News and Features
There's been a lot of talk in recent days about "disfranchisement." Jesse Jackson has invoked memories of the bloody battles for voter registration in Selma; elderly Jews in Palm Beach, upset that they might have voted for an anti-Semite, have sworn that they were "disfranchised" by a butterfly ballot. The Republicans have lamented the disfranchisement of overseas soldiers for want of a postmark. Even the justices of the Florida Supreme Court got into the act.
The rhetoric is overblown, but there is a point: One byproduct of our election-turned-lawsuit is the revelation of the many ways people can be prevented from voting and having their votes counted. Thanks to the spotlight on Florida (focusing beams elsewhere as well), we now know that it is routine for states and counties to toss out tens of thousands of ballots because they are imperfectly marked; for countless people to arrive at the polls to find that their registration forms have been lost; for voting machines to have error rates that would be unacceptable in the grading of SATs.
The most extreme case is outright legal disfranchisement. Since the dramatic advances in voting rights of the 1960s, straightforward legal barriers apply only to two large groups of adults: noncitizens and felons. Noncitizens, numbering 15 million, have not always been excluded from the franchise, but the last state to allow aliens to vote (Arkansas) did away with that practice in the 1920s. Although a few communities permit resident aliens to vote in local elections, there has been a notable absence of debate in the United States (in comparison with Europe) on the proposition that people should be able to vote where they live and work.
Felons are permanently disfranchised in some states and temporarily barred in most others. (On November 7 Massachusetts brought a long, progressive history to an end by voting to disfranchise convicted felons.) Disfranchised felons and ex-felons now number roughly 4 million, most of them black or Hispanic. The link between the commission of a crime and the deprivation of political rather than civil rights has always been tenuous, and the constitutional legitimacy of such laws resides in a dubious interpretation of a phrase in the Fourteenth Amendment that tacitly permits the states to deprive men of the right to vote because of their participation in "rebellion or other crime."
Voters can also be prevented from voting (or having their votes counted) because they are tripped up somewhere along the elections-procedure obstacle course. In most states, advance registration is required; in many, no voting cards are issued, and (as happened in Illinois and elsewhere this year) people who thought they had registered at motor-vehicles bureaus discovered on Election Day that their registration was never recorded. Ballots are sometimes bewildering, assistance at the polls is scarce and problematic, and polling places migrate, often without notice.
In some states, it can be difficult, or even impossible, to vote for a candidate who happens not to be a Democrat or a Republican. In North Carolina, for example, Ralph Nader was not on the ballot (because he lacked enough signatures on a petition last spring), and write-in votes for Nader were not counted because he was not an "official" write-in candidate. (Since that fact was not advertised, many people did write in his name and had their ballots thrown away.) Meanwhile, the Electoral College dilutes the presidential votes of large-state residents, and minority voters are still subject to harassment in parts of the South.
This unhappy state of affairs has complex origins. Some of our institutions, such as the Electoral College, were created in an era when there were few believers in democracy. Many regulations date to a resurgence of antidemocratic sentiment in the late nineteenth century, a time when the two major parties colluded to suppress the threat of third-party insurgencies and when complex registration schemes were adopted both to minimize fraud and to reduce the electoral participation of blacks and immigrant workers. Over the past century, election rules have been forged through partisan rivalry, with spells of conflict ending truces and compromises that permitted the parties to mobilize their most loyal voters while imposing burdens on everyone else. That's how we ended up with Republican officials correcting the absentee-ballot forms of their voters, while their Democratic counterparts were instructing voters in Duval County (erroneously) to put a punch on every page. So much for the voice of the people.
The postelection battle for the presidency is without doubt some kind of crisis, but it's not easy to define precisely what kind. David Broder has suggested in the Washington Post that it grows out of deep divisions in the country. "The nation has rarely appeared more divided than it does right now," he writes, and attributes the phenomenon to quarrels left over from the 1960s among the "polarized baby boomers." Of course, it's true that the vote for Congress as well as the President was exceedingly close, and in that sense the country is, literally, divided. Division, however, should not be confused with polarization. On the contrary, the even split of the electorate can be attributed to the opposite of polarization--namely, the centrism of the candidates. Each carefully tailored his campaign to appeal to a reportedly contented "center," and each, unsurprisingly, won nearly half of it. The fact is that the United States, prosperous and at peace, is, politically speaking, more asleep than it is agitated. Almost 50 percent of the public did not bother to vote. Not a division in the country but a division between two politicians to win over a united country has been the source of the turmoil.
