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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.
Death came as a release for Daniel Singer on December 2, but we feel like protesting its rude intrusion. In one of the last things he wrote for us, a review of some books about Sartre, he quoted a friend's son, on the day of the French philosopher's funeral. Asked where he had been, he said he was coming "from the demo against the death of Sartre." We'd like to join a demo against the death of Daniel. Better, though, would be one celebrating the life of our valued colleague, The Nation's Europe correspondent for nearly twenty years.
He wrote about many a demo in his reports to us, incessantly probing for signs of vitality on the European left--or the rot of fascism on the far right. During the 1980s, as Reaganism and Thatcherism blanketed the Continent, he seemed, at times, one of the few remaining Marxists. A protégé of the great Marxist intellectual Isaac Deutscher, he held a steadfast faith in democratic socialism but not in any hard doctrinal way. Indeed, the book of his that prompted Victor Navasky to send associate editor Kai Bird to Paris in 1981 to talk to Daniel about writing regularly for us was The Road to Gdansk, a study of Solidarity, which he presciently celebrated as the first crack in the monolith of Soviet Communism and another exemplar of the power of working people to change the world, which was his abiding faith.
When the neocon intellectuals of France, here and elsewhere jumped aboard the funeral hearse of socialism, Daniel stood defiantly on the sidelines. He never modified his conviction that capitalism's injustices were as glaring after the wall fell as they were before. In his last book, Whose Millennium? Theirs or Ours? he ended with a ringing affirmation: "We are not here to tinker with the world, we are here to change it!"
We'll miss Daniel--his wisdom, his courtly kindness, his brilliance, the stubborn courage that carried him through, from his Polish boyhood before World War II when, as a self-styled "deserter from death," he narrowly escaped the Holocaust, until the end. Before he died, he sent readers the following message:
"These are the last words I shall write to The Nation. With my normal absence of modesty I believe that over the years I acquired a radical readership. Radical need not mean sure of itself; nor does it rule out compromises and calculations. But a 'Luxemburgist socialist' (the definition I like best) could not resign himself to the idea that with the technological genius at our disposal we are unable to build a different world. Nor can we accept the fashion that capitalism will vanish without a vast social movement from below.
"That something can happen does not mean that it will happen. I, for one, shall not see this world. Yet, I am departing with the feeling that on the whole I have followed the right road and even with a degree of confidence. Among my young interns, Carl Bromley and his companions, among the youthful fighters from Seattle to Seoul, one can detect a refusal of resignation. You must join them as they now begin to show the way."
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.
I write from shipboard, on the Nation cruise. The boat has just pulled away from port and chugs toward the horizon, leaving land behind. We are fourth in a line of cruise ships departing the harbor at sunset, all glittering in a blaze of orange and pink and turquoise. I look back at the shore and think: America. What a beautiful, rich, blessed land we live in. What more than the land itself could Coronado and Ponce de León have been seeking? Why gold? Why youth? Why even piña coladas? The pure pleasure of this place ought to have been enough.
And yet... it is a mixed sensation, for I am also relieved to see the land receding just now, suspended as we are in the tense limbo of this, the first week of December 2000. It is good to leave behind Rush Limbaugh's meanspirited radio transmissions, the foaming attacks on Jesse Jackson, the use of insulting stereotypes of black people to attack Al Gore and Bill Clinton. It is a relief to take a break from the contemptuous public disrespect for the function of courts, the role of lawyers, the intentions of voters, the requirements of process. As Florida slips beneath the horizon, and CNN's signal crackles and grows fuzzy, I feel like a black-single-mother version of Henry David Thoreau, only standing at the brink of a much bigger and much deeper pond: "To me, away there in my bean-field at the other end of the town, the big guns sounded as if a puffball had burst; and when there was a military turnout...I have sometimes had a vague sense all the day of some sort of itching and disease in the horizon."
