Litigating Democracy
On the Monday before the election, as speculation torqued to keening pitch, The Washington Post reported a Florida billboard ad emblazoned with an aphorism that said it all: “Last election, the Supreme Court decided. This time, you decide.” And they did.
Now, there is a strange calm. The liberal pundits are left with their mouths half open – wasn’t there something else to say? The rancor from 2000 had heightened such anxiety over American democracy that liberals assumed skullduggery was inevitable. There was a sense that the last election opened the door to a Pandora’s Box of electioneering: what had always been spoken behind your back, could now be said straight to your face. No one suspected that Americans would actually vote Republican.
But Bush won, and there seems little to dispute. The winner-takes-all peculiarities of the electoral college, and the depictions of lurid red swaths of states, like the images of the Sars epidemic or the hypothetical ’50s communist thrust, give an impression that this election was as clear as the nose on your face. And certainly, Bush wasted no time in declaring his 2-3% margin a rock-solid mandate.
But don’t be fooled; the red paint job covers well, but it hasn’t filled the cracks. The weeks of waiting in 2000 opened up a poisonous space in the way people conceive of the electoral process. In some sense, it became acceptable, expected even, that after the votes were cast and recounted, we would still not know who was president. This is a dangerous shift: corruption thrives in confusion.
This year’s claims and counter claims of voter fraud drew directly on the precedent set by 2000: the outcome of the election was no longer just a matter of counting the votes. Voting became increasingly seen as little more than a prelude to litigation, and this time, the lawyers did their work in advance.
Beneath the gloss of virtual voter visuals, 2004 was riddled with confusion and inconsistency, much of which took place in court. Thousands of lawyers from both parties spread out across the country and locked writs in skirmishes over everything from counting procedures to provisional ballots and poll identification.
In the weeks running up to the election, the GOP sought to challenge the eligibility of 35,000 voters in Ohio. Republicans had conducted a mass mailing campaign intended to check the addresses of potential voters. People whose letters came back were entered on the list and targeted by Republican ‘poll watchers’. Following a challenge by Democrats, a U.S. District Court Judge initially quashed the challenge attempt. However, early on Election Day, a federal appeals court overturned the ruling, and the challenges went ahead.
The mail shots were sent overwhelmingly to minority neighborhoods—areas likely to bolster the Democratic vote—and a returned letter proved only that the addressee had moved. The court’s decision in Ohio, while adhering to the letter of the law, in fact sanctioned an attempt by Republicans to suppress the votes of minorities. Voter eligibility should be a matter for polling officials, not party representatives.
In fact, where you lived had a major impact on your ability to vote and have it counted. By federal law, all Americans have the right to a provisional ballot. But were you to cast your provisional vote in the wrong precinct, it was counted in some states and not in others. In Ohio, the partisan election boards of some counties were able to reject provisional votes that in other counties would have been legitimate.
And the reach of party politics into the judicial process is not just limited to election time. The New York Times recently reported on the legerdemain of election law that wedges incumbent lawmakers into their seats. Both parties are adept at the delicate craft of the gerrymander and the fine art of fenced funds.
There is a raft of reasons why elections should be decided in the polls and not the courtroom. Resorting to litigation abstracts the cold facts of vote counting into the slippery realm of legal rhetoric. It is the stock and trade of skillful lawyers to come up with ‘creative’ interpretations of the law. Legal arguments are often based on incremental chains of logic that can end up supporting a distorted version of justice. There is, for example, the ruling that allows multi-national corporations to claim the constitutional rights of individuals in order to avoid accountability to actual individuals. In addition, it is often the best funded litigators who are most successful.
Where it all ends up, of course, is the Supreme Court; and Supreme Court judges are well known for their political leanings, even on matters where there is far less at stake than the presidency. (The concern over Judge Rehnquist’s replacement is case on point.) Even if this were not common knowledge, the Supreme Court’s partisan split in 2000 has cast too much doubt on its legitimacy as an impartial arbiter of elections.
When an election is decided on the opinions of judges, who themselves are appointed by the executive branch, it narrows the separation of powers, and threatens the system of checks and balances that are vital to a legitimate democracy.
The courtroom is, of course, the proper recourse for dispute. But the legal shock troops of party politics are really just another symptom of a political culture whose limits are defined simply by what you can get away with. Electioneering hides too easily under the guise of The Law.
