Nation Topics - Electoral Reform | The Nation

Florida revisited: Schadenfreude amid the carnage of the democratic process.

Now that we know that Al Gore not only beat George Bush by roughly 537,000 votes nationally, but also handily defeated him among legally cast votes in Florida, I suppose we can expect accelerated efforts on the part of the President to try to counter his proven political illegitimacy. This is actually a pretty frightening notion. Well before we received the much-misreported results of the Florida recount, the Administration gave every indication of being so addicted to secrecy that it would happily stretch the bounds of democratic accountability beyond their breaking point.

This tendency was evident even pre-9/11--for instance, when Dick Cheney refused repeated Congressional demands that he identify the lobbyists crafting the Administration's multibillion-dollar giveaway to the oil and gas industry. (Oddly, the journalistic holy warriors who demanded that Hillary Clinton do just that during the crafting of her ill-fated healthcare plan have remained remarkably understanding this time around.) Osama bin Laden's terrorism has now given Bush & Co. an excuse to try to close off virtually every possible avenue of inquiry from those who seek to question their policies.

Among the highlights so far are: a decision to jail more than 1,000 people, without charge and without explanation; an executive order allowing secret military tribunals for immigrants accused of involvement in the still-undefined crime of terrorism; an attempt by John Ashcroft to emasculate the Freedom of Information Act; and an order to clamp down on information available from military contractors, from government websites and even information given to Congress.

While some new security measures are obviously necessary, the Bush people's zeal to shut down the free flow of information goes well beyond any legitimate need. Consider November's Executive Order 13233, which eviscerates the nation's access to its own history, effectively overturning the Presidential Records Act (PRA) of 1978 by fiat.

Current law insists that all presidential papers be declassified within twelve years, with an exception made for those whose publication could demonstrably affect our national security. Bush now wants to allow Presidents to refuse to declassify the decision-making process virtually forever. And he wants to do this regardless of whether the ex-President in question wants his papers released. This is a catastrophe not only for historians but also for history. The secrecy it enshrines can only invite future Watergate- or Iran/contra-style abuses.

The obvious target of the new law is the Reagan papers. For the past nine months, Reagan's people have refused--with the Bush Administration's backing--to release more than 68,000 pages they owe the nation under the 1978 law. The Bush Administration is filled with Reagan-era retreads whose questionable actions might leave them vulnerable to criticism and/or ridicule. Among these are Elliott Abrams, John Negroponte, Otto Reich as well as Colin Powell, budget director Mitch Daniels Jr. and Chief of Staff Andrew Card. And then there's the matter of Reagan's Vice President, who, like Abrams et al., lied about his awareness of the commission of Iran/contra crimes.

The outrageousness of Bush's action is matched only by the blithe indifference with which he apparently expects to carry it off. He claims that his executive order insures "a process that I think will enable historians to do their job." Call me a cynic, but this looks like yet another situation where the guy can't possibly be as clueless as he pretends.

As Scott Nelson of Public Citizen recently testified, the new order gives any sitting President unregulated power to prevent the US Archivist from releasing any materials to the public simply by making a claim of privilege, however indefensible. It reverses the burden of proof by putting it on the historian and demands that "a party seeking to overcome the constitutionally based privileges that apply to Presidential records must establish at least a 'demonstrated, specific need' for particular records, a standard that turns on the nature of the proceeding and the importance of the information to that proceeding."

The Bush order also demands that the Archivist alert both the former President and the incumbent President of requests for access to presidential records subject to the PRA and provide them with copies of the relevant records upon their request. They can then review these documents, with the de facto ability to hold up their release indefinitely, even if the incumbent President disagrees. Steven Aftergood of the Federation of American Scientists points out that the new order creates a brand-new category of executive privilege, one belonging to a Vice President or family member of a deceased President. It will therefore allow W to protect HW's papers long after Poppy joins Grandpa Prescott in that Grand Old Connecticut Prep School in the Sky.

Keep in mind that Bush is professing to issue all these restrictions on the basis of current law. As Democrats Henry Waxman and Jan Schakowsky note in a letter to the President, this assertion could hardly be more disingenuous. The Bush order, they argue, "tries to rewrite the Act by withholding records that are a part of the deliberative process." With zero legislative basis, they complain, it wrests authority for the disposition of the papers from the Archivist to the sitting President and misuses the provisions of the Freedom of Information Act, deliberately undermining its intentions.

