Three days before the election, I took part in a television panel with former White House flack Joe Lockhart, who was doing his best to hold up his end of the tattered Gore-Lieberman banner. When the show was over, I asked him what he really thought and he said, "I'm pinning everything on the Electoral College." It now takes an effort of memory to recall, but this was what all the Democratic elite were saying that week. So the sudden moral emphasis on the popular vote is slightly unseemly, especially in view of the fact that the vote hasn't been counted yet.
Here's the Bush idea of electoral reform: Cancel the election. The Florida legislature's move to choose the state's electors and declare George W. Bush the next President is only the latest of Bush's attempts to short-circuit electoral due process, raising the stakes in the Florida recount far beyond the interests and limitations of Al Gore. Bush's premature declaration of victory, the bare-knuckle tactics employed by his camp through the initial recount and now the legislature's attempt to pre-empt voters altogether have laid down a chilling marker: Bush is trying unilaterally to make his presidency a fact, rendering irrelevant both the legal system and a credible counting of Florida's votes.
To keep those voters' legally cast ballots from being counted, Bush, James Baker and Dick Cheney orchestrated a Big Lie campaign at an extraordinary level. New York Governor George Pataki insisted, "We've now had a count, a recount, a recount of the recount." In fact, at least 10,000 Miami-Dade ballots recorded no presidential vote, suggesting they were never counted properly in the first place. According to the New York Times, antiquated and error-prone Votomatic machines prevalent in the same county's black precincts may have cost Gore as many as 7,000 votes. Bob Dole hammered away at Gore for "disenfranchising" the military. The substance of those allegations vanished so quickly that the Bush campaign withdrew its lawsuit. Bush himself denounced Florida's hand counts, saying they were able to produce "no fair or accurate result." In fact, as US District Judge Donald Middlebrooks pointedly noted in rejecting Bush's case, Florida's hand-recount procedures are studiously "neutral," and Bush had as much right to request hand counts or to challenge certification as Gore. Hand recounts are routine in virtually every election jurisdiction in the country.
Curiously, the Republicans and Democrats seem to share the same central premise, which is that if enough votes get counted Gore will win--hence a GOP strategy based on impeding recounts at any cost. This strategy found near-perfect expression in that pre-Thanksgiving hecklers' veto of the Miami-Dade recount by a screaming crowd of Republican Congressional staffers flown in for the occasion. With thousands of Miami-Dade and Palm Beach votes still to be counted in Gore's post-certification contests, the legislature is now going to the next logical step: Why have an election at all when you can have a coronation?
To back up his effort to crown himself over the heads of Florida's voters, Bush is playing one of the hoariest cards in the right-wing deck: resentment of the judiciary. When Bush, in his "I'm in charge here" speech, denounced the Florida Supreme Court for "rewriting the law," he knowingly stirred regional and racist resentment. His lawyers, led by Ken Starr crony Ted Olson, continued on the same tack with the US Supreme Court, in their brief charging the Florida high court with "judicial legislation" for extending the state's certification deadline in a routine bit of legal interpretation. As political strategy, this effort to delegitimize the judiciary harks back to the impeach earl warren bumper stickers of 1960s segregationists and the Reagan-era attacks on civil-libertarian state judges like California's Rose Bird. As legal theory, Bush's Supreme Court argument has even more profound implications than the election itself. As Laurence Tribe and Gore's legal team correctly noted in their reply, Bush "would undermine the authority of the judiciary to decide the meaning of law."
An election is supposed to represent the direct line connecting people to power. The Bush strategy of impeding the vote counting does the opposite, drawing into the whirlwind every branch and level of government; each new escalation pulls the election's outcome a step further from the voters. The conventional wisdom of the moment is that Gore should give up for the sake of closure, and the Democrats should return to fight another day. But the legitimacy of votes and the legitimacy of the judiciary in protecting voters' rights are principles too fundamental to abandon without the most exhaustive political and legal battle. Whatever you think of Al Gore, this is terrain that is essential to fight for to the bitter end. Settling for less is a false closure not worth contemplating.
