Balkinization  

Monday, November 08, 2004

The Election of 2000 is over

JB

Here is what I wrote in October 2001 about the Presidential election of 2004. (This is from a book on Bush v. Gore edited by my colleague Bruce Ackerman):

The meaning of the 2000 election-- and hence the legitimacy of the Bush presidency-- has yet to be determined. If the Democrats win both houses of Congress in 2002 and then regain the presidency in 2004, they will have delivered as solid a rebuff to Bush's legitimacy as is possible in the American system of government. We the People will have rejected the Supreme Court's imperious decision to hand Bush the White House. In hindsight, the election of 2000 will have been judged a mistake, and-- for reasons that I will explain shortly-- the more mistaken it seems, the more it will throw into doubt the legitimacy of how Bush obtained power in the first place.

On the other hand, if George W. Bush wins a second term in office by a decisive margin, this will bestow legitimacy on his first term retrospectively, and will tend to confirm the wisdom of the Supreme Court's intervention, if not the precise reasoning of Bush v. Gore. The election of 2000 will be considered at most a tie, which gave Bush the opportunity to establish that he truly did represent the will of the People. Because there was no constitutional harm, there was no constitutional foul.

With the ashes of the World Trade Center still smoldering as I write these words, the country is likely to give George W. Bush every opportunity to demonstrate his qualities of leadership. If he makes the most of that opportunity, he will be rewarded with reelection and the mantle of legitimacy. But as every politician understands, a great deal can happen in four years. No one knows how long the current crisis will last, how well the new president will lead, or whether economic and domestic problems will eventually overtake concerns of foreign policy.

Make no mistake: the meaning of the 2000 election-- and the legitimacy of the Bush presidency-- are still very much up for grabs. Unplanned and unexpected events will test the mettle of both parties and shape the meaning of the Bush presidency. If the Democrats play their cards right, and the Republicans are foolish, the Republican Party will be punished for overreaching and the verdict of history will be that the election was illegitimate or at least dubious. Bush v. Gore and black disenfranchisement will be viewed as blemishes on the American system of justice that were corrected by a wise citizenry. On the other hand, if the Republicans rise to the occasion and the Democrats misplay their hand, George W. Bush will win the White House in 2004 and establish his legitimacy. Bush v. Gore will be seen as badly written but irrelevant, and black disenfranchisement in Florida will be excused or conveniently forgotten.


I still think this is largely correct. Bush demonstrated his political legitimacy through the combination of the 2002 and 2004 elections. I do believe that the Supreme Court's decision in Bush v. Gore still remains a stain on their reputations. However, because Bush was not able to appoint any new Justices until he won an electoral majority, the stain is somewhat less severe than it would otherwise have been. Less severe, but not wholly eliminated: Incumbents have natural advantages in getting reelected; black disenfranchisement and Bush v. Gore guaranteed that George W. Bush, and not Al Gore, would receive the benefits of incumbency going into the 2004 election. Nevertheless, Bush made the most of the opportunity he was handed to demonstrate that he had majority support. Although he did not win by a decisive margin, he did win an absolute majority in a close election, while increasing Republican representation in both the House and the Senate. And we must remember that, prior to that, he had also increased Republican representation in Congress in the 2002 election.

I'm not happy about the turn of affairs, but I consider myself a member of the reality based community, and that means that I accept recalcitrant experience even when I don't like it.

That the 2000 election is finally over does not mean, however, that Bush v. Gore and black disenfranchisement were perfectly ok. Rather, it means that not every injustice is remedied in an imperfect world, and that the Democrats have to regroup and move on. I think they can do this, particularly because I believe that voters will tire of this President more quickly than most people expect. His approval ratings in the fourth year of his presidency suggest that many were already quite tired of him, but simply not yet willing to change horses in midstream.

It may seem strange to put it in this way, but the Democrats now have the singular advantage of powerlessness: They have four years to think deeply about what they believe and the direction the country should take while the Republicans, who now control everything, have complete responsibility for getting us out of the mess they have created. The Democrats are set upon a journey in the wilderness. From such journeys salvation often comes.


Comments:

This analysis presupposes Black disenfranchisement in the 2000 in Florida. There is to this day, absolutely no evidence whatsoever to back up this presupposition.

