A Badly Flawed Election

1.

The 2000 election has finally ended, but in the worst possible way—not with a national affirmation of democratic principle but by the fiat of the five conservative Supreme Court justices—Chief Justice Rehnquist and Justices Kennedy, O’Connor, Scalia, and Thomas—over the fierce objection of the four more liberal justices, Justices Breyer, Ginsburg, Souter, and Stevens. The conservatives stopped the democratic process in its tracks, with thousands of votes yet uncounted, first by ordering an unjustified stay of the statewide recount of the Florida vote that was already in progress, and then declaring, in one of the least persuasive Supreme Court opinions that I have ever read, that there was no time left for the recount to continue. It is far from certain that Gore would have been elected if the recounts had been completed; some statisticians believe that Bush would have picked up more additional votes than Gore. But the Court did not allow that process to continue, and its decision ensured both a Bush victory and a continuing cloud of suspicion over that victory.

Though it took six opinions for all the justices to state their views, the argument of the five conservatives who voted to end the election was quite simple. The Florida Supreme Court had ordered a recount of “undervotes” across the state, but instead of adopting detailed rules about how the counters were to decide whether a ballot that the counting machine had declared to have no vote for president was actually a vote for one candidate—rules that might have specified, for example, that if not a single corner of the “chad” of a punch-card ballot had been detached, the ballot could not count as a vote—the Florida court had directed only that counters count a vote if they found, considering the ballot as a whole, a “clear intention” of the voter to vote. The five conservatives noted that this more abstract standard had been applied differently by counters in different counties, and might be applied differently by different counters within a single county, and they therefore held that the use of the standard denied voters the equal protection of the law that the US Constitution’s Fourteenth Amendment requires.

The natural remedy, following such a ruling, would be to remand the case to the Florida court to permit it to substitute a more concrete uniform counting standard. Breyer, in his dissenting opinion, suggested that course. “[The] case should be sent back for recounting all undercounted votes,” he said, “in accordance with a single uniform standard.” But the conservatives declared that since the Florida legislature intended to take advantage of the “safe harbor” provision of federal law, which provides that election results certified by states to Congress by December 12 are immune from congressional reexamination, any further recount the Florida court ordered would have to be completed by that date—which ended two hours after the Supreme Court handed down its judgment. The conservatives had remanded the case to the Florida court, for “proceedings consistent with” their opinion, and then told them that no proceedings could possibly be consistent with their opinion. The election was over, and the conservative candidate had won.

The 5-4 decision would hardly have been surprising, or even disturbing, if the constitutional issues were ones about which conservatives and liberals disagree as a matter of constitutional principle—about the proper balance of authority between the federal and state governments, for example, or the criminal process, or race, or the character and extent of individual rights, such as abortion rights or rights of homosexuals, against state and national authorities. But there were no such constitutional issues in this case: the conservatives’ decision to reverse a state supreme court’s rulings on matters of state law did not reflect any established conservative position on any general constitutional question. On the contrary, conservatives have been at least as zealous as liberals in protecting the right of such courts to interpret state legislation without second-guessing by federal courts, and on the whole less ready than liberals to appeal to the Fourteenth Amendment to reverse state decisions.

It is therefore difficult to find a respectable explanation of why all and only the conservatives voted to end the election in this way, and the troubling question is being asked among scholars and commentators whether the Court’s decision would have been different if it was Bush, not Gore, who needed the recount to win—whether, that is, the decision reflected not ideological division, which is inevitable, but professional self-interest. The five conservatives have made this Supreme Court the most activist Court in history. They aim to transform constitutional law not, as the Warren Court did, to strengthen civil liberties and individual rights, but rather to expand the power of states against Congress, shrink the rights of accused criminals, and enlarge their own powers of judicial intervention.¹

For three of them—Rehnquist, Scalia, and Thomas—the agenda presumably includes finally abolishing the abortion rights that were first established in Roe v. Wade over a quarter of a century ago, a decision they have never ceased insisting should be overruled. The prospects of future success for the conservatives’ radical program crucially depend on the Court appointments that the new president will almost certainly make. Those appointments will determine whether the conservatives’ activism will flourish (even adding, perhaps, the two new votes that would be needed to overrule abortion rights so long as O’Connor and Kennedy refuse to take that particular step) or whether it will be checked or reversed. Bush long ago signaled, in naming Scalia his favorite justice, his intention that it flourish.

