“Imagine that we read of an extremely close election in the Third World in which the self-declared winner was the son of the former prime minister, a former spymaster seeking revenge and still highly active behind the scenes. Imagine that the lightly experienced son lost the popular vote by nearly half a million votes but won based on some old colonial holdover (the Electoral College) from the nation’s predemocracy past. Imagine that the victory turned on disputed votes cast in a province governed by his brother.
“Imagine that the poorly drafted ballots of one district led thousands of voters to vote for the wrong candidate. Imagine that members of that nation’s most despised caste turned out in record numbers to vote against the son, who had executed more of them than had any other provincial official. Imagine that some members of that most despised caste were intercepted on their way to the polls at roadblocks… Imagine that certain votes cannot be counted in this province unless the candidate requesting the count can somehow prove beforehand that he would win if the votes were recounted.”
This e-mail made the rounds before “the son of the prime minister” was installed in power by the country’s highest court, which stopped the vote counting on a pretext involving the calendar and vague warnings of a “cloud” hanging over the son. We can also imagine the response of the U.S. government to such an election abroad: “grave concern” and threats to cut off aid.
Perhaps this thought experiment–extreme as it may be–might help us step back a few humble paces from the strange election of 2000. It is, alas, the way much of the world viewed the events of the last five weeks. But it’s also incomplete. What it misses is that the incumbent in this imaginary Third World country would be unlikely to relinquish power. He would figure out some way to hold on, through street action, bribes and political and military maneuvering against the brothers.
But, in fact, Al Gore did concede last week. The line in his acceptance speech–“While I strongly disagree with the Supreme Court’s decision, I accept it”–was an affirmation of the bedrock democratic principles that make the United States so formidable around the world. Essential American institutions–the presidency, the courts, the press, the electoral process–have each sustained damage, and that damage will linger beneath the placid surface long after the country as a whole has moved on. But the rule of law survives. When we obey legal decisions we detest, we grow stronger in the broken places.
Of all the institutions, the presidency is probably the least damaged. It has always been much more about the man than the circumstances that brought him to office. President-elect Bush referred last week to the election of 1800, when it took 36 ballots in the House before Thomas Jefferson edged John Adams. While Bush does not exactly bring Jefferson to mind, he is right that the intangibles of presidential leadership are what matters. On this score, his strengths match up well with the historical moment: Bush is a conciliator by nature who prides himself on working across the aisle.
At the same time, the last five weeks have exposed weaknesses in our new president-elect we will no doubt see again, especially erratic public speaking and an inclination to subcontract the heavy duties of the job. This peculiar detachment extends even to his own fate. On Dec. 11, when the audio feed of the Supreme Court’s historic oral arguments was heard by tens of millions of Americans, Egghead Al listened. Incurious George went to the gym to exercise.
If the presidency is resilient, so is the judiciary. But something disturbing happened this fall. It is the hallowed tradition among lawyers who lose cases to say simply that they are disappointed and will appeal. To go beyond that is to risk reducing the stature of the court and thus respect for the law. But this time both James Baker and Bush specifically attacked the Florida Supreme Court for “usurpation”–grabbing power like some pretender to the throne. This kicked off weeks of attacks by Republicans on the “kangaroo court” and the resurrection of an antique constitutional argument–that state legislatures can pick electors–dating from the time when legislatures routinely chose U.S. Senators. Gore instructed his people not to bad-mouth the Supreme Court after its decision. But many did so anyway.
The overall impression was of judges’ following explicit political agendas. In fact, there were at least a few characters from this drama who actually acted independently. Circuit court Judge Nikki Clark, contrary to the racist assumptions of some of her critics, did not try to save Gore’s bacon by excluding absentee ballots in Seminole County. Her colleague Judge Terry Lewis ruled twice in favor of Bush in key cases but then scared the Bush team by overruling their delaying tactics and moving forward with what would have been a fair and smooth recount. Florida Supreme Court Justice Leander Shaw, an African-American and a liberal Democrat, joined the dissent by voting to uphold Judge Sanders Sauls. And while U.S. Supreme Court Justice John Paul Stevens (a Gerald Ford appointee) surprised no one by dissenting in Bush v. Gore, it took courage for him to challenge his colleagues in such a withering way.
The irony is that Bush may well have won the recount. If you add the hundreds of overseas military ballots that were almost certain to be counted for Bush, Gore would have had a hard time picking up the votes he needed without recourse to dimpled ballots, which most counties were not counting. We’ll know soon enough. As The Miami Herald and other news organizations use the Florida “sunshine law” to review the disputed ballots, there are three possible results, from least likely to most likely: a clear Gore win, which would deal a body blow to Bush’s legitimacy; a clear Bush win, which would mean that the Supreme Court tarnished its own legacy for nothing, or, the most probable, a result that showed Gore winning with a loose chad standard and Bush winning with a tight one. Then everyone can claim victory all over again.
The Supreme Court’s reputation will survive, though even many Republican lawyers were taken aback by the majority’s weak legal reasoning and willingness, in the name of ending the election, to become “the loser,” in Justice Stevens’s words. The decision shattered the illusions of court watchers who believed that politics truly did stop at the courthouse door. The most immediate legal fallout will be a whole series of equal-protection claims testing whether the court’s Warren-era liberal approach to the 14th Amendment in this case can be used as a precedent to expand voting rights in other cases. (The betting is that it’s not.) For the first time in its history, the court ruled that if ballots could not be counted flawlessly, they could not be counted at all. This should help light a fire under efforts to apply national standards to voting in American elections–an ironic legacy for the states’ rights Rehnquist Court.
Those standards are coming. Last week the presidents of the California Institute of Technology and the Massachusetts Institute of Technology joined forces to begin a push for ATM-style voting computers. Some states may take the opportunity to switch to voting by mail (which has dramatically increased turnout in Oregon) or Internet voting. Congress is expected to kick in the $3 billion to $4 billion to upgrade equipment, and the Votamatic punch-card system will soon reside only in the Smithsonian.
The media meisters have their own rethinking to do, starting with when and how to report returns. The mistakes on election night were critical; by calling Florida and the election for Bush after 2 a.m., causing Gore to concede (before having to retract it), the networks gave Bush a key psychological advantage going into the post-election. At a minimum, the Voter News Service, the consortium that handles projections, will be scrapped.
The larger problem is how to keep political reporting fresh and substantive when the horse races are less exciting–which they will be in every election from now on. After O. J. and JonBenet, the media edged up to real significance with Monica and found it with chad. Finally, a story that merited the saturation. But what could come next to possibly keep the spoiled media beast interested–civil war? The real issue in media land is what to do about attention spans that grow shorter with each round-the-clock drama. These viewers need something hot every moment or they click away. We risk being struck mute by our own buzz.
Fortunately the voters themselves are keeping a clear head. The widespread disenfranchisement in Florida because of poor equipment and confusing ballots may hurt Republicans in the long run. Democrats are convinced, with some reason, that thousands more Floridians went to the polls intending to vote for Gore than for Bush, but were somehow unable to. Minorities, especially African-Americans, will work even harder next time to register voters and make sure they know how to complete their ballots. But that message may spread on its own, courtesy of the odd overtime election of 2000. For years to come, when the cynics start asking why anyone would bother to vote, the answer will be clear: because any one vote can make all the difference.
