News and Features
We shall see very little of the charmingly simian George W. Bush. The military--Cheney, Powell et al.--will be calling the tune, and the whole nation will be on constant alert, for, James Baker has already warned us, Terrorism is everywhere on the march. We cannot be too vigilant.
Supreme Court buffs are sentimentalists. We apotheosize the Court. When it decided to review the first Florida Supreme Court decision and other lawyers, non-lawyers and foreigners all insisted that "the fix is in," the "experts," including myself, confidently assured them that there was no federal question and that this states' rights-oriented Court would quickly dump the case. We were half-right; there was and is no federal question, but one way or other, Chief Justice William Rehnquist and his four allies were going to make sure that George W. Bush's shrinking lead would survive, even though a fair recount would probably make Al Gore the winner.
When Gore's lawyers began the contest phase of the proceedings on November 27, they ran into Judge N. Sanders Sauls, a Republican appointee marked by scandal and, to no one's surprise, lost. When a 4-to-3 majority of the Florida Supreme Court reversed Sauls and the recount began, quickly shrinking Bush's margin, it was time for the heavies to move back in.
First, the Bush lawyers asked for a stay. Within a few hours after the briefs were filed, Rehnquist & Co. brought the recount to a screeching halt with a 5-to-4 stay. When John Paul Stevens wrote a dissenting opinion, Antonin Scalia announced that the majority had already concluded--before hearing argument and within a few hours of reviewing more than 100 pages of briefs--that there was a "substantial probability" that Bush would win.
Scalia gave two reasons for the stay: to insure Bush's legitimacy if he won and to prevent "degradation" of the ballots because of frequent handling. "Legitimacy," however, is a political matter. What business is it of judges to insure legitimacy by blocking an accurate count of who actually won? Second, as a Florida electoral expert told the Miami Herald, it is not, as Scalia claimed, "generally agreed that each manual recount produces a degradation of the ballots," because the ballots are made to be handled frequently.
Monday's argument itself was almost anticlimactic except for one matter: Since the Florida court had made it clear that it was relying solely on the Florida statutes, what was the federal question? The answer came in a little-noticed throwaway line in a Bush brief--the equal protection clause. The issue had not been raised in the Florida Supreme Court, and normally the US Supreme Court will refuse to hear such an issue. But not this time.
And what was the argument? That the standards adopted by the Florida Supreme Court for determining which votes should be counted--"the clear intent" of the voters--was fine, but it didn't provide substandards. There would thus be variations in the way votes would be recounted from county to county and maybe within a county from one team to another.
As Justices Stevens, Ruth Bader Ginsburg and Stephen Breyer pointed out, the Florida court's failure to specify the precise manner for determining the intent of the voter is not unconstitutional. A majority of the states use the same "intent" standard, and no one has ever suggested that it was unconstitutional. Indeed, county-by-county variation is inevitable, given that optical scanners are used in some counties and punch cards in others. Obviously, the Florida legislature knew this when it adopted its electoral law. Yet it did not try to refine the test any further, though other states have done so. In any event, as Stevens pointed out, the disparities would probably have been eliminated because a single judge would resolve all objections.
Breyer and David Souter quite reasonably suggested that if a single substandard were indeed necessary then a remand to the Florida court to establish such a standard was in order. But now the Court's Catch-22 came into play: The Court had itself created so many delays that the December 12 deadline could not be met! No matter that the deadline was set only to avoid Congressional challenges and that the real deadline was December 18.
The rule of law has taken a terrific beating from the Supreme Court. Basic principles of adjudication have been trampled on: that the Court should stay out of partisan political fights as much as possible; that state courts are the arbiters of state law, one of the oldest principles in our jurisprudence and one that this states' rights-loving Court in particular might have been expected to honor; that a court doesn't create new doctrines that no one could have anticipated without giving the affected parties a chance to comply; that before hearing an argument, courts don't issue interim relief that could prove decisive unless absolutely necessary to avoid irreparable harm--hardly the case here since the results of the recount could have been set aside if necessary.
In 1857 the Court intervened in a bitter national dispute when it decided the Dred Scott case. It took decades for the Court and the country to recover from that. How long will it take this time, especially if further investigation confirms what we all already know--that this election was stolen under color of law?