We should try to resist this unattractive explanation of why the five conservative justices stopped the recount process and declared Bush the winner. It is, after all, inherently implausible that any—let alone all—of them would stain the Court’s reputation for such a sordid reason, and respect for the Court requires that we search for a different and more creditable explanation of their action. Unfortunately, however, the legal case they offered for crucial aspects of their decisions was exceptionally weak. Their first major ruling, on Saturday, December 9 (soon after the recounting began), was to halt the recount even before they heard argument in Bush’s appeal of the Florida Supreme Court decision ordering those recounts. That ruling was in itself lethal for Gore. Even if the Court had ultimately rejected Bush’s appeal, and allowed the recount to resume, it could not possibly have been completed by December 12, the date which the conservatives later declared the final deadline.

Scalia argued that this serious injury to Gore was necessary to prevent irreparable harm to Bush: he said that Bush would be harmed if the recounts continued because if the Court later decided that the recount was illegal, the public’s knowledge of the results would cast a “cloud” over “the legitimacy of his election.” That bizarre claim not only assumes that Bush would have lost in the recount, but also that the public is not to be trusted. Public knowledge that Gore would have won, if the recounts had continued and been accepted, would produce doubt about a Bush election only if the public disagreed with the Court’s judgment that the recount was illegal; and it is constitutionally improper for the Court to keep truthful information from the public just because the information might lead it to conclude that the election was a mistake or that the Court was wrong.²

The conservatives’ second major decision was that the Florida court’s “clear intention of the voter” standard for manual recounts violated the equal protection clause because different counties and counters would interpret that standard differently. Two of the more liberal justices—Breyer and Souter—agreed,³ but the other liberal justices, Ginsburg and Stevens, rejected the argument, and they had the better case. The equal protection clause forbids voting procedures or arrangements that put particular people or groups at an electoral disadvantage. The Court has struck down poll taxes that discriminated against the poor, for example, and, citing a “one-person-one-vote” electoral standard, has prohibited electoral districts of very different size because these give each voter in larger districts less impact on the overall election result than voters in smaller districts have. But a general standard for counting undervotes that may be applied differently in different districts puts no class of voters, in advance, at either an advantage or disadvantage. If a voter’s county uses a more permissive test to determine “clear intent,” then he risks having his ballot counted when he did not intend to vote; if it uses a strict standard, he risks having his ballot ignored when he did intend to vote. One cannot say, in advance, that either a permissive or strict test is more accurate, and therefore cannot say that a system that combines both within a single state puts any identifiable group at an automatic disadvantage.⁴

As Gore’s counsel, David Boies, pointed out in oral argument, Florida’s use of different voting machinery in different counties is much more arguably a violation of equal protection, because some types of machine are well known to be much less accurate than others. Punch-card ballot readers, which are used in counties with a high minority population such as Miami-Dade, ignore more than three times as many ballots as optical ballot readers do, and therefore give voters in those counties systematically less chance of having their votes counted.

The Court’s equal protection decision is surprising in another way. The one-person-one-vote principle applies not just to presidential elections but to elections for every federal and state office, major or minor, across the country. I do not know how many states use nothing more concrete than a “clear intent of the voter” standard for manual recounts, but several do, and the Supreme Court has now declared that they have all been acting, no doubt for many decades, unconstitutionally. This ruling alone may require substantial changes in the nation’s electoral laws, and the Supreme Court may well regret having made it.

The conservatives’ equal protection claim is defensible, however, and, as I said, two of the more liberal justices also accepted it. But the conservatives’ third major decision, and by far its most important, is not defensible. The most natural remedy for the supposed equal protection violation, as all the dissenters insisted, would be to remand the case to the Florida court so that it could establish uniform recount standards and attempt to complete a recount by December 18, when the Electoral College votes. But the conservatives held that since the Constitution gives the Florida state legislature authority over its own election law, and since that legislature would wish to take advantage of the federal “safe harbor” law that guarantees a state certification of presidential electors immunity from congressional challenge if the certification is made by December 12, any recounts beyond that date, even those necessary to insure that all valid votes were counted, would automatically be unconstitutional.