I happened be in Independence, Missouri, when the order was issued, doing research at the Truman Library for my dissertation and my next book, on the consequences of presidential deception. The staff was knowledgeable and professional, entirely disinterested in the nature of my prospective arguments. Reading the actual telegrams and memos that document the outbreak of the cold war added immeasurably to my understanding of the challenges our leaders then faced. If George W. Bush has his way, such research and the truths that emerge from it will themselves become part of history--and with them, a small piece of our freedom.

A few items should have received more (some!) emphasis in last week's media recount reports (we will continue to expand on these points in the coming days, on the Steve Cobble

The 2000 presidential election, with more than 105 million votes cast, involved: five weeks of political and legal maneuvering; what many view as an arbitrarily imposed Supreme Court constitutiona

In what may be the (belated) final act of the Florida miselection saga, a consortium of major media outlets anointed George W. Bush the beneficiary--though not necessarily the winner--of their ten-month, $900,000 joint review of 175,000 ballots that were not included in Katherine Harris's official count. Bush gained because most of the consortium's participants emphasized one slice of their review--the finding that had the US Supreme Court not infamously halted the recount ordered by the state Supreme Court, Bush still would have squeaked past Al Gore by more than 400 votes, instead of 537. The front-page headline in the Wall Street Journal, a consortium member, was typical: "In Election Review, Bush Wins Without Supreme Court Help." Yet the header on the inside page was a better summation of the ballot project: "Final Tally in Florida Yields Mixed Results."

The true story is that the Florida mess cannot be definitively sorted out. That's no news flash, since the Florida election exposed numerous problems in vote tallying and demonstrated that the system was not up to collating accurately 6 million ballots in a 50-50 race. As the consortium--which included the New York Times, the Los Angeles Times, the Washington Post, AP, CNN and others--reported, there were several ballot-counting scenarios that placed Gore in the narrowest of leads (between 42 and 171 votes). Each of these was based on reviews of untallied ballots statewide, including undervotes (ballots not registering a presidential preference when tabulated) and overvotes (those on which counting machines detected more than one vote, as when someone selected a candidate and also wrote in the same candidate). But the Gore campaign, hoping to cherry-pick enough votes to slip past Bush, requested recounts only of undervotes in four heavily Democratic counties. It ignored the undervotes elsewhere and did not ask for hand counts of overvote ballots (which, it now seems, contained more uncounted Gore votes than did the undervote ballots). Gore and his crew waved the banner, "Let every vote count," but their legal strategy did not match the rhetoric. If Gore had pushed principle rather than relying on tactics, the headlines might be different today, for what that's worth. The consortium review also suggests that Bush's legal plan--an antidemocratic strategy of opposing all recounts--was excessive, leading him to an uglier victory than was necessary.

It's important to keep in mind that the numbers tossed out by the consortium are wisps. They don't provide the basis for sweeping declarations (like "the US Supreme Court had nothing to do with the outcome," or "Gore was robbed of victory"). They're based on various assumptions. For instance, the what-if-the-Supremes-had-not-butted-in scenario--which produces a slender Bush lead--assumes that four counties that had declared their refusal to recount ballots would have maintained that position. But suppose the state Supreme Court had forced them to conduct a recount. The consortium doesn't say what the results would have been. And, as the consortium acknowledges, it was a challenge for it to identify, months after the fact, the undervote and overvote ballots not tallied on Election Day. Conceivably, its 153 ballot inspectors--fielded by the National Opinion Research Center--may have missed a handful of ballots. (On only one out of seven ballots examined did the consortium discern an actual vote, under its most inclusive standards.) With the margin of victory in the consortium review swinging between .003 percent for Gore and .008 percent for Bush, any one error could have flipped the findings.

The consortium produced the perfect split decision. Bush (probably) would have won by the rules Gore advocated; Gore (probably) was preferred by several dozen more voters. But on each side, the point spreads are too slim to mean much or settle anything. The consortium effort does offer other valuable information. The review found that precincts with African-American majorities rejected ballots at much higher rates than did white precincts. Hispanic precincts and those with large elderly populations also had high discard rates. The data do not identify the cause--likely a combination of older machines, poorly trained election workers and a higher number of less-educated voters--but they suggest that vote-counting, intentionally or not, had a racial and age bias. The consortium's report strengthens the arguments for electoral reform. Florida did pass a measure, which was criticized by voting-rights advocates, and Congress and other states have been lollygagging.

