The Longest Night: Polemics and Perspectives on Election 2000by Arthur Jacobson (Editor), Michel Rosenfeld (Editor)
The American presidential election of 2000 was perhaps the most remarkable, and in many ways the most unsettling, that the country has yet experienced. The millennial election raised fundamental questions not only about American democracy, but also about the nation's constitution and about the legitimate role of American courts, state and federal, and in particular
The American presidential election of 2000 was perhaps the most remarkable, and in many ways the most unsettling, that the country has yet experienced. The millennial election raised fundamental questions not only about American democracy, but also about the nation's constitution and about the legitimate role of American courts, state and federal, and in particular about the United States Supreme Court. The Longest Night presents a lively and informed reaction to the legal aftermath of the election by the most prominent experts on the subject. With a balance of opposing viewsincluding those of some of the most distinguished foreign commentators writing on the subject todaythe contributors present an unusual breadth of perspectives in addressing the judicial, institutional, and political questions involved in the disputed election. Their commentaries bring the confusion and frenzy of the event into clear focus and lay the groundwork for an essential public debate that is sure to continue well into the future.
The Longest Night contains a thorough chronology of the events in Florida, a detailed account of the institutional structure of American presidential elections, a series of analyses both criticizing and defending the decisions in Bush v. Gore, American perspectives on the Florida struggle and America's electoral system, and a debate on maintaining or reforming the electoral college. The authors include participants in the legal and political battles surrounding the Florida election, foreigners charged with monitoring and supervising elections, and scholars from many disciplines specializing in constitutionalism, democracy, and American election law.
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The Longest NightPolemics and Perspectives on Election 2000
University of CaliforniaCopyright © 2002 Regents of the University of California
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Chapter OneAs the chronology that follows indicates, the magnitude of the problems posed by the 2000 presidential election in general and by controversies that developed in Florida, the state that would decide the final outcome of the election, would gradually emerge during the thirty-six days following November 7. The fierce polemic engendered by the election took shape during that period and has continued ever since. Moreover, what is perhaps most salient about the many perspectives that have emerged from the polemic is that for the most part they have remained divided along partisan lines.
The aim of this collection of essays is to provide a representative sampling of the polemics and perspectives generated to date as a consequence of the 2000 presidential election. Concerning the polemics, we have made a concerted effort to provide a balance between Bush and Gore sympathizers. With respect to perspectives, however, we have endeavored to provide a wide variety, in terms of both differences in time and differences in geography. Thus some of the essays included were produced during the heat of the postelection battle that preceded the December 12 Supreme Court decision or shortly thereafter. Others were written with somewhat greater temporal distance, up to six months after that fateful December date. Although six months may be hardly relevant from the standpoint of history, the political mood in the United States is palpably different at this writing in June 2001 than it was in December 2000.
In terms of geography, the contributors to this volume certainly range far and near. At least two of them, Henry Brady and Charles Fried, were directly involved in the Florida battles, the first as a political scientist working for Gore and the second as counsel of record for the Florida legislature in two cases relating to the election. Farthest removed geographically from Florida are the authors from Europe and the Middle East, who provide valuable foreign perspectives on America's millennial election. The authors differ among themselves but converge on two somewhat disparate points: (1) amazement at the arcane and archaic nature of the American electoral system and at the pitfalls deriving from reliance on local control and (2) admiration for the great resilience and stability of the American political system in the face of the long uncertainty concerning the outcome of the presidential election and of the heated disagreements over the propriety of Supreme Court intervention.
In addition, the perspectives included in this volume are divided among participants in the postelection controversies, contemporaneous observers, and those who have analyzed the events based on a review of the record. Moreover, among those who had no direct experience with the millennial election, some have had relevant involvements in other elections. Thus Shlomo Avineri has often been an official foreign observer in many national elections, and Justice Noëlle Lenoir, until recently a member of the French Constitutional Council, has had an official role in that capacity for the supervision of the French presidential election of 1995 and for monitoring the vote count in its aftermath.
Chapter TwoWhereas the millennial election-in particular, the events surrounding the election in Florida-provides the main focus of this volume, the subjects addressed in the various essays are far ranging. As the essays amply demonstrate, the continuing fascination with the millennial election stems not only from the heated controversy it has unleashed but also from the crucial questions it has raised concerning subjects as diverse as the essential tenets and fault lines of American democracy; the relation between law and politics; the legitimate constraints on judicial interpretation; the virtues and vices of federalism as it relates to the tension between local control and uniformity of conditions for all voters and vote counters; the difficulties of achieving justice through law; the hurdles confronting the adaptation of social scientific statistical evidence for use in a legal proceeding; and the confrontations between liberty, equality, citizenship, and nationhood in the context of discrepancies between America's pre-Civil War constitutional heritage and its post-Civil War counterpart.