The battle, then, is between the parties rather than the people. It is, in the words of social critic Tom Engelhardt, a crisis of politics but not of the polity. A top-heavy establishment--overfunded, overpowerful, overcovered--has imposed its power struggle on a country that wants no part of it, except, perhaps, as entertainment. Almost entirely lacking in substance, that struggle possesses the logic more of vendetta than of authentic competition. A better analogy than the ideological divisions of the sixties would be the feuding Hatfields and McCoys of legend, or perhaps the Guelphs and Ghibellines of the Middle Ages. Like two armies fighting an unpopular war, both parties try to recruit support from a populace that for the most part would just as soon watch football. The consequence is the disconcerting spectacle before our eyes of all-out political war in a politically apathetic land.
It is important, though, to be more exact in assigning responsibility for the disturbance. The pressures of American politics create a temptation among journalists to practice a meretricious even-handedness in judging the parties. It is, of course, important for journalists to be nonpartisan. That is, they should exercise independent judgment, uninfluenced by any party interest. Being nonpartisan, however, does not mean blaming the two parties equally in all situations; it means judging both by the same standards and letting the chips fall where they may. If they are equal offenders, then that should be said, but if one party is by far the greater offender, then that must be said, too, even if it falsely creates an appearance of partisanship.
Such is the case at present. The Democrats have hardly been pacifists in the struggle. Their record is barren of moves taken for any evident reason but winning the presidency. The language of Gore's spokesmen and lawyers has at times been intemperate, as when the lawyer Alan Dershowitz called Florida's Secretary of State Katherine Harris "a crook." Yet by far the most dangerous escalations have come from the Republican camp. During the first ten days of the crisis, the fight was kept within certain bounds on both sides. Then came the Florida Supreme Court's decision to order Harris to refrain from certifying the election until further instruction. The GOP responded with a torrent of unsubstantiated defamation of the Gore campaign and of the boards conducting the recount in Florida. House Republican whip and impeachment zealot Tom DeLay announced without evidence that the election was "nothing less than a theft in progress" in Florida. A new spokesman for the Bush campaign, Governor Marc Racicot of Montana, charged that Democratic supervisors, by disallowing absentee military ballots without postmarks by Election Day and with other deficiencies, "have gone to war in my judgment against the men and women who serve in our armed forces," and opined that "when the American people learn about these things, they're going to ask themselves what in the name of God is going on here." Governor William Janklow of South Dakota announced that the Democrats "are going to steal the election." And Bush's press secretary, Karen Hughes, accused the Gore campaign of "reinventing and miscounting the true intentions of the voters."
At the same time, Republicans were beginning preparations to carry the battle beyond the Florida courts--into the Supreme Court, the Florida legislature and Congress. Former Senator Bob Dole and other Republicans said they might consider boycotting a Gore inaugural. Implicit in these preparations was the threat that if Bush didn't get his way in Florida the Republican Party was prepared to turn what so far has been a legal battle in one state into a true constitutional crisis. In that case, the mere party crisis, arising out of nothing more than a few people's love of power and lack of restraint in grasping for it, will have, by their single-handed efforts, created the national division that the country itself has failed to produce.
Click here for Eric Alterman's latest dispatch on Florida.
In Texas, vote-counters routinely count a dimpled chad as a vote
for the candidate because it clearly establishes the voter's intent.
Three weeks ago, that sentence would have been gibberish, a sure sign
that the writer had lost his mind. But I offer it today as the key point
in the debate about who should be President and as proof positive that
the Bush camp is being, to put it politely, disingenuous.
Both Texas and Florida law hold that a voter's intent is all important
in determining how a vote is counted. An indented ballot--the now-famous
dimpled or pregnant chad--has been interpreted in states, from Texas to
Massachusetts, as proof that the voter intended to vote for a particular
All the Florida Supreme Court has done, by a unanimous vote, is to
affirm that the manual count is legal, just as it would be in Texas. So
what's the fuss? Why are all of the Bushies yapping about the possibility
of a stolen election, given that what county election officials are now
doing in Florida has long been the common practice in their candidate's
George W. Bush is acting as if he believes the presidency is part of
his natural inheritance. Otherwise, why wouldn't he gracefully play out
the hand that the Florida Supreme Court has dealt and accept Al Gore's
offer to agree to support the decision of the voters as announced in four
days, a decision that is still most likely to go Bush's way?