The Supreme Court decision effectively handing the presidency to George W. Bush reveals the intensely partisan nature of the Court's current majority. The Court, to be sure, has always been political, but rarely as blatantly as today. Nor are there many precedents for Justices trampling on their own previous convictions to reach a predetermined conclusion.
Chief Justice Roger Taney enlisted the aid of President-elect James Buchanan in persuading Northern Justices to join the pro-slavery majority in Dred Scott. Franklin Roosevelt conferred regularly with Justice Louis Brandeis, and Justice Abe Fortas served as a trusted political adviser of Lyndon Johnson. But never has there been a public statement as partisan as Antonin Scalia's when first suspending the recounts that the Court needed to insure "public acceptance" of a Bush presidency.
If there is a silver lining, it is that the last month suggests an agenda for democratic reform. First, the Electoral College should be abolished. The product of an entirely different political era, when the electorate excluded women, nonwhites and propertyless males, the Electoral College was created by a generation fearful of democracy. Its aim was to place the choice of President in the hands of each state's most prominent men, not the voters. It unfairly enhances the power of the least populous states and can produce the current spectacle of a candidate receiving a majority of the votes but losing the election. At the very least, electors should be chosen in proportion to the popular vote in each state.
Second, the Florida fiasco should lead to the reform of voting procedures. As with schools, roads and public services, the wealthiest districts have the best system of voting. The machines used in poor black precincts of Florida, the Miami Herald demonstrated, are so flawed that they are guaranteed to produce a larger number of spoiled or uncounted ballots than in affluent suburban areas.
One can only view with deep cynicism the Court majority's invocation of "equal protection" in rejecting a recount. Added to the Constitution in the Fourteenth Amendment after the Civil War, this language was intended to protect former slaves from discriminatory state actions and to establish the principle that citizens' rights are uniform throughout the nation. The current Court's concept of equal protection has essentially boiled down to supporting white plaintiffs who claim to be disadvantaged by affirmative action.
Nonetheless, by extending the issue of equal protection to the casting and counting of votes, the Court has opened the door to challenging our highly inequitable system of voting. Claims of unequal treatment by voters in poorer districts are not likely to receive a sympathetic hearing from the current majority. But Bush v. Gore may galvanize demands for genuine equality of participation in the democratic process that legislatures and a future Court may view sympathetically.
Equally difficult to accept at face value is the majority's disdain for the principle of federalism these very Justices have trumpeted for the past several years. Like the South before the Civil War, which believed in states' rights but demanded a fugitive-slave law that overrode the North's judicial and police machinery, today's majority seems to view constitutional principles as remarkably malleable when powerful interests are at stake.
The next time this Court turns down an appeal by a death-row inmate on the grounds that federalism requires it to respect local judicial procedures, the condemned plaintiff may well wonder why his claims do not merit the same consideration as those of the Republican candidate for President.
So it's ending the way it was always going to, with George Bush in the White House. As the Last Marxist said all along, he had the most money, so he should win. True, in order for this to happen, Americans had to see laid bare elements in our system that are usually carefully hidden: You probably didn't know that the election process is controlled by party and campaign officials, that the machine you voted on may well not record your ballot, that in a dozen ingenious ways the black vote is still being blatantly suppressed, that people like Katherine Harris even exist. It is entirely fitting that Chief Justice Rehnquist, who voted with the conservative five-member majority to halt the counting of the Florida vote, intimidated black and Hispanic voters himself as an Arizona pollwatcher in the early 1960s. And given the general air of cronyism and corruption and self-interest that surrounds the whole Florida business, it's fitting too that Clarence Thomas's wife is working at the right-wing Heritage Foundation, where she is collecting résumés for openings in the Bush Administration, and that two of Scalia's sons are employed by law firms representing Bush. Now, having helped run out the clock, the five regret that time's up.
Who knows what might have been if Al Gore had encouraged and joined, rather than avoided and thwarted, popular outrage at black voter suppression in Florida? We might have seen racially integrated civil rights marches to rival those of the l960s, and over the same issue too.We may see them yet. If not--if we let the media bury the Florida outrages in a blizzard of blather about the need to "move on" and "come together"--we will truly have the government we deserve.
