Assess the importance, constitutionality, and context of the decision in Bush v Gore (2000).

The concept of watersheds in a history as short as that of the United States is an overblown one. Occasionally, events or processes do get a grip which are determinative, though not necessarily forever. For instance, historians once thought that the question of secession from the Union had been decisively solved (and ruled out) by the contingent events of 1861-5. In recent years, however, serious legal thought has been given to the idea that Texas, Vermont and Alaska, and possibly Hawaii, could be said to have a right of secession. Similarly, the aftermath of the Watergate crisis, which was meant to have put an end to the ‘Imperial Presidency’ did not, in fact, mark a decisive break with anything except Nixonian Republicanism (and indeed that itself may have been reinvented as the Obama style of governance).

So it is with some trepidation that the serious historian turns to the events of 2000 and 2001 which led to the validation of George Walker Bush’s election to the Presidency by the Supreme Court, especially if he or she seeks to show it as indicative of anything. Election disputes are not a new thing in the United States, even at the presidential level. 1824 and 1888 both furnish examples of the system ‘failing to work’ as the candidate with the lesser popular vote won in the Electoral College. Similarly, the presidential elections of 1912, 1948, 1960, 1968, and 1976 could very easily have ‘gone the other way’, either from a switch of votes or an investigation of fraudulent practices. In Senate, House, and State elections, protests and disputes about elections have been legion.

The way in which the United States elects a President is complex, because of the federal nature of the country. Each State puts forward a slate of electors which is numbered according to the particular State’s congressional delegation. This is broadly proportional, in that bigger states will have more congressmen, and therefore a larger delegation. Equally, no state will have fewer than three votes, given that one of the qualifications to be a state is to have enough population to justify one congressmen, and that two senators come as standard. The popular vote elects the Electors in November; the Electors then meet in their statehouses in December, and elect the next president and vice-president.

However, the system is not as simple as it appears. There is no standard rule that defines how a State should view the popular vote. For instance, some states allocate all their electors to a candidate who wins a plurality; some split the electors; in theory, some reserve the right, which is in the Constitution, for the State Legislature to displace electors and vote itself for a ticket. Some states attempt to bind electors, who are usually party worthies, to a ticket; others cannot guard against their electors voting for any candidate they wish. Sometimes, candidates have died before the electors meet (such as Horace Greeley in 1872). Sometimes, confusion as to whom the electors represent has thrown elections into historic doubt (as was the case in 1960, which Kennedy won or lost depending upon whom one counts Democrat electors as pledged to in two Southern states).

The only cast-iron requirement of the Constitution—and it is cast-iron—is that successful candidates for president and vice-president should receive a majority of the votes in the Electoral College. This is in itself quite sensible in a federation, in that it precludes combinations of big or medium sized states from excluding the majority of small ones. For example, in 2012, 33 states had 10 or fewer electoral votes each, whilst Texas, California, Florida and New York each had 29 or over. California alone had 55 votes. If candidates cannot get a majority (271) of the votes, then the president is elected by the House of Representatives, each state voting as a unit, and the vice-president is elected by the Senate, with each Senator having one vote.

This scenario has happened in US history, in 1800 and in 1824. Another feature of the system is that a president and vice-president could win a majority of the Electoral College without winning either a majority or even a plurality of the popular vote; this happened in 1824, 1876, 1888, and 2000. In addition, there were serious concerns over the 1960 and 1968 elections.

During the era of ‘democracy’—which can be dated from the expansion of manhood suffrage in the 1830s, or secret ballots from 1873, or the expansion of elected offices after 1900, or from female suffrage in 1918, or from the civil rights movement, there have been questions raised about the obvious block that the Electoral College could form against the most popular candidate.

These questions arose in particular in 2000. This was because, after a polarising and hard-fought campaign which came at the end of the ‘culture wars’ and Clinton-era partisanship, vice-president Al Gore, the Democrat candidate, received 48.4% of the national vote, which was more than his Republican opponent, George Bush, who received 47.9% of the vote. Turnout was roughly 50%, and in ballot terms Mr Gore won over Mr Bush by more than half a million votes. However, Gore piled up his vote in states where he did not need large majorities (but got them anyway) whereas Bush won in places where the Electoral College votes of the state swung to him. Bush was therefore eventually certified as the winner by 271 electoral votes to 266.

