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.
Whoever wins the legal battles over the election, and with them the presidency, recent events will cast a long shadow over American political life in the years ahead. For the first week and a half, the behavior of the two parties did not differ much. Both were playing legal hardball while pretending to act on a basis of high principle. Principles are general rules that are supposed to guide conduct in each case as it arises. Vice President Al Gore and Governor George Bush were doing it the other way around: Their conduct in each case was guiding their choice of principles. Often, this comically required throwing out yesterday's principle in favor of its opposite today. For instance, not twenty-four hours after Bush's strategist-in-chief, former Secretary of State James Baker, had delivered a public sermon on the need to avoid legal action in order to reach "closure" in the election, he was filing a federal case to overturn Florida's election laws. Gore meanwhile was lecturing the country on the importance of counting every vote while fighting to exclude absentee ballots, known to favor Bush. Quite missing on either side was any instance of action taken against self-interest in the name of principle, which is to say any principled act. None of this, however, was perhaps very surprising. The candidates were merely behaving the way lawyers always do in courtrooms. Each was pressing his side's interest to the utmost in the hope of influencing the decisions of the judges.
The tone abruptly changed on the Republican side with the decision by the Florida Supreme Court to permit the recounts of counties that had been sought by Gore. For the first time since election night, the GOP was faced with the prospect of losing the election. Its response was to make an incendiary accusation: that Gore was engaged in a "theft" of the election, as the House majority whip, the impeachment zealot Tom DeLay, put it. The charge was accompanied by a campaign to delegitimize the Florida Supreme Court. In a remarkable statement of defiance, Baker declared the Florida decision "unacceptable," and Bush charged that what the court had done was to "usurp" the powers of the Florida legislature and executive.
Of course, if Gore had been stealing the election, it would have been the obligation of the Bush campaign as well as any other responsible person, Republican, Democrat or other, to point this out and vigorously protest it. In fact, the charge was baseless. The point is not that the particulars of the Republican allegations--that the Florida court had overreached its authority, that Democratic officials were changing the rules for counting votes midstream, that the Gore campaign was demanding multiple recounts--were false (some had merit, some did not--just as some of the Gore campaign's charges against the Bush campaign's legal maneuvering had merit and some did not); it was that even if all the charges were true they did not come anywhere near to justifying the sensational conclusion that Gore was "stealing" an election. To steal an election, after all, would be a crime. If the accusation were true, Gore should not only lose the election; he should be thrown in jail. The fact that a false and defamatory charge of this magnitude--a big lie, if there ever was one--was made by the campaign of a man who may soon be President itself severely damages the political system. For to the extent that people believe it, they must believe that American democracy is a sham, and the American political system is exactly as strong as the support it gets from the American people, and no more.
The campaign of accusation and vilification, moreover, had an evident purpose: to justify extraordinary recourses contemplated by the Bush campaign. One was the step of inviting the Republican-dominated Florida state legislature to ignore the election result and itself appoint electors. Baker solicited this action in the press conference in which he called the Florida decision unacceptable. Another was a challenge to the results by Congress. News reports suddenly appeared that DeLay was "studying" this option. Either option would have guaranteed a full-scale constitutional crisis. In short, by charging that Gore was stealing the election, the Republicans had laid the ground for the eruption of a self-created political Vesuvius in the event that the recounts placed Gore in the lead.
Of course, things didn't work out that way. Gore did not catch up, and Vesuvius stayed quiet. It is important to reflect on how this happened. The answer is that Miami-Dade County, where the beginnings of a recount had strongly suggested that its completion would give Gore the lead in Florida, abruptly called it off. On the morning of the Wednesday before Thanksgiving, the board of canvassers decided that in the interest of time it would count only those ballots that had gone uncounted by the voting machines. In the afternoon, they decided to cancel even that smaller recount. It was the decisive moment. In all likelihood, it cost Gore the certification and, perhaps, the election. In the interval between the decision to do a partial recount and the decision to cancel it, there was a minor Republican riot inside and outside the county building. When the canvassing board moved to a new room that made observation more difficult, GOP Representative John Sweeney of New York ordered, "Shut it down!" and, in the words of Wall Street Journal columnist Paul Gigot, who witnessed the scene, "semi-spontaneous combustion took over." Republican observers of the election pounded on doors and walls. Democratic observers trying to give interviews to the press were shouted down. Television cameramen were punched. A Democratic counter falsely accused of stealing a ballot had to be given police protection. A canvasser told Bill Redeker of ABC News right after the demonstrations that he had been "convinced that what we were doing was perceived as not being fair and open." Approached by reporters, the demonstrators strangely would not give their names. We now know that many of them were Republican House staffers, organized by the very Tom DeLay who had said the election was being stolen. Others were operatives of the Bush campaign. It was not Vesuvius; it was a taste of lava from a small crack that had been opened in the volcano. But it may have been enough to deny Gore the White House. Gigot commented, "If it is possible to have a bourgeois riot, it happened here Wednesday. And it could end up saving the presidency for George W. Bush." It is, indeed, possible to have a bourgeois riot. Without suggesting any historical equivalence, let us recall that Mussolini, Hitler and supporters of Pinochet, among others, managed to do it.