President Clinton, at least, has finally achieved the perfect political moment in which to enact the liberal agenda many readers of this magazine believe he has always secretly supported. It's taken eight years, but at last he isn't running for re-election, the Gore campaign is over, the Republicans have done their worst. If you believe Ralph Nader's 2.7 percent of the popular vote represented a message from the restive left, there's nothing now preventing Clinton from opening the envelope and reading it.
Many people cited their opposition to capital punishment as one reason they were voting for Nader. Now along comes Clinton's chance to show he feels their pain by commuting the sentence of Juan Raul Garza, the triple murderer scheduled to be the first person executed under the federal "drug kingpin" death penalty statute, and the first federal execution, period, since 1963. So did the President do not just the right thing but the costless and perhaps even politically astute thing? No. Professing himself troubled by a Justice Department review noting that 80 percent of federal death-row inmates are people of color (but not troubled enough to let them live), he granted Garza a six-month stay of execution, leaving the decision to his successor--the necrophiliac George Bush, who would cheerfully give the lethal injection himself.
Here's another test for Clinton: One of the surprises of the recent election was the victory of anti-drug war referendums in California, Colorado, Nevada, Oregon and Utah. Now 650 religious leaders, members of the Coalition for Jubilee Clemency (www.cjpf.org), have appealed to Clinton to offer a presidential pardon to some of the thousands of Americans serving long mandatory sentences for minor drug offenses, allowing him to undo a small amount of the immense damage of the war on drugs, a cause he has relentlessly, and to my mind mysteriously, promoted. The President does seem to wish to dissociate himself from his own drug policies: In his Rolling Stone interview, he decries the "unconscionable" sentencing disparity between crack and powdered cocaine and claims he tried to equalize it but was thwarted by a Republican Congress that wanted only to narrow it. (Actually, it was he who in 1997 proposed reducing the disparity from 100-to-1 to 10-to-1 while resisting calls to eliminate it.) He even calls for restoring voting rights to all ex-convicts and for a "re-examination of our entire policy on imprisonment."
Well, better late than never. Harsh drug laws and racial bias at every step from arrest to sentencing have done immeasurable harm to poor and minority communities and to unlucky people of all sorts. Imprisonment of minor offenders has destroyed families, left children without parents, spurred a sevenfold increase in the number of women in prison between 1980 and 1997 and is a major reason that the United States now has the world's second-highest rate of incarceration. Leaving aside the horrors of prison itself, a felony conviction means probable unemployment and in thirteen states, as we now know all too well, loss of the right to vote. It isn't often that a person, even a President, gets to wave a magic wand and rectify a mass injustice. Will the President avail himself of this astonishing moral and political opportunity? I'm not holding my breath. For one thing, he's preoccupied, mulling a pardon for junk-bond king Michael Milken, who made off with billions, for which he spent twenty-two months in jail--good thing he didn't try stealing a slice of pizza in California, or he might be doing life! If pardoned, the New York Times noted, Milken would be able to vote again. If the 31 percent of black men banned as convicted felons from voting in Florida had received the same treatment, even Jeb Bush and Katherine Harris might have had trouble suppressing enough votes to deliver the White House to reactionary nincompoop George W.
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Tuesday's Supreme Court decision giving the presidency to George W. Bush, delivered in the dead of night in an opaque, anonymous opinion rendered by Justices who gave no oral presentation from the bench (as they usually do) but instead appropriately snuck out of the Court building through the garage, leaves the country facing a worrisome political future. The damage done to the courts and to the rule of law by the Supreme Court's judicial overreaching into politics and the damage done to democracy by the sudden interruption of a vote count (will the distressing, unprecedented televised image of vote-counters physically putting down ballots they had been examining become the symbol of an era?) have been commented upon by many observers. The politics of the struggle have been harder to assess. From the start, the contest presented a puzzle. Why, when the nation as a whole was prosperous, at peace and thoroughly unexcited by the candidates, each of whom belongs to the moderate wing of his party, did the two sides wage such ferocious political war? The easy answer is that the campaigns, their huge momentum unchecked by an election that had failed to produce a result, were simply propelled onward into the narrow confines of courtrooms, which therefore became the scene of a disproportionate sound and fury. It was comforting to reflect that the country at large, though entertained by the spectacle, was scarcely concerned about it--refusing, according to poll results, even to regard it as a "crisis." How dangerous could the quarreling be if it was the product of sheer statistical accident and reflected no deep, real division in the country?