The inconclusive conclusions of the consortium do not disperse the fog shrouding the election. Ascertaining the hard-and-fast results (or what should have been the results) of the Florida election remains virtually impossible. Still, it's not difficult to demonstrate that the wrong guy triumphed. The consortium's scenario calculators did not take into account the butterfly ballot of Palm Beach County or the similarly confusing ballot of Duval County. In each instance, thousands of voters errantly double-marked ballots for Gore and a minor candidate or Bush and a minor candidate. No official recount would have been able to include these self-invalidating ballots, so the consortium left them out of its equations. Which was reasonable.

Yet it did confirm what had been previously reported--that these ballot screw-ups cost Gore thousands of votes. The Washington Post says Gore may have lost up to 8,000 votes in Palm Beach and 7,000 in Duval County. The Los Angeles Times reports that Gore was shortchanged by up to 9,000 votes in Palm Beach and 3,000 in Duval County. The Palm Beach Post maintains that he might have missed out on 6,000 votes in its county. All these numbers overwhelm the two- or three-digit margins of every consortium scenario. With or without the consortium, the picture is clear: Gore was favored by several thousand more Florida voters than Bush. That is nearly undeniable--yet that reality could not be reflected in the numbers of the official count, the recounts or the unofficial reviews. It has also not been acknowledged by the fellow who, without shame, accepted the benefits conveyed by a faulty system. In other words, you don't need a consortium to know which way the wind blew--or to know that the man in the White House is there, legitimately or not, by mistake.

A full year has now passed since the scandal of Election 2000 delivered an illegitimate presidency to American government, and, no, we have not moved on. We have not put it out of our minds, as pundits and politicians urged in the name of civic propriety. We have forgotten neither the raw power-grab engineered by hustler-statesmen from the Republican Party nor the blank-faced astonishment of Democratic leaders too slow to grasp what was under way. We have not forgiven the Supreme Court's rightist majority for its outrageous--felonious, as Vincent Bugliosi wrote in these pages--usurpation of the democratic process. We will not let it drop.

Yes, of course, Americans are now turned elsewhere in their thoughts. George W. Bush is leading the country in a perilous time and wins nearly unanimous approval in public opinion polls, since Americans want the terrorists to be brought to justice. But these circumstances do not rob us of independent minds and voices. Something terribly wrong happened to American democracy one year ago, and this grave injury has not been healed, or even honestly acknowledged and addressed.

As a recent report from the Election Reform Information Project described, virtually nothing of significance has been done by national legislators to clean up the mess in our election machinery or to approach more fundamental reform ideas. There have been notable exceptions: Senator Christopher Dodd and Congressman John Conyers, for example, have pushed for a bill that sets universal standards for voting machines and tackles problems of access. But bipartisan indifference has been more the order of the day. If there must be reform, politicians figure, let's wait until after our own 2002 re-election campaigns. By then, voters probably won't care, and the broken-down machinery that encourages low-turnout elections and safe incumbency can survive unchanged. Such an attitude amounts to further sabotage of the democratic faith.

The media, too, have fallen silent on the events of a year ago. It is not just the report of a consortium of major news organizations on the Florida vote that we await with growing impatience but more important, the return of ongoing coverage of reform efforts as well as attempts to get to the bottom of what happened.

Here is unsolicited advice for this President: The time will come, perhaps sooner than Washington imagines, when the approval polls are no longer at 90-plus percent and people are again focused on your shortcomings. At that point, voters will recall the irregularities that put you in power and your refusal even to acknowledge that there's anything wrong with the electoral system. It would be wise of you to prepare by spending a modest bit of your political capital on pushing for real reform.

To the opposition party, we offer a warning: In the long run, you will not be rewarded for your timidity and neglect. The fact that so many Democrats have lost their voice on a matter so important to democracy reminds people of your lack of leadership in many other matters.

To citizens we say: Hold on to your anger. Use it to fuel efforts to seek an accounting of what happened in 2000 and as an organizing tool to promote democratic reform.

