When ballots fail

The bizarre accession of George W. Bush as the President of the United States.

THIS past Presidential election has been hard on thinking Americans. Not only is the whole world laughing at us - the Duma, for example, voted to offer election observers from Moscow to help out - but there are serious issues of legitimacy, institutional design and process that remain unresolved. The only potentially good outcome is the infusion of some humility into the hubris that drives Americans to tell the rest of the world how to implement democracy. The message of Election 2000 is: physician, hea l thyself.

For weeks, Americans were obsessed with what the "concession" speech of Vice President Al Gore would say and when it would come. Amid bitter controversies about the vote, would he acknowledge that Bush had been elected? In the event, on December 12, he d id not directly do so, and with good reason. He acknowledged that Bush was to be the President, politely disagreed with the Supreme Court decision that stopped the Florida recount and then offered up some embarrassingly saccharin rhetoric about healing t he nation. The nation is not really sick - or no sicker than usual - but is divided, and institutionally challenged. There had been clamour from the Right for weeks for Gore to concede the election. A stronger case can be made for Bush's delivering the c oncession speech. There are issues of operational democracy that need attention whether or not the President-elect chooses to recognise his own lack of legitimacy.

George W. Bush - widely known as "Dubya" in the States - won only 24 per cent of the electorate by a generous count. One must qualify the vote numbers since the Florida debacle demonstrated the surreal relationship between voting and counted votes. This fact alone need not have disqualified George II.

What makes him a pretender to the throne is that someone else received more votes. Al Gore won about 337,000 more votes than Bush nationally. That margin in the popular vote is three times the margin of John Kennedy in l960. A curious and quaint institut ion called the "Electoral College" intervened. The College went for Bush, 271 to 267, including decisively 25 contested electoral votes from Florida. By all rights, those 25 votes should have been split, perhaps generously giving 13 to Bush and 12 to Gor e, since Bush led by a few hundred votes before the recount was halted by the Supreme Court. At the time, there were at least 45,000 ballots that recorded no vote for President by the machines' collective tally. If one were to seek legitimacy of outcome, Florida's electoral votes would have been divided with Solomonesque wisdom; in that sensible scenario, Gore easily won the electoral college just as he won the popular vote.

This will be the fourth time in American history that a candidate who lost the popular vote claimed the White House, but in no previous election was the gap in popular vote so large. This is the most feeble mandate of the four occasions of Electors trump ing voters, and the first this century. The last time Electors trumped voters was in 1888. When Rutherford B. Hayes became President in l876, wags referred to him as "His Fraudulency"; even by the standards of Election 2000 that vote was egregiously flaw ed.

The Electoral College was designed by what are often called the Founding Fathers to put a brake on democratic determination of the Presidency. Much in line with 18th century political philosophy, the assumption was that men who were educated, substantial enough to resist being bought, and who were wise enough to rise above the hoi polloi, should stand between the masses and the most powerful office in the land. Mario Cuomo, the former Governor of New York State, recently termed them "Brahmins", who coul d be trusted not to be swayed by the lowest common denominator of rough and tumble populist politics, or by corruption. For the 19th century, this mechanism reflected accurately the elite's fear of the masses of voters.

But as democracy deepened, most States passed legislation requiring the Electors to vote for the candidate who won the State's popular vote. In that case, the College became a real anachronism: either it was an unnecessary step - an automatic reflection of State results in popular vote - or a source of illegitimacy if Electors voted against the popular will in their State.

As the Electoral College met on December 18, there was much speculation about defections: if a few individual Electors "pledged" to Bush were to defect, he would not win the Presidency. Could particular Electors cut special deals for their votes? The abs urdity of this situation - the Presidency of the United States hanging by so indeterminate a thread - rightly exercised the public. About 59 per cent of Americans in a recent poll said that it was time for the College to disappear along with other anachr onistic ideas of the Founding Fathers such as slavery and disenfranchisement of females.

Another 39 per cent feel major electoral reforms are needed. In the event, all Electors voted as expected. But about 80 per cent of African-Americans, 66.66 per cent of Hispanic-Americans and 50 per cent of all Americans perceive some cloud of illegitima cy hanging over this outcome. In a recent CNN poll, only 51 per cent (with a polling error of plus or minus three per cent) said we should consider results from the Electoral College legitimate when these are contradicted by the popular vote.

The legitimation crisis, however, is even deeper than the Electoral College. In the dramatic move stopping the recount in Florida, the Supreme Court of the U.S. agreed with the Bush lawyers that there was a violation of "equal protection of the laws" in allowing the votes in Florida to be manually counted. That is, in any conceivable method of recounting, there would be discrepancies in method from county to county, and, even within a county, from counting table to counting table. There would be subject ivity; not all ballots would be interpreted the same way. This deeply troubled the Court, and was relied on as justification for their overruling the Florida Supreme Court and shutting down the recount.