Among this wealth of diverse perspectives and subjects, certain issues and queries stand out and deserve brief mention here as they transcend the bounds of the individual essays. Chief among these are the fact that America's Constitution and laws are ill equipped to deal with problems such as those that arose in relation to the millennial election. As Richard Pildes, one of the foremost experts on election law, makes plain in his clearly nonpartisan overview of the legal framework available to deal with disputed elections, the combination of America's eighteenth-century Constitution and the patchwork of imperfect and incomplete state and federal laws relating to elections makes it virtually impossible to reach satisfactory or nonpartisan resolutions of serious election disputes. Consistent with this, whatever resolution of the 2000 election may have been reached in accordance with the Constitution and applicable law would inevitably have appeared unfair and partisan to about half the electorate. It follows that impressions of partisanship in the resolution of the disputes arising out of the Florida election were at least in part attributable to deficiencies in the relevant legal designs. That still leaves open the question of whether the resolutions at stake were unduly, excessively, or gratuitously partisan. Significantly, the various essays in this volume are quite divided on this latter question.
By and large, the assessments of the judicial opinions, both state and federal, contained in this volume can be sorted out along partisan lines. Those who sympathize with the Democrats tend to defend the legitimacy of the Florida Supreme Court decisions and attack that of the U.S. Supreme Court December 12 decision. Republican sympathizers tend to draw entirely opposite conclusions. This contrast is most vividly illustrated by the two longest essays dealing with the various state and federal judicial opinions, by Michel Rosenfeld and Nelson Lund respectively. Rosenfeld argues that the Florida Supreme Court acted well within the bounds of judicial legitimacy while the U.S. Supreme Court majority violated the fundamental principles of consistency and integrity. Lund maintains that the Florida Supreme Court "careen[ed] out of control," completely beyond the bounds of permissible legal interpretation, and the U.S. Supreme Court majority could not have done otherwise than it did without abandoning principle and precedent. What is one to make of this stark discrepancy? Can analysis rise above partisanship? And if it can, which of these two diametrically opposed positions is more consonant with any possible nonpartisan criteria?
Based on the U.S. Supreme Court's December 12 opinion and a reading of all the essays bearing on the relevant judicial opinions, readers will be able to answer these questions for themselves. Regardless of the conclusions one ultimately reaches, however, the justices who decided Bush v. Gore took positions that, at least on first impression, seem strongly at odds with their previously expressed views. This observation, moreover, is equally applicable to the justices in the majority as to those who dissented. Thus, for example, it seems odd that Chief Justice Rehnquist and Justices Scalia and Thomas who have traditionally espoused a narrow conception of equal protection limited to prohibiting discrimination on the basis of race, religion, or national origin, should have agreed to find a violation of equal protection (and possible due process) based on discrepancies in the manner in which votes were recounted. Conversely, it seems surprising that Justice Ginsburg, who has championed equality for women as a civil rights attorney and who certainly ranks as one of the justices with the most expansive views of equal protection on the present Court, should have concluded that the discrepancies did not even raise a plausible constitutional claim. Furthermore, at least on the surface it seems particularly ironic that the Chief Justice, joined by Justices Scalia and Thomas, the fiercest defenders of the prerogatives of the states against federal encroachment, filed a concurring opinion raising objections against a state supreme court's interpretation of its own state's law. By the same token, it seems noteworthy that two of the dissenters, Justices Ginsburg and Stevens, should have embraced positions seemingly grounded on complete deference to state court action and on state law in the face of challenges under the federal Constitution and federal law. Are some or all of these apparent discrepancies equivalent? Can some or all of them be explained away after careful examination? Do they evince a surrender to politics? Or do they ultimately demonstrate steadfast adherence to principle notwithstanding impressions to the contrary?