The terrain of the battle for campaign finance
reform has now shifted to the House of Representatives and, less
noticed but more important, to the Massachusetts legislature. Two
approaches to reform are at issue. One limits the ways that private
money can be given and spent in elections; the other holds that
replacing big donations with public financing is the only way to
cleanse a rotten system.

In the House, reformers are
collecting signatures on a discharge petition that would force a
floor debate and a vote on the Shays-Meehan campaign finance bill,
which the GOP leadership buried in the last session. They need 218
signatures; Common Cause had tallied 205 signatures on the petition,
including fifteen Republicans.

House passage of
Shays-Meehan would be a significant victory for Congressional
reformers, but it will not win the war against the big money
corrupting the system. Like McCain-Feingold, its Senate counterpart,
Shays-Meehan bans soft money, but it also doubles the amount of
hard-money contributions wealthy special interests can make. US PIRG
reports that had these changes been in effect for the 2000 elections,
the top 144 lobbying firms in Washington would have been prevented
from giving $1.4 million in soft money, but they could have legally
given $8.7 million more in hard money.

The only way to
achieve meaningful campaign finance reform is through full public
financing. That's why Massachusetts, where a Clean Elections bill is
currently bottled up in the legislature, is so important. Like
similar legislation already implemented in Maine, Arizona and
Vermont, Clean Elections would enable public officials to run fully
funded, viable campaigns for office without having to depend on
private donors to any significant degree. Under Clean Elections laws,
candidates who agree to raise little to no private money and abide by
strict spending limits can qualify for equal grants of full public
financing for their campaigns. Additional matching funds are given if
a participating candidate faces a high-spending opponent. Prospective
candidates qualify by collecting a fairly large number of very small
(around $5) contributions. The laws free them from the private money
chase and make reaching out to voters on the issues and organizing a
grassroots base more important than fundraising ability. In short,
democracy the way it ought to be.

In 1998 Massachusetts
voters passed a Clean Elections initiative by a two-to-one margin.
But Thomas Finneran, the Democratic state House speaker, has used
various maneuvers to prevent the law from going into effect for the
2002 election. Finneran's machinations have rallied reform-minded
citizens to the law's defense. Pressure from grassroots activists led
by Mass Voters for Clean Elections has been so intense that several
lawmakers were compelled to switch their positions after a vote this
past spring in the state House that would have stripped the law of
its funding. Later, the state Senate overwhelmingly backed a
countermeasure that fully funds the system. Now the matter is bottled
up in a conference committee, while Republican Governor Jane Swift
has tried to force the issue by including full funding for Clean
Elections in an interim state budget and, we hope, will continue to
do so.

On August 1 candidates for statewide office started
the process of collecting the 6,000 contributions (of no more than
$100 each) the law says they must have to qualify for a base-level
grant of $1.6 million for the primary. Lower-level and legislative
candidates are seeking to "run clean" as well. But the vision of a
people-driven democracy won't be realized in Massachusetts until
Finneran relents in his opposition to a Clean Elections law. Readers
can help by going to the website www. massvoters.org or by calling
Finneran's office at (617) 722-2500. A March for Democracy, from
Lexington to Boston, is planned for September 16.

Just as
woman suffrage started with laws passed in the states and led to the
Nineteenth Amendment, the Clean Elections movement is bubbling up
from the states. After four pioneering states gave women the vote, it
took another twenty years before woman suffrage was national. Let's
hope it won't take that long for Clean Elections to become the law of
the land.

Joseph Heller would have had a field day with the hearings of the US
Commission on Civil Rights in Tallahassee last week.

Thomas Jefferson was not anticipating a summer holiday when he told Lafayette that "the boisterous sea of liberty indeed is never without a wave." In Philadelphia, where Jefferson and his countrymen created a monumental wave back in 1776, a new generation of patriots will meet from June 29 to July 1 to turn a tide of anger over the denial of democracy in Florida into a national movement for electoral reform.

The national Pro-Democracy Convention, organized by the Institute for Policy Studies, the NAACP, the Congressional Black Caucus, the Nation Institute and others, comes at a moment of more activism on voting rights and electoral reform than at any time since the 1960s. From energetic voter-registration drives in Florida, where young people gathered in mid-June to kick off Democracy Summer, to a renewed push for instant-runoff voting in Vermont, to a move in Congress to make real the promise of the Voting Rights Act, there's a sense that from the disappointment that was Florida there may come a movement capable of assuring that, in the words of Representative Cynthia McKinney, "We will not allow a repeat of Florida 2000."

