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The fuzzy math in the aftermath: vote counts and court battles for the US presidency

By George Sumner - posted Wednesday, 15 November 2000

A week ago I thought I’d be putting pen to paper now to give a simple round up of the election results. Maybe look at the masterstrokes of the victor and missteps of the loser. Yet a week after the election, the jury is still out and the American people have not given a clear verdict. For anyone living outside the USA, the situation is not very entertaining. The States promotes itself as the world’s leading democracy, but now it has a problem doing the very task it urges every other country to do.

Those of us watching the results saw a dramatic, yet frustrating night. Early on in the evening, the news stations called Florida for Gore. As one of the key swing states, the news was an indicator that Gore was on the way to winning. As more votes came in, it became clear that the race would be much tighter and Florida became an undecided state. Further on in the evening and several gin-and-tonics later, the TV stations declared George W. Bush the 43rd President. Al Gore even conceded the race. For about half an hour Republicans across the country were jubilant, and I was busy coming to terms with four years of the sentence-mangling smirker leading the free world.

Shortly after, I pulled my head out of my hands to see the Gore concession was retracted. While this moment may have restored my hope, we still have no better idea of who will succeed Bill Clinton. The events of that night raise questions about the way elections are covered. Each news station feels immense pressure to break the news first. But as this election shows, the prize of competition can be accuracy. The consequences are not simply to embarrass the TV stations for making mistakes or the campaigns for being misguidedly jubilant or gloomy. Declaring or projecting a result before the polls close in some states may unduly influence voter turnout – why bother to vote if the outcome has seemingly been determined.


What actually happened, however, no one could have predicted. In some states the declared victor’s margin over their opponent was slim. But the action has been taking place in Florida, where the lead for Bush was so thin that the result could be reversed after the votes have been checked in a hand count. In Florida, votes are cast by punching holes in ballot sheets counted by machine. The concern is that sometimes a machine will not read votes where a box has only been partially punched. As I write, the issue in Florida is whether a deadline for a recount will be enforced. If so, the machine count in some of the areas will stand. After this, there are issues of fairness over the butterfly ballots used in some parts of Florida – a format thought to have confused Gore supporters into voting for Pat Buchanan. In addition, the absentee ballots also have to come in, and then there are potential challenges where the results were close.

It is impossible to give an accurate description of the turn of events over here – they change by the minute. It can quite simply be described as a mess. The tone of the aftermath, while intensely political, is distinct from the campaign. The focus on voting process and margin of results in specific localities makes this more like a race for county freeholder rather than the highest office.

The two candidates are nowhere to be seen, nor are many of the political surrogates. Instead, the debate is largely between two former Secretaries of State, James Baker for Bush, and Warren Christopher for Gore. The use of two senior statesmen gives the battle a higher, more authoritative tone. But make no mistake, the stakes are high, and the battle is partisan.

Among the parties, there is much posturing to get the high ground. The GOP are making the point that voting machines are not vulnerable to the partisan temptations of humans, making machines most objective and reliable vote counters. The Democrats argue that machine can make mistakes and will not read some ballot sheets. It must be a coincidence that the hand counting is seen to give the Democrats an advantage, and machine counting appears to help the Republicans.

What is also interesting is that Republicans are challenging the hand counts in the federal courts. The Democrats, on the other hand, have argued that the way the state regulates its voting procedure is its own business. In all other areas of policy, it tends to be Republicans that argue to protect the state’s rights, and the Democrats that trumpet the federal government’s role in public affairs.

Such battling is undoubtedly testing the patience of the American people. It is getting to the stage where people are indifferent to the suspended animation in the country’s highest office. The backlash is not just in terms of interest; whichever party is seen as acting to delay the result will lose public sympathy. At first, the Democrats suffered by being seen to challenge the Florida count. However, the Republicans, by challenging the hand count in the courts, have lost whatever advantage they had in the public’s eyes.


The issues of personality that were prominent in the campaign have recurred in the aftermath. Some Republicans have attempted to portray Al Gore as a sore loser, giving the impression that their presidency will have to be prized out of Gore’s hands first. The Bush campaign is also trying to promote an air of inevitability that they will win after the votes have been counted and the legal challenges have been settled.

The crisis raises not just ultra-local issues of vote counting but also a dilemma between finality and accuracy. The office of President is designed to give the country strong leadership. A lengthy and bitter series of legal battles could undermine the perceived legitimacy of the office. The victor will be seen to have taken the office as a result of a court decision rather than a popular mandate. A final determination needs to be made, so the country can put the episode behind and focus on the future. However, the candidate who won under the rules should hold the office. If uncertainty lingers on during a presidency, that too can undermine the democratic authority of the office. The situation raises the question at what point should we stop dissecting the results and be happy with the outcome it delivers.

The other question that comes out of the current situation is electoral reform. Hillary Clinton has already brought the Electoral College into question. Directly electing Presidents would eliminate the potential for a president to be elected while being defeated in the popular vote. The chances of this happening are slim, but this year it may well be the case. It would prevent the current situation where the outcome of an election rests on one locality in a swing state. Yet, defenders of the Electoral College argue that it was designed to prevent small states being neglected. If the president were directly elected, the campaign would focus on the areas most densely populated with their supporters.

The Electoral College is just one part of a whole system of representation in the USA. At the federal level, the House of Representatives is supposed to the most up-to-the-minute snapshot of public opinion. The presidency is also about national leadership, and the system used to elect the president reflects that. While electoral reform should be considered, it should be done after a serious debate to take these considerations into account. Changing the Electoral College should not be done as a knee-jerk designed simply to avoid the current situation occurring again. Other more modest proposals for electoral reform include standardised ballot papers for the whole country. Whether any of these changes will happen is not known, but you can be sure that the 2000 election will be held up in future years as an example of the system’s deficiencies.

While I expected the race to be tight, no one could have expected it to be this close, or to drag on for this long. There are simply no real precedents to be followed, and the country finds itself in uncharted waters. The way this situation is resolved will have a major impact on the strength and perceived legitimacy of the presidency. My thoughts also go out to the candidates – normally the hours between the polls closing and result being declared are agonising enough. In the meantime, expect more argument on the merits of voting procedures by people who have an outcome firm in their minds. And hopefully soon we will have an outcome.

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About the Author

George Sumner is a Lawyer based in London.

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