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The Supreme Court was determined to make George W. Bush the winner of the election.
I write from shipboard, on the Nation cruise. The boat has just pulled away from port and chugs toward the horizon, leaving land behind. We are fourth in a line of cruise ships departing the harbor at sunset, all glittering in a blaze of orange and pink and turquoise. I look back at the shore and think: America. What a beautiful, rich, blessed land we live in. What more than the land itself could Coronado and Ponce de León have been seeking? Why gold? Why youth? Why even piña coladas? The pure pleasure of this place ought to have been enough.
And yet... it is a mixed sensation, for I am also relieved to see the land receding just now, suspended as we are in the tense limbo of this, the first week of December 2000. It is good to leave behind Rush Limbaugh's meanspirited radio transmissions, the foaming attacks on Jesse Jackson, the use of insulting stereotypes of black people to attack Al Gore and Bill Clinton. It is a relief to take a break from the contemptuous public disrespect for the function of courts, the role of lawyers, the intentions of voters, the requirements of process. As Florida slips beneath the horizon, and CNN's signal crackles and grows fuzzy, I feel like a black-single-mother version of Henry David Thoreau, only standing at the brink of a much bigger and much deeper pond: "To me, away there in my bean-field at the other end of the town, the big guns sounded as if a puffball had burst; and when there was a military turnout...I have sometimes had a vague sense all the day of some sort of itching and disease in the horizon."
What a time we live in. On November 7, I stayed up late like everyone else, listening to National Public Radio on my Walkman. I fell asleep with the headphones on sometime in the wee hours of November 8, exhausted by the flummoxed newscasters' frantic flips and flops. Gore was winning when I lost consciousness. When I awoke hours later, the tinny sound in my ears had changed: A sneering, gleeful voice was making fun of Florida's elderly and "NEEE-gro" voters. I lay frozen. What I didn't know was that NPR is only a hair's bandwidth away from The Howard Stern Show and that in my sleep I had apparently flipped and flopped as much as the results, enough to move the dial a fraction. So it was that my first waking thought was: "Dear God, George Bush won, and they've taken over NPR. The revolution has begun."
It's been all downhill from there. Over the days and weeks since, we have witnessed an eerily exact re-enactment of the tie that led up to the Hayes-Tilden compromise of 1876, as a result of which the federal government pulled troops out of the post-Civil War South. This in turn led directly to the collapse of Reconstruction and the vengeful reassertion of that brand of separatist white supremacy so vividly depicted in D.W. Griffith's Birth of a Nation.
In the weeks since, we have heard George Bush say that it's the executive's job to interpret the law, an idea that Augusto Pinochet surely would endorse. We have watched another Ryder truck (remember Timothy McVeigh?) make its way into the annals of American history. We have shared yet one more "O.J. moment," as Floridians lined the streets to watch the truck speed by, cheering, hooting and taking photos. And given that America's most precious natural resource turns out not to have been gold but rather the entertainment industry, we have been graced with enough material from which to spin conspiracy plots for years and years to come. I see blockbusters like Elián's Revenge, Jeb Jimmies the Lockbox, and of course, The South Shall Rise Again.
In the weeks since November 8, my cruel British friends have had a field day. So soon after the last fiasco, so soon after the spectacle of the Inquisition-style moralists who tried to impeach Bill Clinton, I find myself explaining American peculiarities yet again to the exceedingly upbeat English. They twitter on in the most condescending way about former colonies that simply aren't ready to govern themselves. I try to be serious and explain the Electoral College. They say they are quite informed about American history, thank you very much, and could I please explain why only three-fifths of Florida's electorate was counted while at the same time three-fifths of the people who have declared George Bush a winner are related to him? Is it fuzzy math or fuzzy brain that keeps Americans from noticing that Bush's margin of victory is about the same as the number of people he has executed in Texas?
"You lot got your knickers in quite a knot this time, eh?" gloat the Cruel British Friends.
"A real atomic wedgie," I concede.
In the postelection weeks, my sleep has been troubled by strange visions. I dream that Al Gore and George Bush are standing in the ring at Madison Square Garden, Gore bouncing up and down in his Harvard boxing shorts and nice new leather gloves, Bush trying to look presidential while wearing a Hell's Angels vest, swinging a chain and hiding a switchblade.