Even with the dimpled chad ballots included, Bush may be the next
President, ambiguous though his victory may be. He did, after all, lose
the national popular vote by more than 250,000 votes, which would make
him the first loser since 1888 to squeak through in the electoral
college. But our system requires that, if that happens, he be granted the
awesome powers of the presidency, in which case we should all give him
the respect due to the occupant of that office.
By endorsing the manual count, the Florida Supreme Court made the best
of a bad situation. The Bush team is solely responsible for not
exercising its right--after Gore asked for recounts in several
counties--to request hand counts in those counties where Bush could have
picked up more votes. Instead, Bush and his aides have done their best to
obstruct the fairest way to recount legitimate votes in disputed
counties, and they have muddied the waters with their attacks on manual
counting as some sort of Democratic plot. It isn't, as demonstrated by
the widespread use of this device to check the fallibility of machines
throughout the nation. Imperfect, yes; devious, no.
And what about the other voting irregularities in Florida, most of
which seem to have cheated Gore? The case of the Republican campaign
helpers in Seminole County who were allowed to work in the registrar's
office--some up to ten days--adding required information to thousands of
absentee ballot applications that would have been disqualified; the
flawed butterfly ballots in Palm Beach County; the tens of thousands of
ballots of black voters around Jacksonville that were rejected because of
a confusing ballot that led to double-punching.
The Gore campaign decided against asking that the outcome of the
election be held up pending an investigation of those cases. Gore also
stated that he wouldn't accept any electoral college votes cast for him
by Bush electors in any state, and will willingly accept the results of
the count underway in Florida as a final disposition of the presidential
race, no matter the outcome.
The Bush camp appears ready to accept that result only if its man is
the victor. Toward that end, it is willing to trample on the cherished
Republican principle of states' rights by appealing to the US Supreme
Court to overturn Florida's highest court. It has also threatened to use
Florida's GOP-controlled state Legislature to undermine the court, making
a hash of the principle of an independent judiciary.
The Bush blitzkrieg against the Democrats for exercising their right
to ask for a manual count betrays the bipartisan cooperation that Bush
promised during the campaign. It is neither candidate's fault that this,
the most closely contested election in over a century, has proved so
difficult to call.
Bush probably will win the electoral battle, but he will only emerge
as a true winner by taking the high road now and joining Gore in pledging
to be bound by the vote totals as reported to the secretary of state in
keeping with the Florida Supreme Court's order.
That year there were disputes over the presidential returns in South
Carolina, Louisinana, Oregon and Florida.
While Bush says counting votes by hand's unfair,
Gore gains--a bubbe here, a zayde there.
On Tuesday, November 14, exactly one week after Election Day (and with no President yet in sight), a notable though little-noted disclosure was made to the public. I do not mean the news that the federal judge in Florida had turned down the Republicans' stop-the-hand-count motion, or the news that Bush's lead in Florida was now 388 votes, or the news that a Florida state judge had waffled on Florida Secretary of State Katherine Harris's decree that no county votes would be counted if reported after the 5 pm deadline that afternoon, or, for that matter, anything else that was happening in the murk of the Sunshine State. I mean the news that, according to a poll released by the Washington Post and ABC News, 45 percent of the public wanted George Bush to become President whereas only 44 percent wanted Al Gore to become President (6 percent wanted "neither," 4 percent had no opinion and 1 percent wanted "other"). The claim was all the more striking in view of the hard contemporaneous fact that in the most recent count of the actual vote of November 7, Gore led Bush by a nationwide margin of 222,880 votes.
If anyone ever had doubts that politics in the United States is dominated by polling, this poll should put an end to them. A major poll was, in a manner of speaking, calling the election a full week after the vote--and reversing the known results.
The polls had been mercifully silent since the election. Many had good reason to be. Five of seven major ones had been "wrong" about the outcome of the election. That is, their final counts had failed to reflect the winner on Election Day (though some, it's true, were within the margin of error). The New York Times/CBS "final" poll, which put Bush at 46 percent and Gore at 41 percent, had the margin wrong by more than five points and Gore's final tally off by eight points. The Battleground poll, which gave Bush 50 percent to Gore's 45 percent, likewise got the margin wrong by five points. Others were more modestly in error. CNN gave Bush 48 percent and Gore 46 percent; in the Washington Post it was Bush 48 and Gore 45; and in the Pew Research Center poll (with undecided voters counted), it was Bush 49, Gore 47. Only the Zogby poll, which put Gore ahead in the popular vote by 48 to 46 percent, and a CBS election-morning tracking poll, which gave Gore 45 percent and Bush 44 percent, picked the right winner in the popular vote, and with a margin close to the actual result. All in all, Gore's victory in the popular vote came as a surprise. Of course, it's not literally true that the polls were wrong, since there is a margin of error, and people can change their minds between the day of the poll and the election. On the other hand, election results are the only check on the accuracy of polling that there is--they are to polling what experimentation is to scientific hypothesis--and there is no reason to suppose that a poll whose final measure is 8 percentage points off the election result is not 8 percentage points off year in, year out.
