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Ws the winner but why?

By George Sumner - posted Friday, 15 December 2000


Five weeks after the election we finally have a result. The Supreme Court’s decision, while controversial, brought the presidential campaign to a close. George W. Bush will take the White House – and in getting there he has been through more court proceedings than a death-row inmate from Texas. Yet a number of questions remain. Is Bush a legitimate President? Will he be a lame duck? Was the Supreme Court right to get involved? And what does this whole spectacle tell us about US politics.

For the first time since Eisenhower, the Republicans will control all elected parts of the federal government, but by the narrowest of margins. By as little as 200 votes in Florida, Bush gained the state’s 25 Electoral College votes. This brings Bush’s total to 271 Electoral College votes, one more than the minimum needed to claim the White House. Control of the presidency in turn means control of the Senate, with Dick Cheney casting the deciding vote in an evenly split upper house. The GOP also has a slight majority in the House. So while the Republicans have control of the institutions, there is no real sign that this state reflects public opinion.

With this in mind Governor Bush will have to work hard to gain his legitimacy. Having gained power in the most dubious way, the question is whether he will have the authority to get anything passed. Even in the most advantageous political circumstances many would question Bush’s competence as a leader. Personally, I don’t know which I find more frightening: the prospect of a Bush Presidency paralyzed through ineptness and wafer-thin majorities; or Bush actually being able to carry out his campaign promises. The last thing America needs is for Bush to use a slight advantage to pass the right-wing agenda, whether it is restrictions on abortion or massive tax cuts. Bush needs to be sensitive to the precarious political situation, and should appoint Cabinet members from the Democrats. With the lack of a popular mandate for either political party emphasized by the current crisis, the aim should be to build a coalition. Nothing will undermine the legitimacy of the highest office more than a series of polarizing partisan battles.

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The situation may also produce some surprising results. With the need to draw support from his own party, especially the Senate, the popular John McCain will become a powerful voice. The upshot of this is the unlikely scenario that Bush may sign campaign finance reform into law.

In the election campaign much was made of the President choosing the next three to four Justices of the Supreme Court. Yet no one then could have predicted the Justices of the Supreme Court choosing the next President. And for all the flack they took from the Democrats, Justices Scalia and Thomas certainly got their revenge. But was the Supreme Court right to get involved in the battle?

Some believe that the Supreme Court revealed itself to be just as much a political body as any other institution. After all, Republican Presidents appointed most of the Justices. I read foreign newspaper articles declaring relief in not having a politicized judiciary like America’s. Yet I see no problem in principle with the Supreme Court as an institution becoming involved. While making political decisions, the highest court should not be a partisan body and the appointing President is not always an indicator of how a Justice will decide a case. Most famously, President Eisenhower appointed a Republican Governor of California, Chief Justice Earl Warren, to the Supreme Court who later infuriated conservatives. More recently, George Bush Sr. appointed Justice Souter who votes with liberals more than the conservative bloc. The lifetime appointment should insulate each Justice from external political pressures.

As long as a federal issue existed for jurisdiction, the Supreme Court had the potential to be the best institution to resolve the dispute and bring legitimacy to the next President. The Supreme Court goes through a process of hearing both sides, allowing both candidates to put their best cases forward, to ask their lawyers tough questions and finally a period of deliberation. While under greater time pressure than normal in the present case, the process goes some way to creating an air of impartiality and fairness that had the potential to provide a solution allowing a candidate to legitimately claim the presidency.

While the institution of the Supreme Court could have provided a satisfactory resolution, a majority of the Justices failed to live up to the potential. Most troubling was the 5 Justices’ decision that there was no time to create a new standard for recounting the votes. The deadline for choosing the Electors could not be met because of the Supreme Court’s decision last Saturday to stay the recounts. The decision to stay the recount set the basis for Bush’s victory, making a recount within the deadline impossible. That this part of the decision was split 5-4 also sent out the wrong signal that the highest court is politically divided like the institutions.

The Supreme Court is no stranger to politically divisive issues, most notably abortion. But in the election appeals the Court had extra need to be sensitive, and not take a course of action that could be identified as prescribing an outcome favouring either candidate. The best outcome would have been a unanimous decision to extend the deadline for choosing Florida’s Electoral College members and to send the case back to Florida to devise a standard to fill in voter intention. Such a result would have been a compromise between both parties, rather than handing the prize to one candidate, and it would have let the final word go back to the people. Putting the final outcome contingent on the counting of every vote would have given popular legitimacy to the result and trumped the potential action of the Florida legislature.

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If the recounts had been allowed and Gore had been declared the winner, the Florida legislature would likely have enacted their own team of Electoral College members in favor of Bush. In the event of two rival slates for the Electoral College, the issue would then have to be decided by the US Congress – a scenario detonating both chambers into a brutal fight making the 1995 government shutdown look like the teddy bears’ picnic. Yet if the recounts and the standards had been mandated by the Supreme Court, it would have been hard for Congress to challenge those recount results in such a partisan way.

So what have the past five weeks meant for US politics? Whenever America stumbles, the rest of the world cannot help but seem secretly delighted. Take the impeachment, the figurehead of the world’s most powerful country being reduced to explaining the most embarrassing details of his personal life. I remember the British press lapping it up, and not just the usual tabloids. With the election crisis, most of us have received e-mails ranging from the Queen’s revocation of America’s independence, to news that Serbia is sending over a team to oversee the Florida recounts. The lack of finality in the elections may be a good source for jokes, but this time the USA is not making a fool of itself.

I’ll admit that the events in Florida and D.C. have been a rollercoaster ride, with the political advantage swinging between the two candidates like a pendulum. Unpredictable and unbelievable as the events have been, the recounts and legal proceedings show how seriously the USA takes the democratic process. Every effort is being taken to ensure that voter intentions have been ascertained under a system that is being applied consistently. What has occurred is that a set of unlikely circumstances have revealed some of the messier parts of the US political system: the lack of uniformity in voting procedures, and the outdated ballot machines – all of which would not have been a problem had the race not been so close. It is incredible that in a country of 270 million the election results comes down to just a few hundred votes.

Basically, the US has been thrown into unknown territory that was unlikely to have occurred and is unlikely to occur again. There is no straightforward answer as to how this should have been handled. Strangely enough, the result will probably give the Democrats a strong rallying cry for future elections, whereas Republicans will have to tread carefully and show moderation in office. From my own point of view that is the closest I can come to a happy ending from this extraordinary set of events.

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About the Author

George Sumner is a Lawyer based in London.

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