What Now?

Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame.      

Dear Michael,

Now that the Florida Legislature seems poised to intervene in the battle, the odds facing Gore seem overwhelming. Even if he prevails in all his court battles, even if the U.S. Supreme Court rules in his favor, even if the recounts he is requesting can be completed in time, even if they put him ahead of Bush, even if the Florida courts can compel Katherine Harris to re-certify the election for Gore—and almost every one of those things seems unlikely, let alone all of them together—then the most he can hope for is a slate of electors pledged to him that will be challenged by a slate of electors chosen by the legislature and approved by the governor. The Constitution offers no guide as to how disputes between competing groups of electors shall be resolved. In the only previous case of such a dispute—the election of 1876—a special commission was established to settle the contest. But ultimate authority presumably resides with the House, and since the Constitution gives each state one vote in House balloting for president, there is no doubt that the Republicans (who are the majority in 28 state delegations) would prevail.

It’s striking how reliable all the Republican institutions of Florida have been in support of Bush and how relatively unreliable the Democratic institutions have been. Katherine Harris, the Florida Legislature, and Jeb Bush (surprise!) have all toed the line. Contrast that to the Democratic election boards (which wouldn’t count in Dade, which wouldn’t accept dimpled ballots in Palm Beach) and the allegedly Democratic Florida Supreme Court (which, despite its initial ruling favorable to Gore, set a deadline that made full hand recounts impossible and then refused to compel Dade County to count at all). The Republican congressional delegation has also been much more fervent in its commitment to Bush than the Democratic delegation has been to Gore. I don’t see any Democratic members or staffers in Florida mau-mauing election officials to do what they want.

While we wait for the various and seemingly inevitable denouement of this tawdry drama, maybe we should think a little bit about what lessons we might draw from it in terms of possible reforms. In one sense, talk of reform in the context of this election is somewhat futile. The circumstances here are so unusual, and so unlikely to be replicated in future elections, that any reforms specifically designed to protect us against another scenario like this are probably wasted efforts. But that does not mean that there could not be useful reforms, and this is clearly a propitious moment for proposing them.

I would not support a reform that would abolish the Electoral College and replace it with a popular vote. The original rationale of the Electoral College—to confirm the primacy of the states in the electoral process—is not particularly persuasive any more. The presidency is a national office, and it would certainly be appropriate for it to be governed by a national vote. The value of the Electoral College to us, I believe, is stability. That may seem an odd claim under the present circumstances; but think of what this election would be like if we had no Electoral College, if the result were determined by a straight popular vote. Gore’s present winning margin in the national popular vote is only slightly larger in percentage terms than Bush’s certified margin in Florida. If this were a popular-vote contest, it is easy to imagine the current fiasco in Florida being re-created in every state—recount after recount after recount, with both sides scratching for every vote they could find.

I would be more receptive to Electoral College reforms that distributed the votes of each state in proportion to the percentage of the popular vote each candidate wins (as most primary elections currently do). I would also not be averse to a reform that diminishes the small-state advantage; at present, every state’s electoral votes are equal to its total delegation in the Senate and House, which means even the smallest state has three votes, since every state has two Senators and at least one member of the House. The electoral vote would be a better reflection of the popular vote if state electors were allotted solely by population (i.e., in accordance with a state’s House delegation alone). I don’t expect either of those things to happen; and since this will be the first election in 112 years in which the electoral winner was not also the popular winner (assuming Bush ultimately wins), it does not seem to me enormously important that there be any Electoral College reform at all. I would be much more interested in seeing reforms in two other areas: the process of voting itself, and voter registration.

It hardly needs saying after the last several weeks that the technology by which most Americans vote is pathetically inadequate. Particularly appalling are the punch-card ballots, whose error levels I have been citing erroneously for two weeks now. I first said the error level was 5-10 percent, then corrected myself and said 0.5 to 1 percent. Recent reports from around the country now suggest that the number in many places is, in fact, 5 percent or higher. Hand counting, the preferred fallback in most states, is, we can now see, fraught with difficulties. So, as I said earlier, if nothing else good comes from this election (and little good will come from it, I fear), the elimination of punch-card ballots would be one result that I think everyone would welcome. But punch cards are only the most egregiously flawed technology. Lever machines, such as we use in New York, are more accurate. But they are now so old that they are subject to frequent breakdowns, and as we saw on Election Day breakdowns mean long lines and ultimately voters being turned away. And since the machines are no longer manufactured, they cannot be replaced.

Clearly the appropriate solution is to move toward some simple, reliable, and nationally consistent new technology that would make ballots clearer and simpler for voters to read and understand, and that would also make them easier for officials to record and count accurately. There are many possible candidates for that technology—from ATM-like touch screens to machine-readable written or postcard ballots (as in Oregon) to many others. I think Congress should agree both on a standard design for the federal ballot and a standard technology for voting, and then make funds available to states and localities to comply.

Similar reforms are necessary in voter registration. The stories reported in today’s New York Times of black voters being turned away from the polls in Florida because of incomplete voter registration lists are no doubt the tip of the iceberg. Voter lists should be computerized and instantly available at polling places. But the process of registration itself should also be simplified. The statistical evidence is overwhelming that the vast majority of those who are registered actually vote (well over 70 percent in most presidential elections). Our low turnout figures are a product of large numbers of unregistered voters. Many of them, of course, don’t register for reasons of their own. But many, certainly, could be persuaded to register if the cumbersome and often intimidating registration procedures in many states could be streamlined and simplified.

Finally, the one reform that I think would do the most to re-legitimize the political world in the eyes of voters would be campaign-finance reform. That has been almost forgotten during the ugly battles of the last few weeks, and such reforms would have had no effect on the present imbroglio. But one impact of this election will certainly be to increase the already-high cynicism about politics among many voters, a cynicism whose roots lie in disgust at the system of campaign finance. I have no illusions that campaign finance reform would be easy. The odds against it in Congress are high, and it still is not clear how well any proposed reform would work. But we should make honest efforts to fix this abysmal system. And if those efforts don’t work, to paraphrase Franklin Roosevelt, we should try something else.

A postscript: I assume you will have something to say today about the question of whether the U.S. Supreme Court should allow cameras in the courtroom for oral arguments in this case (and perhaps other cases). I think the court should not do so. Cameras are not a neutral presence in a courtroom or any other place. They change the way the various actors in the proceedings behave. (Witness the post-television character of congressional debates.) I don’t always like what the Supreme Court does, but I would like even less the idea of justices, and the attorneys before them, tailoring what they say to their sense of how the television audience will respond.