But the safe harbor provision is not mandatory; it does not provide that a state loses its electoral votes if these are not submitted by December 12, but only that its votes, if submitted after that date, might conceivably be challenged in Congress, if reason can be found to challenge them. Certainly the Florida legislature would wish to meet the December 12 deadline if it fairly could, and its legislation should be interpreted, as the Florida Supreme Court said that it did interpret it, with that aim in mind.

But it goes far beyond that safe assumption to declare, as the five US Supreme Court conservatives did, that the Florida legislature meant to insist that the optional deadline be met at all costs, even if it was necessary to ignore the principles of accuracy and fair treatment that underlie the rest of the election code. That would be a bizarre interpretation of any state’s election law—what legislature would wish to be understood as purchasing an immunity it would almost certainly never need at the cost of sacrificing its basic commitments of justice?—and there is no evidence that the Florida legislature has ever made that choice.⁵ Even if the conservative justices thought this bizarre interpretation plausible, moreover, it would still be wrong for them to impose that interpretation on the Florida Supreme Court, which, according to the most basic principles of constitutional law, has final authority in interpreting its own state’s law so long as its interpretation is not absurd. The conservatives should, at most, have asked the Florida court to decide for itself whether Florida law, properly understood, declares that the safe harbor must be gained no matter what unfairness to Florida voters is necessary to gain it.

Even the two dissenters who had agreed with the majority that the Florida court’s recount scheme violated the equal protection clause thought it absurd to insist on the December 12 deadline, and all of the dissenters feared the impact on the Court itself of so weak an argument for so politically divisive a decision. Justice Stevens said the decision “can only lend confidence to the most cynical appraisal of the work of judges throughout the land.” “We do risk a self-inflicted wound,” Breyer added, “a wound that may harm not just the court, but the nation,” and he also noted, pointedly, that the time pressure the conservatives cited was “in significant part, a problem of the [Supreme Court’s] own making.”⁶ We must try, as I said, not to compound the injury to the Court with reckless accusations against any of its members. But those of us who have been arguing for many years that the Supreme Court makes America a nation of principle have a special reason for sorrow.

2.

The deeply troubling Supreme Court decision in Bush v. Gore makes even plainer the urgency of radically changing how we elect our presidents. Our present system is an eighteenth-century antique: it presupposes a starkly elitist conception of government that was popular then but which no politician would dare endorse today. The Constitution’s authors did not trust the people to elect the president directly; they expected the members of the Electoral College to be distinguished and independent citizens who would make up their own minds, after collective deliberation, about who the president and vice-president should be. It was not as important as it later became how those electors were chosen, because, in principle, the selecting body would have no control over or even confidence in the opinions of the independent electors they chose. There was nevertheless some initial disagreement at the Constitutional Convention about the selection of electors: some delegates wanted them elected by popular vote, some by Congress, and some by the state legislatures.

The Convention finally decided, by way of compromise, not itself to establish any electoral method, but to delegate the choice of methods to the state legislatures. Each state was assigned a number of electors equal to the total number of that state’s representatives and senators in Congress (that formula was a concession to smaller states which had fewer representatives but the same number of senators as much larger states) and the state legislatures were directed to decide how their state’s electors would be chosen. A majority in the legislature might select the electors themselves, or provide for a popular vote within the state to select them (which might be by a statewide vote for all the electors, or by districts, or by proportional representation). Or, presumably, it might direct that electors be selected by lot. Once all the electors were selected in whatever ways the various state legislatures chose, they would meet in their states, deliberate, and vote for a president; if no presidential candidate received a majority of their votes, then the House of Representatives would choose a president with each state delegation having one vote, so that the smallest state had as much influence as the largest.