Considering the decisive importance that polling had throughout the race in every aspect of the campaign, including media coverage, fundraising and campaign strategy (in the last few weeks of the election, hearts were lifting and falling on single-point fluctuations in poll numbers), these discrepancies deserved much reflection. The reason they did not get it was that on election night the magicians of public opinion went on to make even more egregious and momentous errors, by prematurely predicting the winner in Florida twice and the winner of the national election once. (The election-night calls made by the television networks, which in turn are based on exit polling done by a single, nearly anonymous firm, the Voter News Service, are not quite the same as opinion polling, since they record a deed--voting--rather than an opinion, but their use of sampling techniques to predict outcomes places them in the same general category as other polls.)
The last of these mistakes, of course, led a credulous Gore to concede the election and then, minutes later, to retract the concession. For a few hours, the networks and the candidates appeared to have assumed the power to decide the election between them. There is every reason to believe, for instance, that George Bush would now be President-elect if, moments before his concession speech, Gore had not got the news that Florida had been declared undecided again. If Gore's concession had gone unretracted, Bush had made his acceptance speech and the country had gone to bed believing it had made its decision, it is scarcely imaginable that the close results in Florida would have been contested. Even now, many observers await a concession by one or another of the candidates as the decisive event. But it is not up to either the networks or the candidates to decide who is to be President; that matter is left under the Constitution to the voters, whose will, no matter how narrowly expressed, must be ascertained.
Then a week later, the polls that had played such an important and misleading role in the election were weighing in again, this time on the Florida battle. The poll that brought the startling, seemingly counterfactual news that Bush led Gore in the public's preference also revealed that six out of ten voters were opposed to legal challenges to the Florida results--possibly bad news for Gore, who had been considering a legal challenge to the infamous butterfly ballot in Palm Beach County. However, observers who did not like that conclusion could find comfort on the same day in a New York Times/CBS poll, which reported that another 6 in 10 were unworried about a delay in finally deciding upon the next President--good news for Gore, who had been relying on time-consuming hand recounts to erase Bush's narrow lead.
If, however, the arts of reading public opinion helped get us into our current mess, perhaps we can take comfort from the hope that they can also help us get out of it. Many observers have suggested that by failing to produce a clear mandate, the ever-changing vote-count of the year 2000--let's call it the Butterfly Election--will cripple the presidency of the winner. They need not worry too much. In our day, it is not only--perhaps not even mainly--elections that create mandates, once every four years. It is polling data that, day in and day out, create our impressions, however incompletely or inaccurately, of what the public wants. Let the new President act in a way that the public approves, as determined by a poll or two, and he will have all the mandate he needs to govern.
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.
This election may jolt Americans out of a passive acceptance of civil mythologies.
As rain dances used to serve certain primitive tribes and scripture still serves true believers, the two-party system serves as the religion of the political class. Never mind that more than 50 percent of Americans may not share the civic religion, answering yes to pollsters when asked if they would prefer more than two choices (and that includes many regular voters as well as the bulk of habitual nonvoters). Nevertheless, every new party that has ever tried to establish itself has been treated by the political priesthood as a blasphemer--an evil force that inevitably contributes to the disastrous victory of the more detested of the two major candidates. Perot elected Clinton. Nader elects Bush.
The real culprit in the current election imbroglio is the two-party system itself and the state laws supporting it. These laws exist to discourage new parties. Florida has come in for special attention because of the current crisis, but Florida is typical among states. The beautiful irony is that the laws written to discourage third parties have proved to be a double-edged sword, cutting for the moment against those responsible for the existence of those laws.
Consider first how the laws work against all new parties. It is not Providence that takes an energetic social movement and crushes it as soon as it chooses to advance its goals through elections. It is the laws of the state here on earth that keep the party system on life support by preferring two parties above all others. The key example will be found in the laws of the states and Congress that mandate the single-member district system of representation plus the plurality or first-past-the-post method of election. Another historic example is provided by the "antifusion" laws in all but a half-dozen states, which prohibit joint nomination, whereby a third party seeks to nominate for its ticket the candidate already nominated by one of the major parties. Even the Supreme Court has approved such laws with the argument that having the same name in two places on the ballot would confuse the poor, defenseless voters.