This extraordinary logic is one reason for all the talk of a "judicial coup" in the U.S. The election in Florida laid bare for the world to see that there is no equal protection of the laws in the American system of voting even under the best of circumst ances. Thousands of voters in West Palm Beach voted accidentally for Patrick Buchanan because of a local ballot that was not only confusing but contrary to Florida State law. Some (mostly African-American) voters were challenged as being felons, hence un able to vote, even though the lists of felons contained acknowledged inaccuracies. Some felons can vote; in Florida, as in most States, they cannot. This anomaly in itself produces a racial skew against African-American males in some places but not in ot hers. Different counties used different methods of counting ballots; absentee ballots were handled in different ways in different jurisdictions. Voting in the U.S. as a matter of course offers anything but equal protection of the laws; rather, it is rule d by local option, dependent on local schemes for registration, absentee ballot distribution, ballot form and a host of other variations on themes that deny anything like a national character to the election. This is local control in action: decentralise d, subject to local power, lacking standardisation.

There is a caution here for those who want to decentralise everything; local bodies interfered in numerous ways with the will of the electorate, with chaotic results. As "social capital" has become the watchword of international development agencies and donors, and decentralisation and participation become prime desiderata, there is a palpable celebration of the local afoot in global discourse. The local in the U.S. has not served causes of racial justice or environmental protection historically, nor is it clear that local control is healthy for a national election in which every citizen is by constitutional right to be granted equal protection of the laws.

That the election ended up being decided by nine individuals elected by no one is one of the great ironies of democracy in the U.S. A second irony is the breath-taking hypocrisy with which Republicans drove this process. "Trust the People" was a theme of the Bush campaign, tediously repeated mantra-style in the third presidential debate: "They trust the government, we trust the people." Of course, when the chips were down, the Bush people were first to go to court to stop the locally mandated rec ount.

IN an astonishingly ironic turn, Republicans trusted the machines first, government second, and the people who voted not at all. The mind boggled.

Virtually every American has had the experience of machine failure in everyday life. One puts a dollar bill into a machine to get change; the machine cannot read the dollar and rejects it. Is the dollar then to be thrown out? Or is the machine quirky, fa llible? Do Republicans throw out their dollars that cannot be machine-read? Democrats are at least consistent: they keep the dollar no matter what the machine says. Nor do they believe that the machines in Florida were infallible. Machines at check-out c ounters in supermarkets regularly have trouble reading the price bar code on merchandise; do we then get the merchandise free on the assumption that the machine must be right? No, the teller looks up the price on a printed list and charges us. No Republi can I know rejects these everyday experiences of choosing human judgment over machine error. But when it comes to a vote determining the Presidency of the most powerful nation in the world, the machines were held to be infallible.

Florida law knows better; if there are challenges, the law provides for a recount by hand. A Texas law signed by George W. Bush himself makes the same provision, and it has been used. Real people are to look at the ballots; the Republican mantra of "trust the people" is encoded in Florida law, as in Texas law. This provision of the law was rejected by local and national Republicans. They fought like tigers to stop the recount when it became clear that it was turning up votes for Go re. Outside agitators intervened to intimidate those recounting ballots in one county; delays from court judgments stalled counting in others. Most extrapolations from the sample recounts suggested that Gore would win thereby. Gore firmly believed he won the popular vote in Florida, just as he did nationally. He appeared on national television to offer to Governor Bush a recount of all the ballots in the State, not just those challenged by local Democrats. The astounding litany from the Governor and all his men was:"The votes have been counted, and recounted, and then recounted again." But of course the votes that had never been seen, much less counted by anyone, were those "undercounts" in which no vote for President was recorded by the machines.

The number of these undercounts dwarfed Bush's slim lead, and most were in terrain friendly to Democrats. The Republicans' real position is: Trust some of the people some of the time.

The second contradiction in the judicial coup was the fact that the court took the case at all. To move on Florida in so interventionist a manner was clearly a case of judicial activism from a court that typically privileges the rights of States to settl e their own matters. Florida has laws about contesting elections; their Supreme Court had ruled on interpretation of the laws. Intervention from the U.S. Supreme Court was contrary to their own practice and ideology; it was impossible not to see the resu lt as partisan.

One often hears in this country that "we will never know the results of the Florida vote". But The Miami Herald has, under Florida's "sunshine laws" that guarantee public access to official documents, begun to organise a recount of ballots. Given the uncertainty introduced by local variation in ballots and standards, it is difficult to believe that any result will have full legitimacy. Democrats will argue that the intent of the voters has been inadequately ascertained by standards too strict; Re publicans will argue that votes are being "manufactured", not counted. The Miami Herald has a partial solution: they will categorise votes by standards: so many dimpled chads, so many hanging chads, and so on. But this is surely no way to run an e lection.