America has long since rejected the intellectual premises of this baroque system. Now we embrace the very different principle that the point of elections—and particularly the election of a national president, the one office we elect all together—is to determine and reflect the people’s will. Electors are no longer expected to exercise their own judgment: it is candidates, not electors, whose names are on the ballot and it would be a scandal if the electors chose someone other than the candidate to whom most of them were pledged. A partisan majority in a state legislature still has the constitutional power, under Article II, to cancel presidential elections in its state and choose the state’s electors by themselves. But if any legislature tried to exercise that power its action would undoubtedly provoke a constitutional amendment ending that power.

We have been lucky not to have been seriously damaged by the Electoral College system long before this election made its anachronism intolerable. It is dangerous to retain a constitutional structure when its principled base has been so thoroughly repudiated, because the structure then becomes a legal loose cannon. It generates pointless complexities and obstacles, and it is vulnerable to partisan manipulation and bizarre interpretation that cannot be checked by appealing to the structure’s purpose, since it now has none. The legal battles in Florida and in the Supreme Court were dominated by a series of deadlines—the Court elected Bush by insisting on the importance of December 12—that are significant only because the eighteenth-century arrangement decreed a stately series of certifications, meetings, and pronouncements that are now only charades. The Republican strategy in Florida of delaying recounts through any means possible, including not only legal challenges but noisy demonstrations outside counting rooms, was made possible only by those pointless deadlines. It makes no sense to demand that a breathtakingly close election be finally decided by any magic date in December in order that a new president be chosen by January 20.

The original decision to leave the manner of presidential elections to state legislatures corrupts elections in a different way. The one-person-one-vote principle would suggest, as I said, that we elect presidents through uniform voting methods, with at least roughly equal accuracy, supervised by a national election commission under principles established by Congress. The eighteenth-century compromise guarantees, to the contrary, that different methods of recording votes, which vary dramatically in their accuracy, will be used not only in different states but in different counties within states. It also guarantees that inevitable uncertainties and ambiguities in election law will have to be faced anew in each close election, because even if Florida’s law is clarified now, the next set of contests will arise in an entirely different state with an entirely different structure of law and ambiguity.

The present system means, moreover, that politics will play an inevitably ugly role in close elections. It is surely unacceptable that the Florida state legislature, dominated by Republicans, should have the power themselves to elect a set of electors pledged to the Republican candidate whenever they deem this to be necessary because the result of the election is uncertain. Many of the most consequential decisions in Florida were made by political officials whose future might depend either on who won the presidential election or on whether powerful Florida politicians, including Bush’s brother, who is Florida’s governor, would approve what they had done. Katherine Harris, the Florida secretary of state whose several erroneous rulings contributed enormously to the delays that prevented a fair recount, had been co-chairman of Bush’s campaign in Florida, and The New York Times reported that the Democratic mayor of Miami had been subject to a great deal of local pressure just before the Miami-Dade canvassing board reversed itself and decided to halt manual recounts. ⁷ It would be a mistake to assume wrongdoing or improper motives in any such case, but it would certainly be better to vest critical decisions in nonpartisan federal election officials who would be much less likely to attract suspicion.

We now have the best chance ever to junk the anachronistic and dangerous eighteenth-century system. The public should demand that Congress begin a process of constitutional amendment that would eliminate that system, root and branch, and substitute for it the direct election of the president and vice-president by a plurality of the national popular vote. The amendment should direct Congress to establish uniform election procedures and machinery across the nation and that body might then design and finance voting computers with screens that clearly display a voter’s tentative choices and ask the voter to confirm his votes before they are recorded.⁸ (It might be possible to allow people with computers, including absentees, to vote through them at home, although special digital identification and security precautions would have to be developed, and care taken to avoid unfairness to voters with no access to a computer.)

Congress should further require that voting booths be open for the same twenty-four-hour period across the different time zones of the country, so that voting stops simultaneously everywhere, and the television networks do not report results in one time zone while voting continues in another; and it should establish a national elections commission with general supervisory power over national elections. Challenges and disputes would no doubt still arise, but these could be adjudicated by officials of such an agency, who would be appointed to provide nonpartisanship, subject to review by federal judges with life tenure, rather than by state political officials and elected state judges.