Intimidation was in the air. That George Bush--he who was going to stop the "bickering in Washington" but has waged political war in Florida--countenanced the result is especially discouraging. It dims to the vanishing point any hope that if elected he would be willing or able to rein in the firebrands of his party. Meanwhile, Bush's announcement that he will begin a transition with private funds is merely the same medicine in more palatable form. The message is unchanged: We are entitled to rule; give us what we want--or else. The riot in the county building was a sample of what the Republicans had in mind. The threats to precipitate a constitutional crisis were others. For now, the Republicans have been placated. Bush won his certification, and has crowned himself President-elect. But the threat has not been withdrawn and will probably be carried out if the legal cases turn in Gore's favor. Vesuvius has not been dismantled. It is being held in reserve for further use in the unfolding election crisis, or thereafter.
(Lyrics found on a table inside a state building
in Miami-Dade County)
I'm counting my heart out for you.
The votes I am finding are few.
We hear the mob right in the hallway heat up,
They're talking of the chads that we might eat up.
I hope this ends before we all get beat up.
I'm looking for voters for you--
Some blacks or a wandering Jew.
There aren't enough new hanging chads to suit me.
I hope the Cubans don't show up to shoot me.
There doesn't seem much I can do,
Still, I'm counting my heart out for you.
The postelection battle for the presidency is without doubt some kind of crisis, but it's not easy to define precisely what kind. David Broder has suggested in the Washington Post that it grows out of deep divisions in the country. "The nation has rarely appeared more divided than it does right now," he writes, and attributes the phenomenon to quarrels left over from the 1960s among the "polarized baby boomers." Of course, it's true that the vote for Congress as well as the President was exceedingly close, and in that sense the country is, literally, divided. Division, however, should not be confused with polarization. On the contrary, the even split of the electorate can be attributed to the opposite of polarization--namely, the centrism of the candidates. Each carefully tailored his campaign to appeal to a reportedly contented "center," and each, unsurprisingly, won nearly half of it. The fact is that the United States, prosperous and at peace, is, politically speaking, more asleep than it is agitated. Almost 50 percent of the public did not bother to vote. Not a division in the country but a division between two politicians to win over a united country has been the source of the turmoil.
The battle, then, is between the parties rather than the people. It is, in the words of social critic Tom Engelhardt, a crisis of politics but not of the polity. A top-heavy establishment--overfunded, overpowerful, overcovered--has imposed its power struggle on a country that wants no part of it, except, perhaps, as entertainment. Almost entirely lacking in substance, that struggle possesses the logic more of vendetta than of authentic competition. A better analogy than the ideological divisions of the sixties would be the feuding Hatfields and McCoys of legend, or perhaps the Guelphs and Ghibellines of the Middle Ages. Like two armies fighting an unpopular war, both parties try to recruit support from a populace that for the most part would just as soon watch football. The consequence is the disconcerting spectacle before our eyes of all-out political war in a politically apathetic land.
It is important, though, to be more exact in assigning responsibility for the disturbance. The pressures of American politics create a temptation among journalists to practice a meretricious even-handedness in judging the parties. It is, of course, important for journalists to be nonpartisan. That is, they should exercise independent judgment, uninfluenced by any party interest. Being nonpartisan, however, does not mean blaming the two parties equally in all situations; it means judging both by the same standards and letting the chips fall where they may. If they are equal offenders, then that should be said, but if one party is by far the greater offender, then that must be said, too, even if it falsely creates an appearance of partisanship.
Such is the case at present. The Democrats have hardly been pacifists in the struggle. Their record is barren of moves taken for any evident reason but winning the presidency. The language of Gore's spokesmen and lawyers has at times been intemperate, as when the lawyer Alan Dershowitz called Florida's Secretary of State Katherine Harris "a crook." Yet by far the most dangerous escalations have come from the Republican camp. During the first ten days of the crisis, the fight was kept within certain bounds on both sides. Then came the Florida Supreme Court's decision to order Harris to refrain from certifying the election until further instruction. The GOP responded with a torrent of unsubstantiated defamation of the Gore campaign and of the boards conducting the recount in Florida. House Republican whip and impeachment zealot Tom DeLay announced without evidence that the election was "nothing less than a theft in progress" in Florida. A new spokesman for the Bush campaign, Governor Marc Racicot of Montana, charged that Democratic supervisors, by disallowing absentee military ballots without postmarks by Election Day and with other deficiencies, "have gone to war in my judgment against the men and women who serve in our armed forces," and opined that "when the American people learn about these things, they're going to ask themselves what in the name of God is going on here." Governor William Janklow of South Dakota announced that the Democrats "are going to steal the election." And Bush's press secretary, Karen Hughes, accused the Gore campaign of "reinventing and miscounting the true intentions of the voters."
At the same time, Republicans were beginning preparations to carry the battle beyond the Florida courts--into the Supreme Court, the Florida legislature and Congress. Former Senator Bob Dole and other Republicans said they might consider boycotting a Gore inaugural. Implicit in these preparations was the threat that if Bush didn't get his way in Florida the Republican Party was prepared to turn what so far has been a legal battle in one state into a true constitutional crisis. In that case, the mere party crisis, arising out of nothing more than a few people's love of power and lack of restraint in grasping for it, will have, by their single-handed efforts, created the national division that the country itself has failed to produce.
Click here for Eric Alterman's latest dispatch on Florida.
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.
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.