Our drug laws, like those concerning voting, reveal bias and backward thinking.
Powerful elements converged to determine who would be president.
The Supreme Court was determined to make George W. Bush the winner of the election.
We know what they're afraid of. Cut through the Republican verbiage
that has clogged the airwaves and courts and you find one simple but
disturbing point: They fear an accurate vote count because it might prove
that Al Gore has the votes to be fairly elected President.
That's been their concern since election night, when they began their
drawn-out process of obstruction, and if they succeed in once again
killing the manual count through their US Supreme Court appeal, George
W. Bush's victory will stand as a low point in the annals of American
The indelible impression left on our history will be that Gore won
both the popular and electoral vote and that he and the voters were
cheated out of that victory by a US Supreme Court dominated by
political ideologues appointed by Republican Presidents. If the Justices
cared a whit about the sanctity of the vote, they would have let the
manual-counting process decreed Friday by the Florida Supreme Court
continue. If that had resulted in a Bush win, we should all have
gracefully acknowledged his victory.
Bush, who lost by more than 330,000 in the popular vote--what most of
us grew up thinking of as the real election--may now squeak by with an
electoral college win resulting from a ruling by the right-wing-led US
Supreme Court. During the campaign, Bush cited Antonin Scalia and
Clarence Thomas as his judicial role models, and he has been amply
rewarded. Legal gobbledygook has replaced reason when the mere act of
fairly counting the votes of the citizens is halted to suit the political
agenda of the party that appointed the majority of the Justices.
In a close election, a manual count of all votes not counted by the
antiquated voting machines is a statutory mandate in many states,
including Florida and Texas, and should have been the common-sense demand
of both candidates in Florida. If that simple standard--accurately and
fairly counting all of the votes to ascertain the intent of each
voter--had been asserted in a bipartisan manner, there would have been no
reason for the subsequent confusion and the never-to-end questioning of
the legitimacy of our next President.
Instead, unprecedented rancor will mark the next years of our
politics, mocking all efforts at bipartisan cooperation. This will be
particularly true in battles over the judiciary, which, more than ever,
will come to be viewed widely as a partisan tool.
The Florida election will always be too close to call in a manner that
would leave partisans of both sides totally satisfied. Whoever loses will
feel ripped off, but the denigration of the Florida Supreme Court and of
Gore's legal challenges by top Bush Republican spokesperson James Baker
has gone too far. Twice now he has smeared the motives of Florida Supreme
Court justices for daring to come to conclusions not to Baker's liking.
Yet he reached a new low Friday in disparaging the right of a
presidential candidate--who has won the national popular vote and is only
three electoral votes from victory--to ask for a judicial review of the
obviously deeply flawed Florida election results.
Get real. Both Baker and Bush know they would do the same had the
results gone the other way. Yet they self-righteously abandoned civility
when the nation most needed it. There are no villains in this election,
only imperfect machines and people, but the Bush camp has vilified the
Gore camp for daring to seek a fair adjudication of such matters.
We are still a nation of laws, and it was unconscionable for Baker to
blast Gore for appealing to the Florida state high court at the very time
Bush's lawyers raced to the federal courts in an unseemly departure from
the GOP's commitment to states' rights. In Baker's view, the problem is
not that we have a razor-close election and flawed voting procedures, but
rather that Gore dares to assert his legal rights: "This is what happens
when, for the first time in modern history, a candidate resorts to
lawsuits to overturn the outcome of an election for President. It is very
sad. It is sad for Florida. It is sad for the nation, and it is sad for
Hogwash! What is sad is that tens of thousands of African-American and
Jewish voters in Florida were systematically denied their right to vote
by poorly drawn ballots, malfunctioning voting machines and unhelpful
voting officials. What is sad is that election officials in two counties
turned over flawed Republican absentee ballot applications for
corrections by Republican Party officials but did no such favors for
What would be most sad--indeed, alarming--is if a partisan US
Supreme Court proves to be an enemy of representative democracy.
All I want is the truth. Just gimme some truth.
Florida's electoral mishegoss lends itself to the exploration of an issue that receives no attention in the media and yet underlies virtually everything its members do. I speak to you, dear reader, of the Meaning of Truth.