All the discussion of hanging chads and dimpled chads misses a fundamental point of political economy. Undercounts and spoiled ballots were more frequent in poorer precincts. Richer counties have optical-scanning voting machines, which miss far fewer vot es; poorer counties get by with machines that by their manufacturer's admission miss some valid votes. Richer precincts had computer connections to check on discrepancies between voter registration lists and voter registration cards; in poorer precincts, voters were told that nothing could be done if they were not on the list, even if they possessed valid voter identification cards. African-American college students were especially affected, as they had recently moved and many were not yet on the offici al lists. Disenfranchisement was not random, nor unrelated to structural inequalities.

Not surprisingly, there was a racial pattern to disenfranchisement. The National Association for the Advancement of Colored People (NAACP) has collected thousands of affidavits from people who tried to vote and could not. They charge that the tremendous effort of the Gore campaign to mobilise the minority vote in Florida produced a counter-reaction from State officials to fend it off. The NAACP case alleges many forms of intimidation, irregular conduct and abuse, backed by affidavits. The great puzzle i s that President Bill Clinton's Attorney General, Janet Reno, did not act quickly on these charges, nor did the Gore campaign use them as bases of protest in Florida. The NAACP may well win its substantive point but it will have no effect on the outcome of the election, just as the Gore campaign won its substantive point on the issue of Republican interference with absentee ballot applications in Seminole and Martin counties but failed to have the ballots thrown out as a remedy. The Republicans won thei r great strategic game: delay, obstruct, rush to judgment. The Democrats argued from the beginning that it was more important to get an accurate vote count than a speedy one. The Supreme Court handed the Republicans exactly what they wanted: they stopped the recount in Florida before it could produce an embarrassing result for the Republicans. Thereby, they pounded the nail into the coffin of the Democrats' hopes for a full counting of the votes when it mattered.

Democrats had been trying hard to count manually the votes the machines did not count: some 45,000 of these in an election in which the margin of victory was in the hundreds. Contestants have the right to request such a count by Florida law, and the righ t to contest the election after a Republican State administration certified an obviously incomplete and inaccurate vote. The Florida Supreme Court recognised a conflict in the statutes between mandated speed of counting and the right to request a manual recount where necessary; they moved back the deadline but were in the end defeated by the Republican legal tactics. The Republicans succeeded in stopping the counting only by appealing above the level of the State and even then on the narrowest of margin s in the U.S. Supreme Court. In retrospect, there was simply no way to determine the winner of the popular vote in Florida in the time allotted. There was chaos and juridical confusion; irregularities multiplied with closer inspection of the vote in vari ous places. One circuit judge commented with local colour that the multiplicity of law suits "was like being nibbled to death by ducks". There was no mandate in Florida, the linchpin of Bush's win in the Electoral College, just a race against a clock run by courts.

Given that Al Gore won the popular vote, that irregularities called into question the Florida vote, and that there are deep doubts about the relevance of the archaic 18th century artifice called the Electoral College, the election was no mandate for Bush , to say the least. His actions since show a mix of recognition and misrecognition. His first three high-level appointments were minority individuals, two African-Americans and one Hispanic-American. This is not to be his father's Republican administrati on. On the other hand, his top priority for legislation remains a massive tax cut, even as the economy slows and the buoyant projections of endless budget surpluses look more implausible. Even Republican legislators recognise that the tax cut Bush is pus hing looks unlikely. Despite steps to make the administration less conventional in symbolic terms than one would expect from garden-variety conservatives, Bush is behaving as though he has a popular mandate when he did not even win the election in any me aningful sense.

WHAT does this process tell us about the President-elect? The answer is not encouraging. Vice President Gore won not only the popular vote nationally, but also the Electoral College minus Florida, and Florida was simply too close to call in the time avai lable - a time shortened by the successful tactics of Republicans who control Florida politically and the Supreme Court ideologically. The decision of the Supreme Court was widely and correctly viewed as partisan:"raw politics in black robes". Given thes e facts, George W. Bush should have conceded the election to the person with the most votes in the nation, where the margin was large enough to have some meaning. That Bush did not do so gives ever more reason to worry about the character of this Governo r from Texas, most celebrated for having executed more prisoners than anyone in the nation and turning environmental regulation over to the polluters. It seems too late now for a show of ethics and character - Bush has been prematurely behaving President ial for weeks as part of his inevitability strategy - but a better man would have conceded the election.

Ronald J. Herring is John S. Knight Professor of International Relations and Professor of Government, and Director, The Mario Einaudi Centre for International Studies, Cornell University, Ithaca, New York.