- The Washington Times - Sunday, November 4, 2001

Two initial observations about America's electoral system. It is a peculiar arrangement that no one in his right mind would invent out of whole cloth, not even Rube Goldberg. In fact, no one did. The Founders had something quite different in mind when they came to their compromise agreement in Philadelphia. The method of choosing our commander-in-chief has evolved slowly ever since through constitutional amendment, state law, and custom. Sometimes it hasn't worked very well at all, although most of the time it did. And like the talking dog, what is remarkable is that it talked at all, not how well.
Still, election 2000 was not one of the system's finest hours. It kept the nation on pins and needles right up to the constitutional witching hour and never left us with the feeling that we know for certain who really won.
Does it matter? Well, yes and no. It is "no" because the eventual winner, George W. Bush, is now seen as the legitimate president of the United States to a large majority of Americans, never mind the rest of the world. Only a handful of partisan sore losers still object. No one else cares all that much and even less so after September 11. In any case, the remedy for damage done, real or imagined, comes in November 2004. (The last sentences would remain unchanged if we were speaking of President Gore.)
The "yes" side of the equation is merely this. We might not be so lucky next time. The "no" simply reflects the quiet confidence that America's fundamental institutions are sound and the U.S. Supreme Court's decision in Bush v. Gore while flawed arrived at the best possible solution under the circumstances. Richard Posner, in his Breaking the Deadlock (Princeton University Press, $25, 275 pages), thinks so and explains why in this elegant essay on presidential politics, constitutional law, and election reform. It is both cool and judicious and mostly fun to read.
Alan Dershowitz (whose book is reviewed below), on the other hand, thinks the Supreme Court bungled the job in highly partisan fashion and thus stepped unwisely into matters that are not, were not, germane to the courts. It is altogether an excellent argument for judicial restraint made by a liberal commentator and the question comes to mind would the professor feel the same way if the Supreme Court with a slightly different political makeup and by a 5-4 margin had decided for Gore? To be fair, Mr. Dershowitz is perfectly aware of this and nonetheless makes a case that conservatives should read, mark, and inwardly digest before labeling him a shrill, partisan street fighter while wrapping his polemic in academic robes.
Mr. Posner, however, skips the polemics and analyzes the problem of an election where the winner could not be determined by any dictum so simple as "let's count every vote." He goes into detail on how ballots are spoiled and why certain voting systems are better than others so are ways of calculating the vote. It is all stuff we should have been familiar with long before Florida, but most of us, including the vast majority of political scientists, are only now dimly aware.
The author also goes into detail on the work of the courts, local, state, and federal. Oddly well, maybe not so odd, the lower the courts, the better the decisions. Hence, while Mr. Posner does not declare war on the U.S. Supreme Court, he is critical, inter alia, of the majority decision's reliance on the principle of equal protection of the laws. In fact, like the liberal critics such as Mr. Dershowitz, Mr. Posner shreds that one for the bad jurisprudence it surely remains.
For all the lofty constitutional law analysis, Mr. Posner also has a sense of the practical and outlines the kinds of small fixes lawyers like to call them remedies the kinds of tinkering that might prevent another Florida. Well, may be. Nothing is certain in this world as one Washington wit recently put it except death, taxes, and broken campaign promises. Nothing "so simple" as abolishing the Electoral College will do as Mr. Posner and others point out, something the junior senator from New York might want to ponder.

As for Mr. Dershowitz, this highly incensed author of Supreme Injustice (Oxford University Press, $25, 275 pages) stops just short of calling the Rehnquist majority of committing treason. The J'accuse pose does get tiresome after awhile even though the Harvard law professor makes an excellent legal case against Bush v. Gore. He has considerably less to say about the Florida Supreme Court and its sometimes weird decisions, however, preferring to excoriate anything that smacks of being Republican (Florida's Secretary of State Katherine Harris, the Florida legislature and, of course, the U.S. Supreme Court.)
Mr. Dershowitz, frankly is weakest in his jeremiad when it comes to constitutional consequences of Bush v. Gore. It is Doomsday for us, if I read him right. Well, I don't think so. This sort of solipsistic whining isn't very convincing. Maybe it's the times. But we did survive Dec. 12 the way we will survive September 11. As for the Supreme Court's decision, even the court's majority didn't think of Bush v. Gore as setting any kind of precedent, and it won't be. It was, however, one way Mr. Posner thinks the best way out of a tangled, irresolvable quagmire brought on a by a tight election and sloppy voting procedures. Anyway, few are missing a Gore presidency at the moment because like it or not we have moved on and George W. Bush will be judged by the voters on wholly different grounds than a U.S. Supreme Court decision.

For those who think otherwise, it might be useful to consult Lloyd Robinson's The Stolen Election: Hayes versus Tilden, 1876 (Forge, $12.95, 242 pages). Right off this re-issue (it was first published in 1968) is wretchedly written. Well, so much for style, but it still can't spoil a good, scary story, and "The Stolen Election" is that. Most people have a vague memory of this election. Samuel Jones Tilden, governor of New York, won the popular vote, fair and square, but lost the presidency to Rutherford B. Hayes, a good man and a fighting Civil War general, but hardly the brilliant self-made man Tilden was.
Most also assume that Hayes won it in the Electoral College. Not so. Instead, the matter was resolved in messy, extra-constitutional fashion in which the congress simply passed the buck and set up a special Electoral Commission to decide.
To get that far, however, Hayes had to agree to a deal with Southern Democrats and to abandon Reconstruction for their electoral votes. He did, which meant that federal troops would withdraw from the Deep South, resulting in those states no longer being treated like conquered territory. But the cost was high. It meant the Republicans abandoned Southern blacks to their fate for at least three generations.
So was this a good thing or a bad thing as a consequence letting the politics play out and leaving the courts largely out of it? On the one hand, black citizens living in the South were to be stripped of their newly gained rights of citizenship. On the other, the Deep South, at least, would not become a kind of super Quebec. History is full of these ugly tradeoffs that can't be settled by mere righteous indignation.

Roger Fontaine is a writer in Washington. He served on the National security Council staff during the first Reagan administration.



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