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 Fridays 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, Scalias insistence on the non-existence of the publics right to vote for president was reflected in his courts decision.
Two contradictory lessons, then, are emerging from Novembers 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 its not even the case that any vote counts. Or at least, that theres no constitutional right to vote for president.
Its not news, of course, that the Supreme Courts 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; its 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 states vote in the total electoral tally, and Gore wins the Electoral College -- even with W. taking Florida -- by a 225-211 margin. Its 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 didnt 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 Scalias. Sauls rejected the vice presidents 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 didnt 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 Scalias 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, theres 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, doesnt 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. Theres a right of suffrage in voting for the legislature, he told Gore attorney Lawrence Tribe during Fridays arguments, but Article II makes it very clear that the legislature can, itself, appoint the electors.
This case was made at greater length last week during the hearing that Floridas Republican Legislature convened to see if it could indeed appoint its own slate of electors just in case a court-ordered recount ended in the intolerable anomaly of a Gore majority. Boalt Hall law professor John Yoo, a former clerk for Clarence Thomas, argued that the legislators would be remiss if they didnt prepare themselves to appoint a slate. Writing this week in the friendly confines of the The Wall Street Journal editorial page, Yoo elaborated his argument that the very notion of popular sovereignty is a partisan plot. Contrary to Democratic rhetoric, he asserted, the people have no right to vote for president or even the Electoral College; that power is only delegated to them by the grace of the legislature. In appointing the electors itself, the legislature would be directly taking up its constitutional functions again. Like Scalia, Yoo cites what is apparently the Supreme Courts only previous decision on this point -- in 1892, for McPherson vs. Blackmer, which leaves the choice of presidential electors unambiguously in the hands of the legislatures.
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In sum, the now month-long democratic dysfunction in Florida is likely to result not only in W.s presidency, but in the reassertion of one of the most elitist and anti-democratic features of our governmental structure, justly and understandably repressed for many decades. No wonder W. is in hiding: Hes taking power by virtue of votes not counted, because of the Electoral Colleges bias against one-person, one-vote, and now on the wings of a ringing assault on popular rule.
We Americans have a hit-and-miss record of enlarging our democracy. Lincoln took Jeffersons assertion of human equality and expanded it so that slavery came to be seen as inconsistent with the nations defining principles. Another hundred years had to pass before all citizens were assured of their right to vote (though weve learned from Florida in the past couple weeks that even that right is inconsistently applied).
Many of our original structures of government plod along unaltered to this day, though they are rooted in assumptions and biases that have been not only rejected, but in many instances forgotten. In 1892, when the court affirmed the power of the legislatures to choose electors, it was still the case that those legislatures elected United States senators. Not until the 17th Amendment to the Constitution in 1913 was that right given directly to the people. As for the Electoral College, it is a direct outgrowth of slavery. Had the constitution mandated a popular vote for president back in 1787, the North -- with a far larger population of white males than the South -- would have seen its presidential candidates routinely prevail. By apportioning electors in accord with a states population, however -- that is, by counting bodies, not voters -- the predominantly Southern drafters of the constitution enabled slave states to dominate presidential elections.
Today, conservatives like Scalia and Yoo cheerfully defend the rights of legislatures over people, but prudently decline to invoke the demophobic and aristocratic beliefs that led to the establishment of these rights. Conservatives like George Will defend the Electoral College but omit any glowing references to slavery when they make their case. No account of W.s rise, however, should rely on such a sanitized version of history. If he prevails, the first president of the 21st century will owe his office to the institutional legacies of the most repugnant biases of the 18th. The past, as Faulkner reminded us, isnt dead -- and when it comes to selecting our presidents, apparently it isnt even past.