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.
Michael knows more about election law than I do, I’m sure. But much of this dispute is not about the law. It is about what seems to be fair. And I cannot accept Michael’s logic that it is unfair to recount in counties that used punch cards (which everyone concedes produces more errors than other systems) simply because more such counties favored Gore. If there is unfairness here, it is that more Gore counties were likely to have undercounted than were Bush counties. Even the manufacturers of punch-card voting machines admit that such machines tend to undercount by as much as 10 percent; that is, they fail to read a tenth of the punched ballots. If the whole state used punch cards, one could reasonably argue that this doesn’t matter, that the errors are spread randomly around the state. But that is not the case. When one candidate’s votes seem much more likely to have been undercounted than do another candidate’s, fairness seems to dictate a recount. Surely the standard should be which system will get us closer to the true vote of the electorate (and there is such a thing as the true vote, even if we may never know it with absolute certainty). It could well seem unfair to have hand counts only in Democratic counties, but that is not Gore’s fault. The Bush campaign could have (and given Gore’s offer today) still could ask for recounts in their counties too, and they should do so.
The Bush campaign’s public argument centers less around the question of which counties are being reviewed, however, than around the question of whether a hand count is likely to be more accurate than a machine count. They insist that hand counts are chaotic, subjective, and inaccurate. But both Florida and Texas law say hand counting is the appropriate recourse to the limitations of machine voting. (I note, however, that they raised no objection to the hand count in New Mexico that, for a time at least, put them back in the lead.) It is hard to imagine that hand counting, which like any system can produce inaccuracies of its own, would replicate the very high level of inaccuracy in the machine counting of punch cards. Machine voting was not created to be more accurate than other systems; it was created to be faster. And in an election this close, accuracy should be more important than speed.
Having said all that, I think we have already gotten well beyond the point at which any likely solution to this controversy will be acceptable to both sides and thus beyond the point at which either candidate could hope to have a very good chance at a successful or productive presidency. Both campaigns have contributed to this fiasco through overblown rhetoric and excessive charges, as well as through what is already an enormous amount of litigation (begun, it should be noted, by the Bush campaign despite the earlier threat of it by the Gore people). But regardless of who is to blame, the prize for which everyone is still so desperately struggling seems to me now almost not worth winning.
What will history say about this election? When there are disputes of this kind around elections, the winner usually pays the higher price. Most treatments of the election of 1876, where there was fraud and chicanery on both sides, still see the loser, Samuel Tilden, as the injured party. Histories of the election of 1824 are generally not kind to the winner, John Quincy Adams, and of course Andrew Jackson, who lost that year and then defeated Adams in 1828, is now the much greater figure in our history. This is ironic in many ways. Tilden is an unlikely hero—a conservative Democrat who was supporting the efforts of white Democrats to deprive African-Americans of the vote in the South. (In fairness, Hayes, the victor, also sold out Southern black voters as the price of his victory.) Jackson, for all his greatness, was a ruthless and somewhat capricious leader with a record of exceptional savagery toward the Indian tribes—as compared with the sober, judicious, highly principled John Quincy Adams, who in most contexts would seem to us today to be the more appealing figure. I suppose it’s too early for a potential president to be thinking of his legacy before he even knows if he’s been elected; but in this case, the best protection of “the legacy” might be to lose.
The nearer-term consequences of this election are easier to predict. Whoever is elected will be able to get almost nothing through Congress that is not acceptable to both parties. (Given the virtual tie in Congress, that may have been true even without this debacle.) There will almost surely be no $1.3 trillion tax cut, no Social Security privatization, and no campaign-finance reform. If Bush wins, Democrats will likely win control of Congress in 2002. If Gore wins, Republicans are much more likely to retain it. Supreme Court nominations will be extremely difficult to get through if the candidate is any way controversial or suspect in the eyes of either side. I suspect the informal bar on filibusters for court nominees will soon be a thing of the past. The new president’s best chance for legislative productivity would seem to be adopting the program of his opponent. It is not impossible that if Bush is elected he could decide that it was in his interest to adopt such generally popular Gore proposals as prescription drug benefits under Medicare and campaign-finance reform; or that if Gore is elected, he may embrace some portion of Bush’s tax-cut proposal. But no one is going to make much progress on his own campaign agenda.
And what of the Electoral College? Had this election ended cleanly with the winner having lost the popular vote, I suspect we would have seen a powerful and perhaps irresistible movement to abolish the Electoral College. Florida, however, may prove to be, among other things, an important cautionary tale. With a 200,000-vote margin deciding an election among 100 million voters, it is easy to imagine a battle like the one in Florida taking place all over the nation. Perhaps there will now be second thoughts about changing the system.
We’re a stable and healthy nation, and we can survive this imbroglio, just as we can survive a weak, perhaps even crippled presidency and a season of partisan fury. We survived the 104th Congress and the impeachment struggle, after all. But I can’t agree with Michael that we should be glad that this close election provides us with evidence of how strong our democracy is. Yes, it’s better not to know who won two weeks after the election than to know who will win a year before, as in pre-Vicente Fox Mexico. But it’s better still to have an election that ends in a way that gives the winner a reasonable shot at governing successfully. This election, however it ends, will not do that.