Bush’s path to the certification was rough and prolonged. This was because Gore launched a challenge to the design, conduct, and scrutiny of the votes in Florida by focussing the media on the ballots, a number of anomalous counties, and then via a lawsuit. Gore partisans alleged that ballot papers were drawn in such a way as to confuse their voters; that scrutineers had been intimidated at recounts; and that the vote in four counties in particular should be re-tallied. Gore also suggested that the Florida Secretary of State, Katherine Harris, had set such a narrow administrative deadline for any recounts that, in fact, she had precluded them.

However, matters are rarely so clear-cut. The Bush-Gore litigation interacted in a complex way with the US and Florida state systems. For instance, properly speaking, there were three federal Bush-Gore cases; two decisions in Bush v Palm County Canvassing Board, and one in Bush v Gore. These were separate in time. All three were Bush appeals from the Florida Supreme Court. Gore had concentrated on that body, believing that the Washington counterpart would not overturn it on matters of Florida administration. These decisions interacted with two powerful internal pressures in the US Supreme Court.

One was deep irritation with the Florida Justices for deciding a case that could not be resolved, when the State Judges decided that the Florida election officials should not have been stopped from recounting when they were. It was not only pointless to make that argument, but it also ‘second guessed’ the Florida executive in a decision which was within their executive powers. Such administrative rulings can be made by courts, but only on the basis of overwhelming constitutional concerns about due process, the protection of rights, or the equal protection of the laws. Florida Justices, however, seem to have developed such a suspicion (almost amounting to contempt) of the legislators and executives in Tallahassee over the years that they went out of their way to try to impose themselves on the management of the ballot process without setting clear and consistent rules into their various judicial orders.

A second pressure within the Supreme Court was that both it and the Florida Court were split on the cases that were being brought to them. This meant that a majority could not be found to pro-actively ‘stop’ an injustice; rather the Justices were being asked to validate the decision of a State Supreme Court to make office holders and civil servants below them do things. Judges in the English-speaking world, contrary to media stories, tend to hate such disguised positivism; their natural habitats are injunctions and stays, which are orders that prevent things from happening until a legal process can occur. In the second Bush v Gore case, the US Justices were being asked to set aside all the certified Florida ballots, in December, days before the Electoral College met, and instead positively validate a new count and new certification. Four Justices were prepared to do so; five were not. Instead they chose to issue a ‘stay’. This served two purposes. It indicated what they would do if Florida could not resolve the matter in some other way (that is, if the recount went ahead) and secondly it gave time for the political resolution of the matter.

For a final time, the Florida Supreme Court and the Gore campaign ignored these straws in the wind, perhaps hoping that a national media debate over a recount for all the ballots would force a change in the mind of the Florida administration. By this point, however, in early December, the Florida Legislature was threatening to cause a new constitutional crisis by simply ignoring the popular vote and exercising a right not used since the 1870s to nominate its own electoral voters. Dark suggestions were also being made in the press that electors in other states, or in Florida, should be persuaded, pressured or bribed to follow the popular vote despite being pledged to Bush. The possibility existed that Gore might try, as failed Mexican candidates sometimes have, to cast himself as the legitimate president as opposed to an usurper.

As it was, Al Gore gave in. The immediate consequence was the Bush presidency. Minor consequences were the immolation of Ralph Nader, a Green candidate who was believed by the left to have deprived Gore of a margin of victory, and the passage in 2002 of the ‘Help America Vote’ Act which offered federal guidance and funds for the conduct of elections. Tactically, future political campaigns increased the numbers of lawyers on staff, and deployed technology and social media in such ways that no future votes were left unturned. 2000 seared its way into the subconscious of political scientists, and into the regime of shadow understandings and conventions by which the US operates from day to day; but what is curious is that this process almost wholly bypassed the rational application of thought.

I wrote that last line with something of a contrarian smile. This is because I know what the reader and listener does not; I do not intend to argue that there would have been no difference between the Bush presidency and one led by Al Gore. Gore’s running mate was less connected, but no less neoconservative, than Dick Cheney; Gore may have faced the collapse of enron, and then the banks, slightly earlier, given his populist campaign; and though he may have maintained continuity and focus on the threat of terrorism and precluded a 9-11 style event from replicating exactly, he would probably still have bombed Iraq. It is also worth remembering that Al Gore was one of the foremost proponents of the form of extra-judicial kidnapping known as ‘rendition’ in the Clinton administration. The derivative house of cards unleashed in 1999 would still at some point have met with the consequences of underinvestment in the oil industry and a domestic squeeze on credit repayments and lending. What Bush spent on the military—ironically, after Dick Cheney’s 1991-3 round of cuts, and those of Don Rumsfeld in 2001—Gore would probably have spent on equally wasteful environmental initiatives. If anything, shady links between mujahedin, Saudi-funded Sunnis, and terror groups who popped up around oil routes whilst playing global markets would have deepened, rather than been restrained.

