Areas of Unrest

11 November 2000 - Unpresidented

QOTD: "History teaches that men behave wisely once they have exhausted all alternatives." - Abba Eban

Reading: Laurell K. Hamilton, Obsidian Butterfly

Listening to: Aaron Copland's Billy the Kid and Rodeo (Leonard Bernstein conducting the New York Philharmonic)

I've been waiting to write about the presidential election fiasco out of the vain hope that both sides would stop behaving like children at a nursery school recess. "Mine!" they shout, grabbing at a large inflatable ball that will rupture the instant one of them grabs it. It seems the brouhaha will go on and on, so I shall write and be done with it.

First, the electoral college. The thing that puzzles non-Americans more than anything else about the U.S. is that so many things differ from state to state. Trying to explain that taxes, traffic laws, marriage laws, etc. are not matters of national policy is mind-boggling to most of the rest of the world. The fact that this applies to a national election should be particularly mind-boggling. We're not a democracy and it isn't anywhere near "one man, one vote." If you live in, say, Montana, you effectively have 4 times the power of someone who lives in California. This was a good 19th century solution to 19th century problems and pretty much every legal scholar has considered it absurd for damn near a century, since the 1876 chaos that followed the election of Rutherford B. Hayes. (Incidentally, the worst mismatch between the popular vote and the electoral vote was earlier than that. John Quincy Adams got under a third of the popular vote!)

I have mixed feelings about the electoral college. Having lived most of my life in populous states (which are underrepresented), I should hate it. But it does help balance some of the interests of different parts of a complex nation. What bothers me most is that the states control a lot of laws regarding electors. For example, only 24 states (and the District of Columbia) have any laws that indicate that electors are expected to vote for the candidate they represent and, for most of those states, the punishments are fairly insignificant. (In addition, legal scholars seem nearly unanimous in thinking that these laws are unconstitutional.) I'll assume that the elector who voted for Lloyd Bentsen for President and Michael Dukakis for Veep was simply confused; the West Virginia elector who crossed parties in 1972 was more willfully ignoring his constituency.

Incidentally, in my reading this week, I was reminded that electors must vote for at least one candidate (Pres or Veep) from out of their state. So I wondered what that implied about Texas electors, since both Bush and Cheney are Texans. It turns out that Cheney declared himself to be from Wyoming. That these legal fictions are tolerable (and, yes, I apply the same argument to Hillary Clinton's carpetbagging in New York) is another thing that bothers me. I think there should be residency rules similar to those that apply when figuring tax exemptions for selling a house. Namely, to be considered a legal resident of a particular state, you should have to have made it your principle residence for at least three of the past five years. On the other hand, I don't want a requirement like that for voting. So maybe that's too much of a restriction.

The two best solutions I can think of are to either amend the constitution and implement direct voting for national offices or to modify the electoral college system so that all states have it work like Maine and Nebraska do, with two electors representing the state at large and one elected in each congressional district, instead of the winner take all system most states use. The advantage of the latter is that it wouldn't require a constitutional amendment. While still not entirely fair to voters in large states, it would be somewhat fairer in that those states are typically the ones that are less uniform politically. We should also probably make the electoral college into a symbolic artifact, instead of a meeting of actual people.

The second thing I wanted to write about was the problem with the Palm Beach County ballots in Florida. The pictures I've seen show that they pretty much violate every basic principle of human factors design. And they are also clearly illegal under Florida's own law, which states that the spaces for marking which candidate you are voting for must appear to the right of the names. (Florida law also requires the major party candidates to be at the top of the ballot. This is a doubtful point with the ballot design they used, but less clearly illegal.) I'm concerned that the election officials, who had a very large number of invalidated ballots in the last election (which was the first one to use this style of ballot there) didn't take that as an obvious sign that they needed to redesign the ballot. Or, at the minimum, do a major campaign to educate the people about how to use it.

But, I don't think they should revote. The election officials, representing both parties, approved the ballot in advance. The ballot was published in local newspapers in advance. There is no reason that there could not have been legal actions taken before the election. If somebody did file a lawsuit prior to the election, I'd be way more sympathetic.

Incidentally, this is another argument in favor of the old mechanical Tammany hall voting machines. It is physically impossible to pull the handle if you have voted for two people inadvertently with them. I'll also note that at least some of the disputed ballots were not doublepunched, but simply have depressions that led them to be read as invalid. I can easily see somebody starting to push one hole and then pushing the other hole instead of asking for a new ballot because they didn't think they pushed all the way through. (By the way, computer-based voting is a bad solution. There are way too many potential security and fraud issues. It is trivial to write a vote-counting program that switches votes in a nearly undetectable manner.)

Which brings me to the third point I want to make. I find it is generally helpful in life never to attribute to malice what can adequately be explained by incompetence. The posturing on both sides is just that - posturing. There is no reason to believe that this was not a free and fair election. Every alleged irregularity - none of which I've seen any substantiated evidence for yet - could be adequately explained by simple carelessness. (Well, carelessness and the Yankees World Series victory. We can't let people forget who is the Source of All Evil in the Universe. But that's another matter.)

My fourth point has to do with the differences between this election and 1960. (I feel obliged to point out that my comments on 1960 are all from what I've read. I wasn't exactly politically active as a two year old!) There actually was more likely to have been real fraud in 1960, at least in Texas. But there are two reasons why Nixon didn't pursue a recount. One is that the world situation was far more volatile and he was astute enough to realize that the Soviets would take advantage of perceived rifts in the U.S.. But the other is that things were not that close - meaning he would have had to pay for a recount that he requested. Also, remember that while the popular vote was close then, the electoral vote was not. It would have taken recounts in something like 9 states, not just one.

This is an important point, in my opinion. I don't think Gore would have asked for a recount in Florida, because it would have been expensive for him to. The recount was triggered automatically by state law, because of the closeness. So the comparison to the 1960 situation is meaningless.

There were probably a bunch of other things I wanted to say about the election, but I can't remember quite what they were. One of them had to do with Hegelian philosophy, but I hardly want to chase away the few readers I have out of the sort of pedantry that makes normal people dislike Al Gore! I do know that this would be a wonderful time to be a civics teacher! And maybe some good will come out of this mess. Even if we suffer through four years of complete incompetence (and that would certainly not be the first time in our history), we might come out with renewed political interest, which is how real reforms arise. Let's take advantage of the brief moments of interest in the mechanics of how we vote and think about what mechanisms we can institute to make sure people's rights are preserved. Let us be a nation of adults who use our divisions as a way to explore where we stand and reach a mature and creative solution to our problems.