What a time we live in. On November 7, I stayed up late like everyone else, listening to National Public Radio on my Walkman. I fell asleep with the headphones on sometime in the wee hours of November 8, exhausted by the flummoxed newscasters' frantic flips and flops. Gore was winning when I lost consciousness. When I awoke hours later, the tinny sound in my ears had changed: A sneering, gleeful voice was making fun of Florida's elderly and "NEEE-gro" voters. I lay frozen. What I didn't know was that NPR is only a hair's bandwidth away from The Howard Stern Show and that in my sleep I had apparently flipped and flopped as much as the results, enough to move the dial a fraction. So it was that my first waking thought was: "Dear God, George Bush won, and they've taken over NPR. The revolution has begun."
It's been all downhill from there. Over the days and weeks since, we have witnessed an eerily exact re-enactment of the tie that led up to the Hayes-Tilden compromise of 1876, as a result of which the federal government pulled troops out of the post-Civil War South. This in turn led directly to the collapse of Reconstruction and the vengeful reassertion of that brand of separatist white supremacy so vividly depicted in D.W. Griffith's Birth of a Nation.
In the weeks since, we have heard George Bush say that it's the executive's job to interpret the law, an idea that Augusto Pinochet surely would endorse. We have watched another Ryder truck (remember Timothy McVeigh?) make its way into the annals of American history. We have shared yet one more "O.J. moment," as Floridians lined the streets to watch the truck speed by, cheering, hooting and taking photos. And given that America's most precious natural resource turns out not to have been gold but rather the entertainment industry, we have been graced with enough material from which to spin conspiracy plots for years and years to come. I see blockbusters like Elián's Revenge, Jeb Jimmies the Lockbox, and of course, The South Shall Rise Again.
In the weeks since November 8, my cruel British friends have had a field day. So soon after the last fiasco, so soon after the spectacle of the Inquisition-style moralists who tried to impeach Bill Clinton, I find myself explaining American peculiarities yet again to the exceedingly upbeat English. They twitter on in the most condescending way about former colonies that simply aren't ready to govern themselves. I try to be serious and explain the Electoral College. They say they are quite informed about American history, thank you very much, and could I please explain why only three-fifths of Florida's electorate was counted while at the same time three-fifths of the people who have declared George Bush a winner are related to him? Is it fuzzy math or fuzzy brain that keeps Americans from noticing that Bush's margin of victory is about the same as the number of people he has executed in Texas?
"You lot got your knickers in quite a knot this time, eh?" gloat the Cruel British Friends.
"A real atomic wedgie," I concede.
In the postelection weeks, my sleep has been troubled by strange visions. I dream that Al Gore and George Bush are standing in the ring at Madison Square Garden, Gore bouncing up and down in his Harvard boxing shorts and nice new leather gloves, Bush trying to look presidential while wearing a Hell's Angels vest, swinging a chain and hiding a switchblade.
Another night I dream that Bush is President, and, first thing, the neural pathways for Croatians and Koreans get crossed in his brain. He ends up thinking they're all "Corians" and while his advisers are out finding floor samples, he drops bombs on the nearest thing he can find on a map--which would be those poor doomed Grecians. World War III breaks out, world markets plunge and the sublimina-limina-lominable hordes sweep down from the north, south, east and west.
Other times I dream I am arguing before the Supreme Court, and Bush appointee Kenneth Starr is our new Chief Justice. The United States Constitution is a jewel, I say, whose multifaceted brilliance takes time, polishing and the infinite honing of years of courtroom argumentation by the finest minds dressed in Brooks Brothers suits, blah, blah, blah. The dream always ends with just that: blah, blah, blah.
Anyway, back onboard the Nation cruise, I turn my attention to preparing my remarks for the first morning's panel, titled--I restrain myself from comment--"The Nation At Sea: Where Are We Headed?" I furrow my brow and chew my pencil. I stare at the blank white paper. "Paris," I write at last.
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.