So I won’t argue that the entire course of history would have changed had Al Gore entered the White House as Chief Executive in January 2001, rather than George Bush. What is more interesting to me is that Bush continued as all his predecessors with minority mandates did by simply ignoring the circumstances of his election. As had Reagan, Kennedy, Truman, Garfield, and even Lincoln, Bush showed something that few political scientists find it worthwhile to point out, which is that every four years a portion of the American people elect a monarch and then disconnect how they did it from the subsequent administration.

This feature has been enhanced in recent years of Imperial Democracy by the tendency of the modern Congress to be either more radical than presidents of its own party, or absolutely vitriolic in opposition to those of the alternative. Supported by the media, this ongoing fissure in US culture (which is not really that surprising to any student of nineteenth century American politics) has meant that presidents have been oddly able to avoid any of the textbook implications of low popularity or questionable legitimacy. In fact, they have been surrounded by the accoutrements of a state which protects them from such implications, by signing statements, Air Force One, the White House Security Detail, and a deeply stupid corporate media.

One of the greatest consequences of the Bush presidency, therefore, was the way in which the Imperial Democracy was shown morphing into a kind of Byzantine Empire before the eyes of anyone on the outside. A long and punctuated tradition, which lies beneath the apparently progressive forms of Pragmatism, consisting of ‘doing things’, accompanied by exceptionalism, extreme speculation, and crony corporatism, burst into life during the Bush years and helped reveal just how hollowed-out the American experience has once again become. No one in their right mind would suggest that this heralded the collapse of America. A state with access to the food of the Plains and Prairies, with vast energy reserves, a global currency, and vast, friendly and underpowered neighbours would have to try hard to collapse. However, the heroic America of 1917-47 was more or less now history; the disillusioned America of 1963-92 was turning towards something else entirely. It was this third America into which the millennial generation, which was larger than any in American history, was born, and which deserves an essay of its own.


Anonymous said…
You lost me at "the system ‘failing to work’". If the system were supposed yield the candidate with the greater popular vote, there would be no need for a system at all. Rather, one might argue the elections you cited illustrate where the system succeeded in affirming the importance of a candidate achieving a broad geographical appeal.

A naive view of the electoral college is that it is merely an extension of the New Jersey plan, as it guarantees states with smaller populations marginally more influence than their population alone would dictate because each state is guaranteed 3 electors.

But there's clearly more to it than that. In the current system, most elections come down to a candidate's winning a handful of swing states. Hence, to win, a candidate must achieve a broader geographic appeal than would be needed under a strictly popular vote system. To achieve this, all candidates will likely embrace a more moderated platform than they otherwise might, which is probably a good thing. You even suggest that a Gore presidency would not have been so different from the Bush one, which partly stems from the fact that they competed head to head for the same voters in these swing states. That is, their platforms were more geared to achieving the marginal voter in the swing states, rather than galvanizing the party bases in geographic strongholds.

Moreover, imagine a candidate who runs a fairly typical campaign, but also advocates special entitlements for residents of NYC. Then even if he wins the popular vote because he has effected such a large voter turnout in his favor in NYC, it's not obvious to me that he is the best candidate for the country if he can't also win a plurality of votes in many different states.

The current system is admittedly imperfect, and perhaps swing voters of swing states should not be entrusted to determine the fate of the free world every 4 years. If the system consistently led to the election of candidates with a much lower popular vote, I might be more concerned, but if it only happens once a century, I take it as a net positive.
Martin Meenagh said…
Thank you for your intelligent, informed comment. I suspect that we agree more than not, and in my defence (which may be weak) I did put inverted commas around the 'failing to work' observation. I'll do you the courtesy of a more considered reply later, but my own view broadly is that the ideas of majoritarian democracy and republicanism were so bolted to each other from the mid-nineteenth century through nationalism that many do expect the mechanisms of election to reflect the majority of people as well as states. However, the underlying system, flexible as it is, reflects a much older era. It's like those rumoured wooden water pipes beneath the White House, which has been through four or five major extensions, guttings and redevelopments but which is still presented by some as a modest colonial knock-off of the Dublin customs house...they are still, despite attempts to call them a twenty first century hydrogen dioxide fluid and waste distribution system, wooden pipes.
Anyway, thank you. I will, as they say, be back.

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