With No Decision 2000 a face-off of spins--moralistic outrage for the Republicans (don't steal our election) versus lofty principle for the Democrats (every vote should count)--the Bush gang has had the edge in passion and unity. In the postcertification phase, the Republicans and their conservative movement pals were impressively maintaining a lockstep message, while the Democrats were trying hard to mount a stand-by-our-man front. House Democratic leader Richard Gephardt and Senate Democratic leader Tom Daschle trotted to Tallahassee to demonstrate their support for Gore, but it was a bit late in the game. Other high-profile Democrats--Senators John Kerry and Bob Kerrey, Representative Jerrold Nadler--hit the Sunshine State and the talk shows to help out. And on Capitol Hill, most Democrats--angered by Republican rhetoric and majority whip Tom DeLay's schemings--were egging Gore on. As a senior Democratic House staffer quipped, "DeLay has rallied the Democrats better than Al Gore could."
But questions hovered: How long would the Democrats hang tough? And would they play tough? "Most Democrats are going to wait and see how the court contests go and see what happens with the Supreme Court before they pull out," says one chief of staff for a Democratic senator. But unlike Bush, Gore had to deal with cracks within his bloc. Senator Bob Torricelli remarked that the Florida certification was "the beginning of the end." Senator Byron Dorgan indicated that time was short for Gore: "This is a search for an accurate count, but it cannot be an endless count." Former Labor Secretary Robert Reich counseled retreat: "The country needs closure." Representative Bud Cramer said, "The time has come for this to come to a close." And even though Gore had much of his party on his side, the Democratic effort did not match the fervor of the GOP postcampaign endeavor--and not merely because the Democrats did not send mobs into county buildings in Florida. The remarks of Gephardt and Daschle were temperate, almost defensive, as they pointed out that they were backing the abstract principle of counting all votes. They expressed little emotion regarding the GOP attempt to block the vote-counting process so crucial for Gore. From the Democratic perspective, the election was being hijacked by the Republicans, yet, for the most part, the alarm wasn't raised.
A few Democrats did sound off. James Clyburn, who chairs the Congressional Black Caucus, said, "We know what it is to have an election stolen from us." He warned that Democrats who wimp out during the postelection combat would lose support among black voters. Nadler, reacting to the GOP-led protests that perhaps precipitated the shutdown of the Miami-Dade recount, complained about the "whiff of fascism." But such fightin' words were not part of the Gore/Democratic talking points.
This was the Democratic plan: Stay calm. "Our message is patience," said an aide to the House Democratic leadership. "We have to embody reasonableness. We feel we have votes and the law on our side, and that the Republican tactics and vehemence will backfire. People may mistake that as a message of not caring, of not being passionate. But we believe this can work." In fact, early on in the postelection battle, Gore decided not to rev up supporters. His campaign discouraged Jesse Jackson, who staged a protest in Florida and raised questions about allegations of racial intimidation on Election Day. "Gore told Jackson to get out of the state, and he told labor not to organize," says one Jackson associate. "He cooled Democrats out, just when Bush and his people were going into overdrive. Gore thought he had the votes. This was a classic case of Gore not believing in politics." It may have been smart to de-Jessify the dispute, since Jackson brings his own baggage to headlines. But the Gore-Lieberman camp kept its distance from the charges of racial intimidation--which, though unproven, were of intense concern to many of Gore's most ardent supporters.
For better or worse, Gore mostly stuck to a legal strategy--and eschewed political mobilization, outrage and crusading rhetoric, even as polls and a few Democratic pols turned against him. As one Democratic Senate aide said wistfully, "It's always been our problem. We Democrats have trouble going for the jugular. We always try to sound reasonable. Reason may not be enough this time."
Click here for Eric Alterman's latest dispatch on Florida.
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.
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.
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.