As the struggle continued, this sanguine view became harder and harder to maintain. Each party, aided by its army of lawyers, of course was doing its partisan best to beat the other in court, but before long it became clear that something more serious and frightening was occurring. As noted previously in this space, one party, the Republican, was prepared to go to extraordinary lengths, both constitutionally and in the streets, to win. First, the Bush campaign began to accuse Gore of seeking to "steal" the election. Second, the Republicans launched a vitriolic campaign to discredit the Florida Supreme Court when it delivered a ruling unfavorable to the Bush campaign. Bush's Florida manager, former Secretary of State Jim Baker, called the court's ruling in favor of hand counts "unacceptable," and John Feehery, spokesman for Speaker of the House Dennis Hastert, called the judges "partisan hacks," while House majority whip Tom DeLay, speaking the language of war, announced, "This will not stand." Third, Republican Congressional staffers and Bush operatives, led by New York Congressman John Sweeney, mounted the riot in the Miami-Dade County building to stop a recount that looked as if it would favor Gore; the recount did, in fact, stop. Fourth, in an act of remarkable effrontery to democracy, the Republican-dominated Florida legislature organized itself to choose a slate of electors for Bush, whatever Florida courts might say. Fifth, DeLay and others in Congress began to threaten that if Florida did not go the way they liked, Congress might take the matter into its own hands. These latter two steps were the substance of the Republican warning that if the Supreme Court didn't settle the matter, a constitutional crisis would follow. The Republican message, in other words, was that if they were not allowed to win, there would be a constitutional crisis because they would produce one.
While all this was going on, the promises of bipartisanship that had been such a prominent feature of the Bush campaign were melting away. Such acts as the Florida legislature's decision to substitute its will for the will of the voters and the baseless charge that Gore's legal maneuvering constituted theft of the election hardly showed a bipartisan spirit. In the meantime, the Republicans in the Senate, which is divided 50/50 with the Democrats, refused any institutional power-sharing arrangement and elected some of their most conservative members as leaders. DeLay said that with the Republicans in charge of all three branches of government they would "set the agenda," and Senator Phil Gramm of Texas announced, "I have been waiting all my life for a Republican President and a Republican Congress." Something of what this resolve meant on the practical level was revealed in a number of news stories. The Los Angeles Times reported that the Republican hard right was gearing up to staff the White House and the courts with its members. "Most people are focusing on fumigating the Justice Department," said Grover Norquist, president of Americans for Tax Reform. Meanwhile, the tide of money on which Bush floated to the White House was rising to the rafters in Republican Washington. For instance, the contest within the Republican Party for the chairmanship of the House Commerce Committee is, in the words of Lizette Alvarez of the New York Times, between Billy Tauzin of Louisiana, "who is more closely allied to the Baby Bells," and Michael Oxley of Ohio, who is allied "to the long distance carriers." The Wall Street Journal notes that "a veritable bidding war erupted last year, as several candidates for chairmanships...raised millions of dollars for GOP congressional candidates." Now Hastert, fearful of cutting short the bidding war, has, according to legislators, been staying "'mum' on how chairmanships will be decided."
It is true that the extreme actions of the Republicans during the postelection crisis did not find much active support among the people (a majority of whom consistently favored the Florida recount), just as the party's impeachment effort a year ago failed to find such support. As we can now see, however, it is a mistake to suppose that political extremism is dangerous only if backed by popular fervor. The Republicans' impeachment campaign failed. But their postelection campaign succeeded. The Republicans, though enjoying the slenderest of legislative margins, will, as DeLay triumphantly pointed out, be in charge of the presidency and both houses of Congress. To this, in view of the recent ruling, it's tempting to add the judiciary. Popular support is the currency of democracy, but it is not the only currency. History shows that militant, highly organized, tightly disciplined parties can have their way even in the midst of apathy--or, perhaps, especially in the midst of apathy. Power, as the founders of this country well knew, is a mighty temptation. Money is another. Put the two together, and you have a force to reckon with.