Another night I dream that Bush is President, and, first thing, the neural pathways for Croatians and Koreans get crossed in his brain. He ends up thinking they're all "Corians" and while his advisers are out finding floor samples, he drops bombs on the nearest thing he can find on a map--which would be those poor doomed Grecians. World War III breaks out, world markets plunge and the sublimina-limina-lominable hordes sweep down from the north, south, east and west.
Other times I dream I am arguing before the Supreme Court, and Bush appointee Kenneth Starr is our new Chief Justice. The United States Constitution is a jewel, I say, whose multifaceted brilliance takes time, polishing and the infinite honing of years of courtroom argumentation by the finest minds dressed in Brooks Brothers suits, blah, blah, blah. The dream always ends with just that: blah, blah, blah.
Anyway, back onboard the Nation cruise, I turn my attention to preparing my remarks for the first morning's panel, titled--I restrain myself from comment--"The Nation At Sea: Where Are We Headed?" I furrow my brow and chew my pencil. I stare at the blank white paper. "Paris," I write at last.
The election results reveal what may be an "emerging progressive majority."
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.
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.
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.
What if they held a presidential election and neither guy won? Or a dead man from Missouri defeated an incumbent Republican senator?
The razor-thin margin that defined the presidential race is sure to stir controversy around the Ralph Nader vote. Those wishing to blame Nader for Gore's troubles and those Greens wishing to take credit for giving the Democratic candidate a political "cold shower" will focus on Florida. Nader's 97,000 votes in that state came to less than 2 percent of the statewide total, but with barely 1,000 Florida votes deciding the national election, they are sure to be dissected and scrutinized. Ironically, only in the final days of the campaign did Nader decide to return to Florida and ask for votes. A last-minute debate inside his campaign weighed the possibilities of focusing efforts in the swing states like Florida or in Democrat-rich states like New York and California, where "strategic voters" could vote Green without concern about affecting Gore's final tallies. Nader eventually decided he would get more media coverage by targeting places like Florida.
On the national level, Nader fell considerably short of his goal of achieving a 5 percent national vote that would have qualified the Green Party for millions in federal matching funds in 2004. When the votes were counted, Nader had pocketed 3 percent, or around 2.7 million votes--almost four times more than his "uncampaign" garnered in 1996. Relentless pressure on potential Nader voters by liberal Democrats to switch to Gore clearly had an effect on the Green campaign, helping tamp down the final vote to almost half the level at which Nader had finally been polling.
No question but that this result is far from the best scenario for those who hoped that Nader's run this year would hand the Greens substantial future leverage. Given the failure to establish a federally funded national Green Party in the balloting, however, that future clout will depend mostly on Nader's ability and willingness to take his list of 75,000 campaign contributors (as well as countless volunteers and voters) and hone it into an identifiable political entity. That task could be rendered even more problematic by those who will blame Nader for a Gore defeat.
That said, various state Green parties will emerge from this week strengthened and positioned to make a difference in scores of Congressional and legislative districts. In some progressive-minded counties--like Humboldt and Mendocino in Northern California--the Nader vote grazed 13 to14 percent. In many others the Greens scored 5 to 10 percent, making them a potential swing vote in further local elections. In this election, nationwide, some 238 Greens ran for municipal office, and fifteen were victorious.
In what had been considered virtual "Naderhoods"--several northern-tier states where the Greens had significant pockets of strength--the candidate's vote was less than spectacular. In Wisconsin, Washington and Oregon Nader finished with only 4 or 5 percent. Just six weeks ago, he was approaching 10 percent in Oregon. The Greens scored 5 percent in Minnesota--a figure they had been polling for some time--and they hit 6 percent in Montana, Maine, Massachusetts, Rhode Island and Hawaii. The Green high-water marks were in Vermont (7 percent) and Alaska (10 percent--down from 17 percent in some earlier polls).
In the Democratic strongholds of New York and California, where Al Gore won by huge margins and where a ballot for Nader was considered "safe" by those who called for strategic voting, the Greens ended up with a relatively disappointing 4 percent--the same number reached in New Mexico, where Greens have competed statewide for more than five years.
