W. Stands for Wrongful

Al Gore has had a crummy week, but popular sovereignty in America has had a catastrophic one. In Tallahassee, Judge N. Sanders Sauls ruled that a lagging campaign could not contest the outcome of an election by having a court inspect uncounted ballots. At the U.S. Supreme Court, Justice Antonin Scalia asserted during Friday’s oral arguments that “There is no right of suffrage [in presidential elections] under Article II” of the Constitution -- that is, state legislatures have given their citizens the right to vote in presidential elections, and can take it away if the spirit moves them. And though the court carefully avoided a political firestorm by remanding the recount decision to the Florida Supremes for reconsideration, Scalia‘s insistence on the non-existence of the public’s right to vote for president was reflected in his court‘s decision.

Two contradictory lessons, then, are emerging from November’s presidential election. One, in view of the excruciating closeness of the contest, is that every vote counts. The other, propounded by conservative jurists at play in the fields of 18th-century law and values, is that it‘s not even the case that any vote counts. Or at least, that there’s no constitutional right to vote for president.

It‘s not news, of course, that the Supreme Court’s one-person, one-vote standard applies to reapportionments but not to the selection of presidents. The inequities of the Electoral College are a constant of American electoral life; it‘s only when we get a squeaker of an election that they matter. In this election, since W. won a disproportionate number of the smallest states, they mattered a great deal: Among the 18 states (including the District of Columbia) with three, four or five electoral votes, W. prevailed by a 42-to-26 margin over Gore. That is, the Electoral College, which awards every state two votes at the outset for its U.S. senators, padded W.’s total. Take that senatorial two out of each state‘s vote in the total electoral tally, and Gore wins the Electoral College -- even with W. taking Florida -- by a 225-211 margin. It’s this small-state padding that explains the difference between the Electoral College vote, which will go to W. by a 271-267 margin if he carries Florida, and the popular vote, which Gore leads by about 337,000 -- three-tenths of 1 percent of the total vote.

But we knew this was a ticking time bomb. Political scientists and Democratic operatives have been writing for years that in an extremely close election, the Republican presidential candidate could prevail even though losing the popular vote because of this electoral affinity for small states. What we didn‘t know until this week -- what, to my knowledge at least, nobody was writing about at all -- was that the very right to vote for president is still entirely a creation of state legislatures, that it is not, fundamentally, our own.

There are many ways to give the weight of law to an anti-democratic bias, of course, and Judge N. Sanders Sauls found one on Monday that was likely less constitutionally grounded than Scalia’s. Sauls rejected the vice president‘s petition to count untallied ballots, and to look again at some dubiously tallied ones, in a ruling of such vehemence that Gore could count himself lucky he didn’t actually draw jail time.

The key to Sauls‘ decision was his finding that if he ordered a re-counting, “There is no credible statistical evidence and no other competent substantial evidence to establish by a preponderance a reasonable probability that the results of the statewide election in the state of Florida would be different” from the result that Katherine Harris certified. Sauls had already made sure this would be the case, first by refusing to inspect the 9,000 ballots from Dade County that the Gore attorneys argued could turn the election around, and second by forbidding David Boies from cross-examining a pro-W. statistician on what those ballots would show if they reflected the already counted ballots in Dade County. In short, Sauls ruled that Gore had failed to demonstrate that which he had refused to allow Gore to demonstrate.

But Sauls’ was the kind of routine contempt for scrupulous elections that over the past month has become all but synonymous with Floridian democracy in action. Antonin Scalia‘s case against popular rule, on the other hand, was a genuine bolt from the blue. Certainly, no attorney for W. had argued that the Florida Supremes had erred in assuming a constitutional bias toward suffrage in presidential elections. With the Gore folks constantly intoning, “Let every vote count,” it hardly seemed politic for W.’s guys to respond, “Actually, there‘s no right to vote for president.” That kind of argument, repeated often enough, might just dim the luster of W.’s appeal for votes during the next presidential campaign.

Antonin Scalia, of course, doesn‘t face voters, and his entire career seems bent on giving new life to every obscure anti-democratic statute that others have happily let slumber. The mistake of the Florida Supremes, he asserted, was their apparent belief in a popular franchise independent of the legislature. “There’s a right of suffrage in voting for the legislature,” he told Gore attorney Lawrence Tribe during Friday‘s arguments, “but Article II makes it very clear that the legislature can, itself, appoint the electors.”