The nation would benefit in other ways from the change. It does not matter, under the Electoral College system, who won the national popular vote, but that fact is nevertheless widely reported and widely thought significant; a president who has won in the Electoral College but lost the popular vote, even by a relatively slim margin, is thought by many people to be less legitimate for that reason. Making the popular vote decisive would end the possibility of such a situation. Would we lose anything by the shift? It is said to be a benefit of the Electoral College system that it forces candidates to campaign across the nation rather than only in a few highly populated regions with huge media markets and the largest number of potential votes. But in fact the system does not produce genuinely national campaigns. Candidates wholly ignore states that they are very likely either to win or to lose—few presidential campaign ads appeared in the New York media market in this election, for example—and devote most of their time and money to those relatively few states in which the race appears to be close. If the national popular vote were decisive, they would not campaign just in the major population centers—there are too many votes elsewhere—but wherever they thought they could persuade a substantial number of as yet undecided voters.

It has also been said that the Electoral College is necessary to protect regional interest groups that are powerful within certain states, and so important to those states’ electoral votes, but not large nationally. But interest groups are now much more dispersed across the nation than they once were: many states that were formerly dominated by agricultural interests, for example, now have a more mixed economy, and farmers might be better protected by voting rules that made their absolute number important even if they were geographically dispersed.

It might appear that the Electoral College system reduces the number of post-election challenges and contests in close presidential races because candidates have no incentive, under that system, to seek to correct mistakes in a state that the other candidate won so heavily that he would take its electoral votes anyway. Under a popular vote system, however, a candidate who lost the popular vote by a very small margin might canvas the entire country looking for a series of challenges that could yield only a few votes in each case, but might change the overall result collectively.

But there is no reason to think, in advance, that a change from the Electoral College to a popular vote standard would produce more post-election challenges or contests. If a national election is close, then the election in states whose electoral votes are crucial is also likely to be close, and many fewer vote changes are needed to make a difference in the state than in the nation. Gore needed only to add a few hundred votes in Florida through challenges, but, even in this exceptionally close popular vote contest, Bush would have had to add more than 300,000 votes to his total to win, and there is no indication of irregularities elsewhere in the nation that affected, even cumulatively, that many votes.

The moment seems propitious, as I have said, for pressing for a constitutional amendment: politicians in either party would have great difficulty claiming that the system we have has worked well, or supplying any principled rationale for it. But we must recognize that it is extremely difficult, and normally takes many years, to amend the Constitution. Short of a new constitutional convention, an amendment requires a two-thirds vote of both houses of Congress, and then approval by the legislatures of three quarters of the states, and the pressure for an amendment may weaken before that long process has been completed. In any case, no amendment can succeed without the consent of many of the smaller states whose citizens benefit unfairly, in the ways I have described, from the Electoral College system that the amendment would end.

It is therefore important to consider how much of the gain that an amendment would bring could be achieved at once without one, or while one is pending. One gain I described—a twenty-four-hour election day ending simultaneously across the country—could be adopted by Congress now, because the Constitution assigns it authority to fix the time of presidential elections. More could be achieved through a Model Uniform Election Code which Congress might endorse and propose to the states, agreeing to finance elections for national office, including providing accurate electronic voting machinery, for those states that adopted that code. The model code would no doubt be adopted in somewhat different form in different states, but Congress could identify core provisions that guaranteed uniform voting machinery and mechanisms of challenge and review, for instance, that could not be changed without forfeiting the benefits Congress offered. There could be no objection under Article II to a state legislature adopting the model code; a legislature would of course be free to repeal the code later, but it would presumably face great political pressure not to do so.

These are extraordinary measures, and many people will be understandably timid about altering a constitutional structure that has been, as a whole, dramatically successful. But the Constitution’s original design for elections, rooted in an elitism which is no longer tolerable, has proved its most unsuccessful feature. We have had to amend it before—in 1913, when the power to choose senators was taken away from the state legislatures that originally had that power, and given to the people—in order to keep faith with our most basic constitutional conviction, which is that the Constitution creates and protects genuine democracy. We have now witnessed new and frightening challenges to that assumption, culminating in a deeply regrettable Supreme Court decision, and we must again change the Constitution in order to sustain our deep respect for it and for the institutions that guard it.

—December 14, 2000