Since election night, pundits and politicians, as well as academics and armchair commentators, have spent an enormous amount of time wringing their hands about the mistakes made in calling Florida and the role the exit polls may or may not have had in the process. Although understanding the decisions behind the calls is important, it obscures the equally important fact that most of the national polls were wrong for at least the final two weeks before the election.
Of the eleven national polls and trackers released between November 5 and 6, only two surveys showed Gore leading Bush (CBS and Reuters/MSNBC/Zogby), while one poll showed the candidates tied (Harris). The remaining eight polls showed Gore losing, one by as much as 5 percentage points, which would have been the equivalent of a landslide. While many of these surveys in the final analysis lay within the margin of error, all the polls were biased in the same direction. With the Bush lead firmly established in the media polls throughout October, pundits for the most part were ready to give the race to Bush, even though Gore won the popular vote and probably won Florida.
Polls play an increasingly central part in election coverage as the horse race becomes a greater and greater media preoccupation. With survey results, the press can breathlessly report the impact of events and gaffes, like Gore's performance in the debates or Bush's abuse of the English language. The twists and turns of the race are cloaked in the scientific mantle of survey research, like the results of the Gallup tracking poll used by CNN and USA Today, which once showed an eighteen-point shift in the electorate in the course of a couple of nights.
Although we understand a great deal about the science of polling, the methodology of these surveys relies on a set of debatable assumptions about who is most likely to turn out and vote on Election Day. This year most experts predicted low turnout, meaning that only the most motivated voters--normally the most highly educated and affluent citizens--would find their way to the polls. Generally, low turnout favors the Republicans, since high socioeconomic status is associated with both political participation and conservative political preferences.
To accommodate these predictions, the polls screened tightly for those most likely to vote, adjusted for predicted turnout and in some cases "weighted up" the GOP share in the sample. All those adjustments meant that most of the national polls going into Election Day showed a 2- to 5-point Bush lead, even when individual state polls showed Gore performing much better. In fact, one of the great mysteries during the campaign was how Gore could hold leads or remain tied in so many battleground states and trail Bush so consistently in the national polls. One answer was simply that those polls were wrong. In fact, internal Gore polling showed the race tied and stable for the last two weeks of the campaign.
Why did the media polls employ those methodological criteria even in the face of serious get-out-the-vote efforts by the NAACP and the labor unions to bring out the Democratic base? First, the polling outlets were burned in 1996 when they overstated the size of Clinton's lead over Dole throughout much of the campaign. Second, the media outlets are competing for market share in an ever-expanding universe of polling data. In the course of this competition, they develop "proprietary" models for determining the composition of samples, with a premium on having the most scientific method for predicting the outcome. Once those criteria are determined, it is difficult to alter them midstream, because changes in the polls may be ascribed to methodological adjustments rather than actual changes in the race.
There is no insidious conspiracy to rig the polls in favor of one candidate or another. The national pollsters who partner with media outlets are respected survey researchers. But turnout was higher than predicted, thanks to the mobilization efforts of interest groups and the closeness of the race. The polls could not accommodate a broader concept of who might vote, and this methodological choice had political consequences. The fact that Bush could be seen as the presumptive winner certainly is linked to the mistaken Florida second call on election night, but it was framed by a month of Bush polling ascendancy.
We know what they're afraid of. Cut through the Republican verbiage
that has clogged the airwaves and courts and you find one simple but
disturbing point: They fear an accurate vote count because it might prove
that Al Gore has the votes to be fairly elected President.
That's been their concern since election night, when they began their
drawn-out process of obstruction, and if they succeed in once again
killing the manual count through their US Supreme Court appeal, George
W. Bush's victory will stand as a low point in the annals of American
The indelible impression left on our history will be that Gore won
both the popular and electoral vote and that he and the voters were
cheated out of that victory by a US Supreme Court dominated by
political ideologues appointed by Republican Presidents. If the Justices
cared a whit about the sanctity of the vote, they would have let the
manual-counting process decreed Friday by the Florida Supreme Court
continue. If that had resulted in a Bush win, we should all have
gracefully acknowledged his victory.