Ever since Fox's John Ellis began the mistaken media stampede for his cousin George W. Bush's victory on election night, reporters, producers and executives have spun themselves silly trying to describe a situation that is ultimately an epistemological bottomless pit. There is no single "truth" about who won Florida. From the point of view of "institutional truth," we began without clear rules or precedents for measuring the vote, whether they include dimple-counting, partially punched chads or butterfly ballots. I am convinced Gore carried the will of the people, but I'm guessing that Lady Katherine Harris Macbeth would rather contract rabies than accept my admittedly subjective interpretation. From the perspective of "brute truth," however, the difference between the Bush/Gore numbers turns out to be so small that it will never exceed the count's margin of error. What we are seeing, therefore, is not a process of objective measurement but a contest of raw power. The Democrats use the courts and the law. The Republicans rely on rent-a-mobs, partisan hacks and power-hungry allies in the state legislature and Congress. Guess which side is bound to win?
Our media coverage admits none of this, because it is committed to a fairy-tale version of truth and objectivity that separates "fact" and "opinion" but cannot fathom anything in between. When Tim Russert declared on November 26 that George Bush "has now been declared the official winner of the Florida election...and therefore he is the 43rd President of the United States," he was making a statement that could not have been true when he made it. (Even Bush understood that he was only playing a President-elect on TV.) But the feared and celebrated Russert knew that his words were bound by only the narrowest definition of "truth." He could always take it back later.
The attachment to the idea of attainable objective "truth" on the part of American journalism is partially responsible for its frequent brainlessness. As NYU's Jay Rosen points out, "objectivity as a theory of how to arrive at the truth is bankrupt intellectually.... Everything we've learned about the pursuit of truth tells us that in one way or another the knower is incorporated into the known." (Remember Heisenberg? Remember Einstein?) The famous 1920s debate between Walter Lippmann and John Dewey shed considerable light on this problem, with Lippmann arguing for a "spectator" theory of reality and Dewey arguing for a more consensual one, arrived at through discourse and debate.
The notion of a verifiable objective truth received what many intellectuals considered its final coffin nail in the form of Richard Rorty's classic 1979 work, Philosophy and the Mirror of Nature. While the word true may have absolute correlations in reality, Rorty later argued, "its conditions of application will always be relative." What was "true" in ancient Athens--that slavery and pederasty were positive goods--is hardly "true" to us today. As Rorty explains it, we call our beliefs "true" for the purposes of self-justification and little more. The point is not accuracy but pragmatism. Moreover, Ludwig Wittgenstein has taught us that the gulf between what "is" and the language we use to describe it is so large as to be unbridgeable. "Truth" may be out there, but there is no answer to a redescription, Rorty observes, "save a re-re-redescription." Truth is what works.
Now, it's possible to contest Rorty on any number of counts. I personally find him overly generous to the extreme relativism of antifoundationalists like Jacques Derrida and Michel Foucault. (The antifoundationalist perspective can be simplistically summarized by the famous Surrealist painting of a pipe by René Magritte beneath the words, Ce n'est pas une pipe.) But the argument itself cannot be avoided. Truth, as Lippmann never understood but Dewey did, is a lot more complicated than a baseball box score or a Johnny Apple New York Times news analysis. What is needed to evaluate whether a report is ultimately credible is not an endless parade of "facts" that may or may not be true but a subjective marshaling of evidence. Yet because the entire media establishment treats these questions as just so much mental masturbation, the standard definition of "fact" often turns out to be any given statement that cannot be easily disproved at the moment it is made. Hence, we frequently see journalistic accounts of the mood of an entire country or even a whole continent based on little more than the taxi ride from the airport.
A second byproduct of American journalism's childish belief in attainable objective truth, Rosen notes, is the alienation it causes between journalists and intellectuals. In Europe the public profits from a two-way transmission belt between the world of ideas and that of reported "fact." But here such exchanges are nearly impossible because, as Rosen puts it, "intellectuals familiar with the currents in twentieth-century thought just can't deal with some of the things that come out of journalists' mouths." Such people, he notes, believe it "useless to try to talk with journalists" owing to their "naïve empiricism." Still, the academy is also at fault, owing to its recent retreat into a Derrida/Foucault-inspired debate that admits almost no reality at all outside the text and does not even pretend to speak intelligibly to the nonspecialist.
In any case, George W. Bush may be our next President. But it won't be because he outpolled Al Gore in Florida in any remotely objective sense. It will merely be because he might have, and we decided to call it "true."
* * *
Congratulations to Ralph Nader on George W. Bush's decision to appoint Andrew Card, formerly the auto industry's top antienvironmental lobbyist, to be his Chief of Staff. Just a few more appointments like this one, I suppose, and the revolution can begin in earnest.
