texas.