Yes, some African-Americans may not have had their intent to vote counted. But there is no evidence that any actual votes were not counted. One of the mistakes made during the aborted recount was the idea that intent to vote equalled voting. But why should that be limited to just three, highly Democratic, counties in Florida? Rather, there are always voters who attempt to vote and don't succeed. Theoretically, their non-votes cancel each other out.

The Supreme Court, by a significant majority, found counting ballots using different standards in different counties violative of Equal Protection. What is wrong with that?

I think that another complaint I have with the idea of Black disenfranchisement is that requires intent, or in the legal sense, scienter. Yet, the three counties in which the non-voting allegedly occured, voting was controlled by the Democratic Party. They were responsible for the infamous Butterfly Ballot. And it is hard to credit that these Democratic election officials intended to deny anyone the vote, in counties that invariably produce large Democratic pluralities of votes. Much more likely, the non-voting was a result of negligence, instead of vile intent, and thus, no disenfranchisement.

That leaves us with a small number of alleged instances where African Americans were discouraged from voting, such as by the unexpected appearance of police. But these instances were not substantiated, and even if true, were so small in number, that they would not have changed the outcome in any way, whatsoever.

If we are going to talk disenfranchisement, rather we should talk about the military ballots illegally rejected based on objections by DNC attorneys. Federal statutes require that military absentee ballots not be rejected based on technicalities, in particular, like those in Florida in 2000, where the technicalities were outside the control of the military personnel voting - such as having a proper postmark. And note that this was done in accordance with a memo from the Gore campaign, and thus had the requisite scienter for disenfranchisement.

Nevertheless, the point is valid. Mr. Bush lost the popular vote in 2000, while winning the electoral vote by a hair. Arguably, he might have been able to increase his electoral vote a little by requesting recounts in such close races as New Mexico, esp. given the allegegations of voter fraud. In any case, Mr. Gore clearly won the popular vote. And thus, there was a question as to the legitimacy of Mr. Bush's election.

I would suggest though that any such questions of legitimacy were laid to rest in the last two elections, both of which resulted in Republican gains in the House and Senate, and in the last one, Mr. Bush significantly increased his popular vote over 4 years before, both in absolute terms, and in relation to his opponent.
 

The remarks above have a "both the poor and rich are prohibited from sleeping under bridges" taste to them. Not only is it not true that the problem was limited to three counties, it is also not true that discriminatory intent of the procedures per se is the only concern here.

For instance, once it was (arguably) shown that there was a discriminatory result, the matter should have been dealt with unless the 15A is but a mere form. Likewise, this election's felony lists problems reaffirms something: the problem was known, but lacklusterly ignored (at best). The Vanity Fair piece is but one the covered this issue. The blog Legal Fiction did so well too.

Finally, the idea that the case was just about voting standards, no problemo, is seriously naive. That is, if it is really serious. The whole state has varying standards, as does states all over the union. Why limit one aspect? In fact, examination has shown Republicans pushed for different standards for miitary ballots. Likewise, from the beginning, the push was to limit the recount and run out the clock.

The idea that equal protection was the concern here is a tad bit ridiculous ... if not willful missing the forest for the trees. Anyway, it's a bit tiring all around when an attempt to find some sort of middle ground is attacked in this fashion. Debates over matters that ultimately aren't necessary to the ultimate conclusion will lead us nowhere fast.
 

I'd add that I don't quite find Balkin's arguments acceptable. There is a feel of money laundering here. If you feel (for the sake of argument) that he got into office illegitimately, how exactly can he make things legitimate by using the illegitimate gains? Is everything that grows from them legitimate, putting aside the arguments that how he won in 2002 and 2004 was corrupt in various ways (having nothing to do with election fraud, per se)?

I don't quite think so.
 

"I accept recalcitrant experience even when I don't like it", but apparently this doesn't mean I can't cling to urban myths I find congenial, such as black disenfranchisement, in the absence of evidence.

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Bal·kan·ize or bal·kan·ize (bôl'kə-nīz')
tr.v., -ized or -ized, -iz·ing or -iz·ing, -iz·es or -iz·es.
To divide (a region or territory) into small, often hostile units.


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