Bush, who lost by more than 330,000 in the popular vote--what most of
us grew up thinking of as the real election--may now squeak by with an
electoral college win resulting from a ruling by the right-wing-led US
Supreme Court. During the campaign, Bush cited Antonin Scalia and
Clarence Thomas as his judicial role models, and he has been amply
rewarded. Legal gobbledygook has replaced reason when the mere act of
fairly counting the votes of the citizens is halted to suit the political
agenda of the party that appointed the majority of the Justices.
In a close election, a manual count of all votes not counted by the
antiquated voting machines is a statutory mandate in many states,
including Florida and Texas, and should have been the common-sense demand
of both candidates in Florida. If that simple standard--accurately and
fairly counting all of the votes to ascertain the intent of each
voter--had been asserted in a bipartisan manner, there would have been no
reason for the subsequent confusion and the never-to-end questioning of
the legitimacy of our next President.
Instead, unprecedented rancor will mark the next years of our
politics, mocking all efforts at bipartisan cooperation. This will be
particularly true in battles over the judiciary, which, more than ever,
will come to be viewed widely as a partisan tool.
The Florida election will always be too close to call in a manner that
would leave partisans of both sides totally satisfied. Whoever loses will
feel ripped off, but the denigration of the Florida Supreme Court and of
Gore's legal challenges by top Bush Republican spokesperson James Baker
has gone too far. Twice now he has smeared the motives of Florida Supreme
Court justices for daring to come to conclusions not to Baker's liking.
Yet he reached a new low Friday in disparaging the right of a
presidential candidate--who has won the national popular vote and is only
three electoral votes from victory--to ask for a judicial review of the
obviously deeply flawed Florida election results.
Get real. Both Baker and Bush know they would do the same had the
results gone the other way. Yet they self-righteously abandoned civility
when the nation most needed it. There are no villains in this election,
only imperfect machines and people, but the Bush camp has vilified the
Gore camp for daring to seek a fair adjudication of such matters.
We are still a nation of laws, and it was unconscionable for Baker to
blast Gore for appealing to the Florida state high court at the very time
Bush's lawyers raced to the federal courts in an unseemly departure from
the GOP's commitment to states' rights. In Baker's view, the problem is
not that we have a razor-close election and flawed voting procedures, but
rather that Gore dares to assert his legal rights: "This is what happens
when, for the first time in modern history, a candidate resorts to
lawsuits to overturn the outcome of an election for President. It is very
sad. It is sad for Florida. It is sad for the nation, and it is sad for
Hogwash! What is sad is that tens of thousands of African-American and
Jewish voters in Florida were systematically denied their right to vote
by poorly drawn ballots, malfunctioning voting machines and unhelpful
voting officials. What is sad is that election officials in two counties
turned over flawed Republican absentee ballot applications for
corrections by Republican Party officials but did no such favors for
What would be most sad--indeed, alarming--is if a partisan US
Supreme Court proves to be an enemy of representative democracy.
(Another Republican sea chantey)
They all went down to stop Miami-Dade
From making counts the judges had OK'd.
Unlikely toughs, with ties and crisp white shirts,
They went to hand Al Gore his just deserts.
So, noisily, they jammed into the hall.
Then Sweeney, from the House, began to call.
Shut it down, shut it down, shut it down.
The first machine vote's truly holy.
Shut it down, shut it down, shut it down,
With a heave-ho-ho and a bottle of Stoly.
One congressman by whom they had been sent:
DeLay in name, and also in intent.
Prepared to knock a head or bust a snout
To show what our democracy's about,
They bumped some chests and maybe pulled some hair,
And Sweeney's martial call stayed in the air:
Shut it down, shut it down, shut it down.
The rule of law is holy, too.
Shut it down, shut it down, shut it down.
With a heave-ho-ho and some microbrew.
All I want is the truth. Just gimme some truth.
Florida's electoral mishegoss lends itself to the exploration of an issue that receives no attention in the media and yet underlies virtually everything its members do. I speak to you, dear reader, of the Meaning of Truth.