Add to all this the new gerrymandering. Traditional gerrymandering was at least a genuine struggle between the majority parties to dilute the vote power of the other party by concentrating a maximum of their voters into a minimum of districts. The new method takes advantage of the Voting Rights Act by benign race-conscious gerrymandering in order to keep minorities within one of the major parties. In practice, blacks are guaranteed one or more additional Congressional or state legislature seats within the Democratic Party, while Republicans gain strength in districts from which the minority voters are evacuated.
Then there are the countless state laws that prescribe higher thresholds for the number of correct signatures required on third-party nominating petitions than for regulars on two-party ballots. Even the laws that apply equally to all parties are discriminatory, because they are written in such detail that ballot access for third-party candidates requires expensive legal assistance just to get through the morass of procedures. That mind-numbing detail is doubly discriminatory because the implementation of these laws thrusts tremendous discretion into the hands of the registrars, commissioners and election boards, all staffed by political careeristas of the two major parties, whose bipartisan presence is supposed to provide "neutrality with finality"--but it is common knowledge that they can agree with each other to manipulate the laws for the purpose of discouraging the candidacies of smaller and newer parties.
The same principles help explain why less than 50 percent of the electorate turns out to vote. Most of the blame goes to the forbidding proceduralism of registration, enrollment and eligibility and the discretionary power of local and county officials in implementation. And don't forget the gruesome timing of state election laws that restrict voting to one ordinary workday. The duopoly has a stake in low turnout. Virtually all expansion of the electorate (to include women, 18-year-olds, blacks) and the easing of restrictions on registration (judicial enforcement of the "motor voter" law) have been imposed on the state two-party systems from the outside by national social movements and federal courts.
Now, as poetic justice would have it, this legal structure is cutting the other way. Just look at the havoc it has wreaked: Loused-up ballots. Machine versus manual recounts. A lawyers' field day and the threat of court intervention that could cause a constitutional crisis or take Florida out of the electoral vote altogether. The Florida crunch can happen in any state where the results are extremely close and the outcome can change the national results.
That's because the two constituted parties cooperate well as a duopoly so long as market share is stable, with decisive election results. But whenever there is an extremely close election, the two parties become vicious antagonists, and the high stakes make it profitable for each to use its control of the electoral machinery as a weapon of mass destruction against the other. No war is more destructive than a civil war, and ordinarily the two parties have incentives to keep civil war from happening. Civil war in 2000 has broken out because two-party competition has turned from a public good to a public evil. The two-party system has at the moment become a menace to the Republic, made worse by the overwhelming weakness of the parties' presidential candidates and the impossibility of choosing between them when the only way to vote no for the candidate you hate is to vote yes for the one you can barely tolerate. And forget about having a good option when you hate both equally.
With Nader in the race, a lot of things got said that otherwise wouldn't have--no matter that the leading candidates excommunicated him. Making issues out of nonissues is what third parties are about, but those issues obviously did not create the stalemate we now confront. Stalemate is putting the case too mildly; mutual assassination is more like it. The crisis will not end with a certified recount in Florida. The civil war will continue, and the two parties will give us competition literally with a vengeance. Forget about smooth transitions. The FBI won't be ready with its security checks of top appointees, and the Senate will look at them with far greater than average scrutiny, even if the President's party is in the majority, because the Senate is run by sixty antifilibuster votes, not by mere majorities. That will apply in spades to judicial vacancies. Get ready for a Supreme Court of eight, seven, even six members, because as the vacancies occur, there'll be a majority against any nominee, even ones as mushy and fuzzy as President Bush or Gore will nominate. (The Constitution does not require any particular number of Justices on the Supreme Court.)
No exit? We have to turn the civic religion on its head and lionize the principle of a multiparty system, because its presence on a regular and expanded basis would relieve the two major parties of the need to be all things to everyone in order to get their phony majorities. We don't do that by inviting third parties to join the major parties on legal life support--as government-sponsored agencies. We do it by deregulating our politics. Hey, guys, deregulation. If you really meant it all these years, you Republicans and you Democrats, then be honest and deregulate yourselves. Take away the two-party safety net, by legislation and better yet by judicial review, and the democratic revolution can begin.
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