Predictions that the Greens would spoil Gore's chances failed to materialize. Washington, Minnesota, New Mexico, Michigan and Wisconsin--states where Democrats argued that Nader could swing the vote to the GOP--were all won by Al Gore. Even in Oregon, Nader's impact on the major party race was arguably negligible. At press time, Gore was losing the state by about 25,000 votes and Nader's total was 5 percent, or just over 50,000. But whether a sufficient number of the Nader votes would have gone to Gore is open to question. A national USA Today/CNN/Gallup Tracking poll a few days before the election found that only 43 percent of likely Nader voters would vote for Gore as their second choice. Twenty-one percent said they would vote for Bush second. And an equal number said they would vote for Nader or not at all.
This issue goes to press on Wednesday, November 8, the day after the election, when all was supposed to have been decided, all was to be made clear. Instead, a great bewilderment has descended over the land. The recount of the vote in Florida, which might conceivably erase Bush's lead of a thousand or so votes and give the state and the presidency to Al Gore, has begun but not been completed. As I write, the numbers are changing hourly, and no two news outlets seem to have the same ones at the same time. There seems to be some fuzzy math going on down in Florida. Meanwhile, we do know that Al Gore has won the popular vote and faces the possibility that the will of the people will be annulled by the Electoral College. In short, we do not know at present who the next President will be or whether, when we do know, the people will have wanted that man.
Ordinarily, journalists hate situations like this, in which the deadline for elucidating a momentous event descends just before the event occurs. We are required, it seems, either to qualify our comments to the point of meaninglessness or else to pen words so vague and general that they will cover all contingencies. Rich as the arts of pontificating are, these occasions seem to stretch them to the breaking point. ("Whoever wins the White House, one thing is clear, the democracy of this great land..." and so forth.)
On this particular occasion, however, the situation is different. History, giving hard-pressed journalists a hand, has, by declining to produce a victor, provided for the time being the perfect metaphor for the campaign that has now ended. In the campaign the choices offered by the two parties were more obfuscated than clarified, more concealed than revealed. Gore decided to distance himself from his partner in the White House, Bill Clinton, declaring himself to be "my own man," assuring the voters that "I will never let you down" and preventing Clinton from going out on the hustings. It was the fundamental strategic decision of the Gore campaign. Yet the reason for it--the scandals that led to the impeachment of Clinton--were never mentioned by Gore. In consequence, impeachment, the most important political event of the last decade, and the one with the most important bearing on the fitness of the Republican Party to be placed in positions of trust and authority, went undiscussed by the Democrats. Had the impeachment been a necessary remedy for a grave danger to the Republic from President Clinton, or had it been (as I believe) a reckless abuse of power by the Republicans? No question was more in need of an answer in this year's election, but none went more thoroughly unaddressed. Gore's decision even prevented him from taking adequate credit for the Clinton Administration's economic successes.
The Republicans, for their part, waged what E.J. Dionne of the Washington Post rightly called a "stealth campaign." They had held the majority in Congress for six years, yet the Congressional Republicans were all in hiding, and their self-described "revolution" of the nineties--including, for example, their attempt to eviscerate environmental law, their attempt to shut down the Department of Education and their shutdown of the federal government--also went down the memory hole. They opportunistically took their stand on Democratic issues--a plan for prescription drugs, a plan for saving Social Security, a plan for education. Only Bush's proposal for an across-the-board tax cut was in keeping with the recent Republican record. (The art of winning elections by stealing the other party's issues is one they appear to have learned from Clinton.)
Astonishingly, the Republicans even pre-empted the impeachment issue--though without mentioning it explicitly any more than Gore had. Bush spent the final week of the campaign attacking the "partisan bickering" in "Washington," as if it had been the Democrats who had tried to impeach a Republican President for frivolous reasons rather than the other way around. Thus did the impeachment issue control the candidates' decisions without being discussed by them. Almost the only issue given a really thorough airing was the entirely jolly one of how to pass out the trillions of dollars of the budget surplus (how much in prescription drug benefits? how much in tax cuts?)--trillions that may never in fact materialize and that the current Congress has in any case been busily spending.
Had the outcome of the election been known today, a tidal wave of interpretation of the results no doubt would already be rolling over us. It is well that it was stopped. It is better to reflect for a moment on our political confusion. The contest, even when it produces a winner, will not have provided a basis for generalizations regarding the public mind. A foggy campaign has ended in a deep fog, as if the people, not having been offered a true choice, have simply decided not to choose.
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.
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