Ever since Fox's John Ellis began the mistaken media stampede for his cousin George W. Bush's victory on election night, reporters, producers and executives have spun themselves silly trying to describe a situation that is ultimately an epistemological bottomless pit. There is no single "truth" about who won Florida. From the point of view of "institutional truth," we began without clear rules or precedents for measuring the vote, whether they include dimple-counting, partially punched chads or butterfly ballots. I am convinced Gore carried the will of the people, but I'm guessing that Lady Katherine Harris Macbeth would rather contract rabies than accept my admittedly subjective interpretation. From the perspective of "brute truth," however, the difference between the Bush/Gore numbers turns out to be so small that it will never exceed the count's margin of error. What we are seeing, therefore, is not a process of objective measurement but a contest of raw power. The Democrats use the courts and the law. The Republicans rely on rent-a-mobs, partisan hacks and power-hungry allies in the state legislature and Congress. Guess which side is bound to win?
Our media coverage admits none of this, because it is committed to a fairy-tale version of truth and objectivity that separates "fact" and "opinion" but cannot fathom anything in between. When Tim Russert declared on November 26 that George Bush "has now been declared the official winner of the Florida election...and therefore he is the 43rd President of the United States," he was making a statement that could not have been true when he made it. (Even Bush understood that he was only playing a President-elect on TV.) But the feared and celebrated Russert knew that his words were bound by only the narrowest definition of "truth." He could always take it back later.
The attachment to the idea of attainable objective "truth" on the part of American journalism is partially responsible for its frequent brainlessness. As NYU's Jay Rosen points out, "objectivity as a theory of how to arrive at the truth is bankrupt intellectually.... Everything we've learned about the pursuit of truth tells us that in one way or another the knower is incorporated into the known." (Remember Heisenberg? Remember Einstein?) The famous 1920s debate between Walter Lippmann and John Dewey shed considerable light on this problem, with Lippmann arguing for a "spectator" theory of reality and Dewey arguing for a more consensual one, arrived at through discourse and debate.
The notion of a verifiable objective truth received what many intellectuals considered its final coffin nail in the form of Richard Rorty's classic 1979 work, Philosophy and the Mirror of Nature. While the word true may have absolute correlations in reality, Rorty later argued, "its conditions of application will always be relative." What was "true" in ancient Athens--that slavery and pederasty were positive goods--is hardly "true" to us today. As Rorty explains it, we call our beliefs "true" for the purposes of self-justification and little more. The point is not accuracy but pragmatism. Moreover, Ludwig Wittgenstein has taught us that the gulf between what "is" and the language we use to describe it is so large as to be unbridgeable. "Truth" may be out there, but there is no answer to a redescription, Rorty observes, "save a re-re-redescription." Truth is what works.
Now, it's possible to contest Rorty on any number of counts. I personally find him overly generous to the extreme relativism of antifoundationalists like Jacques Derrida and Michel Foucault. (The antifoundationalist perspective can be simplistically summarized by the famous Surrealist painting of a pipe by René Magritte beneath the words, Ce n'est pas une pipe.) But the argument itself cannot be avoided. Truth, as Lippmann never understood but Dewey did, is a lot more complicated than a baseball box score or a Johnny Apple New York Times news analysis. What is needed to evaluate whether a report is ultimately credible is not an endless parade of "facts" that may or may not be true but a subjective marshaling of evidence. Yet because the entire media establishment treats these questions as just so much mental masturbation, the standard definition of "fact" often turns out to be any given statement that cannot be easily disproved at the moment it is made. Hence, we frequently see journalistic accounts of the mood of an entire country or even a whole continent based on little more than the taxi ride from the airport.
A second byproduct of American journalism's childish belief in attainable objective truth, Rosen notes, is the alienation it causes between journalists and intellectuals. In Europe the public profits from a two-way transmission belt between the world of ideas and that of reported "fact." But here such exchanges are nearly impossible because, as Rosen puts it, "intellectuals familiar with the currents in twentieth-century thought just can't deal with some of the things that come out of journalists' mouths." Such people, he notes, believe it "useless to try to talk with journalists" owing to their "naïve empiricism." Still, the academy is also at fault, owing to its recent retreat into a Derrida/Foucault-inspired debate that admits almost no reality at all outside the text and does not even pretend to speak intelligibly to the nonspecialist.