Essential to this movement is the recognition that Florida was only part of the story. Across the United States more than 2 million presidential votes went uncounted last November. Election officials actually discarded more ballots in Illinois than in Florida--3.9 percent compared with 2.9 percent. Added to this are concerns about aging voting equipment, restrictive registration laws, failed implementation of the federal motor-voter law and bans on voting by former prisoners that continue to deny millions of citizens--especially people of color and the poor--full access to the franchise.

With Democrats now in control of the Senate, there's a chance to crystallize the energy of this new movement by passing the Equal Protection of Voting Rights Act. Written by Chris Dodd, Senate Rules Committee chairman, and John Conyers, ranking Democrat on the House Judiciary Committee, the bill addresses basic issues of access and equal opportunity and sets universal standards for voting machines. It has the support of the NAACP, the AFL-CIO, the National Council of La Raza, the National Organization for Women, the National Federation of the Blind and at least 172 Congress members. Citizens will have a chance to voice their support at hearings across the country this summer.

Meanwhile, the House is preparing for a post-July 4 showdown on the related issue of campaign finance reform. House majority whip Tom DeLay has vowed to defeat the reform effort, modest as it is, but supporters hope momentum created by Senate passage of a similar measure and by a Supreme Court decision upholding restrictions on party contributions to candidates will overwhelm defenders of what Senator Russ Feingold calls "a system of legalized bribery."

Electoral reforms are never easily won--just ask a suffragist, or, for that matter, the Civil Rights Commission members who were excoriated for exposing the "injustice, ineptitude and inefficiency" that disfranchised minority voters in Florida. No single law will cure what ails our democracy. But now is the time to take the first steps. American democracy was devalued last year, and it will require a wave of liberty to begin to set things right.

With each new look at the November election in Florida, the argument of the Bush Five on the Supreme Court--that manual recounts would lead to the unequal treatment of voters--appears more ludicrous. The election itself was a statewide orgy of unequal treatment. In a draft report, the US Commission on Civil Rights, which investigated election irregularities in the Sunshine State, depicts a voting system rife with bias. "African American voting districts were disproportionately hindered by antiquated and error-prone equipment like the punch card ballot system," the commission notes. Which means more black and low-income voters--who tend to vote Democratic--had their ballots invalidated. The commission confirms what The Nation and other publications have found: The sloppy and inconsistent use of error-laden purge lists prevented eligible voters from casting ballots. "The purge system," the commission observes, "disproportionately impacted African American voters who are placed on purge lists more often and more likely to be there erroneously." In some counties voters of Hispanic or Haitian origin were not provided ballots in their native language--despite federal laws that require it.

There were other inequities. When Secretary of State Katherine Harris ordered a recount, eighteen of Florida's sixty-seven counties didn't recount the votes; they merely checked the math from the original count. In two counties, elections officers shut off the mechanisms on the voting machines that identified errors on ballots and allowed the voter a second chance. Other counties kept these devices on.

According to the commission, "widespread disenfranchisement and denial of voting rights" occurred, but "it is impossible to determine the extent of disenfranchisement or to provide an adequate remedy to the persons whose voices were silenced...by a pattern and practice of injustice, ineptitude and inefficiency." And Jeb Bush, Harris and other state officials were to blame--not for having "conspired to produce the disenfranchisement of voters" but for having ignored the needs of voters. The draft, which Jeb Bush denounced as unfair, notes that it would be appropriate for the Justice Department to investigate whether Florida state and county officials violated the Voting Rights Act. Jeb Bush's office squealed bias and grumbled about the timing of the draft's release.

As the commission's report and various media investigations show, thousands of Florida voters were the victims of widespread institutional neglect. That neglect may not have been designed as a campaign strategy, but it worked as well as if it had been. Republicans, after all, have long believed that their candidates fare better in races with low turnout. There is no question that Bush's twisted path to the White House was paved by voting-system problems unaddressed by his brother and Harris--and that he got the presidency because of the unequal treatment of Florida citizens.