Let the chattering classes focus on chads and undervotes and Florida recounts and what the courts--state and federal, all the way up to the Supreme Court--would or wouldn't do. Let us not forget that the candidate who won the national popular vote falls only three votes short of a clear Electoral College majority even without Florida. If on December 18, the day the Electoral College convenes to cast its ballot, three Republican electors decide on their own to vote for him, all the speculation is moot.
Our purpose is to argue that our three hypothetical electors should so decide and that American democracy would be the better for it. And that this particular election, because it is so close and because it has raised fundamental issues of voting rights, provides the right historic moment for such a gesture. In 1960, another close election, Ted Lewis argued in The Nation that there was such revulsion against the Electoral College that it "would certainly now be on its way out" if it hadn't "functioned on November 8 in accordance with the national will."
Election 2000's clouded outcome has highlighted some glaring flaws in our electoral system--uncounted votes, confused voters, voters rejected (see David Corn, on page 5)--which has stimulated a growing sentiment for reform. And so while the country's mood is hospitable to reform, why not abolish the most undemocratic institution of all--the Electoral College?
That's where our hypothetical three electors come in. By casting their votes for the popular-vote winner, in the short run they would guarantee the election of the man who won the popular vote; but more important, in the long run such a gesture might break the antidemocratic stranglehold of the Electoral College on American politics. Let's be clear: We are not urging them to vote for the popular-vote winner because we support Al Gore. We are urging them to cast such a vote because it would be the right thing to do--legally, morally and politically.
It will immediately be objected that what we are proposing is an invitation to electoral anarchy, that history has rightly stigmatized the thirteen electors who switched their votes in previous presidential elections as "faithless electors." Besides, Vice President Gore himself has said he would "not accept" Republican electors. But the Vice President has no say about the matter, any more than he has a say about not accepting the vote of those whose party affiliations or (political) motives he finds repugnant. Even a Gore concession speech doesn't bind the electors.
As for those faithless electors, we would argue that if you have a system of electors instead of direct democracy, the possibility of defection goes with the package. What is more, if three or more Republican electors decide to cross over, far from creating electoral anarchy, their actions would be legally defensible, morally beneficial and politically desirable.
Legally, because under the Electoral College electors are not bound by the Constitution to follow the popular vote, and in twenty-four states they remain free to vote their conscience. In twenty-six others they are required by state law to follow the popular vote. Scholars like Akhil Reed Amar and Mark Tushnet argue that electors are totally free agents.
Morally, because their action would prevent the presidency of a man who lost the popular vote. It also brings us a step closer to the democratic ideal of one person, one vote. The Electoral College was created by the Framers under a deal with the slaveholding states to give those states added clout in the new Union. The Framers distrusted the popular will. As Alexander Hamilton wrote in The Federalist Papers, "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations" to choose the "Chief Magistrate." They did not anticipate political parties or the current practice of electors pledging to vote in accordance with the popular vote in their state.
Politically, because ultimately the fortunes of both parties--and minority parties as well--would be strengthened by a more democratic government. The smaller states now wield disproportionate influence in elections. And without the need to troll for electoral votes, candidates would be motivated to campaign in all fifty states, not merely the big contested ones.
Passing a constitutional amendment to abolish the Electoral College will not be easy. But the dramatic gesture of three electors or more defying the Electoral College could concentrate the nation's attention wonderfully and help jump-start a movement for reform. It might at least stimulate collateral reforms in the states, along the lines of the present systems of appointing electors in Maine and Nebraska, only carrying it further.
In the past, faithless electors were eccentric loners. This year they could be electors of conscience--the people's electors. Their action would cause a firestorm in the House. But such high constitutional drama would open a national debate on the legitimacy of the Electoral College. It's time to start that debate.
(Another Republican sea chantey)
They all went down to stop Miami-Dade
From making counts the judges had OK'd.
Unlikely toughs, with ties and crisp white shirts,
They went to hand Al Gore his just deserts.
So, noisily, they jammed into the hall.
Then Sweeney, from the House, began to call.
Shut it down, shut it down, shut it down.
The first machine vote's truly holy.
Shut it down, shut it down, shut it down,
With a heave-ho-ho and a bottle of Stoly.
One congressman by whom they had been sent:
DeLay in name, and also in intent.
Prepared to knock a head or bust a snout
To show what our democracy's about,
They bumped some chests and maybe pulled some hair,
And Sweeney's martial call stayed in the air:
Shut it down, shut it down, shut it down.