In any case, George W. Bush may be our next President. But it won't be because he outpolled Al Gore in Florida in any remotely objective sense. It will merely be because he might have, and we decided to call it "true."
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Congratulations to Ralph Nader on George W. Bush's decision to appoint Andrew Card, formerly the auto industry's top antienvironmental lobbyist, to be his Chief of Staff. Just a few more appointments like this one, I suppose, and the revolution can begin in earnest.
Let the chattering classes focus on chads and undervotes and Florida recounts and what the courts--state and federal, all the way up to the Supreme Court--would or wouldn't do. Let us not forget that the candidate who won the national popular vote falls only three votes short of a clear Electoral College majority even without Florida. If on December 18, the day the Electoral College convenes to cast its ballot, three Republican electors decide on their own to vote for him, all the speculation is moot.
Our purpose is to argue that our three hypothetical electors should so decide and that American democracy would be the better for it. And that this particular election, because it is so close and because it has raised fundamental issues of voting rights, provides the right historic moment for such a gesture. In 1960, another close election, Ted Lewis argued in The Nation that there was such revulsion against the Electoral College that it "would certainly now be on its way out" if it hadn't "functioned on November 8 in accordance with the national will."
Election 2000's clouded outcome has highlighted some glaring flaws in our electoral system--uncounted votes, confused voters, voters rejected (see David Corn, on page 5)--which has stimulated a growing sentiment for reform. And so while the country's mood is hospitable to reform, why not abolish the most undemocratic institution of all--the Electoral College?
That's where our hypothetical three electors come in. By casting their votes for the popular-vote winner, in the short run they would guarantee the election of the man who won the popular vote; but more important, in the long run such a gesture might break the antidemocratic stranglehold of the Electoral College on American politics. Let's be clear: We are not urging them to vote for the popular-vote winner because we support Al Gore. We are urging them to cast such a vote because it would be the right thing to do--legally, morally and politically.
It will immediately be objected that what we are proposing is an invitation to electoral anarchy, that history has rightly stigmatized the thirteen electors who switched their votes in previous presidential elections as "faithless electors." Besides, Vice President Gore himself has said he would "not accept" Republican electors. But the Vice President has no say about the matter, any more than he has a say about not accepting the vote of those whose party affiliations or (political) motives he finds repugnant. Even a Gore concession speech doesn't bind the electors.
As for those faithless electors, we would argue that if you have a system of electors instead of direct democracy, the possibility of defection goes with the package. What is more, if three or more Republican electors decide to cross over, far from creating electoral anarchy, their actions would be legally defensible, morally beneficial and politically desirable.
Legally, because under the Electoral College electors are not bound by the Constitution to follow the popular vote, and in twenty-four states they remain free to vote their conscience. In twenty-six others they are required by state law to follow the popular vote. Scholars like Akhil Reed Amar and Mark Tushnet argue that electors are totally free agents.
Morally, because their action would prevent the presidency of a man who lost the popular vote. It also brings us a step closer to the democratic ideal of one person, one vote. The Electoral College was created by the Framers under a deal with the slaveholding states to give those states added clout in the new Union. The Framers distrusted the popular will. As Alexander Hamilton wrote in The Federalist Papers, "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations" to choose the "Chief Magistrate." They did not anticipate political parties or the current practice of electors pledging to vote in accordance with the popular vote in their state.
Politically, because ultimately the fortunes of both parties--and minority parties as well--would be strengthened by a more democratic government. The smaller states now wield disproportionate influence in elections. And without the need to troll for electoral votes, candidates would be motivated to campaign in all fifty states, not merely the big contested ones.
Passing a constitutional amendment to abolish the Electoral College will not be easy. But the dramatic gesture of three electors or more defying the Electoral College could concentrate the nation's attention wonderfully and help jump-start a movement for reform. It might at least stimulate collateral reforms in the states, along the lines of the present systems of appointing electors in Maine and Nebraska, only carrying it further.
In the past, faithless electors were eccentric loners. This year they could be electors of conscience--the people's electors. Their action would cause a firestorm in the House. But such high constitutional drama would open a national debate on the legitimacy of the Electoral College. It's time to start that debate.
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