Another important issue brought to the fore by Election 2000, but with important ramifications that spread far beyond it, concerns the continuing viability of the Electoral College and its role in relation to democracy. The Florida election raised questions about the desirability of the Electoral College in two different but equally dramatic ways. First, if it were not for the Electoral College, the vicissitudes surrounding the Florida election and its aftermath would have had but minor repercussions. Indeed, since Gore won the nationwide popular vote by more than five hundred thousand votes, absent the Electoral College the disputed events in Florida would have had no impact on the outcome of the national election. Second, even if the award of Florida's twenty-five electoral votes to Bush had been unanimously accepted as unquestionably warranted, it would still have been the case in 2000, for the first time since the nineteenth century, that the winner of the Electoral College majority happened to be the loser of the popular vote.
Underlying these issues concerning the Electoral College are questions of both substance and procedure. From a substantive standpoint, the key question is that of the relation between the Electoral College and democracy. Unlike in a unitary country such as France where democracy is envisioned as majority rule on a nationwide scale, in the United States democracy has been conceived in terms of competition among mutually constraining majorities operating at both the state and the federal level. Yet even in this scheme of "checks and balances" among diverse democratic majorities, the presidency occupies a special place: It is the only national office, and the president is the only elected official (with the vice president) who represents all the citizens on a nationwide scale. And hence the debate-made all the more heated and urgent by Election 2000-over whether it would be preferable to have a direct nationwide popular-vote-majority election for president or to stick to the present system, which is meant to give states an important mediating role through preservation of the Electoral College.
From a procedural standpoint, what the 2000 Florida election underscores is the lack of uniformity in how votes are cast and counted throughout the United States. Moreover, this lack of uniformity exists not only from one state to the next but also, as the focus on Florida amply demonstrated, within a single state. Indeed, as is now well known, each of Florida's sixty-seven counties was responsible for organizing the presidential election within its territory. This led to many glaring disparities, including the fact that a voter in a punch-card-ballot county was three times more likely not to have his or her vote counted than a voter in some of the optical-scan machine-ballot counties.
Procedural reform seems much more likely and less controversial than substantive reform. This is in part because the basic procedural goals-equal voting conditions for all eligible voters and an accurate count of the vote-are generally accepted and uncontroversial. Substantive goals do not enjoy any comparable level of uniform support, as they depend on different conceptions of democracy and of how democracy might best be promoted. Significantly, Florida and Georgia have already adopted important reforms regarding the conduct of future elections. At this writing, however, little has occurred at the federal level. It is within the powers of the federal government either to encourage state reforms through subsidies or to mandate that national standards apply to all federal congressional elections, for all practical purposes ensuring uniformity throughout the country. Indeed, although Congress cannot directly regulate presidential elections under the Constitution, it can do so with respect to congressional elections. Accordingly, if nationwide standards applied to the latter, it would be both impractical and costly for states to conduct completely separate voting procedures in presidential elections. Finally, even without movement on the federal front, all states may eventually be forced to adopt uniform systems throughout their territories to conform to plausible further elaborations of the Supreme Court's equal protection ruling in Bush v. Gore.
Many conceivable substantive changes, such as abolition of the Electoral College, confront not only a lack of consensus but also constitutional hurdles that are difficult to surmount. Even if a vast majority of Americans were to support abolishing the Electoral College, this would require a constitutional amendment. Before such an amendment could be adopted, however, three-fourths of the state legislatures (or specially organized conventions in three-fourths of the states) would have to ratify it. And this would be highly unlikely given the widespread belief that smaller states would lose much of their influence on presidential elections with the abolition of the Electoral College.
Arguments for and against the abolition of the Electoral College are found in the essays in part 6. In addition, several other possible reforms, some requiring a constitutional amendment, others not, have been formulated. Each of these has certain advantages and disadvantages and promotes a somewhat different kind of democracy. Two proposals deserve brief mention, for they both seek to preserve the role of states in the election of the president while eliminating-or at least greatly minimizing-the likelihood that the loser of the popular vote nationwide would be nonetheless the winner of an Electoral College majority.
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Meet the Author
Arthur J. Jacobson is Max Freund Professor of Litigation and Advocacy at the Benjamin N. Cardozo School of Law, Yeshiva University. He is coeditor of Weimar: A Jurisprudence of Crisis (California, 2000) and Justice and the Legal System: A Coursebook (1992). Michel Rosenfeld is Justice Sydney L. Robins Professor of Human Rights at the Benjamin N. Cardozo School of Law. He is author of Just Interpretations: Law between Ethics and Politics (California, 1998), Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (1991), and coeditor of Habermas on Law and Democracy: Critical Exchanges (California, 1998).
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