The rule of law is holy, too.
Shut it down, shut it down, shut it down.
With a heave-ho-ho and some microbrew.
Amid all the partisan sniping, talking-head screeching and judicial decisions, there are two indisputable facts that go far toward explaining the true tragedy of the Florida recount.
Fact one: In this election, punch-card voting machines recorded five times as many ballots with no presidential vote as did the more modern optical-scanning systems. A New York Times analysis of forty-eight of the state's sixty-eight counties found that 1.5 percent of the ballots tallied under the punch-card method showed no vote at the top of the ticket, while only 0.3 percent of the ballots counted by the newer machines registered no vote for the President. An Orlando Sun-Sentinel examination concluded that counties using the best optical-scanning method recorded presidential votes on more than 99 percent of the ballots, and counties using the old punch-card devices counted presidential votes on only 96.1 percent of the ballots.
Fact two: Punch-card machines were more widely used in areas where low-income and African-American citizens vote. Two-thirds of the state's black voters reside in counties using punch cards, while 56 percent of white voters do.
Put these two undeniable facts together and the conclusion is inescapable: A statistically significant slice of the Florida electorate was disfranchised by voting technology. That is, a disproportionate number of voters done in by the error-prone punch-card machines were low-income and black Floridians, who generally favored Al Gore over George W. Bush. Presumably, some no-vote ballots actually did not include a vote for President. But given the closeness of the election--decided by .008 percent--it is likely that presidential votes missed by the punch-card machines would have decisively affected the contest. Bush "won"--among other reasons--because of voting-machine discrimination.
This crucial part of the tale has been overwhelmed by dimple-mania and the usual campaign back-and-forth. But ten days after the election, the Sun-Sentinel reported that "Florida's different vote-counting machines resulted in more GOP votes." For example, Brevard County, the home of space-shuttle launches, spent $1 million on more advanced machines in 1999, moving from punch-card tabulators to optical scanning machines that read pen-marked ballots (and that immediately return to the voter a ballot with a problem). Under the new system, the voting machines in this Bush-leaning county found presidential votes on 99.7 percent of the ballots. In 1996 the county's punch-card machines read presidential votes on 97.2 percent. Which means Bush, thanks to the upgrade, likely banked an additional 453 votes for his statewide total--practically his post-recount victory margin. The paper noted that the twenty-five counties that used the punch-card machines went for Gore over Bush 51.8 percent to 46 percent and produced 144,985 ballots with unrecorded presidential votes. Had the people who cast these ballots entered voting booths equipped with the more efficient machines, Gore no doubt would have collected hundreds--if not thousands--more votes than Bush.
There have been allegations that black Floridians encountered racial intimidation at voting sites. (The Justice Department has initiated an informal assessment, not an investigation.) And Bush benefited from the all-too-routine bias by which minority areas receive poorer government services. Unfortunately not just for Gore but for the victims of this quiet bias in Florida, this inequity was unaddressed by the Florida circuit court and the US Supreme Court, partly because the Gore campaign didn't raise it.
The Gore legal challenge focused on 14,000 or so supposedly no-vote punch-card ballots in Miami-Dade and Palm Beach counties, not the statewide problem, and called for a manual review only of those ballots. The Veep's lawyer did not argue that the county-by-county patchwork voting system operated less effectively for blacks, a constituency that Democrats rely on to win elections. In his ruling against Gore, Circuit Judge N. Sanders Sauls noted that the record "shows error and/or less than total accuracy in regard to the punch-card voting devices utilized in Dade and Palm Beach Counties." But Sauls declared that Gore's legal team had not established "a reasonable probability" that the statewide results would turn out differently if those ballots were counted in a better fashion. Either Gore's attorneys screwed up big by not making this point more obvious--which they might have done had they filed contests based on the wider issue--or Sauls misread the math. As for the US Supreme Court, it displayed no eagerness to adjudicate such a touchy and fundamental voting-rights matter as systematic disfranchisement through technology. Its decision--in which it told the state Supreme Court to try again--indicates that the Court wanted to approach the Florida case narrowly, at least in the first go-round.
If a system is decisively skewed to one group's advantage, does that amount to theft? Or is that just the way it is? Clearly, a more equitable vote-counting system in the state--punch-cards for all or optical-scanners for all--would have yielded a different final count. This is an injustice that no court has confronted, on which Bush may well ride into the White House, and that should not be forgotten.
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."
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.